WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
CITATION: R. v. D.D.T., 2009 ONCA 918
DATE: 20091222
DOCKET: C49583
COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
D.D.T. (a young person)
Appellant
Patrick John Leckey, for the appellant
Jacob Sone, for the respondent
Heard: October 16, 2009
On appeal from the conviction entered by Justice L.M. Budzinski, dated May 6, 2008.
Epstein J.A.:
[1] The appellant appeals from a conviction for breaking and entering and committing theft. Identity was the sole issue at trial. The only evidence connecting the appellant to the crime was his fingerprints found on window panes that were removed to gain entry to the building.
[2] While the appellant advanced several grounds of appeal, oral argument focused on his submission that the verdict is unreasonable or cannot be supported by the evidence, pursuant to s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c.46.
[3] In my view, the evidence does not support the verdict. Therefore, for the reasons that follow, I would allow the appeal.
The Facts
[4] On August 10, 2006, property, including a refrigerator and a substantial amount of computer equipment, was stolen from the Children’s Aid Society. The evidence demonstrated that the point of entry into the building was at the rear, through windows situated about three feet off the ground. Each window had a number of glass windowpanes, each measuring about 3 feet by 3.5 feet, arranged like horizontal blinds that would fold up and down to open and close the window. The panes had been removed from the plastic clips that held them in place and were left piled up against the wall of the building.
[5] An investigating police officer examined each removed pane, lifted the most suitable fingerprints found on the windows (approximately seven prints in total), and had them tested at the Forensic Identification Service.
[6] Almost a year later, the appellant was fingerprinted in relation to the investigation. His fingerprints matched two found on the window panes that had been removed from the CAS building. He was therefore charged with the offences listed above.
The Trial Judgment
[7] The prosecution relied on the fingerprint evidence to establish that the appellant participated in the break-in of the CAS building. The appellant neither testified nor called any evidence to explain his fingerprints on the windows.
[8] The trial judge noted that the Crown’s case was circumstantial and therefore cautioned himself to examine with care the inferences available to be drawn from the evidence put before him.
[9] He found that the point of entry to the building for the purpose of committing the theft was through the three windows at the rear of the building. He then noted that the appellant’s fingerprints had been found on the glass removed from the windows.
[10] He also noted that the investigating officer attributed the appellant's prints to the edge of the glass where someone would hold it for removal purposes - the inference being that those prints belonged to the person who took the windows out of their casings.
[11] The entirety of the trial judge’s analysis of the relevance of the prints, leading ultimately to his conclusion that the Crown had proven identity beyond a reasonable doubt, is as follows:
The accused’s prints were found on some of the glass removed from the windows. The print[s] - and I’m satisfied beyond a reasonable doubt that that print[s] belongs to the accused. The prints were attributed by the investigating officer on the scene to be at the [edge] of the glass. The inference being is that the person removing the glass -- those prints belonged to the person removing the glass as removing glass is usually held by the [edge] rather than on the centre portion.
On the evidence before me, I have considered the defence arguments understanding that [it] is not obligatory on the defence to prove anything, the onus remains on the Crown. I acknowledge that there is no evidence of motive here. There is no evidence of opportunity with respect to the part of the accused. But [given] the location of the window and the evidence before me, I am satisfied beyond a reasonable doubt that the Crown has made out its case against the accused.
Analysis
[12] In circumstances where the reasonableness of the verdict is challenged, this court must review and evaluate all the evidence to determine whether a reasonable trier-of-fact, properly instructed and acting judicially, could have convicted. See R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.), at paras. 36-37 and 42.
[13] Here, since the evidence linking the appellant to the crime is entirely circumstantial, the question is whether the trier-of-fact, acting judicially, could be satisfied that the appellant's guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at para. 13.
[14] While fingerprint evidence is powerful evidence that the person whose print is on the object touched that object, the connection with the crime will depend on the existence of other evidence capable of establishing that the accused touched the object at the relevant time and place: R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 19.
[15] The above principles suggest a two-stage approach for appellate review of the reasonableness of a verdict in cases where fingerprints provide the sole evidence capable of identifying the perpetrator. The first stage involves an examination of the reasonableness of the inference that the fingerprints were placed on the object with connection to the crime, at the relevant time and place. The second stage involves an examination of the soundness of the conclusion that the totality of the evidence and reasonable inferences available to the trial judge were sufficient to prove the appellant's guilt beyond a reasonable doubt.
