



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Turner, 2022 ONCA 180

DATE: 20220301

DOCKET: C68105

Tulloch, Huscroft and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerome Turner

Appellant

Richard Litkowski, for the appellant

Linda Shin, for the respondent

Heard: February 22, 2022 by
    video conference

On appeal from the conviction entered on
    October 31, 2019, and the sentence imposed on February 21, 2020 by Justice Susanne
    Boucher of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was found guilty following trial
    by jury on five counts of armed robbery arising out of the robbery of several convenience
    stores. He appeals conviction and sentence.

[2]

The appeal is dismissed for the reasons that
    follow.

Background

[3]

The robberies occurred within a twelve-day
    period in 2017. All the robberies were committed by two people wearing face
    coverings, gloves, and hoodies. The taller of the two robbers threatened the
    clerk with a knife, while the shorter of the two took the money and goods.

[4]

After the fifth robbery, the police discovered a
    black Acura that matched the description of the car seen at the location of the
    fourth robbery. Items inside the car appeared connected to the robberies. The
    police seized the car and impounded it. They determined that the car belonged
    to Gornes Gittens, who was arrested shortly afterwards, and subsequently
    pleaded guilty to all five robberies. Cell phone records revealed calls and
    messages between the appellant and Gittens before and after two of the
    robberies. Personal items inside the car had the appellants DNA on them, and there
    was an ID with his personal information, including his name, Jerome Turner.

[5]

The sole issue at trial was the identity of the
    taller perpetrator.

[6]

The appellant raises several issues on appeal.
    We address each of them in turn.

Similar fact ruling

[7]

The trial judge granted the Crowns application
    to use the similar fact evidence across counts to prove identity.

[8]

The appellant argues that the trial judge erred
    in applying the test set out by the Supreme Court in
R. v. Perrier
,
    2004 SCC 56, [2004] 3 S.C.R. 228. The appellant raises a number of
    dissimilarities between the robberies and submits that the facts common to the
    robberies were not sufficiently distinctive to suggest that the perpetrators
    were the same two individuals each time. He argues that the composition of the
    perpetrators was not always constant and one or more other persons could have
    been involved.

[9]

We disagree.

[10]

The trial judge carefully considered the
    similarities and differences. She found that both the general circumstantial
    and specific individualized factors established that it was highly likely that
    the same two people performed the individualized roles in committing all five
    robberies.

[11]

All of the robberies occurred within a twelve-day
    timespan in convenience stores late at night, in the southwestern part of the Greater
    Toronto/Hamilton area. The robbers always wore gloves, face coverings, and hoodies.
    The trial judge acknowledged that these factors would be meaningless on their
    own, but when considered with the specific factors, the general circumstantial
    factors were part of the unifying considerations supporting the probability
    that the same two individuals were involved in each robbery. The specific similarities
    were striking and included the following:

·

Every robbery was a two-person job;

·

The shorter person and the taller person played
    the same roles in each of the robberies;

·

The shorter person had a distinctive posture;

·

The shorter person entered each location after
    the taller person and acted as the bag man in every robbery;

·

The taller person controlled the store clerk and
    brandished the knife in every robbery;

·

The taller person had a distinctive posture;

·

The taller person performed a signature move in
    jumping the counter; and

·

The shorter person and the taller person wore
    clothing of the same size, shape, colour, and style in all of the robberies.

[12]

The trial judge considered the dissimilarities
    but concluded that they did not detract from the cogency of the similarities to
    any significant degree. Her conclusion that it was highly likely that the same
    two people committed all five robberies is reasonable and amply supported by
    the record.

[13]

The trial judge properly went on to conclude
    that there was evidence linking the appellant to the similar fact evidence, as
    required by
Perrier
. Among
    other things, the evidence linking the appellant included the appellants DNA
    on a blue rubber glove used in two of the robberies and found in the black
    Acura, which was identified as the getaway vehicle; video evidence from one of
    the robberies; and text messages placing the accused with Gittens at the
    relevant times or dates for the offences.

