Court File and Parties
DATE: March 1, 2023 COURT FILE No: 21-0368 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
-AND-
TERRENCE SHANE VINCENT MCLAREN
Before: Justice M. G. March
Heard on: June 30, November 16, 21 and 29, 2022 Reasons for Judgment rendered: March 1, 2023
Counsel: Conor Kyte…...………………...……………………………Counsel for the Provincial Crown Jeffrey Langevin.………………………………………………Counsel for Terrence McLaren
March, M.G., J. :
Introduction
[1] On June 30, 2022, the trial of Terrence McLaren (“McLaren”) began after he entered pleas of not guilty to offences alleged to have been committed on February 5 & 19, 2019 as follows:
a) breaking, and entering a dwelling house with the intent of committing a theft therein, located at 71 Carss St., Arnprior, ON, contrary to s. 348(1)(a) of the Criminal Code of Canada (“the Code”),
b) breaking, entering and committing a theft within a dwelling house located at 189 Mill Ridge Rd., McNab Braeside Township, ON, contrary to s. 348(1)(b) of the Code, and
c) breaking, entering and committing a theft within a dwelling house located at 594 Flat Rapids Rd., McNab Braeside Township, ON, contrary to s. 348(1)(b) of the Code.
[2] Over the course of three days, Crown counsel called as witnesses at McLaren’s trial five occupants of the three subject dwelling houses, as well as three police officers who investigated the crimes, and a DNA expert from the Centre of Forensic Sciences, in an attempt to prove McLaren’s guilt beyond a reasonable doubt.
[3] Defence counsel called no evidence.
[4] The case for the Crown against McLaren is an entirely circumstantial one.
[5] Of course, the only manner by which the Crown can secure a conviction against McLaren is to persuade the Court beyond a reasonable doubt that the solitary reasonable inference which can be drawn in respect of certain items touched in or taken from the dwelling houses, and from which DNA was extracted and matched to McLaren’s profile, leads to an inescapable conclusion that he was the person who broke, entered and stole from the victims.
The Evidentiary Background
Richard White:
[6] Richard White (“White’) testified on June 30, 2022 that on February 5, 2019, he returned home to his residence at 71 Carss St., Arnprior, ON after a weekend spent with his partner, Rebecca, in Ottawa.
[7] White had been living in the house for approximately 15 to 16 years.
[8] He described his property as having a 450 foot long, doglegged driveway. The residence, he said, is largely hidden away from public view. It fronts upon the former Canadian Pacific Railway line in Arnprior.
[9] His closest neighbour on Carss Street cannot see his house. However, motorists on ATVs or snowmobiles using the old railway line could.
[10] White explained that he left for Ottawa on the Friday before February 5, 2019. There was a heavy snowfall over the weekend he was away.
[11] When he arrived home on February 5, 2019, around 7 AM, he had intended to “blow out” his driveway. As he walked down it toward his house, he noticed footprints. He saw that they led toward his house; however, they did not return.
[12] White shared that he was desperate to use the washroom. He entered his home and immediately went to the toilet. He then heard noises from within the house. He believed he could make out the sound of a door opening. Within 15 to 20 seconds later, he surmised that the person who had walked down toward his house was inside it.
[13] Consequently, White finished using the bathroom and ran to his front door to find it still open. He was then able to see a person running up his driveway. He estimated that the person was 50 to 75 feet away by this point from his front door.
[14] He was able to identify the intruder as a male carrying a backpack. He saw that he was dressed either in red and black, or possibly, the person’s jacket was red and the backpack black, or vice versa.
[15] Six inches of snow at least had fallen. The intruder was “loping” over the snow to get away.
[16] White shouted after the person, “What the fuck!”.
[17] He then closed his door and began to look around his home. He found stuff scattered everywhere.
[18] Within five minutes or less of seeing the intruder flee, he called police. He was told not to touch anything. He then waited for roughly half an hour for police to arrive.
[19] When police were on scene, he pointed out the footprints in the snow.
[20] He testified that he knew the intruder had been in virtually every room in his house. Indeed, White was able to see that the person had been sleeping in his bed.
[21] White noted that camera gear that he had stored in his bedroom was now in the living room/dining room area. The camera, his passport, and some cash and coins were all missing. The intruder also ate some kippered snacks. On a counter in his kitchen area, there was a water bottle. White knew it was not his. He told police he had not touched it.
[22] However, White explained that roughly one third of the Town of Arnprior had been under drinking water advisory some time ago. Water bottles had been distributed to affected residents.
[23] White surmised that the intruder had taken the water bottle down from his attic where it had been stored.
[24] The police officer, who arrived to take the report of the break and enter, called in another police team with special training in collecting DNA.
[25] White did recover his passport some months later from police. His camera, cash and coins were never to be seen again.
[26] Various photographs taken by police and made exhibits at McLaren’s trial were shown to White.
