R. v Warner, 2015 ONSC 1375 (CanLII)
CITATION: R. v. Warner, 2015 ONSC 1375
COURT FILE NO.: CR14-30000267-0000
DATE: 20150331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: | ) ) |
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HER MAJESTY THE QUEEN
– and –
JIRAH WARNER
Defendant | ) ) ) ) ) ) ) ) | Joseph Hanna, for the Crown |
Royland M. Mariah, for the Defendant | ||
| )) | HEARD: April 28, May 7, 8, 9, 12, 13, and 15, and December 17, 2014 |
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MOLLOY J.:
REASONS FOR JUDGMENT
A. INTRODUCTION and OVERVIEW
[1] Jirah Warner is charged with four counts of robbery and one count of attempted robbery, all of which are alleged to have been committed between October 2010 and January 2011. Specifically, he is charged with:
(i) robbery of a Bank of Montreal in Markham on October 4, 2010 (Count 2);
(ii) attempted robbery of a Bank of Montreal in Bradford (the bank was closed) on October 15, 2010 (Count 3)*;
(iii) robbery of a Bank of Montreal on Leslie Street in Toronto on October 15, 2010 (Count 5);
(iv) home invasion and robbery on Gladys Road in Toronto on December 31, 2010 (Count 8); and,
(v) robbery of a convenience store in Toronto on January 12, 2011 (Count 9).
[2] Each of these events involved a group of young men, wearing disguises, and acting together to carry out a robbery. On each occasion, some of them brandished firearms. The Crown alleges that in respect of each event, the robbers were transported to and from the scene in a red Dodge Charger owned and driven by Jirah Warner. The Crown further alleges that in respect of the home invasion robbery, Jirah Warner not only drove the robbers to and from the crime scene, but also participated actively in the robbery itself.
[3] With respect to the three offences involving branches of the Bank of Montreal, Mr. Warner was initially charged jointly with Devaine Nelson. Mr. Nelson was also charged separately with a number of offences, including robbery of a Scotiabank on September 20, 2010. Part way through the trial, Mr. Nelson pleaded guilty to: the Scotiabank robbery on September 20, 2010; the Bank of Montreal robbery on October 15, 2010; and breaching his recognizance. With respect to the facts accepted as true at the time of his plea, he also admitted participating in the October 4, 2010 robbery of the Bank of Montreal on Leslie Street in Toronto. He did not identify the other men involved with him in the Bank of Montreal robberies.
[4] Among those arrested and charged with the bank robberies was a young offender (J.N.). J.N. made statements to the police admitting his own involvement in these robberies, and also implicating others, including Jirah Warner. J.N. told the police that he and three other individuals (Adrian, KD and KD’s cousin) robbed the Scotiabank on September 20, 2010, driving to and from the bank in a green Honda which J.N. believed to have been stolen. He said that Mr. Warner was not involved in that robbery.[1] However, J.N. told the police that for the Bank of Montreal robberies on October 4 in Markham and October 15 in Bradford and Toronto, Mr. Warner drove the robbers to the scene in his red Dodge Charger, waited for them nearby while they entered the bank, drove them away from the scene of the crime, and shared in the stolen profits. J.N. also told the police that Mr. Warner had bragged to him about having done a home invasion on December 31, 2010.
[5] J.N. was called as a witness at trial. In his testimony before me, he gave essentially the same evidence with respect to his own involvement in these crimes. However, he completely recanted everything he had said about Jirah Warner. He testified that Mr. Warner had nothing to do with any of these offences and that he made this up to get even with Mr. Warner because he thought Mr. Warner had “ratted him out” to the police. According to J.N.’s evidence at trial, it was KD who brought the red Charger to the Bank of Montreal robberies and KD who was driving it on each occasion. He further testified that Mr. Warner had been part of the planning for the October 4, 2010 robbery and had been a passenger in the red Dodge Charger on the way to the scene. However, he maintained that Mr. Warner became scared along the way, so they stopped the car, let him out, and went and did the robbery without him.
[6] The Crown applied to have J.N.’s statement to the police admitted for its truth. I granted that application for written reasons dated July 31, 2014.[2] For the reasons that follow, I find that J.N. told the truth to the police with respect to Jirah Warner’s involvement in the Bank of Montreal robberies. Based on that, and other corroborative evidence, I find Mr. Warner guilty of those three crimes (Counts 2, 3 and 5).
[7] Jirah Warner was the registered lessee of a red Dodge Charger. It was at the scene of the Bank of Montreal robbery on October 15, 2010 and an alert eyewitness wrote down the license plate after it sped away with the bank robbers inside. After that, Mr. Warner and his car were under police surveillance from time to time. As it happens, that surveillance was ongoing on January 12, 2011. Mr. Warner was driving his car and parked near a convenience store. Three passengers in the car got out and went into the store. They robbed the clerk at gunpoint and ran back to the car, which sped away. Police officers gave chase until the Charger was involved in a collision with police vehicles a few minutes later. Everyone jumped out of the Charger and ran. However, Mr. Warner was apprehended not far away. There is no question that he is guilty with respect to Count 9 which charges him with robbery of the convenience store.
[8] The evidence with respect to the home invasion is not as overwhelming. There is some evidence connecting Mr. Warner to that offence, but not enough to satisfy me beyond a reasonable doubt as to his guilt.
