



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Miles, 2018 ONCA 980

DATE: 20181205

DOCKET: C61947 & C62089

Sharpe, Hourigan and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Nicholas Miles and Errol Anthony Brown

Appellants

Howard Krongold, for the appellant, Jason Nicholas Miles

Jeffrey Couse and Marianne Salih, for the appellant,
    Errol Anthony Brown

Kevin Rawluk, for the respondent

Heard: November 22, 2018

On appeal from the convictions entered by Justice Maria
    T. Linhares de Sousa of the Superior Court of Justice on April 8, 2015, and
    from the sentences imposed on March 18, 2016.

REASONS FOR DECISION

[1]

The appellants were convicted of three counts of
    robbery with a firearm, three counts of forcible confinement, and one count of
    breaking and entering a place and therein committing the indictable offence of
    robbery following a judge alone trial in the Superior Court of Justice. Both
    appeal their convictions and seek leave to appeal sentence.

[2]

The charges arise from a robbery of an Ottawa
    technology store that occurred shortly after the store closed at 9:00 p.m.
    Three store employees were present in the stores office at the time of the
    robbery. Two were tied up with telephone cords. Four robbers were involved, two
    at the front of the store and two at the back. One of the robbers at the front
    of the store carried what appeared to be a firearm. The four robbers fled after
    the alarm was tripped. None of the store employees were able to identify the
    appellants as any of the robbers, nor could the appellants be identified from
    security camera recordings as any of the robbers.

[3]

The crucial evidence linking the appellant Errol
    Anthony Brown to the robbery was the discovery of his Blackberry cell phone at
    the front of the store. Brown admitted that it was his Blackberry but in a
    video-recorded statement to police admitted at trial he told the police that he
    thought that someone had stolen it from him earlier on the same day as the
    robbery.

[4]

A search of the Blackberry revealed that its
    user had exchanged text messages with a person labelled Flyd at the phone
    number 613-302-8150. That number was registered to Steven Miles and there was
    evidence that the appellant Jason Nicholas Miles was known in his family as
    Steven. The Crown alleged that the content of certain text messages between
    Brown and Flyd indicated preparation for the robbery and cell phone tower
    evidence placed the Flyd phone proximate to the technology store in question
    prior to and during the robbery. The police found Miles fingerprints on an iPod
    case touched by one of the robbers and on the exit door through which the
    robbers fled. Miles had previously worked at the store and the manner in which
    the robbery was carried out suggested knowledge of the stores layout and
    operation.

[5]

Neither appellant testified.

Issues: Conviction appeals

[6]

The appellant Brown raises the following grounds
    of appeal from conviction:

1.

The trial judge misapprehended evidence relating
    to the text messages;

2.

The trial judge failed
    to consider reasonable inferences exculpating the appellant; and

3.

The trial judge erred
    by concluding that the employee who was not tied up was forcibly confined.

[7]

The appellant Miles adopts those grounds of
    appeal and raises the following additional ground:

4.

The trial judge erred by relying on inadmissible
    hearsay evidence linking the appellant to a phone.

Analysis

1. Text messages

[8]

There were text messages on Browns phone,
    exchanged during the day of the robbery, with Flyd and with someone labelled
    J. The texts used street slang and the Crown called an expert to explain the
    meaning of the texts. At 11:32 a.m. on the day of the robbery, Brown texted
    Flyd: Yo wake up I got a plan and am ready to work dog. Slightly more than
    an hour later, Browns message to Flyd asked to borrow his lighter.
    Subsequent messages sent to J asked to borrow his ting or thing. J
    responded that he did not want to lend the ting out these days and that all
    the niggas hav been asking the same shit and im not lending them it either.
    The Crown expert testified that lighter and ting or thing were slang
    terms used to refer to a firearm and that on the street, persons who needed a
    firearm to do something would commonly borrow the firearm from its holder and
    then return it to the holder.

[9]

It is common ground that the expert and, as a
    consequence, the trial judge, erroneously proceeded on the basis that the terms
    lighter, ting and thing were all used in the texts between Brown and
    Flyd and did not take into account that some of the texts were between Brown
    and J. Brown also argues that the trial judge placed undue weight on the text
    message evidence given the experts concession in cross-examination that ting
    or thing could also refer to a car.

[10]

Despite the conflation of the J and the Flyd
    texts, we are not persuaded that the trial judge erred in her overall treatment
    of the text message evidence. There was evidence that the terms used could
    refer to firearms and it was a reasonable inference to interpret the texts to
    mean that shortly before the robbery, Brown was searching for a firearm in
    coded language. We are not persuaded that had the trial judge focused on the
    fact that the texts involved J as well as Flyd she would have come to any
    different conclusion.

2. Reasonable inferences
    exculpating Brown

[11]

Brown argues that the trial judge failed to
    consider that his phone could have been stolen and that she thereby reversed
    the onus of proof.

[12]

We do not accept that submission. The trial
    judge did consider Browns explanation and she applied a proper and thorough
W.D.
analysis to the statement he gave the police. The content of some of the text
    messages sent from the phone after the time Brown thought it could have been
    stolen suggested that the messages came from Brown. One of them used his
    nickname Don. It was open to the trial judge to reject Browns explanation
    about the phone being stolen and to conclude that it did not leave her with a
    reasonable doubt. This did not amount to reversing the onus of proof.