[27] White was able to identify a crowbar left on the windowsill used to pry open a window to gain entry into his home. He had not left the window open on the Friday before February 5, 2019. He explained that he owned a crowbar. He thought he had left it in his storage shed.
[28] In another photograph, he was able to identify his unmade bed. Other items were strewn onto his bedroom floor because White surmised the intruder must have been looking through his storage boxes.
[29] White was also able to point out where the water bottle was left near the empty bag for his camera.
[30] White was adamant that he gave no one permission to be in his residence while he was away. Nor did he expect anyone to enter his home. He did not know McLaren.
[31] Under cross-examination, White clarified that he lives alone. He does entertain guests from time to time, mostly his sons, but he did so infrequently.
[32] At the time of testifying, White estimated that some 3 ½ years had elapsed since he had his sons, or anyone else, over for a visit. He had no recollection of anyone visiting the week prior to the break in.
[33] White was certain that he had made his bed on the Friday before he left for Ottawa. He was not aware of the police taking his sheets or pillowcases for DNA analysis.
[34] White explained that he had only one functioning bathroom on the morning in question. He walked through his front door to it directly. He then heard noises, which seemed to be emanating from close by. As a result, he surmised that someone had been sleeping in his bed, heard him return home and went out his front door to avoid detection or capture.
[35] White did not notice anyone inside when he crossed the threshold of his home. He did not see anyone in his bedroom or anywhere else in his house. He heard his front door open. He ran to it and saw a man fleeing.
[36] White assumed that the intruder was male because he seemed tall. He ventured that the typical female is 5’6”. The person he saw running up his driveway was taller.
[37] White was clear that all he could see was the height of the person, and the colour of the clothing he was wearing. He did not chase after him. He was scared.
[38] Regarding the water bottle left on the counter, White believed it was a Nestlé brand. He surmised that it came from the stash of bottled water he left in his attic after it had been distributed by the municipality. He could not be entirely certain that the bottled water had come from the Town.
[39] White conceded that the intrusion could have happened any time after his departure on the Friday before February 5, 2019. He was not sure when exactly the snow had fallen. He did reiterate that he saw one set of footprints leading down to his house. They did not return.
[40] He did not say how many people had been in his home while he was away. He only saw one person fleeing.
[41] When specifically asked about the photograph depicting the water bottle, White remarked that the black bag next to the water bottle contained his camera. Some lenses were left in it, but the camera was gone. The camera in its bag had been stored in his guest bedroom.
[42] When asked about the newspaper also depicted in the photograph with the water bottle and camera bag, White was not sure of its origin. He explained that he did not subscribe to any regular delivery service for newspaper. “Freebies” were sometimes left at his door.
Cst. Kisters:
[43] When Constable Kisters of the Ontario Provincial Police (“OPP”) testified on November 16, 2022, he explained that on February 5, 2019, he attended at 71 Carss St. in Arnprior to respond to a report of a break and enter. He did so both in his capacity as a general duty police officer and a “scene of crime officer”.
[44] Constable Kisters took numerous photographs of what he considered to be significant for the police investigation of the break and enter at White’s home. The areas of interest for the officer included:
a) a basement window with a crowbar resting beside it, which appeared to be the point of ingress for the intruder,
b) White’s bedroom with an unmade bed, and
c) a table within the kitchen/living room area with a 1 L Nestlé brand water bottle placed upon it.
[45] White also pointed out to Constable Kisters footprints leading to the house. The officer took impressions of the footprints, but they met with negative results after being sent to the RCMP for analysis.
[46] Constable Kisters also seized the crowbar and swabbed it for DNA. When analyzed by the Centre of Forensic Sciences (“CFS”), no DNA suitable for analysis was found upon it.
[47] Constable Kisters also applied fingerprint powder on several items such as White’s home phone, but to the officer’s knowledge, nothing yielded a suitable impression for analysis.
[48] The officer asked White about the water bottle, and if it was something he had left sitting on the table. Based on this discussion, Constable Kisters entertained the theory that the water bottle had been handled or drunk from by the “culprit”. Consequently, the officer swabbed the bottle for DNA. He explained that police enjoyed a better success rate with obtaining a DNA profile from objects which touched the mouth of a suspect.
[49] To test for trace DNA, Constable Kisters used a cotton swab to wipe around the rim of the bottle and its lid. He then packaged the swabs. He placed a seal on them with a serial number. He delivered them to the Smith Falls detachment of the OPP.
[50] On February 11, 2019, Constable Kisters believed that the swabs were sent to the CFS for testing. He also took a DNA sample from White to rule him out as a person whose DNA was found on the water bottle.
[51] On a subsequent date, Constable Kisters was informed that the swab for the water bottle, but not the crowbar, matched to a DNA profile contained in the databank maintained by the RCMP. As the officer put it, there was a “hit”.