[9] Accordingly, I find Mr. Warner guilty as charged on Counts 2, 3, 5 and 9, but not guilty on Count 8 (the home invasion). My detailed reasons follow.
B. THE CONVENIENCE STORE ROBBERY
[10] On January 12, 2011 three men entered the Snowy Convenience store on Painted Post Road in Toronto and held up the owner/operator at gunpoint. They ran out of the store with cigarettes, lottery tickets, TTC tokens and the till from the cash register. The three men ran a short distance down the street and got into a red Dodge Charger, which immediately drove away.
[11] Unfortunately for the robbers, the getaway car was under police surveillance the whole time. Police had been watching the car since its suspected involvement in a Bank of Montreal robbery three months earlier. In the course of their surveillance, they became quite familiar with Jirah Warner. They saw him driving the car on numerous occasions, including the night of the convenience store robbery.
[12] Two separate police officers saw the red Dodge Charger earlier that evening and were following it. Both Officer Amar Shreeram and Officer Neil Hollywood saw and identified Mr. Warner as the driver. They both saw the Charger park near the convenience store. They saw three men get out of the car and go into the store, while Mr. Warner remained in the driver’s seat with the engine running. They then saw the three men come running out of the store and jump into the car, at which time the car drove off. Both officers had a good opportunity to observe Mr. Warner and good reason to be careful in their identification of him. I accept their evidence as to the observations they made.
[13] Several police officers in unmarked cars followed the red Charger intending to box it in and arrest the occupants. At approximately 8:51 p.m., they were successful in stopping the Charger by colliding with it on McCowan Road. All four occupants jumped out of the car and ran, including Mr. Warner.
[14] The three passengers were apprehended after a short foot pursuit. They were: Shane Bennett-Mitchell; Nejahwan Grant; and Bobby Grant.
[15] At 9:34 p.m. officers searching the surrounding area for Mr. Warner saw him emerge from a nearby forested area. He was arrested. He was covered in snow and appeared to be very cold. He was taken to hospital and treated for potential hypothermia and frostbite to his hands. Various items stolen from the convenience store were found in the Dodge Charger. Ministry of Transportation documents show that at the material time Jirah Warner was the registered lessee of this vehicle.
[16] In my view, the evidence is overwhelming that Jirah Warner was the getaway driver for the robbery of the Snowy Convenience Store. As such, he is a party to the offence and I find him guilty of robbery under Count 9.
C. THE BANK OF MONTREAL ROBBERIES
The Evidence of J.N.
[17] Toronto police officers arrested J.N. outside his high school on the morning of January 13, 2011. They told him he was being charged with three offences of bank robbery with a firearm and three offences of wearing a disguise with intent. He was 17 years old at the time.
[18] In my earlier decision dealing with the admissibility of Mr. N.’s statements to the police, I set out in some detail the evidence of the police officers who dealt directly with Mr. N. that day (Det. Palermo and Det. McDonald) and the evidence Mr. N. gave at trial about his interactions with those officers. Essentially, Mr. N. denied making statements in the police car as reported by those officers and alleged that they threatened and assaulted him both in the car and at the police station in order to force him into making a statement and saying certain things in that statement. For the reasons given previously, I rejected the evidence of J.N. about those interactions and I accepted the evidence of the police officers as to what actually happened. Mr. N. made the statements in the police car testified to by Det. Palermo. Further, the formal videotaped statement Mr. N. made at the police station was completely voluntary and in his own words.
[19] After being placed in the police car for transport to the station, Mr. N. was advised of the charges against him, given his rights to counsel, and cautioned. He immediately asked, “Who snitched on me? Was it the guys in the red Charger?” At that point, Det. Palermo knew nothing about the background of the charges and nothing about the red Charger or its connection to the offences. Mr. N. then went on to tell Det. Palermo that he had seen the news that morning and recognized the car, as well as the driver, who was shown on a stretcher. He told Det. Palermo that it was Jirah Warner on the stretcher and that he owned the red Charger. He then said that the guys who did the robbery of the convenience store had “snitched” on him. He told Det. Palermo, “I was there at those banks with those people, but I didn’t have a gun.” Det. Palermo asked him where the banks were located and Mr. N. said they were in Markham, Port Union and Leslie Street. Det. Palermo asked Mr. N. who he was with at those banks and wrote down his response phonetically as “Adrian, Negawon, Jara, and KD.” When asked for surnames, Mr. N. supplied the names, Adrian McEwan, Negawon Grant, and Jara Warner, but said he did not know KD’s real name. Mr. N. then became emotional and started to cry. He again told the officers that he did not have a gun, and that all he did was stand watch to make sure nobody in the bank called the police. When asked, he said he had already spent the money he got from the bank robberies. He also told the officers that he had worn a skeleton costume, but had thrown it away in a wooded area at Morningside and Sheppard.
