R. v. Moore, 2010 ONSC 6414

CITATION : R. v. Moore , 2010 ONSC 6414 COURT FILE NO: 10-340000-162-0000 DATE: 20101122 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Jason Gorda , for the Crown ) ) - and - ) ) ) ) ) JEROME MOORE ) ) Aston Hall , for Jerome Moore ) ) ) HEARD: October 18 – November 3, 2010 Thorburn J . REASONS FOR JUDGMENT I. Overview [ 1 ] Jerome Moore is charged with the following offences: (

a) armed robbery of Steve Howland contrary to

section 344 of the Criminal Code ; (

b) pointing a handgun without lawful excuse contrary to

section 86 (

a) of the Criminal Code ; (

c) theft of a motor vehicle with a value over $5000.00 contrary to

section 334 (

a) of the Criminal Code ; (

d) theft of an Ontario licence plate with a value less than $5,000.00 contrary to section 354(1) of the Criminal Code ; (

e) possession of a motor vehicle valued in excess of $5,000.00 knowing the vehicle was obtained by the commission of an indictable offence contrary to

section 355 (

a) of the Criminal Code ; (

f) failure to stop the vehicle without reasonable excuse and in order to evade the peace officer contrary to section 249(1) (

a) of the Criminal Code ;

(

g) operation of a motor vehicle in a manner dangerous to the public contrary to section 249(1) (

a) of the Criminal Code ; (

h) operation of a motor vehicle involved in an accident with intent to escape civil or criminal liability and failure to stop the vehicle or identify himself contrary to section 252(1.1) of the Criminal Code ; and (

i) assault of Cory Fougere, Scott Ross and Sean McCutcheon using a motor vehicle contrary to

section 267 (

a) of the Criminal Code . [ 2 ] The identity of the perpetrator of these offences is the key issue in this case. [ 3 ] It is agreed that a 2009 black Acura TL (the vehicle) was stolen on February 2, 2009, from the Sherway car dealership and that this same vehicle was involved in an accident on February 4, 2009. The stolen vehicle was driven backwards into a police car with an officer in it, forward toward two officers on foot.

Moreover, according to the Agreed Statement of Facts, on February 4, 2009, the black Acura approached the intersection at Ellesmere Road and did not come to a stop along with the other traffic. The Acura changed lanes and struck several other vehicles causing damage to those other vehicles. The Acura also sustained serious damage. [ 4 ] The car salesman, Steve Howland, was the only eyewitness to the February 2, 2009, incident. [ 5 ] Five police officers saw the perpetrator for various periods on February 4, 2009, and Mr. Moore’s probation officer confirmed that Mr. Moore was in the area on February 4, 2009.

Four of those officers identified Mr. Moore as the perpetrator. Their descriptions though general are consistent with one another (the fifth officer caught only a fleeting glimpse and was not asked to identify the perpetrator through a photo lineup). [ 6 ] No evidence was lead by the defence. [ 7 ] For the reasons that follow, I find Mr. Moore not guilty of armed robbery or pointing a handgun without lawful excuse and guilty of the remainder of the offences set out above. II. Positions of the Parties [ 8 ] The Crown alleges that Jerome Moore stole the vehicle using a firearm on February 2, 2009.

Counsel also argues that he was the driver of the vehicle at all relevant times on February 4, 2009. The Crown submits that there is sufficient evidence to conclude that Mr. Moore was the perpetrator of the events in question. He was identified by several people independently and is placed in the area at the relevant time by both his parole officer and video surveillance. [ 9 ] Counsel for Mr. Moore submits that the description of the driver given by the car salesman and by the officers was very general, so general in fact that it could describe many young male black men.

No distinctive features were noted by any of the witnesses. Moreover, the distinctive “G Unit” emblazoned across the front of the sweater Mr. Moore was wearing on February 4, 2009, was not noted by any of the eyewitnesses to the February 4, 2009, incident. [ 10 ] Counsel for Mr. Moore suggests there were many people visiting the parole office on the afternoon of February 4, 2009, and that police searched only the first two names on the list to find visual descriptions that matched the information given by the police witnesses.

He suggests there may have been many others who fit the general description given by the police. [ 11 ] Counsel for Mr. Moore points out that although some fingerprints were found on the sunroof of the vehicle, these were not matched to Mr. Moore and there is no further forensic evidence that links Mr. Moore to the stolen vehicle. [ 12 ] He further submits that the identification evidence is unreliable and alone, is insufficient to enable me to make a finding of guilt beyond a reasonable doubt. [ 13 ] Counsel for Mr. Moore submits that there is insufficient evidence to convict Mr.

