Accused found not guilty of robbery charges and firearm offenses, but convicted on driving a vehicle while prohibited

Overview

The accused was facing a multitude of charges pertaining to an armed robbery and theft of a motor vehicle. The trial primarily focused on the issue of identity and alibi evidence. The accused was acquitted of the robbery charges and firearm offences, but convicted of driving a vehicle while prohibited.

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R. v. [Redacted]

Ontario Judgments

Ontario Court of Justice

[Redacted] J.

Heard: October 1, 6-8 and 14, 2020.

Judgment: October 29, 2020.

Court File No.: [Redacted]

[2020] O.J. No. [Redacted]  |   2020 ONCJ [Redacted]

Between Her Majesty the Queen, and [Redacted]

(75 paras.)

Counsel

[Redacted], counsel for the Crown.

[Redacted], counsel for the accused.

 

 

Reasons for Judgment

[Redacted] J.

1. At 3:24 p.m. on April 16, 2019, [Redacted] called 9-1-1 to report that he had been robbed at gunpoint of his parents' blue 4-door Toyota Yaris by a man named "[Redacted]". After having been left at the side of a rural road, [Redacted] had walked "less than 10 minutes" to get to a phone so that he could call the police.

 

2. Within a few hours of [Redacted]'s 9-1-1 call, the police received some calls about a woman in the parking lot of the plaza at [Redacted] who was in apparent medical distress. That plaza was a short drive away from where [Redacted]'s vehicle had been taken. The reports had indicated that a man had helped put the woman into the back seat of a car before driving away. The description of the vehicle seemed to match [Redacted]'s Toyota Yaris. When police attended at the plaza, they discovered that [Redacted] had been at the pharmacy in the plaza from "about 3 pm to 4:35 pm" getting his prescribed methadone.

 

3. Police database checks showed that a bail order had been issued the previous day requiring [Redacted] to reside at [Redacted] in [Redacted]. When officers attended at that address in the early evening hours of April 16, 2019, they discovered [Redacted]'s Toyota Yaris in the building's back parking lot.

 

4. Based on the information which officers had gathered over the span of the few hours since [Redacted]'s initial report, the police successfully applied for a search warrant for [Redacted]. That search warrant was executed at approximately 3:45 a.m. the next day (i.e., April 17, 2019). During that search, police found [Redacted] and his girlfriend, [Redacted], asleep in one of the two bedrooms in the apartment. Inside that bedroom, the police also located an imitation firearm, a flare gun, some flares, a cross-bow, some knives and a baton.

 

5. At the relevant time, [Redacted] was the subject of various court orders prohibiting him from driving, from being in possession of car keys and from being in possession of any weapons or ammunition.

 

6. [Redacted] was arrested and charged with robbery, pointing a firearm, using an imitation firearm during the commission of an offence, theft of a motor vehicle, driving while prohibited, failing to comply with his bail and possessing weapons and ammunition while prohibited. [Redacted] elected to have a trial in the Ontario Court of Justice. Although he attempted to subsequently change that election in March of 2020, I ruled that, in the circumstances of this case, the timing of [Redacted]'s attempted re-election required the Crown to consent. That consent was not forthcoming.

 

 

7. At [Redacted]'s trial before me, the Crown called five civilian witnesses: [Redacted](the main complainant), [Redacted] (the woman who had been in the Yaris from the moment [Redacted] claimed to have picked up "[Redacted]" on April 16, 2019), [Redacted] (a young man who had seen [Redacted] very intoxicated in a vehicle similar to the Yaris that was parked at the [Redacted]), [Redacted] (a nurse who was working at the [Redacted] pharmacy on April 16, 2019 and who was familiar with [Redacted]), and [Redacted] (a taxi driver who had come to [Redacted] at approximately 1:30 a.m. on April 17, 2019 to pick up [Redacted]). The defence did not contest the Crown's claim that a recording of [Redacted]'s 9-1-1 call to the police should be admitted as res gestae. I also received an agreed statement of the evidence of two other pharmacy staff who had dealt with the Defendant on April 16, 2019 from "approximately 3:00 P.M. to 4:35 P.M.". In addition to that body of civilian evidence, the Crown presented evidence from several officers who had been involved in different facets of the investigation: [Redacted] (the officer who had responded to calls from the [Redacted] about a woman in distress); [Redacted] and [Redacted] (two of the officers who had stopped [Redacted]'s taxi just before 1:30 a.m. on April 17, 2019 to remove [Redacted]); [Redacted] (the officer sent by [Redacted] to retrieve copies of the relevant security camera footage from the Tim Hortons at [Redacted]); former [Redacted] (the officer who had supervised the search of [Redacted]) and [Redacted] (one of the officers in charge of the investigation). By way of agreement, I also received statements from [Redacted] (the officer who was sent to retrieve security video from [Redacted]) and from [Redacted] (the "SOCO" officer who had helped process the exhibits seized during the search of [Redacted]). The latter document included photos of the items that were seized, albeit not in the locations where they were originally found.

 

8. In his defence, [Redacted] called his mother to testify that he had been with her from about 2:30 p.m. until 5:00 p.m. on April 16, 2019. According to [Redacted], she had driven her son to the [Redacted] pharmacy to pick up his prescription, as she had many times before. She then drove him back to his apartment at [Redacted]. [Redacted] was also called to testify about [Redacted] having lived with her back in April of 2019 and the fact that she was the actual owner of the weapons seized by the police during their search of the apartment. The Defendant elected to not testify at the trial.

 

9. As part of the "blended" trial, I also heard evidence concerning the alleged failure by the police to properly preserve three third party security videos of which the police had been made aware during their investigation on April 16, 2019. One of those security videos had recorded the interior of the [Redacted] pharmacy and, presumably, would have been able to show the exact time that [Redacted] had arrived there. The second video recorded the exterior of the [Redacted] and had supposedly captured the vehicle suspected as having been [Redacted]'s Yaris driving past. Lastly, despite only ending up with a single video from one of the four working cameras, there was evidence that "multiple DVDs" had been seized by the police from the Tim Hortons where [Redacted] claimed to have picked up "[Redacted]" on April 16, 2019 prior to the robbery. In addition to arguing that the Crown had failed to prove the charges beyond a reasonable doubt, the defence also contended that one or more of these evidence-gathering failures should result in a stay of the proceedings.

The legal issues and governing principles

 

10. There was not much debate about the governing legal principles at play in this case. Apart from the issues of identity and "possession", the defence effectively conceded that the other essential elements of the 15 charges before the court had been proven.