[20] Later, at the police station, J.N. gave a formal statement to police which was videotaped. He confessed to being present at three bank robberies: a Scotiabank in Port Union on September 20, 2010; a Bank of Montreal in Markham on October 4, 2010; and a Bank of Montreal on Leslie Street in Toronto on October 15, 2010. He also testified that he was present when members of the same group attended at a Bank of Montreal in Bradford on October 15, 2010 with the intention of robbing it, only to discover that the bank was closed. Eventually, he also admitted that he personally robbed a woman who was at the ATM in the lobby of the Bank of Montreal in Bradford. J.N. told the police that Jirah Warner drove the robbers to and from each of the banks involved in the offences on October 4 and October 15, waited in the car while the others carried out the robberies, and drove them away from the scene after the robberies. He said Mr. Warner was driving his own red Dodge Charger on each of these three occasions.
[21] In his evidence at trial, J.N. did not depart from his prior statements in respect of his own involvement in these offences. However, he recanted everything he had said about Mr. Warner’s involvement and maintained Mr. Warner had no involvement in any of the robberies. According to J.N., Mr. Warner was part of the planning for the October 4 robbery, along with himself, Adrian McEwan and Devaine Nelson (“KD”). He also said that it was KD who provided the vehicle, which was a red Dodge Charger, and that KD was driving it that day. He testified that on the way to the bank, Mr. Warner said he was too afraid to participate, so they let him out of the car and did the robbery without him.
[22] According to J.N.’s testimony at trial, the only reason he implicated Jirah Warner in these offences was to get revenge, because he thought it was Mr. Warner who snitched on him to the police.
[23] Based on the level of detail provided by J.N. to the police, both in the police car at the time of his arrest and later in his videotaped statement, it is clear that he was actually present when these offences were committed. The particulars he provided are corroborated by many other pieces of evidence, chief among them being the video-recordings of the robberies themselves from the banks’ security cameras and the fact that the skeleton costume he described, and which was worn in two of the robberies, was subsequently found exactly where he said he had discarded it. His allegations are also substantiated by his own guilty plea. As I noted in my earlier decision, corroborative evidence of the details about the robberies include:[3]
• He named Devaine Nelson as one of the perpetrators, known by the nickname “KD”.
• He described the shotgun used.
• His description of the shotgun matched that of eyewitnesses from the bank, as well as the shotgun found in Mr. Nelson’s bedroom upon execution of a search warrant.
• Others named by Mr. N. as being involved have admitted their involvement by pleading guilty, including Mr. Nelson.
• His description of the red Charger as being the getaway car matches the observations of independent witnesses.
[24] It may well be true that J.N. only gave Mr. Warner’s name to the police because he thought Mr. Warner had already snitched on him. J.N. was arrested at 11:00 a.m. on the very morning that he learned Jirah Warner had been arrested for robbing the convenience store the night before, having seen the aftermath of the robbery on the morning news. He may have assumed from the coincidence in timing that Mr. Warner had betrayed him to the police and decided that he would return the favour. However, that does not mean that J.N. was lying to the police. His only reason for telling the truth may have been that he was angry at Mr. Warner, but it could still be the truth.
[25] J.N.’s explanation at trial as to how the robberies unfolded is implausible. He claimed at trial that on October 4, it was KD who brought the red Charger. He said that he did not know Jirah Warner to even have a car. However, he told the police officers immediately after his arrest that he saw the red Charger on TV and knew it was Mr. Warner’s car. Further, it actually was Mr. Warner’s car. Jirah Warner was the registered lessee of the vehicle, with his home address shown as 28 Wandering Trail. In October 2010, the license plate on the vehicle was BFXN 112. It is an agreed fact that this is the same vehicle that was involved in the convenience store robbery, although by then Mr. Warner had changed the license plate to BKVZ 203. I do not believe J.N.’s testimony at trial that he thought KD owned (or had stolen) the red Charger. I accept as true his statement to Det. Palermo in the police car that Jirah Warner owned the red Charger, and his videotaped statement to the same effect.
[26] Given that Jirah Warner owned the red Charger and they were going to do the robbery together, it makes no sense that KD would have been driving it around and picking up people on October 4, as described by J.N. at trial. Further, if Mr. Warner “got scared” and did not want to go through with the robbery, it makes no sense that he would simply get out of the car, leaving the others to take his car to the robbery without him. This is particularly unlikely in light of his involvement in the subsequent robberies.
[27] J.N.’s testimony at trial about the getaway car at the October 15th robbery of the Bank of Montreal on Leslie Street is also implausible. It is clear from the bank’s security camera video that only three robbers entered the bank. According to Mr. N.’s testimony at trial, the three of them drove to the area with KD at the wheel of the red Charger and left the car behind the bank with the engine running while they went into the bank. This makes no sense. Their getaway plan would have been completely destroyed if somebody had come across the unlocked car and taken it. Further, an eye-witness who saw the three robbers run past him, get into the car and speed away, testified that he believed there was already a driver in the car. He was a very careful and reliable witness. Although he could not be 100 percent certain about seeing the driver waiting in the car, he testified that he was “pretty sure.”
I am mindful that J.N. is a somewhat unsavoury witness, and that he was an accomplice. He has given inconsistent accounts of these offences. He either lied under oath to the police during his statement, or he lied under oath at trial. Before convicting anyone on his evidence, it is important to look for corroboration. While corroboration of the accused’s particular involvement is not required, it is nevertheless helpful. As I have already referred to above and in my earlier decision, in this case there is considerable corroboration of all of the details of J.N.’s statement about these robberies, although there is no direct corroboration of Mr. Warner’s involvement. There is, however, corroboration that Mr. Warner’s car was used and evidence linking Mr. Warner to that car at critical times.