Moore on any of the charges laid against him. III. The Evidence Adduced [ 14 ] The following witnesses testified on behalf of the Crown: (

a) Steve Howland, the car salesman at Acura Sherway from whom the vehicle was stolen; (

b) Officers Fougere, Ross, Sharma and McCutcheon were in the parking lot when a black male approached the vehicle, entered the vehicle, was asked to step out of the vehicle by police and instead, drove the vehicle backwards into another vehicle, drove the vehicle forward nearly missing Officers Fougere and Ross and fled the parking lot at a high rate of speed; (

c) Officers Hain and Popov were involved in a police chase on February 4, 2009, near Warden Avenue and Ellesmere Road, witnessed the collision of the stolen vehicle with others, and caught a brief view of the driver of the vehicle; (

d) Hernani Pereira, Mr. Moore’s probation officer, saw him on February 4, 2009, near the address where the February 4, 2009, incident took place; (

e) Officer Stewart conducted the forensic analysis; and (

f) other Officers conducted the photo lineup.

Steve Howland’s Evidence [ 15 ] Steve Howland testified that a customer came to the Acura Sherway dealership to test drive a new Acura TL on February 2, 2009. [ 16 ] Before taking the man on a test drive, Mr. Howland spoke to the man at the dealership and took a photocopy of the man’s licence. He noted at the time that the person was African-Canadian from Alberta, but did not notice that the picture on the driver’s licence was not the same as the person who came to the dealership. [ 17 ] The customer got into the driver’s seat and Mr. Howland sat in the front passenger seat.

The customer drove the vehicle to the Gardiner Expressway. The driver put on the hazard lights and drove onto the shoulder of the highway. [ 18 ] Mr. Howland testified that, I’ve never seen a gun, I’ve never felt a gun, I’ve never been around a gun when it’s cocking but I’ve seen movies, I play video games. If I was to take an estimated guess I would say that I heard a gun cocking. At which point his hands started coming across his body. At which point I saw a pistol in his hands again coming across his body. A pistol coming across his body, coming towards me, towards me.

As it got within, say, a foot facing me, pointing at me, I---I’m assuming just out of just reaction, I turned my head to the passenger side of the vehicle, looking out the window. [ 19 ] The driver then shouted three times to “get the fuck” out of the car. The car then left down the highway. [ 20 ] Steve Howland said he estimates that approximately five minutes passed between the time he shook hands with the customer and the time they entered the vehicle for a test drive. Thereafter, they spent ten to fifteen minutes in the car. During the drive, Mr.

Howland was sitting in the front passenger seat and the perpetrator was in the driver’s seat. Mr. Howland was about eight inches from the driver. [ 21 ] Mr. Howland got a great look at the person’s face. Mr. Howland wears prescription glasses and was wearing them on the day of the incident. The incident took place between 11:00 am and 1:00 pm on February 2, 2009. [ 22 ] On February 11, 2009, Mr.

Howland met with Officer Walker and described the perpetrator as a male, five feet nine or ten inches, clean shaven, very dark skinned, black, dark eyes, with no scarring or distinctive features, short hair cut in a “fresh” line across his head and presented as a “normal guy.” He also told Officer Walker the person was wearing black pointed dress shoes, black dress pants, a black three quarter length coat with the collar turned up and was not wearing glasses or jewelry. This description was noted by Officer Walker in her notes. [ 23 ] On April 2, 2009, Mr. Howland identified Jerome Moore from a photo lineup.

The only difference between the person he saw that put a gun to his head and the photo in the photo lineup is that in the photo his hair was a little longer. Officer Fougere’s Evidence [ 24 ] At 1:58 pm on February 4, 2009, Officer Fougere was parked in a lot at 2155 Lawrence Avenue East in an unmarked vehicle when he observed a black Acura travelling eastbound on Lawrence Avenue pull into the parking lot at high speed, make a two point turn and fly out of the parking lot at high speed.

He called in the licence plate and was advised that the licence plate was stolen. [ 25 ] As the car turned around in the parking lot, the car drove right at him and he got a clear look at the person’s face for about five seconds. The driver was a male, black with short black hair, some facial hair and he was wearing a grey sweater. [ 26 ] At 3:31 pm, Officer Fougere saw the same person leave the rear door of a medical building near the parking lot. Officer Fougere again noticed that the person was a male, black with short black hair wearing a grey sweater.

