DATE: 20060209
DOCKET: C43161
COURT OF APPEAL FOR ONTARIO
DOHERTY, SHARPE and JURIANSZ JJ.A.
B E T W E E N :
Vincenzo Rondinelli
HER MAJESTY THE QUEEN
for the appellant
Respondent
Tracy Stapleton
- and -
for the respondent
MICHAEL MARS
Appellant
Heard: January 13, 2006
On appeal from the convictions entered by Justice Nadelle of the Superior Court of Justice dated November 30, 2004 and the sentence imposed on January 5, 2005.
DOHERTY J.A.:
I
[1] This is a single issue appeal. The appellant was convicted of offences arising out of a home invasion robbery. Identity was the issue at trial. The only evidence connecting the appellant to the robbery was his fingerprint found on a pizza box used as part of a ruse to gain entry to the victims’ apartment. Neither victim could identify the appellant as one of the robbers. In fact, their identification evidence was largely inconsistent with the Crown’s contention that the appellant was one of the robbers.
[2] Counsel submits on appeal that the verdicts are unreasonable as that term is understood in s. 686(1)(a)(i) of the Criminal Code. I agree.
II
The Unreasonableness Standard in s. 686(1)(a)(i)
[3] Fact finding is primarily the function of the trial court. Section 686(1)(a)(i) provides for a limited appellate review of the findings of fact made at trial. Where the reasonableness of the verdict is raised, the appellate court must review the entirety of the evidence using its accumulated training and experience to determine not whether the appellate court would have convicted the appellant, but whether a reasonable trier-of-fact properly instructed and acting judicially could have convicted: R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at 20-21, 25 (S.C.C.).
[4] When assessing the reasonableness of a verdict, the appellate court must have regard to the burden of proof applicable in a criminal case. Where, as here, the Crown’s case depends on inferences drawn from primary facts, the question becomes: could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence? The totality of the evidence refers to evidence that is potentially exculpatory as well as evidence that supports the Crown’s case against an accused. In this case, the assessment of the reasonableness of the convictions, which were based entirely on the inculpatory potential of the fingerprint evidence, had to take into account the largely exculpatory identification evidence given by the Crown witnesses.
[5] The reasonableness standard to be applied by an appellate court is a matter of law and has been fixed by a series of binding authorities from the Supreme Court of Canada: see, e.g., Biniaris, supra. The application of the reasonableness standard to a particular fact situation, however, involves a weighing, albeit a limited one, of the evidence. That process must be case-specific. Both counsel in their able submissions referred the court to numerous cases in which the Crown’s case rested mainly or entirely on fingerprint evidence. Counsel referred to different cases to support their respective positions that these verdicts were or were not unreasonable. Reference to prior cases is helpful as reflective of “the bulk of judicial experience” (see Biniaris, supra, at p. 24). Reasonableness assessments in prior cases cannot, however, be determinative of the reasonableness of a verdict in a subsequent case. As reasonableness is ultimately a fact-based determination, prior decisions, even those made in similar cases, cannot have binding authority.
III
The Evidence
[6] On the evening of February 19, 2004, Benjamin Ruck heard a knock at the door of the apartment he shared with Erin Duncan. Mr. Ruck looked through the peephole in his door and saw a man standing in the hallway holding what appeared to be a pizza box. Mr. Ruck had not ordered a pizza so he assumed that the man was at the wrong door. As he opened the door to tell the man he had not ordered a pizza, three men, two of whom were masked, rushed into the apartment. Mr. Ruck could not describe the man standing outside his door holding the pizza box. That man was not masked.
[7] Mr. Ruck testified that one of the masked robbers attacked him with a pipe. They struggled until that man told Mr. Ruck, “[W]e’ve got a gun on your girlfriend.” The assailant then pulled a gun and Mr. Ruck stopped his attempts to resist the robbery.
