Court of Appeal for Ontario

Date: 2018-01-12 Docket: C59334

Judges: Laskin, Feldman and Blair JJ.A.

Between

Her Majesty the Queen Respondent

and

Abdullah Youssef Applicant/Appellant

Counsel

Richard Litkowski, for the appellant

Kevin Rawluk, for the respondent

Heard

October 26, 2017

Appeal Information

On appeal from the convictions entered on May 2, 2014 by Justice Jonathon George of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

Majority Opinion (Laskin and Blair JJ.A.)

1In early May 2013, a branch of the Bank of Montreal in London, Ontario was robbed. Eye-witnesses and a surveillance video indicated that the robber was a young man, who wore sunglasses, gloves, a bandana, and a hat. The appellant, Abdullah Youssef, was charged with the robbery and several offences arising out of the robbery. He was tried by a judge alone. The main issue at trial was the identity of the robber. The evidence against Youssef was circumstantial.

2In oral reasons, the trial judge found Youssef guilty. He found that the combination of Youssef's DNA on a pocket knife left in an area of the bank accessed only by bank employees and the robber, and his DNA on a t-shirt found in the getaway car, was "fatal to the defence position." In the trial judge's view: "there is no other reasonable innocent explanation for the presence of Mr. Youssef's DNA."

3Youssef appeals his conviction. The sole issue on appeal is the reasonableness of the guilty verdicts. Youssef submits that the verdicts are unreasonable because the trial judge's finding that Youssef was the robber is not the only rational inference on the evidence. We disagree with Youssef's submission.

4Where the evidence of identity at trial is circumstantial, the test to uphold the reasonableness of the verdict on appeal is as follows: an appellate court must be satisfied that the trier of fact acting judicially could "reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence": see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, per Cromwell J. at para. 55. And, as Cromwell J. added at para. 71: "it is fundamentally for the trier of fact to draw the line … that separates reasonable doubt from speculation." In other words, an appellate court can interfere only if the trial judge's conclusion that the evidence excluded any reasonable alternative to guilt was itself unreasonable.

5In our view the test was met in this case. The following pieces of circumstantial evidence taken together support the reasonableness of the verdicts:

• A younger male, acting alone, robbed the bank;
• The robber left a pocket knife at the scene of the robbery, in an area accessed only by the robber and bank employees;
• Youssef's DNA was one of three DNA profiles on the pocket knife, and was the major profile;
• 30 minutes after the robbery, a stolen car was found in flames;
• The stolen car was used by the robber as the getaway car;
• Youssef's DNA was on a black t-shirt found in the stolen car; and
• The DNA on a balaclava found in the stolen car was likely that of Youssef's sister.

6Cumulatively, these pieces of circumstantial evidence exclude any reasonable alternative to Youssef's guilt. We add that as Youssef did not testify, the trial judge was not required to speculate about possible defenses Youssef might have offered had he chosen to give evidence: see R. v. Noble, [1997] 1 S.C.R. 874, at para. 77.

7We dismiss the appeal.

John Laskin J.A.

R.A. Blair J.A.

Dissenting Opinion (Feldman J.A.)

8I have had the benefit of reading the draft reasons of my colleagues upholding the conviction of the appellant. In my view, the evidence in this case cannot meet the test in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, and consequently, I would allow the appeal and order acquittals.

9The test articulated by Cromwell J. in Villaroman is largely a restatement of the traditional test from Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136, which required that where the Crown's case is based on circumstantial evidence, guilt must be the only rational conclusion from the evidence. Cromwell J. stated it this way at para. 55:

Where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence. [Citations omitted.]

10In R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 19, this court explained that where there is fingerprint evidence linking the accused with an object connected to the crime or the crime scene, there must also be "other evidence capable of establishing that the accused touched the object at the relevant time and place so as to connect the accused to the crime." A similar analysis applies to DNA evidence: see, for example, R. v. Wills, 2014 ONCA 178, 318 O.A.C. 99, aff'd 2014 SCC 73, [2014] 3 S.C.R. 612; R. v. Ahmed, 2015 ONCA 848; and R. v. Grayston, 2016 ONCA 784.

