Not enough evidence Ethier was the guy in gas bar robbery, judge rules

In a trial where the only issue was the identification of the person who robbed an Elliot Lake gas bar in the summer of 2018, a judge concluded Friday that the evidence didn't establish beyond a reasonable doubt that Alexandre Ethier was the perpetrator.

Superior Court Justice Ian McMillan dismissed three charges against the 25-year-old man stemming from the Aug. 28, 2018 armed heist of the Esso station.

Ethier had pleaded not guilty to stealing cash, cigarettes and lottery tickets while armed with a knife, carrying a weapon to commit an offence and uttering a threat.

Ethier's acquittal in the gas bar heist was one of two acquittals handed down on Friday. He was also found not guilty of a home invasion in Elliot Lake.

During a three-day trial in November, the court heard testimony from six individuals — the gas bar attendant, three Ontario Provincial Police officers, and the accused 's mother, as well as his sister.

Identification evidence, presented by prosecutor David Didiodato, included video recordings from 15 cameras at the gas bar-convenience store, and the employee's eye-witness testimony.

The remaining I.D. was recognition evidence, which came from an OPP detective, Ethier's mother Joanne Michaud and his sister Josee Ethier (the only witness called by defence lawyer Jennifer Tremblay-Hall).

In his 19-page decision, McMillan described the witnesses as "honest, forthright and credible." 

But the judge said he had to be cautious in evaluating the evidence of clerk Austin Kirby and Det. Brandon Leeson in terms of its reliability.

McMillan indicated his concern about the reliability of Kirby's testimony arose from the influence of police officers.

The young man was "told from the very outset" that the person was Ethier, who was unknown to him.

Police also told him Ethier had previously robbed the store, and based on that information, he had searched out a photo of the accused on the internet.

Kirby, self-described as not having "the best greatest memory," didn't see the accused in person until the preliminary hearing in February of this year — six months after the robbery, the judge said.

His secondary in-person identification opportunity occurred 14 months later at the trial in which the accused was shackled and accompanied by a police officer, McMillan noted.

Referring to Leeson's evidence, the judge said despite the detective's repeated reference "to the totality of the evidence," his identification of Ethier was essentially based on an 11-minute conversation eight days before the incident.

Leeson immediately concluded Ethier was the perpetrator, after learning a black GMC truck had been involved, "well in advance of viewing the video surveillance" and having any description of the perpetrator.

"He was convinced that it was the accused without having received any description of the offender from Mr. Kirby but knew Mr. Ethier had a truck of that description." 

McMillan said Leeson's identification, based on his 11-minute conversation, contrasted with the individual's facial features on the gas bar's videos.

Leeson "was adamant" that the videos depicted a person with orange/reddish straggly facial hair, but was unable to isolate any depiction supporting that evidence, he said.

The judge noted he had viewed the accused at the trial and was not able to identify Ethier as the person in the videos "with any reasonable degree of assuredness."

A hooded sweatshirt obliterated the perpetrator's head, and created a degree of shadowing around his face.

He was wearing large sunglasses that covered most of his upper face, and the photos showed very little, if any facial hair, McMillan said.

Both the Crown and defence contended that the person who would be in the best position to identify the perpetrator in the video and photographs would be his mother.

McMillan said Michaud was doing "her best to be forthright and candid," but "simply stated" her evidence was that it could be her son in the videos, but that she couldn't be sure, and quantified her recognition as 60 to 70 per cent.

She described the person's face as "camouflaged," indicating she couldn't "see his whole face."

While Michaud was uncertain if it was her son, Ethier's sister testified she didn't recognize the person as her brother

"Independent of my own inability to identify the accused, beyond a reasonable doubt," as the person in the videos, McMillan said he would reach the same conclusion when considering only the evidence of witnesses who testifed at the trial.

"Upon consideration of all of the evidence presented at trial, 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."

EDITOR'S NOTE: SooToday does not permit comments on court stories