 

11. The parties also acknowledged that the Crown's burden of proving that [Redacted] robbed [Redacted] of the Yaris at gunpoint and that [Redacted] was in possession of the weapons and ammunition found in the bedroom of the apartment meant that I must reject the exculpatory evidence in order to convict [Redacted] of those charges. Put differently, if the defence evidence were to leave me with a reasonable doubt as to whether [Redacted] was the one who took [Redacted]'s vehicle at gunpoint or as to whether [Redacted] had both knowledge and control of the weapons and ammunition, then I must acquit. That said, even if I were to reject the evidence favoring [Redacted]'s innocence, I must go on to decide whether the evidence relied upon by the Crown to prove the charges establishes [Redacted]'s guilt beyond a reasonable doubt.

 

12. There was also no contest that, to the extent the Crown's case relies upon circumstantial evidence, the burden of proof requires I be satisfied that guilt is the only reasonable inference to be drawn from those circumstances. In deciding whether the Crown had negated other reasonable possibilities, the Crown:

 

... does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": [citation omitted]. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [see R. v. Villaroman, [2016] S.C.J. No. 33 (at para. 37)]

 

13. There were two contentious legal issues which do require some brief discussion before turning to my analysis of the evidence.

 

14. The first set of issues related to [Redacted]'s "alibi" defence. Shortly after being retained in January of 2020, counsel for [Redacted] provided notice to the Crown of a potential alibi defence. That notice indicated only that [Redacted] had been at the [Redacted] pharmacy between "approximately 3:00 and 4:30 pm", as [Redacted] had reported the pharmacy employees having said. The defence never notified the Crown of the fact that [Redacted] would testify about her having picked up the Defendant, driving him to the pharmacy, waiting for him outside and then driving him back to [Redacted]. The first time that evidence was disclosed was when [Redacted] was in the witness box at the trial. Consequently, the Crown submitted that I should draw an adverse inference with respect to the veracity of [Redacted]'s testimony. The Crown further argued that, in the absence of the Defendant himself taking the stand, there was a further justification for drawing an adverse inference against the credibility of [Redacted] and also for drawing an adverse inference with respect to the purported alibi evidence of the pharmacy staff.

 

15. The defence responded that the testimony of [Redacted] could not properly be characterized as "alibi" and, thus, did not need to be the subject of notice, nor did it need to be supported by the accused's own testimony. The defence submitted that [Redacted]'s testimony was not "determinative of innocence" and, thus, was not "alibi" evidence. According to the defence, [Redacted]'s testimony did not rule out the possibility that the Defendant had surreptitiously snuck out of the pharmacy without [Redacted] knowing, and then somehow travelled up to [Redacted] to rob [Redacted] of the Yaris before returning to the [Redacted] pharmacy without [Redacted] having seen. The fact that [Redacted]'s testimony may have made it less likely - even much less likely - that the Defendant could have committed the crime as alleged does not mean that it amounted to an "alibi". [Redacted] did not testify that she was actually with the Defendant at the exact moment that the crime was alleged to have been committed.

 

16. I reject the Defendant's overly narrow definition of "alibi" evidence. The appellate authorities relied upon to mount this argument all refer back to the Ontario Court of Appeal's decision in R. v. Hill, [1995] O.J. No. 2360. In Hill, the Court allowed an appeal against conviction where the trial judge had improperly invited the jury to draw an adverse inference against defence evidence which purported to show that the accused was somewhere other than with two accomplices who had testified about meeting the accused to receive instructions about committing the crime. In the circumstances of that case, while the defence evidence may have made it less likely that the illicit discussions had happened at the place and time described by the accomplices, the defence evidence did not require the trier of fact to determine the whereabouts of the accused at the time of the offence. The accused in Hill was alleged to only have been a party to the arson, not the actual perpetrator. His whereabouts at the time of the actual offence was irrelevant. Even if satisfied that the accomplices did not meet with the accused at the time and place as they had described, the jury could still have been satisfied that the accused had aided or abetted their commission of the offence at some other time and in some other manner.

 

17. By contrast, where the defence is relying upon testimony that an accused was "elsewhere" proximate to the time of the crime for the purpose of arguing that the accused could not therefore have been at the scene of the crime when it was committed, the defence is engaging an alibi defence. The difference between that scenario and one in which the defence calls evidence attesting to the accused being elsewhere at the same time as the crime is simply a variation in the form of evidence being called to establish the point. The former is circumstantial evidence of alibi while the latter is direct evidence of alibi. By definition, circumstantial evidence will almost always give rise to alternative theories and possibilities, some reasonable and some not. The proper legal characterization of alibi evidence is defined by its intended purpose, not by whether it leaves open a remote possibility that the accused could theoretically still have been present to commit the crime. The appellate cases relied upon by the Defendant all involved situations where the alleged alibi evidence left open a very reasonable possibility that the accused could still have been present to commit the offence. I am satisfied that this is not such a case.

 

18. There can be little doubt that [Redacted]'s testimony was proffered by the defence with a view to arguing that [Redacted] was "elsewhere" at the time that [Redacted] claims to have been robbed at gunpoint. [Redacted]'s testimony allowed for nothing more than a remote possibility that the Defendant could still have been present at the time of the robbery. Indeed, had the Defendant done what the common law presumptively requires and testified in support of his alibi, he would have been compelled to clearly testify that he was "elsewhere" at the time [Redacted] was robbed because his mother had driven him to the pharmacy. An accused cannot gain a procedural advantage (i.e., avoiding the alibi notice requirement) by shirking their common law testimonial obligation. The true nature of [Redacted]'s testimony is also made clear by the fact that a portion of her narrative would have made it impossible for the Defendant to have been the man identified by [Redacted] as having driven the vehicle out of the [Redacted] parking lot. In other words, [Redacted]'s testimony was both circumstantial and direct evidence of the Defendant's alibi defence to the charges he was facing. Timely and adequate notice of her intended testimony was required.

 

19. The defence alternatively argued that, even if notice of [Redacted]'s testimony was required, the failure to do so occasioned no prejudice to the Crown in the circumstances of this case. The defence submitted that the police already had notice of the fact that [Redacted] may have been present at the [Redacted] pharmacy from "approximately 3:00 P.M. to 4:35 P.M." by virtue of the statements provided by the pharmacy staff members. According to the defence, because the police had deliberately abandoned any further investigation of that potentially exculpatory information, including any further pursuit of the pharmacy's interior security video, the Crown cannot now claim that the police would have investigated [Redacted]'s claim that she had driven [Redacted] to the pharmacy during that same time frame.

 

20. For reasons I will explain more fully below, I agree with the defence that the police failure to pursue the interior and exterior security videos at [Redacted] fell below what was reasonably expected of them. However, their failure to reasonably pursue one line of inquiry does not mean that the police would necessarily have ignored other reasonable lines of inquiry, such as the veracity of [Redacted]'s claim that the Defendant had been with her prior to being at the pharmacy from 3:00 p.m. to 4:35 p.m. In the circumstances of this case, had the police been notified of [Redacted]'s claim, they would undoubtedly have interviewed her and, as a consequence, sought out further information relating to the veracity of her claim, such as records showing the location of her cell phone at the relevant times and a statement from her husband (who she claimed to have been with prior to picking up the Defendant to drive to the pharmacy). None of that information was accessible to the Crown at trial, either through voluntary defence disclosure or through defence witnesses. I must conclude that there was real prejudice to the Crown resulting from the fact that disclosure of [Redacted]'s alibi information came for the first time when she was called to testify at trial.