[52] Constable Kisters passed this information along to the lead investigator of the break and enter, Constable Andreyhuk.
Paula Wheeler:
[53] When Ms. Wheeler testified on November 16, 2022, she informed the Court that she has lived at 594 Flat Rapids Rd., Arnprior, ON for the past 31 years.
[54] On the morning of February 19, 2019, Ms. Wheeler recalled that she left her home at around 8:30 AM. Her husband, Chris, departed earlier for work at roughly 6:20 or 6:30 AM.
[55] Ms. Wheeler arrived home again at approximately 4:30 PM. When she did, she noticed that a sign normally kept in her kitchen window was no longer there.
[56] As she proceeded into the kitchen, she saw that there was orange juice spilled on her counter. She could feel as well a draft. She then noticed the patio door in her dining room had been left open.
[57] Ms. Wheeler went on to explain that she lives with her husband in a rural area somewhat secluded from her neighbours.
[58] From her kitchen, she walked down the hall to the master bedroom where a light had been left on. She noticed many of the drawers of her bedroom dresser had been opened.
[59] She was surprised somebody had broken into her residence. It took her a moment to figure out what had occurred. She looked in each room to see what had been disturbed.
[60] Ms. Wheeler then texted her husband, who arrived home within half an hour. He called her insurer to get advice about what they should do.
[61] She recalled that she had locked the doors to her house in the morning before she left. The patio door, she explained, was locked as well.
[62] She saw skidoo tracks in the area outside her home, which were not made by the snow machine owned by her husband. Mr. Wheeler followed those to where they led.
[63] The Wheelers then called police. Statements were taken from them. The officers also went on to investigate Mr. Wheeler’s shed. Eventually, the police took an inventory of what was missing from their home and outbuildings.
[64] On the advice of her insurer, Ms. Wheeler created a list of stolen items, which included:
a) a snowmobile suit,
b) a GPS device,
c) a couple of knives,
d) a photo stick for her phone,
e) a computer hard drive,
f) a mini iPad,
g) snowmobile keys,
h) a trail cam,
i) essential oils in a black bag,
j) her passport and her daughter’s,
k) a pair of men sunglasses,
l) coins and bills in the sum of roughly $110, and
m) a Nikon camera with zoom lens, which she valued at $859.
[65] Ms. Wheeler noticed that the kitchen window had been broken. Later she noticed a pry bar had been used to gain entry through it.
[66] Of note, she found a toque in one of the top drawers of her bedroom dresser that did not belong to her husband or her. She recalled that it was orange inside. Outside, it was camo or earth tone in colour.
[67] Mr. Wheeler took a picture of the toque and posted it on Facebook.
[68] A gentleman who lived 3 to 4 km from the Wheelers subsequently claimed that the toque belonged to him.
[69] Ms. Wheeler indicated that she gave no permission for anyone to enter her residence on the day in question. She did not know McLaren. If he had entered her home, he had no good reason to be there.
[70] Mr. Wheeler’s snowsuit was eventually found. They picked it up from the Renfrew detachment of the OPP. Later as well, her daughter’s and her passports were found across town on a skidoo/walking trail. The passports were returned.
[71] Under cross-examination, Ms. Wheeler indicated that the dresser in her room is where the toque was found. It was located in a top drawer where she kept her bras and underwear.
[72] Ms. Wheeler surmised that her undergarments were removed, and the hat was swept back in amongst them, after the intruder finished rummaging through the drawer.
[73] She had never seen that hat before the day her home was broken into.
Chris Wheeler:
[74] Ms. Wheeler’s husband, Chris Wheeler, testified that on February 19, 2019, his wife called him at work to inform him that someone had been in their house.
[75] He recalled that he left for work that day at approximately 6:30 AM. He did not arrive home until somewhere between 4:15 and 4:30 PM.
[76] He identified the point of entry for the intruder as one of his kitchen windows, which had been damaged. He found a crowbar nearby in the snow.
[77] He later went to inspect his shed and discovered that the door had been kicked in. A cabinet where his ammunition was stored was also broken into.
[78] He recalled that his wife and he first contacted their “insurance person”. They then called the police.
[79] Mr. Wheeler reiterated many of the items about which his wife had testified as having been stolen. The only item belonging to him which he recovered, to his recollection, was his skidoo suit.
[80] In following the intruder’s footprints to his shed, Mr. Wheeler discovered that the culprit had also taken a 2 ½ gallon gas tank.
[81] He was able to distinguish between the tracks made by his own snowmobile and that of the intruder. He surmised as a result that the culprit came and went up using a snow machine.
[82] He recalled as well that a toque was found in his wife’s dresser. He remembered it being a greenish brown colour. He could not find any initials or name tag inside it. However, he did post a photograph of it on Facebook. He recalled that a lady responded to the post, but he could not remember her name.
[83] Mr. Wheeler did not give anyone permission to enter his home on February 19, 2019, while his wife and he were away.