[16] In this case, the Crown must have demonstrated first that, based on the evidence, the inference that the appellant touched the windows in connection with this crime is a more likely inference than the inference that he touched the windows as part of an innocent encounter with the window or as part of a different criminal event. Second, the appellant’s guilt must have been the only rational conclusion available on the totality of the evidence.
[17] As will become apparent, based on the limited nature of the evidence presented at trial, I am not satisfied that the inference that the appellant touched the windows in the course of the August 2006 break-in was a reasonable one. It follows, then, that the trial judge’s finding of guilt beyond a reasonable doubt was not the only rational conclusion open to him and that his verdict therefore was unreasonable.
[18] In argument, both the Crown and the appellant relied on authorities to support their position that the inference linking the appellant’s fingerprints to the crime was, respectively, reasonable or unreasonable. I will discuss the two primary cases put forward by counsel, with the caveat that given the abundance of “fingerprint cases”, it is not surprising that there were decisions of this court upon which each side could rely. However, as Doherty J.A. observed in Mars at para. 5, the application of the reasonableness standard involves a certain weighing of the evidence. As such, the process is case-specific, and the assistance of other fingerprint cases is restricted to informing judicial experience.
[19] The Crown submits that the inference here is similar to the one in the recently released decision of this court in R. v. Samuels, 2009 ONCA 719. Samuels was convicted at trial of being one of several men who committed a home invasion. One of the victims testified that, after an extended struggle, he chased the perpetrators out the door and watched one jump over a car by placing his hand on the front of the car and leaping over it as he fled.
[20] The key piece of identification evidence at trial that led to Samuels’ conviction was the accused’s fingerprint that the police lifted from the windshield of the car. The issue on appeal was whether the fingerprint evidence, taken with other available evidence, was capable of supporting a reasonable inference that it was the accused who ran from the house and touched the car as he fled from the scene of the crime, or whether the print could just as likely have been placed on the windshield at some other time and place.
[21] On appeal, this court upheld the conviction on the basis that the supporting evidence did make it more likely that the print was placed on the windshield at the relevant time and place, namely in the course of flight from the scene.
[22] The Crown submits that this case is similar, in that the officer’s evidence that the fingerprints looked new and that they were taken from the edges of the glass where a person would have grasped the pane to remove it from its clips, was sufficient to connect the owner of the prints to the break and enter, and by further inference, to the theft.
[23] The appellant, for his part, urged an analogy between this case and Mars, in which Mars was also convicted of offences arising out of a home invasion. The only evidence connecting him to the crimes was a fingerprint found on a pizza box used as a ruse to gain entry into the victims’ apartment. The Crown’s fingerprint expert could neither date the fingerprint nor offer an opinion about when the fingerprint was placed on the box. He acknowledged that a fingerprint could remain on a surface like the pizza box for years.
[24] In allowing the appeal, Doherty J.A. concluded that the evidence did not “reasonably permit the conclusion that the appellant placed his fingerprint on the pizza box at the time of the robbery…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 then that he touched the pizza box at some other time”: para. 21.
[25] The appellant submits that here, as in Mars, evidence of his fingerprints on the windows demonstrates only that he touched the windows at some point in time and falls short of connecting him to the August 2006 break-in. As for the other evidence put forward by the Crown to support the link between him and the crime, the appellant argues that the evidence falls short of establishing a relevant location of the prints on the window panes and a relevant time when they were placed there.
[26] The existence and reliability of other evidence capable of establishing that the appellant touched the window panes at the relevant time forms the crux of this case. As I have said, the fingerprint evidence clearly established that the appellant, at some point in time, had touched the windows. However, the probative value of this evidence depended on whether the entirety of the evidence reasonably permitted the inference that the appellant touched the windows in connection with the August 2006 break-in and not at some other time. The fingerprint evidence by itself did not permit any such inference. The reasonableness of the inference that the appellant touched the windows in connection with the break-in depends, therefore, on whether it could reasonably be drawn from the evidence other than the fingerprints themselves.
[27] The only relevant evidence as to the circumstances under which the appellant placed his fingers on the windows is found in the following testimony of the investigating police officer:
Q. [Having selected and lifted the most suitable prints], at that point are you able to determine how many different individuals these prints may have belonged to or if it’s just one individual or are you able to even make that determination?
A. Well, all the prints that I lifted would have - - all of them were on the ends of the panes of the glass, a lot of them, where someone would have had to remove the glass individually, as they were removed individually. There was - - there was numerous prints, they all, in my opinion, I guess, looked new. I mean there were - - some of them were very visible just to the eye, they weren’t even latent, so….