 

21. Lastly, while I accept that an accused's failure to testify may not always demand that an adverse inference be drawn against their alibi, in a case where the alibi information is disclosed for the first time when the witness testifies at trial, an accused's failure to testify in support of the alibi takes on added significance. As Sopinka J. said in R. v. Noble, [1997] 1 S.C.R. 874 (at para. 112):

 

In my view, there are two reasons supporting the alibi exception to the right to silence pre-trial which apply also to the right to silence at trial" the ease with which alibi evidence may be fabricated; and the diversion of the alibi inquiry from the central inquiry at trial. As Gooderson stated, alibi evidence is easily fabricated through the use of perjuring witnesses. I am therefore sympathetic to the view expressed in Vezeau that in the limited case of alibi, the failure of the accused at trial to testify and expose him- or herself to cross-examination on the alibi defence may be used to draw an adverse inference about the credibility of the defence...

 

22. I am not persuaded that the circumstances of this case are similar to those present in R. v. Wright, 2009 ONCA 623 where the Court of Appeal held that it was inappropriate for the trial judge to have drawn an adverse inference against the alibi defence because of the accused's failure to testify. Contrary to the defence submissions in this case, the "facts" raised by [Redacted]'s testimony are entirely "extraneous to the facts as alleged by the Crown": R. v. Wright, supra at para. 22. In the circumstances of this case, the potential alibi evidence of the pharmacy staff is also mostly "extraneous" to the facts relied upon by the Crown. The Crown's case against [Redacted] in relation to the robbery relied on the fact that [Redacted] was seen at the plaza with [Redacted]'s vehicle a short drive from the scene of the robbery at a time proximate to the robbery. Only the Defendant sought to rely on the pharmacy staff's evidence about the precise time of his arrival in an effort to establish that the Defendant had arrived there at a time prior to [Redacted]'s vehicle being taken. The Crown's case focused on the fact that the Defendant was seen at the [Redacted]. The defence case attempted to shift the focus from the proximity of the location to the time that the Defendant had been seen there; that is, somewhere other than on [Redacted] at 3:15 p.m. (the time [Redacted] claimed his vehicle had been stolen). In the unique circumstances of this case, that shift in focus from "place" to "time" was sufficient to require the Defendant to testify in support of his alibi defence.

 

23. I will address the evidentiary consequences of the resulting adverse inference in my analysis of the alibi evidence below.

 

24. The other set of contentious legal issues in this case revolved around the defence claim that the police had violated [Redacted]'s s. 7 Charter rights by virtue of "losing" three security videos. In response to the defence application for a stay of proceedings as a remedy for that lost disclosure, the Crown began by asserting that it is legally incorrect to characterize what happened in relation to the two [Redacted] videos as a "loss" because the police never actually took possession of those two videos. Pointing primarily to what the Ontario Court of Appeal had said in R. v. Darwish, 210 ONCA 124, the Crown argued that s. 7 does not confer a broad right to insist that the police gather evidence which may assist the defence. Rather, says the Crown, s. 7 only affords protection against the loss or destruction of relevant evidence which has already been collected by the police.

 

25. I disagree. Where the police have clearly identified evidence as "obviously relevant" to the case, the constitutional obligation to disclose that evidence is engaged: R. v. McNeil, [2009] S.C.J. No. 3. In most criminal investigations, the police are uniquely positioned to preserve evidence which will be spoiled or lost by the time an accused has had a meaningful opportunity to consult counsel so that the defence could prevent that from happening. Where police have formed a belief that evidence would be obviously relevant to the charge they are investigating, the trial fairness and truth-seeking interests protected by s. 7 of the Charter require that the police take reasonable steps to preserve that evidence. While failure to do so will not always amount to a violation of s. 7, it will require a reasonable explanation from the police. When the failure by the police to preserve obviously relevant evidence is later determined to have been unreasonable, the right to make full answer and defence enshrined in s. 7 will only be said to have been breached when an accused can establish "actual prejudice" to that right: see R. v. La, [1997] 2 S.C.R. 680 at para. 25. If actual prejudice is shown and a s. 7 violation thus made out, a stay of proceedings remains an exceptional remedy to be meted out only in the clearest of cases.

 

26. I have set out my reasons for dismissing the Defendant's s. 7 application for a stay of proceedings at the end of the "analysis" following my summary of the evidence. While I have found that there was a loss of relevant evidence due to unacceptable negligence by the police in this case, the Defendant has not discharged his burden of showing that "actual prejudice" resulted; namely, that this lost evidence would probably have supported, as opposed to undermined, his defence.

Summary of the evidence

 

27. In April of 2019, [Redacted] was using his parents' blue 2007 4-door Toyota Yaris to drive for Uber Eats. Occasionally he drove "friends" who needed a ride. Sometimes those "friends" would give him money for driving them.

 

28. On April 16, 2019, [Redacted] was called for a ride by a guy whose name he thought was "[Redacted]". According to [Redacted], he had given this same guy a ride the night before (on April 15, 2019) from the Tim Hortons in [Redacted] to the Tim Hortons at [Redacted]. [Redacted] testified that "[Redacted]" had told him that he needed a ride because some kind of court order prevented him from driving.

 

29. On April 16, 2019, [Redacted] picked "[Redacted]" up at the Tim Hortons located at [Redacted] in [Redacted] sometime in the afternoon. According to the Tim Hortons' security video that was played at trial, this man got into the rear passenger seat of [Redacted]'s car just after 2:30 p.m.

 

30. When [Redacted] drove to the Tim Hortons to meet "[Redacted]" on the afternoon of April 16, 2019, [Redacted] was already in the car. [Redacted] had known [Redacted] for a short time. He was romantically interested in her. [Redacted]'s presence when [Redacted] picked up "[Redacted]" on April 16, 2019 was first disclosed by [Redacted] in his testimony at trial.

 

 

31. After "[Redacted]" had gotten in the Yaris, he began giving [Redacted] directions to drive towards the [Redacted] area. According to [Redacted], after having been driving for about 10 minutes, "[Redacted]" directed him to drive down a dirt road just past a paving company in Courtice; i.e., [Redacted] just north of [Redacted]. [Redacted] testified that "[Redacted]" told him to pull over so that "[Redacted]" could make a phone call. [Redacted] and [Redacted] stayed in the car while "[Redacted]" got out to make a call. The next time [Redacted] noticed "[Redacted]" was when "[Redacted]" approached the car, pointed a handgun at [Redacted] from a few feet away and ordered him out of the car.