[29] Having seen and heard J.N. testify at trial and having seen and heard his videotaped statement to the police, and having considered the corroborative evidence, I am satisfied that J.N.’s initial statements to the police about the getaway driver at the bank robberies are the truth. He later regretted implicating Mr. Warner and therefore lied about it at trial.
The October 15th Robbery of Bank of Montreal on Leslie Street
[30] At approximately 11:45 a.m. on October 15, 2010, three robbers entered the Bank of Montreal in a plaza at 4797 Leslie Street in Toronto. All of them had their faces partially covered. One of them, J.N., was wearing a skeleton costume. Two of them were carrying firearms. One man, identified by J.N. as Devaine Nelson (and known by the nickname KD), hopped over the teller counter. He was armed with a firearm that was larger than a handgun. He repeatedly asked where the vault was. J.N. also proceeded to the counter area. The third man, also armed, stood watch by the door. He was identified by J.N. as Nejahwan Grant. As J.N. removed the cash from the tellers’ till, Mr. Nelson went to the vault area. A gunshot was then heard from the vault area, whereupon all three men fled the bank. They were in the bank for a total of just under 90 seconds. They made off with approximately $8000.00.
[31] Two independent eyewitnesses saw the three robbers run away from the bank and speed away in a red Dodge Charger. Craig Dean Falconer was standing outside in the plaza speaking to someone on his cell phone when the robbers ran past him. He also saw the vehicle in which they sped away. He was confident it was a red Dodge Charger because his uncle owned a 2010 black Dodge Charger. The other eyewitness, Amir Afrasiabi, was also confident that it was a red Dodge Charger. He testified that he knew it was a Dodge because he is familiar with makes of cars and that he double-checked on the internet and was 100 percent sure that the getaway vehicle was a late model red Dodge Charger. Further, he made note of the license plate and ran back to his shop, a short distance away, and immediately wrote down the number. He could not recall one of the digits – he wrote down BF?N 112.
[32] As I have previously noted, in October 2010, Jirah Warner was the registered lessee of a 2007 red Dodge Charger with the license plate BFXN 112. His residence was recorded with the Ministry of Transportation as 28 Wandering Trail. It is no coincidence that J.N. would say that the robbers left the scene of this robbery in a red Dodge Charger and that the two eyewitnesses would also say that the getaway car was a red Dodge Charger. Likewise, it is no coincidence that J.N. said that Jirah Warner was driving the getaway red Dodge Charger, and it turned out that Jirah Warner actually had a red Dodge Charger. Further, the fact that six out of the seven digits in the license plate on Mr. Warner’s car are the same as those of the getaway car, as recorded by the eyewitness, makes the conclusion inevitable. It was Mr. Warner’s car that was used as the getaway vehicle for the robbery.
[33] The only thing that is in question at all is whether Mr. Warner was driving it. J.N., in his statement to the police, said that Mr. Warner was the driver. In his evidence at trial, he said that Mr. Warner was not there and that they left the car running with nobody in it. As I have stated, that does not seem plausible. Further, Mr. Afrasiabi testified that he believed there was a driver waiting in the car and that he was “pretty sure” of that, although not positive. His evidence would tend to confirm J.N.’s statement that there was a driver waiting in the car.
[34] Mr. Afrasiabi told the police the make of the getaway car and the license plate number he had recorded. A squad car was immediately dispatched to 28 Wandering Trail, arriving there at 12:06 p.m. At that time, there was no red Dodge Charger parked in the driveway or garage of that residence. The officers took up surveillance of the house. At 1:40 p.m. a red Dodge Charger pulled into the driveway and a tall black male, matching Mr. Warner’s general build, entered the house. The officers were not close enough to identify this person. However, the surveillance continued. Later that same afternoon, Mr. Warner was seen driving the red Dodge Charger. Photographs were taken of him and the car in a shopping plaza at approximately 4:00 p.m. There is no question on this point. It was Mr. Warner with the same car that had been involved in the bank robbery just a few hours earlier. The vehicle had tinted windows and was missing a hubcap on the front passenger side.
[35] On October 16, 2010, the Toronto Sun published an article about the October 15th bank robbery, reporting that the robbers fled in a red Charger and that a witness had provided police with six of the seven digits in the license plate. A clipping of this article was found in Devaine Nelson’s bedroom after his arrest. In his statement to the police, J.N. also acknowledged having seen this article at the time. On November 5, 2010, Mr. Warner changed the license plate on his car. He put on a new plate, BKVZ 203. Surveillance officers saw Mr. Warner driving the car after the new plate had been put on. It was still missing its front passenger-side hubcap. Although the Crown places reliance on this deceit as after the fact conduct supporting a conclusion that Mr. Warner was the driver, I have not relied on it for that purpose. In my view, it is evidence that supports the inference that Mr. Warner knew his car was involved in the robbery, but that does not mean he was necessarily the driver or that he knew about his car’s involvement at the time of the robbery.