Officer Fougere did not see the words “G Unit” written across the driver’s sweatshirt. No facial descriptions were ever recorded in his notebook. [ 27 ] As the male got into the vehicle with the stolen plates, Officer Fougere ran toward the vehicle and yelled, “Police - don’t move!” The male saw him and quickly jumped into the driver’s seat of the vehicle. He looked up and reversed the car into a parked vehicle behind it. Officer Fougere smashed on the driver’s side window as hard as he could to break the window, but to no avail.

As the car started moving, he was in front of the vehicle and pulled out his firearm and pointed it at the driver. The driver lifted his hands from the steering wheel and then moved the car forward. Officer Fougere jumped out of the path of the oncoming vehicle. [ 28 ] Observation of the male from the time he exited the building, walked to the car, started the car, to when he left the parking lot, was fifteen to twenty seconds.

As he was looking at the driver from the other side of the car window he was less than two feet from the driver. [ 29 ] At approximately 8:00 pm, Officer Fougere participated in a photo lineup and identified Mr. Moore as the driver of the stolen vehicle. He noted that the person he selected (Mr. Moore) had big lips, while looking at photo number seven. Officer McCutcheon’s Evidence [ 30 ] On February 4, 2009, Officer McCutcheon parked his vehicle in the parking lot at 2130 Lawrence Avenue East on an unrelated matter.

At approximately 1:58 pm, he witnessed a new model black Acura TL drive very quickly into a nearby parking lot, turn around and leave. [ 31 ] He had binoculars and observed that the driver was alone in the vehicle. The driver was a male, black, with short black hair wearing a grey sweater. Officer McCutcheon was unable to see his face with any degree of certainty as his view was obstructed by traffic going back and forth. He was unable to say how long he viewed the person. He estimates that the person was about six feet tall

and weighed about 180 pounds. [ 32 ] At 3:25 pm, Officer McCutcheon returned to the same parking lot and parked his vehicle behind the Acura TL. [ 33 ] At 3:31 pm, a male was walking northbound; from the side he noted that the person was male, black, about 180 pounds, six feet tall and wearing a grey sweater. After the male got into the vehicle, he reversed his vehicle into Officer McCutcheon’s vehicle, and as he did so, Officer McCutcheon saw the driver’s face from the front and side for a few seconds. [ 34 ] He identified Mr. Moore as the driver in a photo lineup conducted at 8:18 pm on February 4, 2009.

The next day he attended at Mr. Moore’s home to arrest him. At that time, he recognized him as the same person he had identified in the photo lineup the night before. Officer Ross’ Evidence [ 35 ] Officer Ross testified that at approximately 3:31 pm on February 4, 2009, he was instructed to participate in a take-down of a suspect who was seen walking toward a vehicle with stolen plates in a parking lot just outside a Swiss Chalet at 2130 Lawrence Avenue East. Officer Fougere described the person as male, black, six feet tall, 180 pounds and wearing a grey sweater.

Officer McCutcheon’s vehicle was parked behind the vehicle in question. Officer Ross parked his vehicle one to two car lengths behind McCutcheon’s. The front of the vehicle was behind a three to four foot high snow bank. [ 36 ] As the person was getting into the stolen vehicle, Officer Fougere yelled “Police - don’t move!” Officer Fougere put his wallet badge against the driver side window of the Acura and banged on the driver side window with his police radio. Officer Ross was six to ten feet from the vehicle on the driver side of the vehicle and was able to see into the front of the vehicle.

He observed the driver entering the vehicle and thereafter for two to three seconds. [ 37 ] The driver put the vehicle into reverse, accelerated and smashed into a parked vehicle that in turn smashed into a third vehicle. Officer Ross feared for his life and therefore drew his service pistol and pointed it at the accused. The accused put up both hands from the vehicle. He and the driver locked eyes for two to three seconds. The driver then put his hands back on the steering wheel and drove away. He and Officer Fougere jumped out of the way to avoid being hit. The vehicle drove off.

The total time spent observing the driver was ten to fifteen seconds. [ 38 ] The driver looked about six feet tall with short hair and was wearing a grey sweater. At trial he testified that the driver’s eyes were wide open, he had a youthful look and a dark black complexion. Officer Ross picked Jerome Moore out of a photo lineup completed at 7:45 pm on February 4, 2009.