[8] Mr. Ruck described his assailant as “dark skinned”. He provided no further identification of that man. He was aware that the second masked robber had gone into the bedroom after Ms. Duncan. He could not describe that man. Mr. Ruck referred to the third robber, who was not masked, as “the floater”. He testified that the “floater” moved back and forth between Mr. Ruck’s location and the bedroom where Ms. Duncan was being held. Mr. Ruck testified that he had a clear view of this person. He described him as white with wavy hair, 5’6” to 5’8” tall, between eighteen and twenty-two years of age, with severe acne and a nose that “turned up at the end”.
[9] Ms. Duncan described the person who attacked her as “white, 5’10” to 5’11” tall, average build”. She could not describe the person who attacked Mr. Ruck. She described the unmasked robber as having brown curly hair and very noticeable acne.
[10] The appellant is white. He is considerably larger than the person described as the “floater” and does not have noticeable acne. Both victims testified that the appellant was not the “floater”. Mr. Ruck’s description of his assailant as “dark skinned” was also inconsistent with the appellant’s description. Ms. Duncan’s description of her assailant, while relatively consistent with the appellant’s description, was so generic as to have virtually no evidentiary value.
[11] Mr. Ruck testified that the appellant looked like a man he had seen snooping around his apartment some five months earlier. The trial judge did not refer to this part of Mr. Ruck’s evidence in his reasons and, in my view, it has no inculpatory value.
[12] A neighbour, Scott MacMillan, heard noises coming from the victims’ apartment. He stepped outside of his apartment and saw three men running from the victims’ apartment towards the parking lot. Mr. MacMillan gave chase. He saw the men get into a car and drive away. It appeared that a fourth person was driving the vehicle. Apart from a cryptic description of the clothing worn by two of the men, Mr. MacMillan did not give any description in his evidence of the three men he saw fleeing the victims’ apartment. In his statement to the police, Mr. MacMillan described the robbers as “three black youths”.
[13] The appellant was arrested about four months after the robbery. He had been in a car accident and when the officer investigating the accident learned through his computer that the appellant was wanted by the Ottawa police, he attempted to arrest him. The appellant fled on foot and was subsequently apprehended. The trial judge did not use the appellant’s flight as evidence of his involvement in the home invasion, and the Crown did not argue that the appellant’s flight could constitute circumstantial evidence of his guilt.
[14] The pizza box used in the ruse to gain entry to the apartment was recovered in the doorway to the apartment shortly after the robbery. Three fingerprints were found on the box, but only one had sufficient detail to permit comparison with known fingerprints. That print did not match the fingerprints of any of the individuals initially suspected in the robbery. However, when the print was submitted to the Automatic Fingerprint Identification System for comparison, it matched a print taken from the left hand ring finger of the appellant. The officer who provided the opinion evidence that the fingerprint on the box matched the appellant’s testified that he could not date the fingerprint or provide any evidence as to when the print was placed on the pizza box. He acknowledged that depending on environmental factors, a fingerprint could remain on a surface like the pizza box for years.
[15] The appellant did not testify and did not call any evidence. There was no evidence that anyone else had been arrested in connection with the home invasion.
[16] In his reasons for judgment,[^1] the trial judge indicated that the fingerprint evidence was the only evidence capable of connecting the appellant to the robbery. He further held that although he could not conclude beyond a reasonable doubt that the appellant was the person who was holding the pizza box when Mr. Ruck opened the door, he was satisfied beyond a reasonable doubt that the appellant was involved in the home invasion.
IV
The Reasonableness Analysis
[17] The reasonableness of a verdict does not ultimately turn on either the adequacy or the accuracy of the reasons for judgment. Errors or omissions in the reasons for judgment may, however, explain why a trier of fact arrived at an unreasonable verdict: Biniaris, supra, at p. 21.
[18] With respect to the trial judge, I think he made two errors. First, in referring to fingerprint evidence he said:
Fingerprint evidence, because each person’s prints are unique, found at a crime scene is highly inculpatory evidence.
[19] The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object. However, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is 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.