Cst. Andrew Doherty:
[84] When Constable Doherty testified on November 16, 2022, he had been a member of the Forensic Unit of the OPP stationed in Smith Falls for a period of roughly 10 years.
[85] As part of his police duties, Constable Doherty was dispatched on February 21, 2019 to the Arnprior area to investigate recent residential break and enters which had occurred.
[86] He photographed footprints left near houses in question. He also retrieved a number of exhibits from the Renfrew OPP detachment. He dusted for fingerprints on an Xbox as well. It yielded insufficient results for an analysis to be conducted.
[87] However, he swabbed a green toque in the hope it would result in the discovery of a DNA profile. He later sent the swabs to the CFS for testing.
[88] On April 8, 2019, he received a letter back from CFS indicating that a DNA profile linked to McLaren had been found resulting from analysis conducted on the samples he submitted.
[89] Accordingly, on December 29, 2020, the officer prepared a DNA warrant for McLaren. Constable Doherty took a blood sample from him upon execution of the warrant. Following testing, the results of the sample analysis was returned to police with confirmation that it matched the DNA profile found on the toque.
[90] Under cross-examination, Constable Doherty confirmed that he was never given a snowmobile suit by any officers at the Renfrew detachment to be tested for DNA. The ‘scene of crime’ officer in Renfrew decided which items to give over to him for fingerprint or DNA analysis.
[91] With respect to the toque, Constable Doherty explained that he rubbed the swab on the entire interior of it. The officer readily conceded he is not an expert in DNA. He simply knew how to swab an object in the hope of retrieving a DNA profile from it.
[92] Constable Doherty specifically recalled swabbing the interior brim of the toque over its entire interior circumference. Nothing was visible to his naked eye having conducted the swab. Later, it was the CFS who determined how many DNA profiles the swab disclosed.
[93] The officer explained that, to his knowledge, the DNA profile was obtained from contact the toque had with the skin of the wearer. The officer could not see hair follicles, or anything of that nature, after completing the swab.
[94] To Constable Doherty’s knowledge, the letter he received back from CFS indicated that one identifiable DNA profile had been generated from the swab he had submitted.
Nicole Vachon:
[95] Ms. Vachon is a forensic scientist in the biology section of CFS. She has been so employed since 2010. She holds both Bachelor’s and Master’s degrees in her field.
[96] One of her professional duties is the examination and interpretation of samples of blood, semen and/or saliva submitted to her for DNA analysis. Thereafter, she is often called upon to prepare written reports and provide testimony in Court regarding the findings she made.
[97] On over 35 prior occasions, she has been qualified as an expert witness to give opinion evidence in Court.
[98] She was aware in respect of the police investigation into the residential break and enters in question, CFS was called upon to conduct an analysis upon both a toque and a water bottle. Each object was assigned a unique case number by CFS.
[99] Prior to delivery, she explained, the various police agencies for which CFS conduct scientific analyses are instructed to properly swab the objects and seal the required samples prior to delivery and submission. In this case, both sets of swabs for the toque and water bottle received by CFS were intact.
[100] Ms. Vachon testified that in respect of the swabs taken from the water bottle, a DNA profile was identified for one specific individual. The letter from CFS was accordingly issued March 19, 2019 to the investigating police agency.
[101] Ms. Vachon specified that in attempting to obtain a DNA profile, CFS follows four basic steps:
a) the DNA from the sample submission is extracted from the swab and purified into a liquid form,
b) scientific measures are taken to preserve the DNA,
c) the CFS then analyzes the DNA in 15 specific areas, and
d) a profile or profiles, if available, is or are generated and interpreted by the assigned scientist.
[102] Ms. Vachon explained that her colleague, Elida Kafarowski, who had since retired, performed the above steps on behalf of CFS.
[103] When Ms. Vachon took over her colleague’s duties, she was able to review all steps taken by Ms. Kafarowski. She confirmed them as having been done proficiently and adopted them.
[104] To this point of the scientific analysis conducted by members of the CFS, Ms. Vachon clarified that there was no known sample available for comparison to determine whether there was a match for the identified DNA profile. Accordingly, the profile was uploaded to the Crime Scene Index of the National Data Bank (“NDB”).
[105] Subsequently on March 20, 2019, CFS received a “convicted offender hit notification” from the NDB for the submitted profile. From there, on April 18, 2019, a further ‘scene to scene’ hit was registered following submission of the swabs taken from a toque. In other words, the DNA profile identified for the water bottle and for the toque were the same.
[106] Ms. Vachon did add however that the toque yielded three different DNA profiles. Only one of the three from the toque matched the one found on the water bottle.
[107] Later, on January 7, 2021, CFS received a blood sample from the investigating police agency. The DNA profile taken from the blood sample matched the one common to the profile identified from the water bottle and the toque.
