COURT OF APPEAL FOR ONTARIO
Lauwers, Roberts and Zarnett JJ.A.
BETWEEN
His Majesty the King
Respondent
and
D’Andre Darrington
Appellant
Nemee Bedar and Paolo Giancaterino, for the appellant
Caitlin Sharawy, for the respondent
Heard: March 6, 2025
On appeal from the convictions entered on March 13, 2019 by Justice Mitch Hoffman of the Ontario Court of Justice.
REASONS FOR DECISION
1On March 13, 2019, the appellant was convicted of eleven serious charges arising out of his participation in an attempted robbery of a cryptocurrency exchange business. The trial judge found that the appellant and two others, disguised and armed with handguns, threatened, assaulted, and tied up the business’ employees and owner. On April 12, 2019, the appellant received a global sentence of 6 years less 165 days of pre-sentence custody. The appellant abandoned his sentence appeal on December 18, 2024.
2At the conclusion of the appellant’s oral submissions, we did not call on the Crown to respond. We dismissed the appeal with reasons to follow. These are our reasons.
3The appellant appeals only his convictions. He argues that because the evidence of the appellant’s participation in the robbery was circumstantial, the trial judge erred in failing to consider reasonable inferences inconsistent with a finding of guilt. He says this error resulted in an unreasonable verdict and reversed the onus by essentially requiring the appellant to prove his innocence.
4We disagree.
5The trial judge correctly applied the governing legal principles from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, and considered all of the evidence in accordance with these principles. He grappled with the theories inconsistent with guilt that were suggested by the appellant. It was open to the trial judge to conclude that the appellant’s participation in the robbery was the only reasonable inference to be drawn and that the other theories advanced by the appellant were implausible or speculative.
6Absent any error, which we do not see here, the trial judge’s determination that the appellant’s guilt was the only reasonable inference to be drawn from all of the evidence is entitled to appellate deference: Villaroman, at paras. 55-56, 69, and 71, and R. v. Charron, 2022 ONCA 394, at para. 20.
7The appellant’s argument involves a piecemeal approach to the evidence and primarily focuses on a 40-minute time period after the robbery and before the appellant’s return to his apartment building, between 11 and 11:40 a.m. (“the gap period”). The trial judge correctly noted that there was no direct evidence about the appellant’s whereabouts during that time period, and to conclude that he had or had not returned to his apartment before he was seen at 11:40 a.m. was speculative. The trial judge, however, did not simply focus on the absence of that evidence. The trial judge correctly relied upon the evidence in its totality to support the inference that the appellant participated in the robbery which, consequently, supported his determination of the appellant’s guilt beyond a reasonable doubt: Villaroman, at para. 55.
8This evidence notably included the following. The appellant left his apartment building at 9:30 a.m. and was seen to return at 11:40 a.m., soon after the robbery, in the company of others and with a knapsack. The trial judge found that the contents of the knapsack were transferred into a garbage bag that, shortly after his return, the appellant disposed of in his apartment building’s recycling bin. The trial judge further determined that the garbage bag held clothing, a satchel bag, and other items from the robbery. The clothing and satchel bag were worn by the robbers as shown on the business’ security footage. The garbage bag also contained a roll and loose pieces of duct tape conceded to have been used by the robbers in the course of the robbery. Finally, the clothing included a toque and neck warmer that carried what the Crown’s forensic expert described as a “significant amount” of the appellant’s DNA and which she opined was deposited from prolonged contact and repeated wear.
9This evidence, together with the trial judge’s characterization of the robbery as involving a high degree of planning, belied the appellant’s suggested theory that he was somewhere else during the gap period and the robbers just happened to call him in a panic shortly after the robbery to help dispose of the incriminating evidence found in the garbage bag. The fact that the incriminating evidence contained clothing worn by the appellant – the toque and the neck warmer – adds further implausibility to the appellant’s theory. The appellant did not testify at trial. This court may therefore consider his silence as indicative of an absence of an exculpatory explanation when considering an unreasonable verdict argument on appeal: R. v. Noble, [1997] 1 S.C.R. 864, at para 103; R. v. George-Nurse, 2018 ONCA 515, 432 D.L.R. (4th) 88, at paras. 33 and 35, aff’d 2019 SCC 12, [2019] 1 S.C.R. 570.
10Accordingly, there is no basis to intervene. The appeal is dismissed.
“P. Lauwers J.A.”
“L.B. Roberts J.A.”
“B. Zarnett J.A.”