 

32. [Redacted] testified that he was not sure where the handgun had come from. He saw that it was a pistol-type of gun and that it was black. It had a "silver sticker" on the handle. In his 9-1-1 call to the police, [Redacted] said that he did not see any writing on the gun. The sticker was the only part of the gun that was not black. [Redacted] believed it was a real gun.

 

33. [Redacted] got out of the car, backed up a few feet and then turned to walk away. He testified that he walked away from "[Redacted]" "with my back to him". Accordingly, [Redacted] did not actually see "[Redacted]" get into the car. [Redacted] only saw "him" drive past as [Redacted] was walking away with his back to the car.

 

34. When asked about [Redacted], [Redacted] testified that he believed she was still in the car but that he was not able to see. When it was pointed out that he did not see her left behind at the side of the road, he agreed that she must have still been in the car. In response to questions about what [Redacted] may have been saying when "[Redacted]" had pulled out the gun, [Redacted] testified that he could not recall what [Redacted] had been saying but that she was trying to convince "[Redacted]" to not do what he was doing.

 

35. [Redacted] proceeded to walk down the road for 5 to 10 minutes until he reached [Redacted]. He went inside and they let him use their phone to call 9-1-1. That call was made at 3:24 p.m. [Redacted] reported that his parents' blue Toyota Yaris had been stolen at gunpoint by a man named "[Redacted]". [Redacted] provided a general description of "[Redacted]", saying that he was a white male, in his 30's, medium build, 5"6" or 5'7", and wearing a hoodie.

 

36. At some point prior to 5:00 p.m. on April 16, 2019, the police received calls about a woman in apparent distress in the parking lot of the plaza located at [Redacted] in [Redacted]. That plaza is a 5- to 8-minute drive south of the spot on [Redacted] where [Redacted]'s car was taken. [Redacted] testified that he and his younger sister were on their way to the convenience store in the plaza next to the pharmacy when they noticed a female hunched over in the driver's seat of "her" car with the door open. Armstrong testified that he saw vomit on the ground of the parking lot next to the driver's seat. He described the female as being white with short blonde hair shaved on the sides, a description matching [Redacted]. (After the car had left, [Redacted] found [Redacted]'s cell phone on the ground near where that car had been parked and turned it over to the police.) When [Redacted] and his sister later emerged from the store, he saw a man holding up the woman. She did not seem conscious. At one point she fell to the ground. The man picked her up and put her in the back of the car. The man then got in the car and drove away. [Redacted] described the man as being unshaven and wearing a black hat and grey track suit. [Redacted] candidly admitted that he could not really remember what the man looked like.
37. 
    37  On April 16, 2019, [Redacted] and [Redacted] were working at the Remedy's RX pharmacy located in the [Redacted] plaza. At approximately 7:30 p.m., Durham Regional Police Service ("DRPS") [Redacted] spoke with [Redacted] and [Redacted] about whether any suspicious people had been at the pharmacy before 5:00 p.m. According to [Redacted] and [Redacted], the only person who had been hanging around the pharmacy in that time frame was [Redacted]. A nurse working at the pharmacy that day, [Redacted], testified that she was familiar with [Redacted] and that she remembered seeing him at the pharmacy at about 3:50 p.m. She could not, however, recall what time he had first arrived at the pharmacy. While there, [Redacted] was wearing a hat, a grey baggy hoodie and grey pants. He was also wearing some moderate-sized gold necklaces.

 

38. According to [Redacted] and [Redacted], [Redacted] had been at the pharmacy from "approximately 3:00 P.M. to 4:35 P.M.". When asked why [Redacted] may have been there for so long, [Redacted] and [Redacted] explained that it takes time to prepare his methadone prescription and he would have had to wait. The pharmacy staff showed [Redacted] a file noting that [Redacted] had received his methadone dose at 4:35 p.m. While in attendance at the plaza, [Redacted] also learned that the pharmacy had internal security video which was recording that day.

 

39. After speaking to the pharmacy staff, [Redacted] returned to the station to discuss his findings with [Redacted] and [Redacted], the officers who were leading the investigation into the alleged gunpoint robbery. Following that discussion, [Redacted] was directed to attend the small apartment building located at [Redacted] in [Redacted] as that was the address the police had on file for [Redacted]. Upon his arrival there at 8:23 p.m., [Redacted] discovered [Redacted]'s vehicle parked in the corner of the lot about 20 to 30 yards behind the building. At 10:00 p.m., the police had the vehicle towed away from the building but maintained surveillance of the building from a distance.
40. In April of 2019, [Redacted] was working as a taxi driver for Blue Line Taxi in [Redacted]. In the early morning hours of April 17, 2019, he received a call to pick up a fare at [Redacted]. He arrived there at about 1:30 a.m. and saw three people standing in the doorway of the apartment building with some garbage bags. There was an "older woman", a "younger man" and a "young lady" (who, in light of all the evidence, I am satisfied were [Redacted], the Defendant, and [Redacted], respectively.) According to [Redacted], [Redacted] seemed to be in charge. She obviously wanted [Redacted] to leave. As [Redacted] got into the front seat of the taxi, [Redacted] and the Defendant placed the garbage bags full of clothes into the back seat. The two of them then went back inside the building.

 

41. On route to the [Redacted] on [Redacted], [Redacted] 's taxi was stopped by several police cruisers. [Redacted] and the garbage bags were detained by the officers. A search of those garbage bags revealed [Redacted]'s drivers licence and the keys to his parents' Toyota Yaris.

 

42. At 3:45 a.m. on April 17, 2019, members of the DRPS executed a search warrant at [Redacted] [Redacted] in [Redacted]. They found [Redacted] in bed with [Redacted] in one of the apartment's two bedrooms. They appeared to have been asleep at the time the police entered. Inside that bedroom, the police found a Colt pellet gun on the second shelf of an open cabinet, a knife and four flare shells in front of a television, a loaded flare gun on the floor of the closet, an expandable baton underneath a pile of clothes, two butterfly knives on the floor near the bed and a cross bow underneath the bed. Overall, both the apartment and the bedroom were "quite cluttered" with items on the floor and boxes and bins throughout. The officer in charge of the search, [Redacted], testified that the police found nothing relating to either [Redacted] or [Redacted].

 

43. [Redacted] testified at trial as well. She appeared with short blonde hair shaved at the sides, the same style as she had worn it back in April of 2019. She acknowledged that [Redacted] was a friend of hers who she had met at a "drug house" in [Redacted]. She had a vague memory of being in the front seat of [Redacted]'s car one day when he had picked up some guy named "[Redacted]" or "[Redacted]". She had no other reliable memory of the events that day as she had been using crystal methamphetamine and "GHB" for "a couple of weeks straight". When offered the opportunity to refresh her memory by reviewing a statement she had given to the police, she testified that she did not even remember having given such a statement. Simply put, [Redacted]'s testimony was worthless. It was as unreliable as it was incredible.