Officer Sharma’s Evidence [ 39 ] Officer Sharma testified that shortly after 1:48 pm on February 4, 2009, he was advised that an Acura TL vehicle with licence plate BCMD 364, reported stolen, had been located in the Swiss Chalet parking lot at Birchmount Road and Lawrence Avenue. As he approached this location, he saw was a dark Acura TL vehicle with front-end damage drive westbound at a high rate of speed out of the west lot exit and cross right in front of his vehicle. At that point he was approximately six feet from the driver and saw him for one to two seconds. There was no tint on the window.

There was more than ample light. [ 40 ] The driver had a short afro and a scruffy chin-strap beard that came along the jaw line and covered the chin. His face was thin- looking through the bottom of the cheeks. The top part of his cheeks was puffy. His skin colour was darker than medium black. The driver had a short afro, a symmetrical face, thin nose, brown eyes and full lips (the only thing written in his notebook was male black, scruffy chin-strap beard and thin-looking face).

He could not tell if the driver was wearing any jewelry and he was unable to see his hands. [ 41 ] Officer Sharma chased the driver in his vehicle up to Warden Avenue and Ellesmere Road where the car turned without stopping. The vehicle was going approximately 100 km/hr in a 60 km/hr zone. He noted again that the driver had a scruffy chin strap beard. The chase was called off. [ 42 ] The evening of February 4, 2009, Officer Sharma participated in a photo lineup and identified Mr. Moore as the driver of the vehicle.

Officers Hain and Popov Evidence [ 43 ] Officers Hain and Popov were asked to assist with an arrest. They chased a black Acura TL travelling at high speed along Warden Avenue. The vehicle stopped at a red light in the left hand turn lane near Canadian Road. The officers got out of the car to execute a take-down but the car sped away at a high rate of speed. They both saw a lone driver who was a male and black. Officer Popov said the driver had short black curly hair, brown eyes and appeared to be in his early twenties.

He saw the driver for a couple of seconds from a distance of about ten feet. [ 44 ] Neither Officer Hain nor Officer Popov participated in a photo lineup. Detective Brinn’s Evidence [ 45 ] Detective Brinn prepared a photo lineup used by the officers who identified Jerome Moore as the driver of the vehicle. In preparing the photo lineup, Detective Brinn used a photo lineup that was created in 2008. He used the pre-existing lineup because it was a recent lineup and he had no concerns about it as the description given of the perpetrator matched the description of Mr. Moore in the photo. Twelve photos were selected.

The quality of the photos is reasonably good. The photo lineup was conducted by another officer. The order of the photographs was shuffled. The factors used to create the earlier lineup were male, black, 22 years old (+/- 2 years), 178 centimetres tall (+/- 5 cm), 81 kg (+/- 10 kg), with brown eyes, short hair and a moustache.

[ 46 ] The entire photo lineup process was recorded on videotape. Officer Mathews’ Evidence [ 47 ] Officer Mathews obtained a list of individuals who visited the probation office between 1:57 pm and 3:40 pm. He was also told that the driver of the vehicle in question was male, black, with a short to medium size afro and some facial hair. The first person on the probation list was white and was therefore eliminated. The second person was a black male. Officer Mathews therefore ran a check and found a photo of that person.

He was a male, black, with short to medium sized afro and facial hair; the person matched the description that had been given to him. Officer Mathews did not seek to identify any of the other persons on the probation list. Officer Stewart’s Evidence [ 48 ] Officer John Stewart is an expert in fingerprint analysis. He examined the interior and exterior of the vehicle in question. The exterior was unsuitable to be fingerprinted due to the salt and road spray. Three fingerprints were found on the interior sunroof, none of which matched Mr. Moore’s fingerprints.

Hernani Pereira’s Evidence [ 49 ] Hernani Pereira had been Mr. Moore’s probation officer since September of 2008. He saw Mr. Moore on February 4, 2009, at the parole office near the parking lot where the stolen vehicle was parked. The sign-in sheet at the parole office shows that Mr. Moore arrived at 2:05 pm (as per the staff note). Mr. Pereira saw him for eight to ten minutes. On that day, Mr. Moore was wearing a light grey sweater that looked like a refined gym outfit with the words “G Unit” on the front. Mr. Pereira believes the surveillance video in the doctor’s office building depicts Mr. Moore.

Although the face cannot be clearly seen in the videotape, Mr. Pereira recognized Mr. Moore’s distinctive gait and the sweater he wore. [ 50 ] Mr. Pereira testified that on February 4, 2009, Mr. Moore did not have a full beard. He recalled that Mr. Moore had a chin strap beard at some point, but he did not see it on February 4, 2009. He did recall that he had a bit of facial hair somewhere. Surveillance Videos [ 51 ] Various surveillance video tapes were taken from cameras in and around the building near the parking lot.