[36] However, based on the whole of the evidence, I am satisfied beyond a reasonable doubt that Jirah Warner was the driver of the getaway car for the October 15th robbery of the Bank of Montreal on Leslie Street. I am satisfied that J.N. was speaking the truth in his police statement when he identified Jirah Warner as the driver. The evidence is overwhelming that it was Jirah Warner’s car. Virtually every other detail of J.N.’s police statement about this robbery has been verified as accurate. There is no reason to believe he would have invented Jirah Warner’s presence if Mr. Warner had not in fact been there. Indeed, J.N. portrayed Mr. Warner as having the least active role of anybody involved, in that he was always merely waiting in the car. Mr. N. also said that Mr. Warner had not been involved at all in the September 20th robbery of the Scotiabank, there being no reason to make a distinction for that robbery if his intent was merely to frame an entirely innocent Jirah Warner.
[37] In driving the three robbers to the bank, waiting for them, and then aiding in their escape, Mr. Warner is liable as a party to the offence. I therefore find him guilty of robbery as charged under Count 5 of the indictment. It is clear that a real firearm was used during the course of that robbery given the fact that it was fired during the offence.
Similar Fact Evidence
[38] I came to my determination of Mr. Warner’s guilt on the charges relating to the January 12, 2011 convenience store robbery and the October 15, 2010 robbery of the Bank of Montreal on Leslie Street based solely on the evidence relevant to each particular robbery and without reference to evidence relating to the other offences on the indictment.
[39] The Crown submits that in determining Mr. Warner’s guilt on any of the counts on the indictment, I should look at the whole of the evidence at trial and take into account the similarities between the various robberies as part of my factual assessment of Mr. Warner’s guilt on each charge. It was not necessary to undertake that exercise with respect to the convenience store robbery or the robbery of the Bank of Montreal on Leslie Street because I was satisfied beyond a reasonable doubt without doing so. However, the situation is different with respect to the other two bank robberies and the home invasion.
[40] Generally speaking, multiple counts on an indictment relating to separate crimes are to be evaluated separately by the trier of fact, as if in watertight compartments. Applying that general rule in this case would mean that each of the five alleged robberies must be considered based solely on the evidence related to that robbery, and without regard to what happened in the other robberies. The evidence with respect to one count must not be permitted to bleed into another. Likewise, the fact that I found Mr. Warner guilty of one or more of the robberies would be irrelevant in considering whether he committed the others. This would normally be regarded as improper propensity reasoning, i.e. that because Mr. Warner drove the getaway car for one robbery, he was more likely to have also done so for another.
[41] The policy basis for excluding such evidence is not because it is illogical to believe that a person’s past bad conduct may be a relevant factor in assessing his current character and the likelihood that he has acted in a similar manner again. Rather, such propensity reasoning has very limited probative value and is highly prejudicial, which is why it is generally inadmissible.[4]
[42] The inadmissibility of such evidence is only a presumptive rule, not an absolute one. When the balance tips in the other direction, such that the probative value of the similar fact evidence outweighs any prejudicial impact, the general rule of inadmissibility may be rebutted. As Binnie J. noted in R. v. Handy, at para. 41:
While emphasizing the general rule of exclusion, courts have recognized that an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse, per Sopinka J., dissenting, in B. (C.R.), supra, at p. 751:
The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, and, therefore, supportive of the evidence of the complainant. In order to be admissible, however, it would be necessary to conclude that the similarities were such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence . . . . [Emphasis added.]
[43] Because it is the Crown that seeks to rebut the general rule, the onus is on the Crown to prove on a balance of probabilities that the probative value of the similar fact evidence sufficiently outweighs its potential prejudicial effect to justify its reception into evidence.[5]
[44] It is critical to relate the similar fact evidence to the issue for which it is proffered. The “general” disposition of the accused is not an issue for which similar fact evidence will be found to be sufficiently probative to warrant reception into evidence. The issue in question must be narrower and more focused than that.[6] In the case before me, the Crown relies on the similar fact evidence to establish Mr. Warner’s identity as the driver of the getaway car in each of the robberies.
[45] In cases of this nature, the probative value of the similar fact evidence will usually turn on there being such a similarity between the various acts that they cannot be merely coincidental, but rather must inevitably have been committed by the same person or persons. The Court of Appeal held in MacCormack, at para. 61:
As we have already seen, evidence of similar acts is received on the basis of an objective improbability of coincidence. The evidence derives its probative value from the degree of similarity among the acts under consideration. Where the evidence is offered to prove identity, we require a high degree of similarity among the acts for the evidence to be admitted. In some cases, the acts display a unique trademark or signature that renders them “strikingly similar” and satisfies the strict standard for admissibility. In other instances, the cumulative effect of a number of significant similarities in the manner in which the acts were committed will satisfy the admission requirements.
[46] In considering the degree of similarity, it is relevant for the court to consider the following factors, which are not exhaustive:[7]
(i) proximity in time of the similar acts;
(ii) extent to which the other acts are similar in detail to the charged conduct;
(iii) number of occurrences of the similar acts;
(iv) circumstances surrounding or relating to the similar acts;
(v) any distinctive feature(s) unifying the incidents; and,
(vi) any other factor which would tend to support or rebut the underlying unity of the similar acts.
