Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230612 DOCKET: C70372

Before: Simmons, Trotter and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Hassan Ali Appellant

Counsel: Hassan Ali, acting in person Peter Copeland, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: March 6, 2023

On appeal from the convictions entered by Justice Clayton Conlan of the Superior Court of Justice on June 28, 2019 with reported reasons at 2019 ONSC 3932.

REASONS FOR DECISION

Background

[1] The appellant was charged with possession of stolen property under $5,000 (i.e., a licence plate), and numerous offences arising from a series of robberies and attempted robberies of an RBC branch and convenience stores. The offences took place within a short distance of each other in December 2016 and January 2017. The appellant was found guilty of possession of the licence plate, as well as offences in relation to three armed robberies that occurred on the same day. He appeals his convictions. The following reasons explain why the appeal is allowed and a new trial ordered on all counts except the one related to the stolen licence plate.

[2] The appellant was alleged to be part of a group of young men who committed or attempted to commit robberies at the following locations, on the following dates:

(1) RBC (December 23, 2016); (2) Hasty Market (January 2, 2017); (3) Mac’s (Brampton) (January 7, 2017); (4) Mac’s (Mississauga) (January 7, 2017); and (5) 7-Eleven (January 7, 2017).

[3] The appellant was found guilty in relation to the three robberies committed on January 7, 2017; he was acquitted on the others. In each of these robberies, two young black males enter these locations with their faces covered and wearing black gloves. In two of them, one of the robbers brandished a handgun. [^1] The men demand money and other items from the store clerks.

[4] On January 12, 2017, the appellant and three other men were arrested when they got out of a Mazda Protégé to which a stolen licence plate was affixed. The car was registered in the appellant’s name, but was actually purchased by one the appellant’s co-accused. The police lawfully seized items from this car, which included items connected to some of the robberies.

[5] Subsequent testing of some of these items revealed the appellant’s DNA on a black and white scarf, a grey toque, and a disposable blue glove. A male wearing a similar scarf is seen on surveillance video during two of the January 7, 2017 robberies. The scarf covered the person’s face. It was the Crown’s position that the person wearing this scarf was the appellant. The other male in the video is armed with the (imitation) handgun.

[6] At trial, the Crown made a cross-count similar act evidence application on the issue of identity. The trial judge allowed the application and permitted the use of each incident (except the RBC attempted robbery) as similar act evidence.

[7] The trial judge had a reasonable doubt about the appellant’s participation in the RBC robbery, as well as the robbery of the Hasty Market on January 2, 2017. As noted, he found the appellant guilty of the January 7, 2017 robberies.

[8] The appellant raises two grounds of appeal: (1) the trial judge misapprehended material evidence; and (2) the verdict was unreasonable. We would give effect to the first ground of appeal, but not the latter.

Misapprehension of evidence

[9] The trial judge misapprehended the evidence on a narrow but important issue. This arose during the trial judge’s analysis of the similar act application, and involved his observation of the video surveillance evidence of the three January 7, 2017 robberies. As the trial judge said:

Having watched all of the video footage several times each, looked at in conjunction with the evidence supplied by the store clerks, there is no question that the three robberies that occurred on January 7, 2017 were very, very similar. Strikingly so.

Two masked robbers each time. One robber with a gun, each time. The robber with the gun appears to be left-handed, each time. The robber without the gun, wearing a bright blue hoodie during at least two of the three occurrences (the Mac’s Mart in Brampton and the 7-Eleven) and wearing blue gloves under black gloves in all three occurrences, appears to be relatively more hyper and more excitable than the gunman, each time.

The independent linkage evidence consists of the following. Collectively, even without considering anything else, they are sufficient to allow the similar act application.

First, the scarf seized by the police. It was found inside the Mazda Protégé, which was registered to H.A. The accused had been seen inside that car the day before the arrest. The scarf, we can say for all intents and purposes, has H.A.’s DNA on it. That scarf looks very similar to the one worn by the unarmed robber at the Macs Marts in Mississauga and Brampton

[160] Second, the blue disposable glove, seized from the Mazda, that, we can say in practical terms, tested positive for [the appellant’s] DNA. One can clearly see that the unarmed robber at both Mac’s Marts and at the 7-Eleven is wearing blue disposable gloves underneath black gloves. [Emphasis added.]

[10] The blue glove with the appellant’s DNA that was seized from the Mazda was a potentially critical piece of evidence, especially if it could be proved that the robbers wore blue gloves. However, we agree with Duty Counsel’s submission, which is not disputed by the Crown, that no blue disposable gloves are visible in any of the three videos of the January 7, 2017 robberies. Black gloves are visible, but not blue gloves. The individual said to be the appellant was wearing a blue hoodie during two of the robberies. In at least one of the videos, a sleeve of this hoodie extends from beneath the sleeve of a dark overcoat. It may be that the trial judge mistook the blue sleeve for a blue glove.

[11] At trial, the Crown did not suggest that blue disposable gloves could be seen under black gloves in any of the three videos. Nor did the Crown dispute defence counsel’s submission that, “as Your Honour knows, I mean, we don't see any blue gloves on any of the robbery videos. We certainly see black gloves.” The trial judge did not raise this issue with counsel at that time, nor afterwards.