One of the tapes shows a black vehicle entering the parking lot at 2130 Lawrence Avenue East at approximately 1:56 pm. At 1:58 pm, a person can be seen walking in front of the building. The person appears to be a male, black, wearing a grey hooded sweater and dark trousers. [ 52 ] The building complex at this address contains a medical services building and a Swiss Chalet restaurant. At 2:30 pm, a black male wearing a grey sweater was seen going into the medical building. At 2:35 pm, a black male with dark pants and a grey hooded sweater and short hair was seen entering the Swiss Chalet.

At 3:01 pm, the individual left the Swiss Chalet. At 3:31 pm, the video depicts the individual leaving the medical building. [ 53 ] Mr. Moore was arrested at his home on February 5, 2009, without incident. No search of his premises was conducted and no weapon was found on his person at the time of his arrest. IV.

Analysis of the Law and Conclusion [ 54 ] An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of each offence beyond a reasonable doubt. [1] Something less than absolute certainty is required and something more than probable guilt is required in order to convict. [2] [ 55 ] There must be a careful assessment of the evidence before determining whether guilt has been established. [3] Parts of a witness’ evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence. [4] [ 56 ] In R. v.

Bouvier , Martin J.A. for the Court held that, The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence, or the separate pieces of evidence which make up the Crown’s case, but to the total body of evidence upon which the Crown relies to prove guilt….Although this proposition has generally been enunciated in cases depending upon circumstantial evidence, I am satisfied that it applies equally where the case depends upon direct evidence or is made up of both direct and circumstantial evidence. ….

The jury might not be satisfied beyond a reasonable doubt on either the visual identification or the licence number standing alone, but viewed together, the one in relation to the other, those pieces of evidence might satisfy them beyond a reasonable doubt that the respondent was the assailant. [5] [ 57 ] “The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial

consideration and comment.” [6] It is often the very certainty with which credible witnesses give their eyewitness testimony that causes triers of fact to mistake confidence with reliability. [7] One must be particularly careful therefore in considering identification evidence. [ 58 ] Some of the key factors relevant to a determination of the reliability of identification evidence where the honesty and sincerity of the witnesses is not at issue are as follows: [8] (

a) Description : i. Is the description general or vague or is there a description of detail including distinctive features of the suspect and his or her clothing? [9] ii. Has the witness described a distinguishing feature of the suspect not shared by the accused or conversely has the witness' description of the suspect failed to include mention of a distinctive feature of the accused? iii. Was the opportunity to see the suspect a fleeting glimpse or something more substantial? [10] iv. Does the description have a factual underpinning or is it just a statement of opinion such as, “that is the man”? [11] (

b) Familiarity with the Suspect : Was the suspect a complete stranger or known to the witness? [12] (

c) Conditions under which the description was given : i. Was the setting in the darkness of night or in well-illuminated conditions? ii. Was the sighting by the witness in circumstances of stress? [13] iii. Was the identification process conducted fairly and using appropriate pretrial identification procedures? [14] iv. Did the witness commit the description to writing or report the description to the police in a timely way? [15] (

d) Contamination : Were there intervening circumstances, capable of tainting or contaminating the independence of the identification, between the witness' initial sighting of the suspect and the rendering of the descriptive account to the police or the court? (

e) Confirmation by Others or Independent Evidence : Is the eyewitness identification unconfirmed? [ 59 ] In this case there is no suggestion that the witnesses are dishonest or that they acted in any way improperly. The suggestion is rather that their testimony is unreliable and that there is insufficient corroborative evidence to support any convictions. [ 60 ] I am mindful of the high onus of proof that must be met to support a criminal conviction and of the particular frailties of identification evidence. The Descriptions [ 61 ] I have considered the descriptions provided on February 2 and 4, 2009, including the following: (

a) Mr. Howland was the only person to identify Mr. Moore as the person who stole the vehicle on February 2, 2009. However, he saw him close up for twenty minutes (fifteen of which was from a distance of about eight inches); (

b) The same vehicle that was stolen on February 2, 2009, was involved in the February 4, 2009, incident; (

c) Four officers identified Mr. Moore as the driver of the vehicle on February 4, 2009, and provided descriptions of him on that date. The officers saw him for a period of a few seconds to about fifteen seconds; (

d) All of the eyewitness descriptions were general descriptions of the perpetrator’s facial features and clothing worn ( the descriptions provided by three witnesses: Howland, Fougere, and Sharma, are set out in the chart attached as Appendix A); (

e) None of the eyewitnesses described distinctive features but Mr. Moore does not have distinctive facial or body features; (

f) Although none of the witnesses to the February 4, 2009, incident noticed the words, “G Unit” written on the sweater, for much of the time, Mr. Moore was seated in the vehicle; and (

g) All of the descriptions given were consistent in material respects. Familiarity with the Suspect