[108] Ms. Vachon went on to explain that it would be an exceedingly rare coincidence for the DNA profile identified from the known individual whose blood sample was taken to match with the same DNA profiles extracted from the water bottle and toque. She estimated that the odds of such a coincidence occurring would be one in one trillion.
[109] Ms. Vachon confirmed that the blood sample taken from the known individual belonged to McLaren.
[110] Under cross-examination, Ms. Vachon reiterated that DNA analysis taken from the swabs used to wipe the toque yielded three different DNA profiles. However, only one profile was suitable for analysis to determine whether a match could be made with another source. The two other profiles from the toque yielded insufficient DNA to allow for profiles to be generated.
[111] Ms. Vachon elaborated that a DNA profile is akin to peaks on a graph. A profile sufficient for matching has prominent peaks, whereas a profile without them is insufficient.
[112] A DNA sample can only be extracted from a cellular source. If the toque is swabbed in an area that has made contact with a person’s skin, for example, DNA can be collected.
[113] Ms. Vachon could not opine on whether the unidentifiable DNA profiles for the two other people who left trace amounts of DNA on the toque, aside from McLaren, would have worn the hat more frequently than he did.
[114] Ms. Vachon was quite clear. A person who wore the toque on only one occasion while conducting a break and enter could leave a sufficient amount of DNA on the hat to allow for his or her DNA to be to be extracted and traced assuming the person was a known offender registered on the NDB. The person’s DNA would be transferred to the toque resulting from direct contact between the fabric and the person’s skin.
Robyn Paul:
[115] When Ms. Paul testified on November 21, 2022, she indicated that on February 19, 2019, she was residing with her husband, Michael Paul, and their young son in their home located at 189 Mill Ridge Rd. in McNab Braeside Township. They had been living there since 2014.
[116] Ms. Paul worked as a teacher at an elementary school in Kinburn.
[117] She remembered distinctly the weather from February 19, 2019. It was an extremely cold day. She used her remote control to start her vehicle and allow it to warm up for 15 minutes or more before she left to drop off her son at daycare and to head to work herself. She was also five months pregnant and feeling unwell at the time.
[118] Ms. Paul estimated that she departed at approximately 7:45 AM. Her husband had already headed for work around 5:45 AM before she did.
[119] Ms. Paul secured her home by locking the front door as she exited. The patio door had been left unlocked.
[120] When she arrived home, she noticed that the bedroom windows on the second floor of her home were open.
[121] As she entered her house, she did not take her boots off. She went directly to her bedroom to close the windows. In doing so, she looked to her right and noticed that the contents of her husband’s nightstand were laying on her bed.
[122] She was freezing, shivering and began to have a sinking feeling in her stomach. She closed the bedroom windows. She then discovered that the windows in her spare bedroom had been left open as well. She closed those too.
[123] As she made her way through her home, she discovered other areas of concern. Her kitchen “junk drawers” had been dumped on top of the counters.
[124] All the while, she was processing that an intruder had been in her home. She called 911, and then her husband, who was still at work in Ottawa. Next, she telephoned her neighbours to come over and wait with her until police arrived.
[125] Her neighbours and she began to look around further. It was easy for Ms. Paul to determine that the intruder had spent some time rooting through various things within her home.
[126] Ms. Paul recalled that the previous day, Monday, was a holiday - Family Day. She had left her home in spotless condition before heading to work that morning. She noticed now that food wrappers were strewn on the floor and on her dining room table.
[127] Over the course of the next couple of days, she made a list of missing items at the request of police. She emailed the list to the investigating officer. She recalled that this officer was also taking photographs inside her home and had dusted for fingerprints. A list of the missing items from the Paul’s residence was made Exhibit 9 at McLaren’s trial.
[128] One of the items included in Ms. Paul’s list was a green toque. She had not noticed it missing the day of the break and enter. She only discovered that it had been taken after she saw a Facebook post from a person who had also been the victim of a break and enter on what she believed to be Stuart Mill Road. One of Ms. Paul’s friends sent the Facebook post along to her.
[129] When Ms. Paul looked at the post, her heart sunk. She identified immediately her husband’s toque. She had no doubt that it belonged to Mike.
[130] Ms. Paul specifically recalled that she purchased the toque the previous year. She was certain she had it for Christmas 2017. She had made her husband wear it because of its green colour.
[131] While testifying, Crown counsel presented Ms. Paul with sealed brown bag. Using scissors, she opened it and identified the green toque inside as the one she had bought for her husband around Christmas time 2017. She was able to say “for sure” that the hat was “Mike’s baggy toque”.
[132] Ms. Paul explained that she had not heard from police about the toque since the time the break and enter had occurred. She lamented that communication with police had been scarce. Until a couple of months prior to her giving evidence, there had been no communication between police and her.
[133] Ms. Paul was clear. At no point in time did she provide McLaren with permission to enter her home.
