Acquittal for All Charges: Robbery, Using an Imitation Firearm to Commit an Indictable Offence, Conspiracy to Commit Robbery, Breach of Recognizance, and Related Charges
The history of our judicial system is littered with wrongful convictions of innocent people based on eyewitnesses who got it wrong in identifying the accused person as the perpetrator of the crime. This serves as a constant reminder that it is up to the vigilant criminal defence lawyer, in the protection of the innocent accused and the integrity of the criminal justice system, to put forward the evidence at trial necessary to help the judge and jury see that the eyewitness is honestly mistaken in pointing out the client as the culprit. The prevention of the injustice of a wrongful conviction must always be central tenet of the pursuit of justice.
This was one of those cases. Defence lawyer Tyler MacDonald was tasked with protecting the innocence of a man charged with three robberies using an imitation firearm, and related charges, in connection with three different individuals who were beaten and robbed at gunpoint of cash and cell phones devices over a period of six days in a Toronto neighbourhood. Two of the individuals had been lured to the robbery scenes after having contact with the robbers through a popular online classifieds site (one victim thought he was selling an iPad to willing buyers, and another thought he was buying an iPad and brought a significant amount of cash). A third victim was attacked and robbed seemingly at random as he walked down the street, smartphone in hand.
Two of the three robbery victims were sure that the client was one of the robbers – the one with the gun, specifically. The client was also found in the area of the last robbery, about an hour after it had occurred, dressed in black and in the company of another individual dressed in black. He fled from police not long after being stopped and investigated. When the client was caught and arrested a short time later, police found that he had keys which were eventually matched to a van parked nearby. That van contained much incriminating evidence, such as the cell phone stolen from the last robbery victim and a list of people targeted through the online classifieds site which included the contact information for the second robbery victim. The van was also found to be owned under the client’s name. Additionally, shortly after the client was arrested, a police K9 unit found that the client had discarded and hidden a realistic-looking pellet gun in one of the backyards where he had been hiding. Certainly, the circumstances which the client found himself in were suspicious.
By the time Mr. MacDonald had finished cross examining all of the robbery victims, however, it was clear that, despite the suspicious circumstances, the client could not have been one of the robbers. The first robbery victim eventually admitted that he must have been mistaken in telling the court that the client was the man who robbed him with a gun after the victim was confronted with the fact that he had initially described the robber to police as being taller than himself, but that the client was actually shorter than the victim. The second robbery victim did not identify the client as one of the robbers, and actually identified a different person as one of the robbers – a man who had pled guilty to that very robbery in separate proceedings. Finally, the third victim, honestly but mistakenly, testified to recalling a scenario of confronting and identifying the client during his arrest which, according to all police witnesses who were present as well as the testimony of the client, simply did not happen. This rendered the third victim’s identification evidence wholly unreliable.
Another key point came out of Mr. MacDonald’s cross examinations of all of the Crown’s witnesses. Every single officer who dealt with the client on the evening of his arrest, whether it was for thirty minutes or thirty seconds, whether they exchanged words with him or not, noticed that the client was wearing very noticeable braces on his teeth. All of the victim eyewitnesses were questioned thoroughly on their descriptions of the robbers and about whether they noticed or remembered any features about the client’s face, and none of them described seeing braces on any of the robbers.
Furthermore, the private seller who supposedly sold the van to the client did not recognize the client as the person she sold the van to, and other evidence tendered during trial raised the possibility that someone else actually purchased that van.
In the end, the trial judge agreed with Mr. MacDonald’s submission that the Crown’s evidence did not meet the burden of proving beyond any reasonable doubt that the client was involved in any of the robberies, and he was found not guilty of all charges.