[ 62 ] None of the witnesses had any familiarity with the suspect. Conditions Under Which the Observations were Made [ 63 ] The conditions under which the descriptions were given are as follows: (

a) The situation under which the observations were made was stressful; (

b) All of the observations took place during the day time under good lighting conditions; (

c) Mr. Howland provided a brief synopsis of what happened on February 2, 2009, to police on the day the incident happened. He provided a more fulsome account on February 11, 2009, and he identified Mr. Moore in a photo lineup on April 2, 2009; and (

d) The police witnesses to the February 4, 2009, incident wrote notes of their general descriptions of the perpetrator. Four officers participated in a photo lineup process on the same day the incident occurred and the photo lineup process was conducted fairly. Contamination of the Evidence [ 64 ] T here were no intervening circumstances, capable of tainting or contaminating the independence of the identification, between the police witness' initial sighting of the suspect on February 4, 2009, and the descriptive accounts set out in the police notes and the photo lineups later the same day.

Moreover, although not ideal, I do not find there to be contamination in respect of Mr. Howland’s identification either. Corroboration of the Evidence [ 65 ] I have also considered the independent corroborative evidence that: (

a) On February 4, 2009, in the early afternoon, Mr. Moore was at the general location of the incident where he met his probation officer, a person he had met with many times before. The probation officer confirmed the general description of Mr. Moore and the clothing he was wearing. (

b) The clothing description given by Mr. Pereira is consistent with the unknown gentleman in the video clips wearing a grey sweater and dark trousers, with a distinctive gait that was in the Swiss Chalet and in the medical building adjacent to the parking lot in which the stolen vehicle was parked near the time and on the date in question. [ 66 ] Notwithstanding the frailty of identification evidence, the above evidence taken together, satisfies me beyond a reasonable doubt that Mr.

Moore stole the black Acura vehicle from the Sherway dealership on February 2, 2009, and on February 4, 2009, drove that same vehicle in a dangerous fashion, failed to stop the vehicle without reasonable excuse and in order to evade Officer Fougere, drove his car backward into Officer McCutcheon’s vehicle and then forward toward Officers Fougere and Ross who were standing in front of the vehicle. [ 67 ] Five descriptions of the perpetrator were materially consistent; four of whom identified Mr. Moore. These descriptions were corroborated by Mr. Pereira’s identification of Mr.

Moore as the person wearing that specific clothing and with that distinctive gait in the video surveillance footage; the person he met with that same day in that same area. There is no suggestion of collusion or other improper behaviour on the part of any of the Crown witnesses. I find their evidence to be both credible and reliable. [ 68 ] I also note that although Mr. Howland was the only witness to the February 2, 2009, incident, his description of the features of the perpetrator are consistent with those described by the officers on February 4, 2009.

As such, they act as some corroboration for his description. [ 69 ] I am not however, satisfied beyond a reasonable doubt that on February 2, 2009, Mr. Moore was carrying a handgun or that he pointed it at Mr. Howland. While I do not doubt Mr. Howland’s sincerity, he is not familiar with guns and saw and heard something only fleetingly. Out of great fear for his safety, he quickly turned his head away from Mr. Moore toward the window. As such, I am not satisfied beyond a reasonable doubt that Mr. Moore was armed or that he pointed a handgun at Mr. Howland. [ 70 ] For these reasons, I find Mr. Moore: (

a) not guilty of armed robbery of Steve Howland contrary to

section 344 of the Criminal Code ; (

b) not guilty of pointing a handgun without lawful excuse contrary to

section 86 (

a) of the Criminal Code ; (

c) guilty of theft of a motor vehicle with a value over $5000.00 contrary to

section 334 (

a) of the Criminal Code ; (

d) guilty of theft of an Ontario licence plate with a value less than $5000.00 contrary to section 354(1) of the Criminal Code ; (

e) guilty of possession of a motor vehicle valued in excess of $5000.00 knowing the vehicle was obtained by the commission of an indictable offence contrary to

section 355 (

a) of the Criminal Code ;