[134] She was able to identify from a photograph she brought with her to court her husband, Mike, wearing the toque in question and holding in his arms their toddler son, Lincoln. Ms. Paul and the family dog were also depicted in the photograph. It was made Exhibit 10 at McLaren’s trial.
[135] Under cross-examination, Ms. Paul acknowledged that the toque taken from her home by the person who had broken in was manufactured by the Canadian outerwear company, Roots. Hypothetically, she agreed that Roots could have produced tens of thousands of hats like the one she bought for her husband.
[136] She agreed that there were no identifiers, such as initials, on the specific toque in question to positively confirm it was the one owned and worn in the past by her husband. Indeed, she could not think of anyone other than her husband who would have worn that hat. She had no explanation for how two other males aside from her husband could have left DNA on it.
[137] She conceded as well that there was no orange colouring anywhere on the hat.
[138] In Court on the day she was testifying, Ms. Paul pointed out that the first time she had seen that hat again was when she opened the bag and removed it from inside. Prior to giving her evidence, the police had not brought it to her for identification purposes.
[139] She knew police had the toque in their possession. She expected it to be her husband’s when she opened the bag. Nevertheless, she had no doubt that it was the selfsame big, saggy hat which she purchased for her husband, and he hardly wore.
[140] Equally, Ms. Paul agreed that the Christmas photo of the toque she had taken was not as bright as the photo taken by police after the toque was recovered within the Wheelers’ home. The police photo was also higher in resolution. It caused the toque to look paler in colour than it is.
[141] Ms. Paul added that the photo that she saw posted on Facebook made it look like a deeper, darker green colour.
[142] On consent, the toque was made Exhibit 11 at McLaren’s trial.
[143] Under re-examination, Ms. Paul was able to point to one distinguishing feature of the toque, a leather tag with “Roots” embossed on it near the folded base of the hat.
Michael Paul:
[144] When Mr. Paul testified on November 21, 2022, he confirmed that he continued to live with his wife and two young sons at 189 Mill Ridge Rd. in McNab Braeside Township. His wife and he started residing there some eight years prior. They own their home.
[145] On February 19, 2019, Mr. Paul was working in Ottawa when he heard the distressing news from his wife around 5 PM that an intruder had been inside and had left some of the windows open. Out of concern for his wife and young son, Mr. Paul urged Ms. Paul to leave the residence.
[146] He explained that he had departed for work around 7 AM. When he arrived home later that evening after 5 PM, police officers had just showed up and were talking to his wife.
[147] Mr. Paul remembered that one of the police officers noticed snowmobile tracks leading to the barn, where the Pauls kept goats. Mr. Paul indicated that he has a snow machine, but it was not at his residence on the day in question.
[148] Mr. Paul recalled as well that a can of fuel for his snowblower had been emptied.
[149] Of note, Mr. Paul confirmed that he owned a knitted, green Roots toque. He believed that his wife had purchased it for him around Christmastime. The toque did not fit him well. Nor did it ever. It was “stretched out”.
[150] When shown Exhibit 10, the Christmas photo of Mr. Paul wearing the toque, he commented that it was “baggy” in that picture too.
[151] When Mr. Paul saw a posted photo of a toque on Facebook, he testified that he “instantly” knew it was his.
[152] When Exhibit 11, the toque itself, was handled by Mr. Paul, he stated he was 100% sure that it was the selfsame toque he owned and that went missing from his home on February 19, 2019.
[153] Mr. Paul added that he did not give anyone permission to go into his home or to wear his toque on the day in question while his wife and he were away.
[154] Under cross-examination, Mr. Paul agreed that Roots is a popular outerwear manufacturer in Canada. He agreed that Exhibit 11, the toque, was likely mass-produced.
[155] Other than himself, Mr. Paul did not know of any other males who would have worn his toque. He did nevertheless point out that some three years had gone by since the time it was last in his possession prior to seeing it again while giving his evidence.
[156] Overall, Mr. Paul estimated that he wore that hat roughly 10 times. On a few occasions, he had it on while he was out and about. However, he reemphasized that it never fit him properly. It went into a drawer in his home and stayed there.
[157] Mr. Paul could not recall any specific occasion upon which someone other than himself wore the toque.
[158] Mr. Paul acknowledged that a pair of shoes he owned, either size 10 or 10 ½, was stolen as well during the break and enter.
[159] On consent and as part of the Crown’s case, Crown counsel conceded that McLaren wears a size 11 shoe.
The Position of the Crown
[160] Crown counsel urged upon the Court the unlikely coincidence that a DNA sample taken from a water bottle within White’s home, where McLaren should not be, would reveal, once analyzed by CFS, a DNA profile matching McLaren’s. The same of course could be said for the toque taken from the Pauls’ home and ending up at the Wheelers.