[20] In this case, the fingerprint evidence clearly established that the appellant had touched the pizza box at some point in time. However, the probative value of the fingerprint evidence on the charges depended upon whether the entirety of the evidence reasonably permitted the inference that the appellant touched the pizza box in connection with the robbery and not at some other time and place. The fingerprint evidence standing alone did not permit any inference as to when the appellant’s fingerprint was placed on the pizza box. The reasonableness of the verdicts, therefore, turns on whether the inference that the appellant touched the pizza box in connection with the robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself.
[21] The evidence does not reasonably permit the conclusion that the appellant placed his fingerprint on the pizza box at the time of the robbery. Quite simply, there is no evidence that assists as to when the fingerprint was placed on the pizza box. Put somewhat differently, the Crown cannot point to any evidence that makes the inference that the appellant touched the pizza box in connection with the robbery a more likely inference than the inference that he touched the pizza box at some other time.
[22] Crown counsel submits that the trial judge was entitled to draw the inference that the fingerprint was placed on the pizza box in connection with the robbery because there was no other reasonable explanation proffered by the defence. Counsel relies on R. v. McFadden (1981), 1981 342 (BC CA), 60 C.C.C. (2d) 305 at 307 (B.C.C.A.). The trial judge also placed considerable reliance on this authority.
[23] The Crown’s submission would appear to track the reasoning in McFadden, supra. I cannot, however, subscribe to that analysis. The Crown bore the burden of proof throughout the trial. If the Crown’s evidence was capable of supporting the conclusion that the print was put on the box in connection with the robbery, the absence of any innocent explanation could well have made it easier for the trial judge to draw the inference of guilt. If, however, as I would hold, the Crown’s case could not reasonably support the conclusion that the print was placed on the pizza box in connection with the robbery, the failure of the appellant to offer any other explanation by way of testimony or through some other evidence is of no consequence. An appellant’s failure to testify or otherwise advance an “innocent” explanation cannot add weight to the Crown’s case so as to justify drawing what would otherwise be an unreasonable inference of guilt: R. v. LePage (1995), 1995 123 (SCC), 95 C.C.C. (3d) 385 at 396-97 (S.C.C.).
[24] The trial judge’s finding that the fingerprint evidence could bear the full weight of the Crown’s burden flowed at least in part from his erroneous premise that fingerprint evidence was “highly inculpatory evidence”. The trial judge should have started from the premise that the probative value of the fingerprint evidence depended upon whether there was other evidence capable of permitting a reasonable inference as to when the fingerprint was placed on the pizza box.
[25] The second error made by the trial judge appears during his reference to the identification evidence. He observed that neither victim could identify any of the robbers and that the neighbour’s evidence did not “identify or eliminate the accused as one of the offenders.”
[26] The trial judge’s description of the identification evidence understates its exculpatory nature. The Crown at trial argued that the appellant was one of the three men who entered the apartment. Not only could neither victim identify the appellant as one of the robbers, but their evidence effectively excluded the possibility that he was either the unmasked “floater” or the masked robber who attacked Mr. Ruck. This left only the masked robber who attacked Ms. Duncan and a getaway driver who may or may not have existed. Ms. Duncan’s very general description of her attacker could not inculpate the appellant.
[27] I would also not describe the neighbour’s evidence as entirely neutral on the identification issue. Although he effectively gave no identification evidence at trial, his statement to the police immediately after the robbery, which the trial judge was entitled to consider on the issue of identification, described all three robbers as black. This description effectively excluded the appellant who, as indicated above, is white.
[28] In my view, the evidence does not reasonably support the conclusion that the appellant was one of the three robbers. His convictions are unreasonable within the meaning enjoyed by s. 686(1)(a)(iii). I would allow the appeal, quash the convictions and enter acquittals.
RELEASED: “DD” “FEB 09 2006”
“Doherty J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree R.G. Juriansz J.A.”
[^1]: The trial judge delivered his reasons on November 30, 2004 and provided clarification of two parts of those reasons in an addendum delivered on December 1, 2004.