[47] As similarity increases, so does probative value.[8] Likewise, cogency increases as the fact situation moves further to the specific end of the spectrum.[9] At the admissibility stage, it is not necessary that the similar fact evidence be conclusive of guilt, or of the particular issue for which it is tendered.[10]
[48] Some of the similar fact evidence in this case tends to show that the same group of persons may have committed the robberies, but not necessarily the individual identity of each of the perpetrators. The Supreme Court of Canada considered this issue in R. v. Perrier as follows at para. 32:[11]
Where evidence of similar offences committed by a gang is being introduced not just to identify the gang itself but to identify a particular member, a sufficient connection between the individual and the crimes of the group must be established. This can be done in two ways:
(1) If the Crown can prove that group membership never changed, that the gang always remained intact and never committed the criminal acts unless all were present, and that the accused was a member of the group, and present, at the relevant time, that will be sufficient to connect the individual to the crimes of the group, and the evidence will usually have sufficient probative value to be admitted as similar fact.
(2) Where membership in the group is not constant, as in this case, then an additional “link” or “connection” must be made in order to use evidence of group activity against a particular accused. This additional requirement will be satisfied where (a) the accused’s role was sufficiently distinctive that no other member of the group or person could have performed it; thus he necessarily must have participated in all offences; or (b) there is independent evidence linking the accused to each crime. Without this second stage of analysis, there is a risk that the net will be cast too broadly and members of a group who participated in some crimes will be improperly convicted of other crimes by virtue of their association with the group alone.
[49] In this case, there is independent evidence linking Jirah Warner to each crime. In each instance, J.N. has given evidence that Mr. Warner was involved, and in some of the incidents there is independent evidence of his car being used.
[50] Provided I do not use the similar fact evidence to draw inferences of general propensity or to stretch the facts beyond what is mere conjecture, there is little prejudicial impact in considering this evidence. There is, however, considerable probative value given the similar manner in which the crimes were committed, the similar people involved, and the proximity in time and place. I have therefore determined that the Crown has met its burden of establishing that the similarities between these offences should at least be considered by me in my analysis of the evidence relating to the bank robbery charges. That does not mean that I will necessarily find the evidence to be determinative, but merely that I will take it into account.
[51] I will deal with the similar fact evidence in relation to each of the two remaining charges involving bank robberies. Then I will turn to the home invasion charge.
The October 15th Attempted Robbery of the Bank of Montreal in Bradford
[52] At approximately 10:30 a.m., three males ran up to the Bank of Montreal located at 305 Barrie Street, in Bradford Ontario. Barbara Beauchamp was at the bank machine just outside the front doors of the bank as they arrived. According to Ms. Beauchamp, the bank itself had been closed for over a year. When the three men got there, they realized that the doors were locked and the bank completely empty. One of them stated, “Fuck, it’s closed.” Two of the men left; the third stayed and robbed Ms. Beauchamp of $80.00 she had withdrawn from the ATM. She stated that she could feel something hard, which she thought was a gun, against the back of her leg. She also believed that the others may have had guns, which they were holding down by their sides, but she could not be sure. Ms. Beauchamp testified that one of the men was wearing a skeleton costume.
[53] In his formal statement to the police, J.N. said that on the morning of October 15, 2010, he and Nejahwan Grant were picked up by Jirah Warner and Devaine Nelson at the Cederbrae Mall. Mr. Warner was driving his red Dodge Charger. The plan, which he said had been devised by one or both of Mr. Warner and Mr. Nelson, was to rob a bank outside Toronto. They drove to Bradford. Mr. Warner parked the car on a street near a Bank of Montreal. While Mr. Warner waited in the car, the other three men, wearing gloves and with their faces covered, ran to the bank. Mr. N. said that he was wearing the skeleton costume. Mr. N. said that when they got to the bank, they discovered that it was under construction. Initially, he told the police that Mr. Nelson told the others to go back to the car, and that Mr. Nelson then stayed behind and robbed a woman who was taking money out of the ATM. Later, he admitted that he was the one who robbed that woman. He said that it was Mr. Nelson who had the gun.
[54] In discussing the robbery of the Bank of Montreal on Leslie Street in Toronto later that same day, Mr. N. testified that they had not actually planned to do that, but that when the first robbery fell through, he came up with the idea to hit the Leslie Street bank. He said they drove directly from Bradford to the bank on Leslie Street and proceeded in the same manner. According to Mr. N., Jirah Warner again waited in the car while he, Devaine Nelson and Nejahwan Grant entered the bank and robbed it.
[55] There is considerable support for J.N.’s version of events in the evidence. On both occasions, there were three individuals who entered the bank. On both occasions, all three wore gloves and had their faces covered. At each robbery, one of the men in the bank was wearing a skeleton costume. The two events were proximate in time: 10:45 a.m. and 11:45 a.m. on the same morning. The time between them is accounted for by the time it took to drive from one bank to the other. Mr. Warner’s car, driven by Mr. Warner, was the getaway car for the Leslie Street robbery.
[56] Given the close proximity in time, the striking similarity between the individuals involved, and the fact that the skeleton costume was involved both times, the only logical conclusion is that the same individuals were involved. There are simply too many similarities for a mere coincidence; the two events are clearly connected. Again, this is highly corroborative of Mr. N.’s statement that Mr. Warner was the getaway driver for both the robbery at Leslie Street and the attempted robbery in Bradford.