(

f) guilty of failure to stop the vehicle without reasonable excuse and in order to evade a peace officer contrary to section 249(1) (

a) of the Criminal Code ; (

g) guilty of operation of a motor vehicle in a manner dangerous to the public contrary to section 249(1) (

a) of the Criminal Code ; (

h) guilty of operation of a motor vehicle involved in an accident with intent to escape civil or criminal liability and failure to stop the vehicle or identify himself contrary to section 252(1.1) of the Criminal Code ; and (

i) guilty of assault of Cory Fougere, Scott Ross and Sean McCutcheon using a motor vehicle contrary to

section 267 (

a) of the Criminal Code . ___________________________ Thorburn J. Released: November 22, 2010 Appendix A MR. HOWLAND Source Date and Time Noted Observation method or source of description Description (direct quotations from transcripts) Pinpoint (transcript page) Testimony from Examination In-Chief February 2, 2009 between 11 am and 1 pm Conversation with the ‘customer’ for four minutes and sitting beside this ‘customer’ in the front seat of the car for 10 to 15 minutes He identified Mr. Moore as the ‘customer’ who stole the Acura from his dealership 3 “height was between I’d say 5’9” and 5’10”.

I also guessed his weight at 160 pounds” 32 “I thought he was skinny. But again because of his attire it was not the easiest answer in giving a weight ... if he was 10 or 15 pounds heavier I don’t think I would have been able to tell you. If he was 10 or 15 pounds lighter I certainly don’t think I’d be able to tell you” 32 “He was wearing black dress shoes with a pointed tip at the end of the shoe. He was wearing black dress pants.

He was wearing what I believe to be a cotton coat...three quarter length...It was black” 32-33 “The collar on the coat again was popped up...was just around the jaw line... the profile would be the only part that was ever covered. And again those parts were exposed at different points” 33-34 “He was a dark skinned African American” 35 “I remember thinking that he must have just received a haircut because his hair was very, very short, just longer than being completely shaven off. His hair was also, what I think is referred to as, lined up.

So any imperfections in the hairline are being corrected with clippers or a razor” 35 “All of his features when I remember just looked---not to say ordinary but they looked normal” 35

Source Time Noted on February 4, 2009 (real times) Observation method or source of description Description (direct quotations from transcripts) Pinpoint (transcript page) Officer’s Notes 1:52 pm Video of Probation Office at 2131 Lawrence Avenue East “Dark pants, grey sweater with hood; it’s got G-Unit written across...short dark hair, dark skin” 80(direct) 1:58 pm Visual observation from undercover van, 16 to 20 feet distance, for five seconds, in the parking lot at 2155 Lawrence Avenue East “male black driver, ...short black hair, and he was wearing a grey sweater” 12 (direct), 13-14 (cross) 2:35 pm Video surveillance from Swiss Chalet location (Exhibit 22) “male black, dark pants, grey sweater with a hood, short hair approximately six feet” * no note of ‘G-Unit’ on front 56 (direct) April 2, 2009 Photo Lineup He identified Mr.

Moore as the person he previously identified in the photo 42 “The only difference between that picture and the person that I saw that day was his hair was a little bit longer.

Again, I was stating earlier that his hair was really short” 51 POLICE CONSTABLE SHARMA Source Time Noted on February 4, 2009 (real times) Observation method or source of description Description (direct quotations from transcripts) Pinpoint (transcript page) Testimony from Examination In-Chief with aid of Officer’s Notes After 1:48 pm Police radio “Male black with a chinstrap scruffy beard” 6 After 1:48 pm Visual observations from squad car on Howden Road, approximately six feet away, for one to two seconds “Short afro” 18 “Chin-strap beard...It was scruffy” (x3 in testimony) 18, 25, 32- 33 “It came along the jaw line, covered the chin” 18 “His face was thin-looking ... through the bottom of the cheeks” 18 “The top part of his cheeks are puffier” 19 “A straight nose.