3. Forcible confinement

[13]

Brown argues that the trial judge erred by
    finding that the third employee who was not tied up was forcibly confined. He
    submits that any confinement of that employee was trivial and momentary and
    therefore did not meet the legal definition of forcible confinement. He argues
    that finding forcible confinement in this case would amount to finding that
    every robbery involves forcible confinement.

[14]

We disagree. This argument was not advanced at
    trial and the trial judges reasons reveal no legal error. She identified the
    proper legal test and found that the robbers restricted the employee within a
    very small office while they collected the cash. The robbers subsequently
    forced the employee to follow them to the back of the store and the exit door.
    This was not a trivial or momentary restriction of her liberty and it went well
    beyond the elements of robbery. It was therefore sufficient to amount to
    forcible confinement.

4.
Hearsay evidence

[15]

The Flyd phone, 613-302-8150, was never
    recovered. It was a pre-paid phone that can be opened without verification of
    the buyers identity. There was no evidence connecting Miles to the name
    Flyd. As noted, however, the phone was registered in the name of Steven
    Miles and there was evidence that Jason Miles was known to his family as
    Steven.

[16]

The contentious evidence linking the appellant Miles
    to the Flyd phone is the information from a post-it note. A police officer
    testified that he asked Miles cousin, with whom Miles lived, for Miles phone
    number. The officers evidence was that the cousin then went back into the
    house, returned and showed the police officer a post-it note reading Steven =
    cell 613-302-8150. When the cousin testified at trial, he denied giving the
    police that information and stated that he could not recall Miles phone
    number.

[17]

In her reasons, the trial judge listed as one of
    the facts implicating Miles in the robbery that the cousin had identified him
    as having the cell-phone number 613-302-8150.

[18]

The evidence from the police officer that the
    cousin showed him the post-it note was the equivalent of the police officer
    testifying as to what the cousin had told him about Miles phone number. It was
    a second-hand statement that was hearsay when used to establish the truth of
    the fact that the number was that of Miles. It follows that the trial judge
    erred by attaching any weight to this evidence.

[19]

However, we agree with the respondents
    submission that even if this evidence were excluded, we should apply the
    curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
and uphold
    Miles convictions because the evidence against Miles was overwhelming: see
R.
    v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras.
    53, 56-57.

[20]

First, the post-it note was not the only
    evidence linking Miles to the phone. The phone was registered in a name that
    Miles family used to refer to Miles and the phone was used to communicate with
    Brown at the time of and in relation to the robbery in the vicinity of where
    the robbery took place. There was no evidence of any other Steven Miles and
    no such individual lived at the address listed on the subscriber information. In
    our view, there is no realistic possibility that without the impugned evidence,
    the trier of fact would not have found that the phone was that of Miles.

[21]

Second, there was a strong body of other
    evidence linking Miles to the robbery. In addition to the evidence of the
    phone, Miles fingerprints were found at the scene on merchandise the robbers
    dropped as they fled and on the exit door. Miles was a former employee and that
    gave him knowledge of the stores layout, where the cash was kept and the place
    where the more valuable merchandise targeted in the robbery was stored. Several
    months after the robbery the police encountered Miles in a car with Brown and
    Miles gave the police a false identity.

[22]

In our view, there is no realistic possibility
    that the outcome of this trial would have been different had the post-it note
    evidence been excluded. Given the strength of the Crowns case, the appeal
    should be dismissed despite the legal error in admitting it.

Sentence appeals

[23]

Brown argues that the trial judge erred by
    imposing the four year mandatory minimum sentence for robbery with a firearm
    pursuant to s. 344(1)(a.1) of the
Criminal Code
. He submits that the trial judge
erred
    in finding both that he had knowledge that a firearm was used and that a real
    firearm was used as opposed to an imitation firearm.

[24]

In our view, there was ample evidence from which
    the trial judge could conclude that Brown knew that a firearm was used in the
    robbery. His cell phone was used shortly before the robbery in an attempt to
    secure a firearm. There was evidence that all four robbers acted in concert.
    They arrived and left at the same time. The firearm was openly visible during
    the course of the robbery. We see no merit in this ground of appeal.

[25]

Brown further contends in a submission made in
    his factum but not pressed in oral argument that there was insufficient
    evidence to establish that a firearm as opposed to an imitation firearm was
    used in the robbery. He submits that all of the evidence relating to the
    firearm came from the three employees. One of these employees testified that
    she was unfamiliar with firearms, another was traumatized by the robbery and
    had a poor memory of the incident, and the third testified that he did not get
    a good look at the firearm.

[26]

We do not accept this submission. There is no
    question that one of the robbers used a gun, whether real or imitation. The
    description of the gun given by the three employees and the manner in which it
    was used were entirely consistent with it being a real firearm and there was no
    evidence that it was not. In our view it was open to the trial judge to find on
    this record that a firearm was used to commit this robbery.

Disposition

[27]

For these reasons the appeals from conviction
    are dismissed. Leave to appeal sentence is granted but the sentence appeals are
    dismissed.

Robert
    J. Sharpe J.A.

C.W.
    Hourigan J.A.

G.T.
    Trotter J.A.