 

 

44. The Defendant's mother, [Redacted], testified that she and her husband had been regularly taking the Defendant to the pharmacy at [Redacted] for his methadone. The Defendant had been living with them prior to him being arrested on an unrelated charge in February of 2019. However, on April 15, 2019, the Defendant's bail was changed so that [Redacted] would be his surety and the Defendant would live with her at [Redacted] [Redacted]. According to [Redacted]'s testimony, she picked up the Defendant at [Redacted] at "around 230" on April 16, 2019 to drive him to the pharmacy in [Redacted] for his methadone. She testified that "his appointment was at 3 pm" and so they arrived there "about 5 minutes before 3 pm". [Redacted] claimed that the Defendant waited for a bit and then went in. She waited for him in the car. She passed the time by reading news items on her smart phone. [Redacted] claimed that they left "about 430" and she then drove him back to the apartment on [Redacted].

 

45. [Redacted] was 43 years old at the time of trial. She had known the Defendant for almost 20 years. Although they were no longer in a relationship at the time of the trial, the two of them had been involved in a relationship for most of their 20-year history. They had lived together in [Redacted] for several years prior to January of 2019. In January of 2019, [Redacted] had moved out. She moved back, however, in March of 2019 and took over the lease for the apartment. At that time, the Defendant was no longer living at the apartment as he had been arrested (on other charges) and was still in custody. He was not released on bail for those other charges until April 9, 2019.

 

46. [Redacted] explained that she went to court for the Defendant on April 15, 2019 when his mother withdrew as the surety. [Redacted] was replaced as the Defendant's surety. It took all day for the matter to be completed. At the end of the court day, [Redacted] and the Defendant took a GO bus to [Redacted] so the Defendant could get his prescribed methadone at the pharmacy. They then returned together to [Redacted] by bus and went to [Redacted]'s apartment. They relaxed, had supper and watched television. The Defendant never left the apartment that night.

 

47. [Redacted] left for work the next morning (April 16, 2019) between 10:00 and 11:00 a.m. She did not return until approximately 10:00 p.m. When she entered the apartment building, [Redacted] saw a woman (later identified to be [Redacted]) loitering in the common area. After a brief verbal exchange with [Redacted], [Redacted] went up to her apartment. At about 2:00 a.m. on April 17, 2019, [Redacted] heard a "commotion" in the hallway. She saw that [Redacted] was still there. [Redacted] became uncomfortable with [Redacted] remaining in the building and so called for a taxi to come and take her away. When the taxi arrived, [Redacted] and the Defendant helped [Redacted] carry some garbage bags out to the taxi. [Redacted] and the Defendant then went back inside and went to sleep. They were woken at about 3:00 a.m. by the police.
48. [Redacted] testified that all of the weapons found by the police belonged to her. It was her bedroom in which they were found. The Defendant had his own bedroom in the apartment. The two of them were sharing the bed in her bedroom that night because they were still trying to "figure out" the status of their relationship. [Redacted] had a key-lock on the door to her room which she kept locked when she was away from the apartment, such as when she was at work.

Analysis and findings

 

1. Does the alibi evidence raise a reasonable doubt as to whether the Defendant was the passenger in [Redacted]'s car on April 16, 2019?

 

49. I start with my assessment of the defence evidence in this case. I do so only because, if that evidence were to leave me with a reasonable doubt, it would not matter whether I also "accepted" the evidence relied upon by the Crown: R. v. Challice, [1979 O.J. No. 1301 (C.A.) and R. v. Nimchuk, [1976] O.J. No. 1258 (C.A.). The Crown did not argue that this was an appropriate case in which I could consider relying upon the testimony of [Redacted] as a basis for rejecting the defence evidence: R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.). Had I been asked to do so, for the reasons set out below, I would have rejected that argument.

 

50. Neither [Redacted]'s testimony nor the evidence of the pharmacy staff leaves me with a reasonable doubt as to whether the Defendant was with [Redacted] on [Redacted] when the vehicle was taken. For the reasons set out above, the absence of any prior notice makes it appropriate for me to draw an adverse inference against [Redacted]'s alibi testimony. Even without drawing that adverse inference, I would have rejected her alibi testimony as being incredible. I am not satisfied with her explanation for having waited to tell anyone about her son's alibi until new counsel had been retained 8 months after her son had been detained in custody on these charges. I was also unimpressed by the vacillation in her testimony when questioned about having been present in court during pre-trial motions to hear outlines of the Crown's case against her son: when asked by the Crown she was present and had heard that information, but when asked in re-examination by her son's lawyer, she claimed to have not been present. Lastly, while I accept that the day in question may have been memorable given that it was the day before her wedding anniversary and was the day before her son was arrested, the apparent certainty by which [Redacted] purported to recount the exact times that she was with [Redacted] some 18 months ago defies belief. Conveniently, the times she offered were almost exactly the same times that [Redacted] testified he had picked up "[Redacted]" and that the pharmacy staff said [Redacted] had departed. Having regard to the denial of any opportunity for police investigation of her claims, I reject her testimony.
51. For reasons similar to why [Redacted]'s testimony must be characterized as "alibi", I am also satisfied that the evidence of the pharmacy staff constitutes an "alibi" at common law. In this case, the evidence of the pharmacy staff was clearly advanced as a basis for the defence to argue that [Redacted] was likely elsewhere when [Redacted] was robbed of his car. Indeed, the defence clearly acknowledged as much when it provided an alibi notice to the Crown in March of 2020 which tracked the wording of the information provided by the pharmacy staff. In relation to this additional alibi evidence, I find that [Redacted]'s failure to testify at trial acquires evidentiary significance that it could never otherwise have had.

 

52. In light of the vagueness of the timing evidence from the pharmacy staff, [Redacted]'s decision to not testify deprived the Crown of an opportunity to test the reasonableness of the inference that he had arrived at the pharmacy closer to 3:00 p.m. instead of 3:30 p.m. In telling the police that [Redacted] had been at the pharmacy from "approximately 3:00 P.M. to 4:35 P.M.", the pharmacy staff were clearly indicating that they could not be nearly as confident about the time of arrival as they were being about his time of departure. The staff members were not asked to try and remember the times that [Redacted] had been present until more than three hours after he had left. While there was some suggestion that [Redacted]'s wait at the pharmacy had become more noticeable as time dragged on, there was nothing in the evidence of the pharmacy staff to suggest that there had been anything particularly eventful when [Redacted] first arrived. Staff had to resort to an entry in a log book to determine the time at which [Redacted] completed his business at the pharmacy and then left. There was no similar log entry for the time of his arrival. The reasonableness of the alibi inference from the evidence of the pharmacy staff is completely undermined by [Redacted]'s failure to testify in support of that alibi.

 

53. To be clear, I have also considered the combined evidentiary force of what the pharmacy staff told the police and what [Redacted] said at trial. My rejection of [Redacted]'s alibi testimony was predicated on my finding that it was concocted. Adding in the vague time frame provided by the pharmacy staff does not move me to conclude otherwise. Moreover, [Redacted]'s failure to take the witness stand to support the alibi only fortifies my belief that [Redacted]'s alibi testimony was concocted and unworthy of any belief.