[57] I am satisfied beyond a reasonable doubt that Jirah Warner was the getaway driver for the planned robbery in Bradford. Further, the only reason that robbery did not proceed as planned is because the bank was closed when the robbers entered the lobby, masked and armed, ready to carry out their crime. These same robbers had at least one real gun at the Bank of Montreal on Leslie Street, which was immediately following the attempted robbery in Bradford. The only reasonable inference is that they had a real gun in Bradford as well. I am satisfied beyond a reasonable doubt that the actions and intent of this group constitute attempted robbery of the Bank of Montreal in Bradford and that Mr. Warner is liable as a party to this offence. I therefore find Mr. Warner guilty of attempted robbery under Count 3.
The October 4th Robbery of the Bank of Montreal in Markham
[58] On October 4, 2010, at approximately 10:56 a.m. three men entered the Bank of Montreal at 100 Carlton Rd. in Markham. They all wore gloves and had their faces partially covered. Two of them were carrying firearms. One of the robbers stayed near the door while the other two went immediately to the teller counter area. One man quickly jumped over the counter and pointed a sawed off shotgun at the teller. He rummaged through drawers seizing cash. The other robber near the counter demanded to be taken to the vault. The robbers were in the bank for approximately two minutes before they fled with approximately $7500.00.
[59] According to J.N.’s police statement, it was Devaine Wilson who hopped over the counter and pointed the shotgun at the teller. He said that he was the one who stayed by the door and that the third man was his friend Adrian. Mr. N. said that they were driven to and from the robbery by Jirah Warner in his red Charger and that Mr. Warner waited in the car while the others carried out the robbery.
[60] There are many similarities between the October 4th robbery and the October 15th robbery. They include the following:
(a) proximity in time – within 11 days of each other;
(b) similarity of place – both were at a small branch of the Bank of Montreal in the Toronto area;
(c) similar time of day – the October 4th robbery was at 10:56 a.m. and the October 15th robbery was at 11:45 a.m. (and was immediately following the attempted robbery at 10:30 a.m. in Bradford);
(d) in both cases, three men entered the bank;
(e) the three men who entered both banks were wearing gloves and had their faces covered;
(f) in both robberies, a sawed off shotgun was used;
(g) in both robberies, one of the robbers stood by the door while another immediately hopped over the teller counter;
(h) both robberies were carried out extremely quickly (approximately two minutes for the October 4th robbery and one and a half minutes for the October 15th robbery);
(i) in both robberies, the robbers asked where the vault was or asked to be taken to the vault; and
(j) in both robberies, at least one robber personally went through the tills and seized cash rather than simply demanding that a clerk do it.
[61] I recognize that many of these details will be common to many armed robberies of banks. Nevertheless, there is a marked degree of similarity between these two. I note as well that one of the tellers at the October 4th robbery gave a detailed description of the shotgun used. It is a modified weapon with unique features, which matches the shotgun found in Mr. Nelson’s bedroom upon execution of a search warrant. This provides additional corroboration for J.N.’s statement describing the same weapon and his evidence that it was carried by Devaine Nelson in the robbery.
[62] I find these similarities to be sufficiently compelling to conclude that they go beyond coincidence. There are common links between the perpetrators of one robbery and the perpetrators of the other. However, as noted by the Supreme Court in Perrier, showing that the same group committed the crimes is not sufficient to conclude that a particular accused must also have been involved. In order to identify Mr. Warner as a participant, there must be either: (1) proof that all of the members of the group were always the same; or (2) some other connection or link between Mr. Warner and this particular offence.
[63] In this case, there is no proof that the gang members were always the same. Indeed, it is clear that some members changed from time to time. However, there is evidence linking Mr. Warner to this particular crime. According to Mr. N.’s statement, which I have admitted and accept as true, Mr. Warner was driving the getaway car, his red Dodge Charger. This is the same car and the same role played by Mr. Warner in the October 15th attempted robbery in Bradford, the October 15th robbery on Leslie Street, and the convenience store robbery on January 12, 2011. Mr. N. said that the three robbers who entered the bank on October 4th were himself, Devaine Wilson, and another man named Adrian McQuean. Thus, although there was one person who was different, the composition of the group was otherwise the same. I believe Mr. N.’s testimony with respect to Mr. Warner’s involvement and I find corroboration in many of the other details recounted by J.N. that have been shown to be true.
[64] Based on the whole of the evidence, I am satisfied beyond a reasonable doubt that Jirah Warner drove the getaway car for the October 4th robbery. For both the robbery and the attempted robbery on October 15, 2010, a real firearm was used. Given the unique description of the shotgun given by J.N., as well as the bank teller in the October 4th robbery, and the shotgun found in Devaine Wilson’s room, I am satisfied beyond a reasonable doubt that the same real firearm was used in the October 4, 2010 robbery. Accordingly, I find Jirah Warner guilty as a party in respect of this offence, as charged under Count 2 of the indictment.
D. THE HOME INVASION
[65] In the early morning hours of December 31, 2010, a group of young men committed a home invasion and robbery of a residence at 23 Gladys Road in Scarborough. The home owner, Kevin Breen, was present along with two other people who lived there. All three were threatened and terrorized and Mr. Breen was also physically assaulted when one of the robbers hit him in the face with the butt end of a shotgun. The robbers were looking for drugs and cash. They found only a small quantity of marijuana, consistent with personal use. They robbed the residents of their cash (a total of $1200), cell phones, wallets, and laptops, then fled down the street.
