Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230224 DOCKET: C69111

Fairburn A.C.J.O., Doherty and Pardu JJ.A.

BETWEEN

His Majesty the King Appellant

and

Jahmyle Johnson Respondent

Counsel: Philippe G. Cowle, for the appellant Brendan Monk, for the respondent

Heard: February 15, 2023

On appeal from the acquittal entered by Justice Mary E. Vallee of the Superior Court of Justice on January 26, 2021, with reasons reported at 2021 ONSC 660.

Reasons for Decision

[1] This is a Crown appeal from an acquittal arising from a home invasion robbery. A masked man with a firearm and another unmasked man with a hood up over his head entered the residence. The trial Crown alleged that the respondent was the hooded man. The robbery ended with one of the home occupants shot through the abdomen.

[2] There is no dispute that the respondent’s DNA was found on a cannabis roach which was located close to the bullet casing left behind. Nor is there dispute that the respondent had no legitimate connection to the home. Indeed, he lived in a different city altogether. Nor is there dispute that the gun fired during the home invasion robbery was the very same gun fired five weeks earlier at a different robbery, one which the respondent had pled guilty to prior to his trial in this matter.

[3] This was a judge alone trial. The Crown appeals from the acquittal on the basis of two alleged legal errors that resulted in both the DNA evidence and the prior discreditable conduct evidence being removed from consideration as circumstantial evidence of guilt. Without these errors, the appellant maintains that the verdict would not necessarily have been the same and, therefore, a new trial should be ordered. We agree.

[4] The first error arises from the trial judge’s treatment of the evidence involving the respondent’s DNA on the roach.

[5] The trial judge found that the DNA evidence had no inculpatory value. She arrived at this conclusion by determining that there was another “plausible theory” for the presence of the respondent’s DNA on the roach, other than his presence at the scene. That other plausible theory arose from the fact that, although insufficient for testing, there was a second DNA profile on the roach. Therefore, the trial judge theorized that the other profile belonged to another person who may have “touched the roach prior to the robbery” and “kept the end of the roach” and then “dropped it on the floor during the robbery.” This theory led to the trial judge’s conclusion that the respondent’s DNA on the roach found in the home beside the bullet casing had “no inculpatory value.” In other words, having arrived at the conclusion that the DNA evidence permitted a reasonable inference other than that the respondent was present at the scene of the crime, the trial judge cast this piece of circumstantial evidence aside.

[6] In our view, the trial judge erred by considering the DNA evidence on its own, detached from the balance of the evidence. In doing so, she erroneously removed this piece of circumstantial evidence from her deliberations on the ultimate question to be decided: whether the Crown had proven guilt beyond a reasonable doubt.

[7] This case was an entirely circumstantial one. Accordingly, it was the trial judge’s task to assess whether the evidence as a whole gave rise to another reasonable inference other than guilt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30. While it was open to the trial judge as the trier of fact to place as much or as little weight on the DNA evidence as she saw fit, it was not open to her to detach this evidence from the balance of the evidence in the case and then reject it from further consideration. By examining the DNA evidence on its own, and then casting it aside as having no inculpatory value, the trial judge erroneously weakened the ultimate inference sought from the accumulation of many pieces of circumstantial evidence.

[8] Second, the appellant argues that the trial judge erred by excluding from consideration prior discreditable conduct evidence.

[9] The trial Crown sought the admission of evidence that the respondent had pled guilty to a robbery that had taken place five weeks before the home invasion robbery that formed the subject of this trial. The respondent and two other people were involved in that prior robbery. Although the respondent took no responsibility for having shot the gun at the first robbery, and was not alleged to have shot the gun at the second robbery, there was no dispute that it was the same firearm used at both crime scenes.

[10] The trial Crown sought the admission of the evidence relating to the first robbery for two purposes: (1) it was evidence of identity because it showed the respondent’s link to the gun used in the home invasion robbery; and (2) it was evidence of his knowledge of the presence of the gun that was used to shoot the victim at the home invasion robbery.

[11] The appellant maintains that the ruling excluding this prior discreditable conduct evidence demonstrates a failure by the trial judge to grasp the actual probative value of the evidence. The appellant points to the part of the trial judge’s reasons where she engages in a balancing of the “probative value versus prejudicial effect” of this evidence. The appellant points out that the trial judge fails to advert to the most important inference to be taken from this evidence, namely, that it went to the heart of identity when this was a case that was largely about identity.

[12] While we agree with the respondent that earlier in her reasons, the trial judge recounts the trial Crown’s position correctly, including that the evidence touched on identification, as her ruling goes on, this rationale for admission seems to fall away. It is unclear as to why this is so. What is clear, though, is that in balancing the probative value and prejudicial effect of the evidence, the trial judge focusses only upon the issue of mens rea. As she said:

The Crown seeks to draw an inference from the accused’s participation in the Toronto shooting that Mr. Johnson chose to commit an offence in Barrie with a person who he knew had the same gun that was used in the Toronto offence. He was aware of the gun, had knowledge of it, and knew it worked. The Crown seeks to prove constructive and joint possession of the gun. The proposed evidence is only marginally persuasive of that inference. [Emphasis added.]

[13] Leaving aside whether the gun evidence was only marginally persuasive of the inference sought to be drawn, the difficulty is that the trial judge failed to consider, as part of the probative value assessment, the strength of the inference that could be taken as it related to identification. In our view, that was the first and most important inference to be drawn: the respondent’s connection to the gun used at a robbery, in which he accepted he was a participant, five weeks before that very gun was used again at the home invasion robbery. This was a piece of circumstantial evidence from which identity could be inferred, adding more than just marginal probity to the calculus.

[14] This error, combined with the fact that there was, even on the trial judge’s assessment, a “low prejudicial effect” to the evidence, pushes toward the conclusion that the failure to appreciate the true probity of the evidence constitutes reversible error. We agree with the trial judge that there was minimal prejudicial effect arising from the admission of this evidence, including on the basis that:

• this was a judge alone trial;
• the earlier store robbery was less serious than the home invasion robbery that formed the subject of the trial;
• the respondent had pled guilty to the prior conduct; and
• the prior conduct was already part of the record.

[15] This was a powerful Crown case involving not only DNA evidence and the respondent’s connection to the firearm, but also the following:

• The respondent, who lived in Toronto, received a text message the day before the robbery that included a residential address that was a two-minute walk to the victims’ home in Barrie;
• Both the day before the robbery and just prior to and during the time of the robbery, the respondent’s phone registered on cell towers around the victims’ home;
• The description of one of the robbers was consistent with the respondent;
• The day after the crime, the respondent sent a text to a friend saying that he was “in trouble”;
• The respondent conducted online searches for his own name along with the phrase “barrie shooting”. He did the same after the store robbery five weeks earlier.

[16] With the DNA and prior discreditable conduct evidence combined, this could only be described as a powerful Crown case. In the “concrete reality of the case at hand”, it is our view that the errors had a “material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. Had the errors not been made, the verdict would not necessarily have been the same: Graveline, at para. 16.

[17] The appeal is allowed, the verdict of acquittal is set aside and a new trial is ordered.

Fairburn A.C.J.O.

Doherty J.A.

G. Pardu J.A.