[161] Indeed, logic, reason and common sense would dictate that the person who broke into the Paul’s home and took the toque left it behind at the Wheelers. Both Mr. and Ms. Paul positively identified the toque Ms. Wheeler found in her drawer as the one Mr. Paul owned, but seldom wore.
[162] No reasonable inference can be drawn other than that McLaren was in all three homes belonging to White, the Wheelers and the Pauls. McLaren’s DNA was found in places where McLaren should never have been. He must have been in the houses which had been broken into and entered within a very short time span.
[163] The Wheelers and the Pauls live in relatively close proximity to one another.
[164] White, the Wheelers and the Pauls all own residences accessible by snowmobile.
[165] McLaren left irrefutable evidence of his presence in all three of the homes which had been broken into.
[166] Nothing should turn on Ms. Wheeler’s evidence that she saw orange on the toque she found in her underwear drawer. She had not seen the toque since February 2019. She was testifying based on nearly a 3-year-old memory of when she last observed the toque.
[167] Nor should any great weight be placed on the fact that two other male DNA profiles besides the one belonging to McLaren were found on the toque.
[168] Upon a review of the totality of the circumstantial evidence, the only reasonable inference which can be drawn according to Crown counsel is that McLaren committed the breaks ins. The Crown has thus proven his guilt beyond a reasonable doubt.
The Position of the Defence
[169] Defence counsel drew my attention to paragraphs 40 through 42 inclusive of R. v. Villaroman, 2016 SCC 33, the benchmark decision of the Supreme Court of Canada (“SCC”) on circumstantial evidence.
[170] He then pointed out that the water bottle with McLaren’s DNA on it was of a generic Nestlé type. White believed, but could not be sure, that it came from his attic.
[171] The water was being mass distributed by the Town of Arnprior. A better way to have determined who the person was inside White’s home would have been an analysis of DNA samples taken from his pillow slip and bedsheets where the intruder had been laying. Police neglected to collect those items for testing.
[172] The defence submitted that McLaren’s DNA could therefore have been carried into White’s home on the bottle.
[173] Regarding the toque, the defence submitted that the evidence did not establish beyond a reasonable doubt that the hat taken from the Pauls’ residence, and the one found at the Wheelers’, were not one in the same.
[174] The toque Ms. Wheeler described was at least partially orange in colour, whereas the one produced by the Crown and positively identified by Mr. and Ms. Paul had no orange colouring anywhere on it.
[175] Defence counsel further contended that police could have taken a DNA sample from Mr. Paul and his older son to identify them potentially as the males whose DNA was found on the toque. Police did not think to do so.
[176] Accordingly, the court should be left with a reasonable doubt as to whether the only reasonable inference to be drawn is that McLaren was the person who broke and entered the homes in question.
[177] That McLaren probably committed the offences is insufficient. There can be no room for speculation that McLaren was the culprit. The Crown must prove to a much greater certainty that he was the actual perpetrator of the crimes.
The Law
Circumstantial evidence:
[178] In Villaroman, Cromwell J., speaking for a unanimous full panel of the SCC explained how circumstantial evidence is to be regarded by a trier of fact in the following paragraphs:
[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[39] I have found two particularly useful statements of this principle.
[40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]
[41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.
[42] The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
[43] Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.
[179] Coincidentally, the only revisitation of Villaroman by the SCC was a case involving DNA evidence – R. v. Youssef 2018 SCC 49. In dismissing the appeal and upholding the findings of guilt made by the trial judge, Cote J. held at para. 1:
In our view, having regard to the principles set out by this Court in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, it was not unreasonable for the trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt, especially given the presence of Mr. Youssef’s DNA on two different pieces of evidence, one of which was connected to the scene of the bank robbery, and the other to the getaway car. When the trial judge’s reasons are read as a whole, and in the context of the evidence and the arguments at trial, we are not persuaded that the trial judge ignored other potential explanations.
[180] In a very recent decision of the Court of Appeal for Ontario, R. v. Johnson 2023 ONCA 120, triers of fact were reminded of the importance of not treating DNA evidence separately from all other admissible evidence proffered by the Crown, especially where the evidence, which points to the involvement of an accused, is wholly circumstantial. The Court stated:
[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 Page: 4 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.
Reasonable Doubt:
[181] The standard of proof beyond a reasonable doubt is an age-old principle of criminal law in Canada and virtually every other common law jurisdiction. Triers of fact must be ever conscious of the high burden of proof placed upon the Crown, if ever the accused’s right to be presumed innocent is to be rebutted.
[182] Recently, my colleague, Brochu J., in R. v. Hawryluk, (unreported), offered these helpful commentaries on the meaning of reasonable doubt:
[39] Like every person accused of a criminal offence, Mr. Hawryluk begins this trial presumed to be innocent of the offence with which he is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty. It is the Crown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to the accused.
[40] Intermingled with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond reasonable doubt. This standard of proof is very stringent. It is a standard far beyond the civil threshold of proof on a balance of probabilities.