 

1. Has the Crown proven that the Defendant had both knowledge and control of the weapons found in the bedroom?

 

54. In support of his pleas of "not guilty" to the possession charges in this case, the Defendant called evidence from [Redacted] that the weapons belonged to her and were found by the police in her bedroom. According to her evidence, while the Defendant may have had knowledge of these items, he exercised no control over them.
55. To gain an acquittal on these charges, the Defendant need not persuade me to accept [Redacted]'s evidence. Like any other exculpatory defence evidence, [Redacted]'s evidence need only raise a reasonable doubt about the "control" element of the possession offences: see R. v. B.D., 2011 ONCA 51.

 

56. I agree with the Crown that [Redacted]'s trial testimony gave rise to some concerns about her credibility. In particular, some of her answers concerning the flares, the flare gun and the cross-bow may have suggested that she was being cavalier with the truth. However, I am satisfied that she adequately explained how and why she had been mistaken in some of her initial answers on those points. Overall, her evidence about the weapons was detailed and sensible. For example, she explained why she owned these items, why they were at her apartment and why they were scattered around her bedroom. She testified that the items were left out in that state because she was still in the midst of moving back into the apartment and had only been able to put things away in a piecemeal fashion because of her work schedule. Her explanation was confirmed by [Redacted]'s observation of bins and clutter all over the bedroom. In addition, her claim of ownership is also supported by [Redacted]'s evidence that it was [Redacted] who told him about the pellet gun to be found on the shelving unit. Unlike the Defendant's mother, I am not satisfied that the relationship between [Redacted] and the Defendant is such that it would have motivated her to have committed perjury on his behalf: while the two of them remain good friends, they are no longer involved in a conjugal relationship. While the concerns raised by the Crown make it hard for me to fully accept [Redacted]'s evidence about the weapons, I find myself unable to reject it. Her evidence about her exclusive control of the bedroom, and the weapons and ammunition in it, leave me with a reasonable doubt as to whether [Redacted] was in possession of them on April 17, 2019

 

57. Before turning to my assessment of the Crown's case on the other charges, I note that I do accept [Redacted]'s evidence on two other points: (1) that the Defendant was home all night with her on April 15, 2019, and (2) that she found [Redacted] skulking around [Redacted] on the night of April 16, 2019 and then called a taxi which came and took [Redacted] and her garbage bags away. With respect to the first point, there was no suggestion that [Redacted] could have known that this evidence had any potential evidentiary significance, let alone that she had any credible motive to fabricate it. On the second point, her evidence was firmly corroborated by several witnesses called by the Crown, including [Redacted], the taxi driver who had come to pick up [Redacted] and her garbage bags.

 

 

Does the Crown's case prove beyond a reasonable doubt that the Defendant robbed [Redacted] of the Toyota Yaris and then drove away in that vehicle (contrary to the court orders prohibiting him from driving)?

 

58. The Crown candidly admitted that it's case against the Defendant on the charges of robbery and point firearm turns on whether I accept [Redacted]'s evidence, having regard to the other evidence which confirms [Redacted]'s testimony and which circumstantially shows that [Redacted] was the "[Redacted]" who got into [Redacted]'s car on April 16, 2019.

 

59. It is trite law that a trier of fact is not limited to the binary choice of accepting or rejecting all of a witness's testimony. In some cases, a trier of fact may rationally choose to accept some parts of a witness's evidence while still rejecting others.

 

60. In this case, I agree that there are sound reasons to accept the portions of [Redacted]'s evidence about him having driven a man named "[Redacted]" from the Tim Hortons at [Redacted] to [Redacted] and to find beyond a reasonable doubt that this man was the Defendant, [Redacted]:

 

-          [Redacted]'s evidence about where and when he went to pick up "[Redacted]" is confirmed by the Tim Hortons' security video. I accept [Redacted]'s evidence that he was able to recognize the blue car depicted in the video as being the blue Toyota Yaris that he was driving. The alleged discrepancies between what seems to be depicted in the video and what [Redacted] testified about his vehicle do not cause me to doubt the reliability of this recognition. The video is entirely consistent with the detailed sequence of events described by [Redacted] in his testimony. There was no evidence that [Redacted] had seen that video before giving his evidence in court such that he could have tailored his testimony accordingly.

 

-          [Redacted] was residing at an address on [Redacted] which was a short walking distance away from that Tim Hortons and in the general direction of where the man in the video can be seen coming from.

 

-          [Redacted] testified that the "[Redacted]" who he picked up had said something about needing a ride because a court order prevented him from driving. The evidence at trial firmly established that, on April 16, 2019, [Redacted] was the subject of several such court orders. There is no suggestion that [Redacted] could otherwise have know about [Redacted]'s court orders.

 

-          [Redacted] testified that "[Redacted]" had directed him to drive to a location in the [Redacted] area which ended up being a short distance from the rural pharmacy where [Redacted] had been going to get his prescribed methadone. [Redacted] was seen at that pharmacy very close to the time when [Redacted]'s car had been stolen at that nearby location.

 

-          While [Redacted] never purported to identify the Defendant as the "[Redacted]" who had been in the Yaris, there were no material differences in the general description which [Redacted] had provided for "[Redacted]" and [Redacted]'s description of [Redacted]'s appearance at the pharmacy.

 

-          Most significantly, [Redacted]'s vehicle was located at approximately 8:23 p.m. on April 16, 2019 in the back of the apartment building where [Redacted] was living. The evidence of [Redacted] also satisfies me that it was [Redacted]'s vehicle (with [Redacted] in it) that was at [Redacted] at approximately 4:45 p.m. while the Defendant was at the pharmacy in that plaza. The improbability of the coincidence of [Redacted]'s vehicle having been at [Redacted] when [Redacted] was also there and then later at [Redacted] when [Redacted] was also there, satisfies me that the only reasonable inference is that [Redacted] was the "[Redacted]" who [Redacted] described as having been in the Yaris on April 16, 2019.

 

61. The fact that the Defendant was the "[Redacted]" who [Redacted] picked up on April 16, 2019 does not automatically translate into a finding that the Defendant committed the robbery and firearm offences as alleged. There are several features of [Redacted]'s testimony which leave me with some serious doubt as to whether [Redacted] was being entirely honest about why [Redacted] was in the Yaris or about what happened while he was with [Redacted] in the car:

 

-          When speaking to the officer who had attended at [Redacted] in response to the 9-1-1 call, [Redacted] had claimed to be an Uber driver when explaining to the officer why he had picked up "[Redacted]" at Tim Hortons and driven him to [Redacted]. [Redacted] was not, however, working for Uber carrying passengers. Yet, for some reason, [Redacted] felt that he needed to come up with an explanation for why "[Redacted]" had been in the Yaris. Indeed, [Redacted] perpetuated this falsehood by later claiming that he had first met "[Redacted]" the night before when hired to give "[Redacted]" a ride from the Tim Hortons in South [Redacted] to the Tim Hortons at [Redacted]. As I had indicated above, in view of my acceptance of the related portion of [Redacted]'s evidence, I find that [Redacted] fabricated this part of his testimony.