[12] In our view, the misapprehension related to a material issue and bore upon an important part of the trial judge’s reasoning process on the similar act application, which was a key pillar of the Crown’s case. The misapprehension erroneously strengthened the link between the January 7, 2017 robberies and the appellant’s DNA: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1; R. v. Morrissey, (1995), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Tran, 2023 ONCA 11, at paras. 31-34.

[13] As noted, on appeal, the Crown acknowledges that no blue gloves can be seen on the surveillance evidence. However, he submits that there was still some value to the glove found in the Mazda because it can be seen wrapped in a black glove. Thus, whether visible or not, there was some evidence upon which to infer that the appellant was wearing blue gloves under the black gloves that are clearly visible.

[14] We are not persuaded by this submission. The trial judge gave the evidence of the blue glove far greater weight than it deserved. It was a key feature of his similar act analysis, which was critical to the Crown’s case. This amounts to a miscarriage of justice in s. 686(1)(a)(i) of the Criminal Code and requires a new trial.

The verdict was not unreasonable

[15] Duty Counsel submits that, after accounting for the trial judge’s misapprehension of evidence, the verdicts are unreasonable and cannot be supported by the evidence. He submits that the appellant is entitled to acquittals on all counts.

[16] We do not accept this submission. As Doherty J.A. said in Morrissey, at p. 541: “If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence as actually adduced at trial, was capable of supporting a conviction” (emphasis added). That is the situation in this case.

[17] In advancing this submission, Duty Counsel relies on the following factors: The investigation into this cluster of five robberies revealed that the group of involved males was not static. The DNA found on the scarf was taken from only a very small portion of the scarf; the DNA of others could have also been present. Indeed, it could have been another person wearing that scarf during the January 7, 2017 robberies. The items were not seized from the car until January 12, 2017; numerous people could have been in and out of the car in the meantime. Moreover, the appellant’s DNA could have made its way onto the disposable glove, the toque, and the scarf quite innocently, perhaps by coughing or sneezing.

[18] Although not a pre-condition to advancing an unreasonable verdict submission on appeal, we note that there was no application for a directed verdict before the trial judge, at a time when both counsel agreed that no blue glove could be observed in the surveillance evidence.

[19] The case against the appellant was purely circumstantial. The trial judge was well aware of this feature of the case and he quoted at length from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. Critical to the Crown’s case was the successful similar act application on the issue of identity. From this analysis, the trial judge excluded the attempted robbery of the RBC in December of 2016. Nonetheless, he found that independent evidence linked the appellant to the other incidents. He relied on the appellant’s DNA having been found on the scarf seen in the videos and his DNA on a grey toque that is observed during the Hasty Market robbery.

[20] It is clear from his reasons that the trial judge considered the scarf to be among the most powerful pieces of circumstantial evidence connecting the appellant to the January 7, 2017 robberies. The trial judge was well-aware that only a portion of this item had been tested for DNA. The trial judge said, at paras. 195 to 199:

The Defence is correct that it could be that H.A.’s DNA got onto the scarf because he wore it innocently during the winter, or he sneezed on it inside the car, or he spit on it inside the car, or in some other way.

The Defence is also correct that it could be that someone else’s DNA is also on that scarf but just was not tested for by the CFS.

The problem, though, is that the Defence argument takes the scarf in a vacuum. It is not just the scarf that must be considered in assessing the existence of other reasonable hypotheses that could be made, as per Villaroman, supra.

Is it reasonable to infer that someone else wore that scarf and blue disposable gloves underneath black gloves and robbed the three places on January 7th, in light of not only H.A.’s DNA on the scarf and on a similar blue disposable glove seized from the Mazda Protégé, but also in light of what else was found inside that car that was registered to and travelled in by H.A., and in light of H.A.’s height and weight not appearing to be inconsistent with that of the unarmed robber on January 7th, and in light of the stolen licence plates that were on H.A.’s car being visible on exterior surveillance footage at the Mac’s Mart in Brampton, and, in the end, on the whole of the admissible evidence at trial?

The answer is no. There is only one reasonable inference that can safely be drawn; there is only one reasonable hypothesis that can be made. That conclusion is that H.A. was the unarmed robber in the three incidents that occurred on January 7, 2017, and I so find. [Emphasis added.]

[21] In this passage of his detailed reasons, the trial judge considered alternative inferences, including those that were inconsistent with guilt. We accept the Crown’s submission that the evidence is capable of sustaining the appellant’s convictions in relation to the robbery-related counts. Although the trial judge’s misapprehension of the evidence relating to the blue disposable gloves weakens his chain of reasoning, the totality of the circumstantial evidence still had considerable force. The issue whether to draw an inference of guilt is a matter that must be resolved at a new trial.

[22] No submissions were made on the appellant’s behalf about his conviction for possession of stolen property (i.e., the licence plate). The appeal on this count is dismissed.

Disposition

[23] Although we have rejected the appellant’s unreasonable verdict submissions, we must allow the appeal and order a new trial on all counts except Count 1 (possession of stolen property), based on the trial judge’s misapprehension of evidence that was key to his similar act evidence ruling.

"Janet Simmons J.A."

"Gary Trotter J.A."

"J. George J.A."

[^1]: At trial, the Crown acknowledged that it could not prove that the gun was real. The trial proceeded on the basis that it was an imitation firearm.