[41] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus, 1997 SCC 319, [1997] 3 S.C.R. 320. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[42] Three years later, in R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, the Supreme Court of Canada clarified at para. 13 that:
In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr, at para. 242, per Iacobucci J.
[183] I shall apply these above principles of law, of course, as I conduct my analysis of the evidence in this case.
Analysis
[184] In assessing the totality of the evidence, I find that White came home to Arnprior on February 5, 2019, in the early morning hours to learn, while he was using the bathroom, an unwanted person was inside his house. It dawned on White after the fact why there was only one set of footprints leading down his driveway.
[185] White was able to make out the stature of an individual he believed was a male loping over the snow to escape apprehension by either the home’s occupier or police.
[186] Thereafter, White began to take stock of what occurred while he had been away in Ottawa for the weekend. Some of his property was missing. What struck him as quite out of the ordinary was a water bottle he found sitting upon his kitchen table. White had not set it there before he left his home on the preceding Friday.
[187] When police attended at White’s residence, he pointed out a water bottle to one of the officers.
[188] The water bottle was swabbed for DNA. It yielded a profile registered for an offender within the NDB. It belonged to McLaren.
[189] Mr. White’s home happens also to be near a snowmobile trail.
[190] Two weeks later, another two homes accessed via a snowmobile were broken into and some of their contents were stolen. In one of the homes, the Pauls, a Roots toque went missing. It was found in the home of the Wheelers the very same day.
[191] Mr. Wheeler decided to post the toque on Facebook in the hope it may lead to the discovery of the person responsible for the break and enter into his home. The Pauls saw the Facebook post. The police collected the toque as a piece of evidence which could assist in the identifying the intruder at the Wheelers’ residence. They swabbed the toque with a view to obtaining DNA from it.
[192] Later, Ms. Vachon of the CFS, looked over the work of her retired colleague, Ms. Kafarowski, who analyzed the samples taken from the water bottle found on Mr. White’s table. Ms. Vachon approved of the steps taken by Ms. Kafarowski as a former member of the CFS. A DNA profile for an unknown individual was found.
[193] However, CFS was unable to determine from whom the sample came. As a result, CFS uploaded the profile to the Convicted Offender Index maintained by NDB. A short while later, NDB notified of a hit and reported back to CFS the name of the person with whom the DNA profile matched. It was McLaren.
[194] Meanwhile, the toque had a DNA sample taken from it. It was sent off to CFS for analysis as well. Ms. Vachon determined that a DNA profile of a male could be made out from the analysis she had done. The DNA from two other unknown males whose profiles could not be ascertained were also located on the toque.
[195] The identifiable profile was sent to NDB. Again, it was returned with a match to someone whose profile was on a Convicted Offender Index, namely McLaren.
[196] The police then obtained a warrant to seize a blood sample from McLaren. The blood drawn from him disclosed a DNA profile which matched the one located on the water bottle and the toque.
[197] The only reasonable inference I can draw from the totality of this evidence is that McLaren broke into, in the following sequence, White’s home, then the Pauls’ residence, and lastly the Wheelers’. McLaren drank from a bottle of water he found in White’s house. McLaren left his DNA on the bottle.
[198] Two weeks later, someone broke into the Pauls’ home. He took with him, amongst other things, a Roots toque.
[199] Next, he broke into the Wheeler’s. For whatever reason, he left the Roots toque in the Wheelers’ home.
[200] The Roots toque was swabbed by police for DNA. The DNA testing of the hat revealed that McLaren’s DNA was on it too.
[201] The Pauls were sure that the Roots toque taken from their home was the same one found by the Wheelers. Mr. Paul handled it. Its colour, size and sagginess confirmed in his mind that he was touching again in Court, as he testified, the same hat that his wife bought for him for Christmas, that was later stolen from his house and that ended up at the Wheelers’.
[202] I would also point out that the Pauls’ and the Wheelers’ properties, like White’s, could be accessed by snowmobile.
[203] In my humble view, it would be pure speculation to conclude other than McLaren was the culprit. I am near absolutely certain that the police located items within the homes of White and the Wheelers, from which they collected DNA samples, and which the CFS later analyzed, that scientifically proved McLaren had left traces of his DNA on the items. McLaren had no permission to enter any of the homes in question. He had no connection with them. Yet his DNA was without a doubt on the water bottle and toque.
[204] Upon my assessment of the totality of the evidence, and without using evidence on one count to assist in a determination of proof beyond a reasonable doubt of guilt in respect of another, I have no plausible basis to deduce how anyone other than McLaren was the person responsible for the break and enters in question.
Conclusion
[205] For the above reasons, I must find McLaren guilty of breaking and entering the dwelling houses belonging to White, the Pauls and the Wheelers.
DATED: March 1, 2023
March, M.G., J.