[14]

Finally, the trial judge considered the
    potential prejudice to the appellant and concluded that it was outweighed by
    the high degree of probative value she found in the evidence. Her analysis is clear
    and thorough and there is no basis for this court to interfere. The similar
    fact application was properly granted. We see no errors in the trial judges
    instructions to the jury concerning the use of the similar fact evidence.

Post-offence conduct

[15]

The appellant argues that a text message sent
    from the appellants phone to Gittens shortly after Gittenss arrest should not
    have been admitted as post-offence conduct evidence from which guilt could be
    inferred, because there was no independent evidence of fabrication. In that
    text, the appellant expressed concern that Gittenss car had been stolen and
    said that he spent $55 on a cab to get home as a result of the theft.

[16]

There is no merit to this argument.

[17]

There was ample evidence of fabrication, and the
    trial judge properly applied the law in
R. v. OConnor
(2002), 62 O.R.
    (3d) 263 (Ont. C.A.). This included evidence of a ten-minute phone call from
    Gittens to the appellant after his car had been seized by the police, and
    before Gittens reported that the car had been stolen. A subsequent phone call by
    Gittens to the appellant, followed by the arrest of Gittens, preceded the
    appellants text message to Gittens expressing concern that his car had been
    stolen. These were all circumstances surrounding the appellants text that
    afforded independent evidence of fabrication. The trial judge explained why it
    did not matter that the text was sent to Gittens rather than to the police. It
    was open to the jury to conclude that the appellant had an interest in the
    theft narrative because the car contained inculpatory evidence and fit the
    description of the car seen leaving the scene of the fourth robbery.

[18]

We see no error in the trial judges
    instructions to the jury on this point.

Section 8 rulings

[19]

The trial judge made two s. 8 rulings. In the
    first, she ruled that a warrantless search of Gittenss cell phone violated the
    appellants s. 8 rights and excluded two pieces of evidence as a result: the
    appellants contact information, and a statement from the appellant in which he
    told the police that Gittens picked him up, that they went to his sisters
    house, that Gittenss car was stolen, and that he had to take a cab home. This
    ruling is not challenged on appeal, but it informs the second ruling.

[20]

The appellant made a second s. 8 application to
    exclude his subscriber information, text messages and cellphone tower
    information, all of which was obtained from Gittenss cellphone pursuant to a
    production order. The trial judge excised references to the search of Gittenss
    cellphone and references naming the appellant as Bounty, but otherwise
    dismissed the application.

[21]

The appellant argues that the trial judges
    approach to excision was too narrow and that subsequent investigative steps
    taken by the police that yielded additional information were inextricably
    linked to the initial search of Gittenss phone, which formed the basis for the
    first s. 8 ruling finding a breach. We disagree.

[22]

The courts task on appeal is to determine
    whether the trial judge could have issued the production order, not whether
    this court would have done so. The trial judge acceded to most of the
    appellants requested excisions from the ITO and fully explained her reasons
    for denying the appellants other requests. In the absence of an error in
    principle, her decision is entitled to deference. We see no such error. The
    trial judge went on to conclude that, in the event she was wrong, the evidence
    should not be excluded under s. 24(2). We note that there is no challenge to
    her decision in this regard.

Sentence

[23]

The appellant argues that his sentence  21
    months on each count less pre-trial custody  was too harsh. There is no basis
    to impugn the sentence in this case. The trial judge did not err in law or
    principle, nor can it be said that the sentence imposed was demonstrably unfit.
    On the contrary, in light of the appellants previous six-year sentence for ten
    similar robberies and the commission of the first of these offences only three
    days following the end of his parole period, the sentence imposed was at the
    low end of the range.

Conclusion

[24]

The appeal is dismissed. Leave to appeal
    sentence is granted, but the sentence appeal is dismissed.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.

B.W.
    Miller J.A.