His face was very symmetrical” 19 “Colour of his skin...it’s black...just above medium [meaning] darker” 19 “Short afro, a symmetrical face, thin nose, brown eyes. Uh, his lips were a little full” 19 Testimony from Examination In-Chief 8:03 pm Photo Lineup (looking at photo number seven) “male, black, brown eyes, straight nose, thin face through the bottom [of the] cheek -- puffy cheekbones, like really prominent, very symmetrical face, puffy lips, young looking” 40-41 DETECTIVE CONSTABLE FOUGERE

3:31 pm Visual observation from undercover van at the medical building/Swiss Chalet parking lot (2130 Lawrence Avenue East) “male black wearing grey sweater exiting the medical building” (4x in testimony, accompanied by “that is the same male I saw earlier”) * no note of ‘G-Unit’ on front 16 (direct), 19(direct, x2), 26 (cross) Approximately 8:00 pm Photo Lineup (looking at photo number seven) “photo number seven as the same male I saw ... he had a bit of facial hair in the picture, same as what the male had in the car” 90 (direct) Testimony from Examination In-Chief *most of this content was prompted by live description of video evidence, thus some are replicated in his notes and some are not Approximately 1:57 pm Video from medical building at 2130 Lawrence Avenue East (Exhibit 14A) “He’s male, grey sweater, he’s got the hood up, dark pants” 45 “It’s the same body stature ... like he wasn’t skinny but he’s not thick.

It’s the grey sweater” 45 1:59 pm Video (unknown – of person walking) “male black, short hair, he’s got a grey sweater, the hood’s down, and dark pants” (x3 in testimony) 64, 67, 69 2:30 pm Video from medical building at 2130 Lawrence Avenue East (Exhibit 14B) “It’s a male that fits the same physical features and wearing the same clothing” 50 2:35 pm Video surveillance from Swiss Chalet location (Exhibit 22) “It’s the same [individual], the short hair, it’s the grey sweater, it’s the same type of build” 62 2:35 pm Photo stills from video surveillance from Swiss Chalet location (Exhibit 21A) “...male black with a grey sweater.

The hood’s down hanging from the back...a male black medium thickness.

He’s not fat; he’s not skinny; short black hair; wearing a grey sweater...It looks like there’s something on the front, maybe words...” 60-61 3:01 pm Video surveillance from Swiss Chalet location (Exhibit 22) “now walking out, again described as male black, short hair, and he’s got a – sort of grey sweater with something on the front” 63-64 3:31 pm Visual observation from undercover van at the medical building/Swiss Chalet parking lot at 2130 Lawrence Avenue East “Didn’t make note of his height – it’s too far away – but based on his build, he wasn’t a chunky male and he wasn’t like thin, thin, but medium build” 29 Approximately 3:31 pm Visual observation from under two feet away from the subject, between a car window at 2130 Lawrence Avenue East “This was the same individual I saw earlier, again, male, black, short hair, wearing the grey sweater” 35 Approximately 8:00 pm Photo Lineup (looking at photo number seven) “definitely a thin moustache” 91 “might be a little bit of growth...[in] the chin area” 91 “large lips, uh, thin face” 90 Testimony on Cross- Examination 1:58 pm Visual observation from undercover van, 16 to 20 feet distance, for app.

Five seconds, in the parking lot at 2155 Lawrence Avenue East “He [the suspect] wasn’t old like you [defence counsel], no” 15 “late 20’s” 20 2:30 pm Video from medical building at 2130 Lawrence Avenue East (Exhibit 14B) “[the male walking] fits the description and the build and the way the person moved to what I observed [in person]” 69

“he fit the same physical – the stature I guess” 70 3:31 pm Visual observation from under two feet away from the subject, between a car window (2130 Lawrence Avenue East) “no, he wasn’t wearing gloves at that point anyway” 43 Approximately 8:00 pm DVD of Photo Lineup (looking at photo number seven) “Oh yeah, the eyes. And the biggish lips” * Not in notes 90 CITATION : R. v. Moore , 2010 ONSC 6414 COURT FILE NO: 10-340000-162-0000 DATE: 20101122 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - JEROME MOORE ______________________________________ REASONS FOR JUDGMENT ______________________________________ THORBURN J.

RELEASED: November 22, 2010 [3] R. v. Stewart (1994), (ON CA), 18 O.R. (3d) 509 at 517 (C.A.), leave to appeal to S.C.C. refused, [1994] S.C.C.A.No. 290; R. v. Oziel, [1997] O.J. No. 1185 at para. 8 (C.A.). [5] (1984), (ON CA), 11 C.C.C. (3d) 257 at 264 & 272 (C.A.); See also R. v. Gagnon (2000), (ONCA), 147 C.C.C. (3d) 193, [2000] O.J. No. 3410 at para. 17 (C.A.), wherein Weiler J. for the Court held that “although a piece ofevidence viewed in isolation may not constitute corroboration, a number of pieces of evidence viewed collectively may constitutecorroboration.”