[66] Ilce Ivanovski lived down the street from Mr. Breen. He had been looking out his window waiting for his fiancée, who was working late. He noticed an empty car parked outside his house and found it odd. As he was watching, four men came running down the street, jumped into the car and sped off. At trial, the only other detail Mr. Ivanovski could remember was the car windows were tinted. However, he gave a statement to police immediately after his observations. In my earlier decision I found that the requirements of necessity and reliability were met and that the statement to the police could be admitted for its truth. I am fully satisfied that Mr. Ivanovski was telling the truth to the police to the best of his ability. He also had a very good opportunity to observe and a reason to remember what he had seen given his immediate assessment that there was something suspicious about this car and the short period of time between his observations and his statement to the police.
[67] According to Mr. Ivanovski’s statement to the police, the car was a red four-door Charger with tinted windows and was missing the hubcap on the front passenger side. He also noted that some of the men were carrying baseball bats, a detail also provided by Mr. Breen.
[68] I have no hesitation in accepting Mr. Ivanovski’s description of the car as truthful and accurate. Further, it is obvious that this car was the getaway car for the robbers who had just left Mr. Breen’s home. Jirah Warner was the registered owner of a 2010 red Dodge Charger. He was observed by police on numerous occasions driving that vehicle. He and the vehicle were photographed. The vehicle had tinted windows and was missing its front hubcap on the passenger side. Mr. Warner’s red Dodge Charger was used as a getaway car for armed robberies on October 4th, October 15th, and then again on January 12th, twelve days after the home invasion. I am satisfied beyond a reasonable doubt that this was Mr. Warner’s car. It stretches credulity to suggest that there was another red Dodge Charger used as a getaway car in Toronto within that short time frame, also with tinted windows, and also missing its front passenger side hubcap. I therefore conclude that Mr. Warner’s car was used as the getaway car for this home invasion. Indeed, I come to that conclusion without any difficulty.
[69] However, I have considerable difficulty extrapolating from that conclusion to find that the car must have been driven by Jirah Warner. There is no direct evidence that Mr. Warner was there that night. Beyond the fact that his car was used, the only evidence connecting him to the home invasion is as follows:
(a) Mr. Breen testified that the robbers were after drugs, that he had been a drug dealer in the past, and that he had sold drugs to people that went to high school with Jirah Warner. Mr. Breen did not personally know Mr. Warner, but said that he knew who he was and had seen him two or three times in the past. All of the robbers had their faces covered and he was not able to say if Mr. Warner was one of them.
(b) J.N. told the police that Mr. Warner had recently bragged to him about having done a home invasion and gotten about $400-$500 from it. However, at trial he testified that he thought Mr. Warner was just boasting and did not take him seriously. J.N. consistently denied having been present for the home invasion.
[70] There are many details about the home invasion that are different from the Bank of Montreal robberies and the subsequent convenience store robbery. They include the following:
(a) it was a home invasion, a significantly different type of crime;
(b) the primary focus of the robbers appeared to be finding drugs;
(c) the car sitting outside Mr. Ivanovski’s house was empty while the home invasion was going on, whereas in all of the other robberies, Mr. Warner was waiting in the car;
(d) if Mr. Warner was involved, he took an active role in the robbery itself, a marked departure from his former and subsequent roles as getaway driver;
(e) Mr. Breen testified that there were four or five robbers; Mr. Ivanovski saw four. Either way, more individuals were involved in the home invasion than were involved in the prior and subsequent robberies;
(f) Mr. Breen testified that one of the robbers was a white man, whereas all of the participants in the prior and subsequent robberies were black;
(g) Mr. Breen testified that two of the robbers carried shotguns and that the others were armed with baseball bats. Mr. Ivanovski also testified to seeing baseball bats. None of the other robberies involved baseball bats.
[71] It is possible that Mr. Warner was present at the home invasion. It is also possible that he gave his car to somebody else with full knowledge that it was going to be used for this purpose, which would also make him guilty of the offence. However, I cannot be certain of either scenario. Mr. N. was not there and has no first-hand knowledge of Mr. Warner’s involvement. The fact that Mr. Warner may have boasted about doing it does not mean that he did do it. Based on this evidence, I cannot say that I am satisfied beyond a reasonable doubt as to Mr. Warner’s guilt. I therefore find him not guilty on Count 8.
MOLLOY J.
Released: March 31, 2015
CITATION: R. v. Warner, 2015 ONSC 1375
COURT FILE NO.: CR14-30000267-0000
DATE: 20150331
ONTARIO SUPERIOR COURT OF JUSTICE
|
HER MAJESTY THE QUEEN
– and –
JIRAH WARNER
Defendant |
REASONS FOR JUDGMENT
MOLLOY J. |
Released: March 31, 2015
[1] Jirah Warner was never charged with that offence.
[2] R. v. Warner, 2014 ONSC 4537, [2014] O.J. NO. 3752.
[4] R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 ; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339.
[5] Handy, at para. 55; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C.(3d) 516, at para. 48.
[11] R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228.
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