11In this case, the appellant could not be identified as the perpetrator by eyewitnesses or by video surveillance. Video surveillance showed the perpetrator to be a younger man wearing sunglasses, a bandana, a hat and gloves, and he appeared to be waving a gun. A pocket knife was found behind the counter at the bank. That pocket knife contained DNA from the appellant, as the major contributor, and from two other people. Because the bank robber was wearing gloves, the DNA could not have been deposited on the knife during the robbery.

12The robber fled in a vehicle that was found on fire soon after the robbery close to the bank. That vehicle had been stolen approximately a month and a half before the robbery. Inside the burning vehicle, the police found a number of items, but not the hat, gloves or bandana that the robber had been wearing. What they did find were jeans, a balaclava, a band for glasses, a black t-shirt and shoes. The pattern on a shoe in the car was similar to a shoe-print left at the crime scene. The appellant's DNA was on the black t-shirt. DNA found on the balaclava was likely that of his sister.

13The trial judge reasoned that the combination of the appellant's DNA on the pocket knife dropped at the crime scene and on a t-shirt in the getaway car compelled the conclusion that the appellant was the bank robber. While acknowledging that not testifying is one's right and cannot lead to the drawing of a negative inference, he also observed that as the appellant did not testify, there was no reasonable explanation for the combination of factors other than guilt. In my view that reasoning is flawed.

14The pocket knife evidence cannot create a temporal connection between the appellant and the robbery, because neither he nor the other two DNA contributors to the knife could have deposited their DNA during the robbery, as the perpetrator was seen wearing gloves. Therefore the knife was an object brought to the robbery by the robber with three people's DNA already on it.

15Similarly, there is no connection between the t-shirt with the appellant's DNA found in the getaway car and the robbery, because the robber was not seen wearing a black t-shirt. The black t-shirt was just an object connected to the appellant but not to the robbery. Had the robber been wearing a black t-shirt during the robbery, one could reason that the t-shirt found in the getaway car that was driven by the robber belonged to the robber.

16Nor can one create a link between the appellant and the robbery by putting together two pieces of evidence linked to the appellant but not to the robbery. Put simply, the appellant is linked to objects that were found in the bank and in the getaway car, but because there is no evidence that indicates when the appellant's DNA came to be on those objects, they do not link him to the robbery.

17The case of R. v. Mufuta, 2015 ONCA 50, 329 O.A.C. 237, illustrates how a temporal connection can be established between an object linked to an accused and the crime, and provides a useful comparison. In that case, the appellant was convicted of voyeurism by peering at a woman from an adjacent bathroom stall. The perpetrator had entered the bathroom two minutes before the victim. His general description matched the appearance of the appellant. A soda bottle was found in the stall adjacent to the victim's, where the perpetrator had been, containing only the appellant's DNA. Evidence was led that because the bathrooms were cleaned daily, the soda bottle had to have been left the day of the offence. That evidence established a temporal connection between the appellant and the crime. Together with the matching description of the perpetrator at the scene, the court was satisfied that the guilt of the appellant was the only reasonable conclusion.

18Without a similar temporal link in this case, in my view, the test in Villaroman is not met and the verdict is unreasonable. My colleagues conclude that cumulatively, the circumstantial evidence excludes any reasonable alternative other than the appellant's guilt. To the contrary, based on the circumstantial evidence, it is equally possible that someone working with or socializing with the appellant in the stolen car took the pocket knife with him when he robbed the bank and returned to the car where the appellant had left his black t-shirt. There was no obligation on the appellant to testify in order to raise this possibility.

19I would therefore allow the appeal and enter acquittals.

K. Feldman J.A.