COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bouzied, 2013 ONCA 276

DATE: 20130429

DOCKET: C55072

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Bouzied

Appellant

Susan Ficek, for the respondent

Scott Hutchison, duty counsel for Michael Bouzied

Heard & released orally: April 17, 2013

DOCKET: C55583

AND BETWEEN

Her Majesty the Queen

Respondent

and

Adam Alexander Wade

Appellant

Robert Sheppard, duty counsel for Adam Wade

Susan Ficek, for the respondent

Heard April 16, 2013 and released orally April 17, 2013

On appeal from the conviction entered on December 23, 2011 and the sentence imposed on February 2, 2012 by Justice Lynne C. Leitch of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] On July 15, 2010, two men, armed with a gun and wearing disguises, robbed a Subway sandwich restaurant in London and drove off in a van. The appellants appeal their convictions for the crime.

[2] The Crown’s case was circumstantial. The guilt of the appellants had to be the only rational inference that could be drawn from the circumstantial evidence as a whole.

[3] The police had been watching the van that evening. Earlier Ashley King had been driving it. The van had made stops, including one at Mr. Bouzied’s residence, and had picked up people. Before the robbery it had stopped at a Tim Horton’s drive-through. Two persons, one taller than the other and wearing black hoodies, got out of the van and robbed the Subway restaurant. The van had begun to move before the robbers got back into it. The police followed the van, but lost it. Minutes later they found it parked two kilometres away. The appellants were close by and walking away from the van when they were arrested. They were wearing shorts and t-shirts. No guns or bandanas were found. Mr. Bouzied’s thumbprint was on the exterior of the van. His cell phone was in the van, though it was evidently being used by someone else as he had called it. A black hoodie in the van had Donald Skellett’s DNA on it. DNA on two Tim Horton’s cups in the van belonged to Christopher Miller and a female. There was a significant height difference between Skellett and Miller, as there was between the two appellants.

[4] The trial judge could infer from the evidence that the appellants were occupants of the van at the time of the robbery. However, that both or either of them robbed the Subway was not the only rational inference from the evidence. There was evidence of other possible suspects. The evidence did not establish how many people were in the van when it left the scene of the robbery. There were at least three because it moved before the robbers entered it. As well, the DNA evidence suggested that there were other occupants. Miller’s fingerprints were also found in the van. The evidence established that it was possible for occupants of the van to have already left the scene before the police arrived. That is clear because the third person definitely known to be in the van had disappeared.

[5] The trial judge’s analysis focussed only on the appellants as a pair and on Skellett and Miller as an alternate pair. She did not consider other possible combinations. When this is kept in mind, the slim identification evidence about the relative heights and weights of the robbers loses its force. That the appellants, or one of them, entered the Subway and robbed it was not the only rational inference from the evidence.

[6] In conclusion, we would allow the appeal, set aside the verdicts of guilty and direct the entry of verdicts of acquittal. We find it unnecessary to address the other arguments advanced.

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”