 

-          Despite [Redacted] having testified that he only drove around with "[Redacted]" for about 10 minutes before being directed to stop on [Redacted], the Tim Hortons video shows that [Redacted] picked up [Redacted] at 2:30 p.m. In his 9-1-1 call to police at 3:24 p.m., [Redacted] said that the alleged robbery had occurred "less than" 10 minutes prior; that is, some time after 3:14 p.m. That leaves at least 30 minutes unaccounted for in a sequence of events which, according to [Redacted], took less than 20 minutes in its entirety.

 

-          Not only did [Redacted]'s account of what happened in the car omit a significant period of time, until trial it had also omitted reference to a key protagonist; namely, [Redacted]. [Redacted] had not said anything about [Redacted] being present in the car when "[Redacted]" was there either to the 9-1-1 operator, to the officer who attended at [Redacted] or to the investigators at the station. It was not until trial that [Redacted] acknowledged [Redacted] having been present in the car when it had allegedly been stolen by "[Redacted]".

 

-          The evidence from (and about) [Redacted] was that, by the time the Yaris had reached [Redacted], she was extremely intoxicated by drugs.

 

-          [Redacted] was less than candid about his drug use, both in general and on the day in question. He did not mention to the police that he may have smoked crack cocaine on April 16, 2019. On cross-examination, [Redacted] admitted that he probably "wanted to" smoke crack that day but did not think he had. He claimed to not be able to recall whether he had a crack pipe in his car on April 16, 2019. The police found a crack pipe in [Redacted]'s car. ([Redacted] never suggested that "[Redacted]" was smoking crack in the Yaris.)

 

62. In addition to my doubts about [Redacted]'s testimony concerning the real reasons for the Defendant being in the Yaris with him and [Redacted], the evidence also leaves me with serious reservations about the credibility of [Redacted]'s claim that it was the Defendant, and not [Redacted], who drove the car away on [Redacted]:

 

-          [Redacted] never suggested that [Redacted] was intoxicated by drugs when she was with him in the Yaris at 2:30 p.m. on April 16, 2019, let alone so intoxicated that she would have been incapable of driving.

-          [Redacted]'s evidence establishes that [Redacted] was seated in the driver's seat of the Yaris while it was parked at the [Redacted]. It was only after the Defendant returned from the pharmacy that [Redacted] ended up being moved to the back seat.

-          The Defendant was never found to be in possession of anything from the Yaris or of anything belonging to [Redacted]. By contrast, [Redacted] was later found to be in possession of both [Redacted]'s licence and the keys to the Yaris.

-          [Redacted]'s testimony about what happened after he was allegedly ordered out of the Yaris is troubling. He repeatedly claimed that he had his back to the car as the driver door was closed and as the vehicle drove past him, as though he was trying to justify not being able to see inside the vehicle as it drove away. At one point he tried to claim that he was not sure where [Redacted] was when the vehicle drove away. It was only when confronted by a direct question from the Crown (in chief) that [Redacted] acknowledged that [Redacted] must still have been in the car as he did not see her at the side of the road.

-          [Redacted] admitted to having had a romantic interest in [Redacted] back in April of 2019. In other words, [Redacted] had a motive for wanting to not get her in trouble with the police if she had been the one to drive off in the Yaris. At the same time, however, [Redacted] needed to get his parents' car back. He had been left at the side of the road without his cell phone. Calling the police would have been one of the few options available to him.

 

63. I have considered whether the discovery of the pellet gun at [Redacted] is sufficiently confirmatory of [Redacted]'s robbery allegation. For the reasons set out above, I am not satisfied that it is. Even were I to ignore the differences between [Redacted]'s description of the gun used by "[Redacted]" and the appearance of the pellet gun seized by police, in the circumstances of this case I am satisfied that possession of that gun is consistent with [Redacted] having simply displayed it to [Redacted], perhaps in offering to sell it to him, as it is with [Redacted] having used it to threaten [Redacted]. In any event, as I have said, I do not accept [Redacted]'s testimony about what happened once [Redacted] was in the car and so I am not satisfied beyond a reasonable doubt that [Redacted] was ever in possession of the pellet gun while in the car.

 

64. To be clear, my doubts about [Redacted]'s testimony concerning what happened after "[Redacted]" got in the car do not raise any doubt about the fact that it was the Defendant who got in the car at the Tim Hortons. While I cannot be satisfied beyond a reasonable doubt how or why [Redacted]'s car was taken from him on [Redacted], I am satisfied that [Redacted]'s car was then driven to the plaza at [Redacted]. I am equally satisfied from the evidence of the pharmacy staff and the evidence of [Redacted] that the Defendant was the male who was assisting [Redacted] after she had vomited while sitting in the driver's seat of the Yaris. Contrary to the defence submission, there were no material discrepancies between the very vague description of the male that was provided by [Redacted] and the more detailed one provided by [Redacted] - the failure to remember an identifying feature is not the same as remembering the absence of one. Notwithstanding my doubts about who drove the Yaris to [Redacted], I am satisfied that the only reasonable inference is that the Defendant drove it out of the parking lot and away from the plaza. Indeed, the fact that the Yaris was located at the Defendant's residence in [Redacted] only three hours later is strongly supportive of that inference. There was no evidence that [Redacted] knew where the Defendant lived, let alone that she was in any condition to drive when the vehicle left [Redacted]. In driving the vehicle out of the parking lot and away from [Redacted], the Defendant breached his driving prohibitions and the terms of his bail.

 

65. In finding that the Defendant was the one who drove the [Redacted] Yaris away from the [Redacted], I am satisfied that he was in control of that vehicle and that he knew or was wilfully blind to the fact that it had been taken without the owner's permission. However, for the reasons above, I was not satisfied beyond a reasonable doubt that he was the one who took it from [Redacted] or that he did anything to aid or abet that theft. In the circumstances of this case, I am not satisfied that it is safe to draw an inference of theft from [Redacted]'s relatively recent possession of that stolen vehicle. As I have said, it is reasonably possible that [Redacted] was the one who climbed into the driver's seat while the Yaris was parked at the side of the road and [Redacted] was standing outside. It is also reasonably possible that [Redacted] only drove the vehicle away from [Redacted] as a result of him returning from the pharmacy an hour later to find [Redacted] no longer able to drive because of her state of intoxication. As the Crown did not contend that [Redacted] could, or should, be convicted of possession of property obtained by crime as a "lesser and included offence" to the charge of theft of vehicle, I have declined to consider whether it is legally and factually appropriate to do so in this case.

