DATE: 20060208

DOCKET: C42289

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – VATERS, ADAM (Appellant)

BEFORE:

SHARPE, BLAIR and ROULEAU JJ.A.

COUNSEL:

Mara Greene

for the appellant

Nadia Thomas

for the respondent

HEARD & RELEASED ORALLY:

February 2, 2006

On appeal from the conviction entered by Mr. Justice Hugh R. McLean of the Superior Court of Justice, sitting with a jury, dated June 10, 2004.

E N D O R S E M E N T

[1] The appellant appeals his convictions by a jury for a convenience store robbery and possession of a stolen vehicle on the ground that the verdicts are unreasonable, and on the ground that the trial judge failed to instruct the jury adequately as to the theory of the defence. We are not convinced that the trial judge’s instructions to the jury were inadequate, but we agree with the submission that the verdict was unreasonable.

[2] The appellant concedes that there was evidence linking him to the stolen car some four to five days prior to the robbery and also evidence to show that the stolen car was used in the robbery. The appellant submits, however, that there was no evidence that he was in the car on the day of the robbery or otherwise involved in the robbery.

[3] The Crown relies on two items of evidence linking the appellant to the robbery. First, during the course of the robbery one of the robbers said “time”, and the robbers then left the store. The convenience store had a panic button alarm system and the appellant’s former girlfriend worked in the store shortly before the robbery. The Crown submits that it was open to the jury to infer from the fact that the robbers called “time” that they knew of the system and called “time” in order to escape before someone responded to the alarm. The Crown argues that having made that inference, the jury could then link the appellant to the crime on the hypothesis that his former girlfriend could have told him about the panic button.

[4] There are two flaws in this entirely speculative line of reasoning. There was no evidence to suggest that any information relating to the panic button had been conveyed to the appellant. The former girlfriend testified and she was not asked whether she had given the appellant that information. Moreover, even if she had, the evidence was that the store instructed its employees to use the panic button only in the event of injury and no one had been injured in the robbery.

[5] The second additional piece of evidence relied on by the Crown was that a knife was used in the robbery. There was evidence that a similar knife found in the stolen vehicle had been in the appellant’s possession some months earlier. However, there was also evidence that the knife was last in the possession of another named individual who was a suspect in the robbery.

[6] Moreover, there is exculpatory evidence tending to exclude the appellant from the robbery. The men who entered the store had t-shirts over their faces. DNA samples that were found on two t-shirts in the stolen vehicle did not match the DNA of the appellant. The Crown’s position at trial was that the appellant was not one of the two who entered the store but rather the driver of the getaway vehicle. An eyewitness who saw the driver of the vehicle testified that he had blonde, brown or black hair. The appellant has red hair.

[7] We are not entitled to retry the case. The Supreme Court of Canada cautioned that an appellate court may not merely substitute its view for that of the jury: Yebes v. R. (1987), 36 C.C.C. (3d) 417 and R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1. On the other hand, we are required to review the entirety of the evidence and determine, “through the lens of judicial experience” (Biniaris at para 40), “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered” (Yebes at p. 430).

[8] In our view, the verdict of guilty on the robbery count was unreasonable. We agree with the appellant that taken at its highest, the evidence goes no further than linking him to the stolen vehicle four to five days prior to the robbery, and linking the vehicle to the robbery. That link is plainly too tenuous to support an inference of guilt.

[9] With respect to the possession charge, the indictment particularized the date of the offence as being October 27, the date of the robbery. There is no evidence linking the appellant to the stolen vehicle on that day. It follows that the evidence is entirely lacking on one of the essential elements of the offence.

[10] Accordingly the appeal is allowed, the convictions are set aside, and verdicts of acquittal on both counts entered.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”