Q. And – so, were there any prints in the middle of the glass panes?
A. There was prints, yeah, on the ends, the middle, like, throughout the glass. I recall them being on the end and then in the middle of the glass.
[28] Later in his evidence, the investigating police officer confirmed that he could not tell how long the prints had been on the windows.
[29] Crown counsel submits that this evidence was sufficient to support the trial judge’s inference that the fingerprints were placed on the window panes in connection with the crime, in that it supported the inference that the appellant had grasped the window panes on the edges in order to lift them out of their casings to break and enter the building on August 10, 2006.
[30] I do not agree.
[31] Simply put, the Crown's evidence amounts to nothing more than that the appellant, at some point in time during or prior to the time of the break-in on August 10, 2006, touched windows that were used on that day to gain entry to the building for the purpose of stealing equipment from the CAS. In my view, this falls far short of reliable evidence connecting the appellant to the crimes for which he was convicted.
[32] The evidence as to where on the panes of glass the appellant’s fingerprints were discovered is ambiguous. True, the officer’s testimony may be interpreted as meaning that the appellant’s prints were found on the edges of the windows. However, the officer may have meant that “a lot of” the prints were lifted from the edge, but some were lifted from the centre. The officer’s evidence in this important respect does not assist in establishing where on the window panes the appellant’s prints were found.
[33] The transcript demonstrates that this ambiguity was not lost on the trial judge. I refer to the following exchange between the judge and counsel in the course of argument:
Mr. Osmak: And it’s not clear, in my submission, as to whereabouts on the panes of glass were these – – were these imprints recovered from. There is no – there is no diagram, as the examiner indicated, there is no illustration showing where on the glass [these prints] were recovered from.
The Court: Well, there is some evidence that [they] are on the edge, but your argument is that, you know, where on the edge. And I suppose your argument is which ones were on the edge. If— were they all on the edge or weren’t they? Is there some ambiguity there?
Mr. Osmak: Right.
[34] Notwithstanding this ambiguity, the trial judge, for reasons he did not explain, found that the officer’s evidence supported the conclusion that the appellant’s fingerprints were, in fact, on the edges of the panes of glass.
[35] Then, from this finding, the trial judge drew the inference that the appellant had touched the windows in that location to gain entry to the CAS building for the purpose of the August 10, 2006 break and enter.
[36] With respect, in my view, the trial judge’s conclusions, essential to establish a connection between the appellant and the break-in, are unsupportable. First, the police officer’s evidence is not capable of supporting a finding that the appellant’s prints were on the edges of the panes of glass. Second, even if there were support for that finding, I have difficulty, on this record, understanding the relevance of the evidence concerning where he touched the windows. I say this as the record contains insufficient details about the design or mechanics of the windows to form an understanding of where one might have to touch them to remove them from their casings.
[37] It follows that, in my view, neither the finding about where the appellant touched the windows nor the inference drawn from it are supported by the evidence. Since this was the only evidence potentially available to connect the appellant to the August 2006 break and enter the Crown had little, if any, evidence to connect the appellant to the break and enter.
[38] I would add that in these circumstances, the appellant’s failure to testify contributes nothing. The Crown’s case was weak. As I have said, it could not reasonably support the conclusion that the prints were placed on the windows in connection with the break-in. In such circumstances, the appellant’s failure to 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 CanLII 123 (SCC), 95 C.C.C. (3d) 385 (S.C.C.), at pp. 396-97. Only “where the prosecution’s case, standing alone, is such that it would support a conclusion of guilty beyond a reasonable doubt” can the accused’s failure to testify have legal significance, namely, as justification for a trial judge’s conclusion that no reasonable doubt could exist on the evidence: LePage at p. 397.
[39] In my view, there was an insufficient evidentiary footing at trial for the trial judge to conclude that the appellant's guilt was the only reasonable conclusion available on the totality of the evidence. While it was clear from the evidence that the appellant had touched the windows, there was insufficient evidence to support an inference that he handled the windows for the purpose of gaining entry to the CAS building and committing theft on August 10, 2006. His conviction is therefore unreasonable within the meaning of s. 686(1)(a)(i).
Disposition
[40] I would allow the appeal, quash the conviction and enter an acquittal.
RELEASED:
“DEC 22 2009” “G.J. Epstein J.A.” “EAC” “I agree J.C. MacPherson J.A.”
“I agree E.A. Cronk J.A.”