 

1. Did the failure by the police to preserve the security video footage at Tim Hortons and at [Redacted] amount to a violation of the Defendant's s. 7 Charter right which requires a stay of these proceedings?

 

66. The evidence of [Redacted] makes clear that the investigative team had determined that the security video footage from the Tim Hortons and from [Redacted] were relevant to the case. In all three instances, officers were specifically sent back to those third parties for the purpose of obtaining copies of the video footage. From both the nature of the video footage and the actions of the police, I find that all of the sought after video footage was "obviously relevant" to the case.

 

67. The question on the defence s. 7 "lost evidence" application is what happened to that obviously relevant evidence. With respect to the security video of the interior and exterior of [Redacted], the police failed to secure copies of the video while it was still available. The evidence at trial shows that the police simply gave up trying to obtain the video and have made no efforts since. With respect to the security video from Tim Hortons, there was some question as to whether the police had actually seized more video footage than what was disclosed - more video footage which the defence now alleges was lost.

 

68. Having compared the testimony of [Redacted] to what is apparent in the security video from Tim Hortons filed as an exhibit at the trial, I am satisfied that he did in fact review and seize more camera angles than the one "dome view" presented at trial (i.e., the only one disclosed to the defence). There was no dispute that there were four different security video cameras in operation at that Tim Hortons on April 16, 2019. In his police report, [Redacted] had written that he seized "multiple DVDs" during his attendance at the Tim Hortons and had delivered them to the "video disclosure unit" of the DRPS. Yet, for some reason, the police ended up with footage from only one of the four security cameras at Tim Hortons. I heard no evidence as to what happened to the "multiple DVDs" delivered by [Redacted] or whether they were still available. More significantly, though, according to [Redacted]'s testimony he somehow learned that [Redacted]'s vehicle had a special handle attached to the steering wheel and a handicap pass in the front window, despite not having seen the vehicle in person. Having repeatedly reviewed the video myself, I am confident that those details could not have been identified by [Redacted] from watching the Tim Hortons' security video played at trial. It is reasonable therefore for me to infer that [Redacted] acquired those additional details from having seen a clearer and closer image of [Redacted]'s vehicle in footage captured by one of the other security cameras at Tim Hortons. I also infer that the "multiple DVDs" which [Redacted] reported having delivered to the video disclosure unit contained the footage from the other security cameras at the Tim Hortons, footage which seems to have subsequently been lost by the police. There is no explanation for the loss of that evidence.

 

69. As for the interior and exterior footage from [Redacted], the evidence of [Redacted] and [Redacted] shows that only faint efforts were made to secure copies of this video footage. Despite being told that the exterior camera seemed to have captured [Redacted]'s vehicle drive past in the parking lot, [Redacted] failed to ensure that a copy of the footage was seized. By contrast, [Redacted] had been sent by [Redacted] to obtain the pharmacy's interior video. Hart had some very basic technological training in how to extract security video footage from a third party system. For reasons unknown, neither Hart or the pharmacy staff were able to download the video. When [Redacted] was told about this, he deliberately declined to engage either of the two civilian experts employed by Durham Regional Police Service to carry out such tasks. According to [Redacted], he felt that there was already enough evidence "to prove my case in court" and so it was not necessary to seize more.

 

 

70. In short, I am satisfied that the investigative team in this case deliberately declined to collect "obviously relevant" video evidence from the plaza at [Redacted]. I am equally satisfied that the explanation for having failed to do so was not reasonable. While I recognize that some deference must be shown to police decisions on how to allocate resources (see R. v. Darvish, supra at para. 30) [Redacted]'s decision was based more on tunnel vision. Without even having made the call to the civilian experts to find out (1) how long it may take for them to attend and download the pharmacy video and (2) if they had the time to do so, it cannot reasonably be said that [Redacted]'s decision was based on resource limitations. Indeed, [Redacted]'s failure to make any further efforts to obtain the exterior security footage shows that his decision was premised on his view that there was already enough evidence to prove guilt.

 

71. The failure of the police to properly discharge their "duty to investigate" (see Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129) is regrettable. However, the Defendant has not discharged his burden of showing that the failure to preserve this evidence resulted in "actual prejudice" to the defence: R. v. La, supra, R. v. Barnes, 2009 ONCA 432 and R. v. Osman, 2020 ONSC 1830 at para. 26. I accept that the lost videos could theoretically have contained evidence which supported the defence, or which undermined the Crown's case. That said, there is nothing in the evidence on the application to show that is a real possibility. For example, there was no evidence on the application as to what could have been seen in the footage captured by the other security cameras at the Tim Hortons. It would have been open to the defence to present examples of footage captured from those other cameras aimed at showing what could have been on the lost video footage from April 16, 2019. The Defendant failed to establish that the lost video footage from the Tim Hortons would have adequately depicted the occupants of the vehicle believed to belong to [Redacted] and, thus, that their loss visited actual prejudice to the defence. Similarly, there is no evidence to show that the lost video footage from [Redacted] would probably have benefitted the defence. Given my findings in relation to the alibi evidence and the Defendant's failure to testify (even if only in relation to the Charter application), I cannot conclude that the [Redacted] videos would likely have established the Defendant's alibi.

 

72. The Defendant's failure to establish "actual prejudice" as a result of the lost video footage is enough to dismiss his application for a stay of proceedings. Had I been satisfied that there was such prejudice, I would still have declined to grant a stay. While the explanation behind the failure by the police to preserve the video evidence is constitutionally unacceptable, the circumstances of this case do not justify such an exceptional remedy. As the course of the trial demonstrated, the Defendant was still able to effectively present his alibi defence through other evidence: see R. v. Bradford, [2001] O.J. No. 107 (C.A.) at para. 8. He was able to proffer two different evidentiary bases in support of his alibi; namely, his mother and the pharmacy staff. The loss of the video footage did not prevent him from advancing his defence. Any complaint that the loss of the video footage deprived the Defendant of additional support for his alibi rings hollow considering that the Defendant chose to not lend his own testimonial voice to that defence.

Conclusion

 

73. I am not persuaded beyond a reasonable doubt that the Defendant pointed a gun at [Redacted] and robbed him of his car. He is found not guilty of Counts 1, 2, 3 and 4.

 

74. I am also not satisfied beyond a reasonable doubt that [Redacted] had control of the weapons found in [Redacted]'s bedroom when the police executed the search warrant in the early morning hours of April 17, 2019. He is therefore found not guilty of Counts 14 and 15.

 

75. I am, however, satisfied beyond a reasonable doubt that it was [Redacted] who was driving [Redacted]'s vehicle as it exited the [Redacted] parking lot on April 16, 2019. Accordingly, [Redacted] is found guilty of Counts 5 to 13 - the drive while prohibited charges and the charge of failing to comply with the bail condition requiring that he not be in the driver's seat of a car.