Armed robbery charges against an Elliot Lake man have been dismissed, despite being ID'd by the gas station clerk and the fact even his mom thought it was him.
The theft took place Aug. 28, 2018, when a black GMC pickup truck pulled up to the self-serve station and parked by one of the pumps. A man then got out of the vehicle, approached the attendant in the kiosk, brandished a knife, and demanded money and Number 7 Reds cigarettes.
He told the clerk he had to wait 15 minutes before calling police “because he knew where he resided,” took some lottery tickets, got back in the truck and drove away.
As it turns out, the clerk was talking to his girlfriend on his cellphone, and she listened as the robbery transpired and called the Ontario Provincial Police. The ordeal began just after 1 a.m. and police arrived at 1:07.
The clerk told the two officers the thief had just left, but a search until 5 a.m. failed to turn up a suspect. But information from the clerk led one of the officers to suspect he knew who had committed the offence.
“At approximately 1:15 a.m., (one investigating officer) received details from the other officer of the suspect’s appearance, including clothing, sunglasses, three-inch knife, and a licence plate number,” the transcript says. The officer “held a predisposition that the offender in this case was the accused and that locating the vehicle would lead him to the offender whom he believed to be the accused person in this matter.”
It emerged at trial that the clerk realized later he recognized the voice of the person who robbed him as a regular customer. But that identification only came after he looked at the videos and police told him they thought it was the accused, who had been convicted of robbing the gas station before.
The clerk also admitted to having a bad memory, and initially told police the robber was about 5-foot-9, much shorter than the man who was charged with the theft.
“The police had subsequently told him that this accused had stolen gas from a Canadian Tire gas bar at 6 a.m., Aug. 28, 2018, and that he was eventually picked up by the police outside of Sudbury,” the transcript says.
The accused's mother also testified at trial that she thought the person in the security camera videos looked like her son, but wasn't 100 per cent certain.
“She recalls telling police that if they were sure the offender was her son, she would believe it to be him because of the state that he was in,” the transcript says.
The officer involved in the case testified he had seen the accused's truck parked in a driveway on the street where the officer lives on Aug. 15. He was also got a call from the suspect's mother Aug. 16 worried about her son's well-being. And on Aug. 20, he saw the accused when he was helping another officer with a related matter, and spoke with him for 11 minutes about the concerns his mother had expressed.
It was that interaction, the officer testified, that led him to identify the accused as the person who committed the robbery. He suspected it as soon as he heard the thief had gotten away in the black pickup truck.
But in his analysis, the judge wrote that eye witness testimony is notoriously unreliable. There is substantial circumstantial evidence, however. For example, the accused is a drug addict and his mother said he was desperate for money. The thief and the accused drove the same type of vehicle, and he was arrested Aug. 30 for a similar robbery in Sudbury.
But, the judge ruled that the gas bar clerk had been heavily influenced by police when he identified the accused as the person who had committed the crime. And the OPP officer based his ID of the thief “based on an 11-minute conversation” at 1 in the morning, and didn't write notes about the interaction until after the robbery had taken place.
And if his mother wasn't sure – she testified it could be him, but wasn't certain – then the judge concluded there is enough doubt about who committed the robbery.
“I find that the evidence does not rise to the required threshold in establishing beyond a reasonable doubt that the accused is the offender who committed the robbery of Aug. 28, 2018,” he wrote, in dismissing all charges.
