COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ibrahim, 2014 ONCA 157
DATE: 20140228
DOCKET: C54280
Cronk, Watt and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Yusuf Ibrahim
Appellant
Jill R. Presser, for the appellant
Tracy Kozlowski, for the respondent
Heard: December 3, 2013
On appeal from the convictions entered by Justice Hugh L. Fraser of the Ontario Court of Justice on August 20, 2008.
Cronk J.A.:
A. Introduction
[1] Following a trial by judge alone, the appellant, Yusuf Ibrahim, was convicted of robbery while using an imitation firearm, disguise with intent and possession of a weapon for a purpose dangerous to the public peace. He was sentenced to six and one-half years’ imprisonment in the penitentiary.
[2] The appellant appeals from his convictions.[^1] For the reasons that follow, I would dismiss the appeal.
B. Background
(1) The Robbery
[3] During the late afternoon on March 2, 2007, two men robbed an Ottawa branch of the Canadian Imperial Bank of Commerce of approximately $4,500. Both men were wearing black balaclavas. One of the men was also wearing black gloves and brandishing a gun.
[4] The assailants confronted a bank teller, demanding money. One of them jumped over the counter and grabbed cash from the teller. The other man stood at the wicket, pointing a gun at the teller. The gun was partially covered by a white cloth. The two men then fled through the Bank to the adjacent parking lot, running in the direction of a nearby transit station. The entire incident lasted about 30 seconds.
[5] The operations manager of the shopping mall where the Bank branch was located saw two men run past his office window, towards the transit station. He noticed that one of the men was wearing a black balaclava and both men were being pursued by a third man. Suspecting a robbery, the mall manager also gave chase. He followed the suspects until they entered the transit station, where he lost sight of them.
(2) The DNA Evidence
[6] Within 45 minutes of the robbery, a police officer discovered a toy gun with a white cloth over it and a black balaclava on top of the trash in a garbage bin at the nearby transit station. The officer seized the items and put them in his pocket.
[7] Subsequent testing of the retrieved items revealed DNA deposits on: (1) the inside back surface of the balaclava; (2) the front face section of the inside of the balaclava, in an area of visible staining; and (3) the grip and edge of the trigger of the toy gun. At trial, the Crown led expert evidence of the following DNA test results:
| Item | Sample Location | Observations of Sample Area | Major Contributor | Minor Contributors |
|---|---|---|---|---|
| 1. Balaclava | Inside front, about 5 cm. below eye opening | Staining | Appellant | None |
| 2. Balaclava | Inside back | White particles | Appellant | Two – unknown identities |
| 3. Toy gun | Grip and trigger | N/A | Appellant | Two – unknown identities |
(3) The Trial
[8] The sole issue at trial was identity. The Crown’s case against the appellant was entirely circumstantial. There was no eyewitness identification of the appellant.[^2]
[9] The appellant did not testify. Nor did he call any evidence in his own defence.
(4) Trial Judge’s Decision
[10] Given the circumstantial nature of the Crown’s case against the appellant, the parties agreed, and the trial judge accepted, that the central issue at trial was: “what reasonable inferences can be drawn from the evidence presented by the Crown?”
[11] In his reasons, the trial judge reviewed the evidence adduced at trial, the respective positions of the defence and the Crown, and the various authorities furnished by them. Having done so, the trial judge concluded that the only reasonable inference available on the evidence was that the appellant was the masked assailant who robbed the Bank teller while pointing an imitation firearm (the toy gun) at her.
[12] Accordingly, the trial judge convicted the appellant of all three charges against him.
C. Issues
[13] The appellant raises the following five grounds of appeal:
(1) Are the verdicts unreasonable?
(2) Did the trial judge err:
(a) by failing to consider the whole of the evidence?
(b) by requiring the appellant to testify or otherwise proffer evidence of an innocent explanation for the presence of his DNA on the tested items, thereby reversing the burden of proof?
(c) by failing to consider, in accordance with R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, whether the absence of evidence concerning aspects of the DNA deposits gave rise to a reasonable doubt regarding the appellant’s guilt?
(3) Are the trial judge’s reasons fatally deficient because they fail to permit meaningful appellate review?
[14] At the conclusion of oral argument, the court found it necessary to hear from the Crown only in respect of the appellant’s first ground of appeal, namely, the reasonableness of the verdicts. I therefore find it convenient to address the appellant’s other grounds of appeal first.
D. Analysis
(1) Trial Judge’s Review of the Evidence
[15] The appellant’s attack on the sufficiency of the trial judge’s review of the evidence is centred on the trial judge’s assessment of the DNA evidence.
[16] The appellant argues that the trial judge’s analysis of the DNA evidence was flawed because the trial judge failed to consider that DNA from at least two persons other than the appellant was detected on the balaclava and the toy gun. The existence of two other DNA profiles on these items, the appellant says, was relevant to the critical question whether it was the appellant, and not someone else, who came into contact with these items at the time of the robbery. The trial judge’s error in failing to consider the exculpatory implications of the other DNA profiles, the appellant maintains, was exacerbated by his additional failure to consider that it was impossible to know when the DNA was transferred to the items in question or how long it had been there.
[17] In a related argument, the appellant also submits that the trial judge erred by failing to address the absence of evidence relating to the DNA deposits on the tested items: for example, the absence of evidence establishing which parts of the balaclava came into contact with the garbage in the bin where the balaclava was found; whether the balaclava was found inside-out or right-side-in; and whether the evidence allowed for the exclusion of the possibility of secondary transfer of the appellant’s DNA to these objects.
[18] I would not give effect to these arguments.
[19] The trial judge’s reasons confirm that he was alert to the presence of DNA profiles other than that of the appellant and to the suggested limitations of the DNA evidence, as advanced by the appellant at trial. Early in his reasons, when describing the results of the DNA testing on the items recovered from the garbage bin near the transit station, the trial judge stated:
It was also noted that additional sources of DNA, at least two, were detected from item 1-2, being the balaclava, and item 2-3, the toy gun. Those minor DNA profiles were not suitable for comparison due to the uncertainty with respect to the total number of contributors and the low amount of DNA that was detected.
[20] The trial judge later summarized the defence position at trial concerning the DNA evidence in this fashion:
[C]ounsel for the defendant argues that no inferences of guilt can be drawn because even if the Court is satisfied that the defendant’s DNA is present on the items recovered from the garbage disposal, the Court does not know when that DNA was deposited on the items or for how long it had been there.
Furthermore, the defence submits that the Court is missing the additional evidence required to create the link between the DNA evidence given by the expert witness and the conclusion that those findings place the accused in the bank at the relevant time.
[21] Thus, the trial judge was mindful of the evidence of multiple DNA profiles on the balaclava and toy gun and of the defence contention that the DNA evidence failed to link the appellant to the robbery and the toy gun used during the robbery.
[22] This was not a complicated or lengthy trial. The trial judge’s reasons are relatively brief (18 double-spaced pages). In the first part of his reasons, the trial judge acknowledged the evidence of two minor DNA profiles on the balaclava and the toy gun. He later set out the evidentiary issues raised by the defence regarding both those profiles and the timing and means of the placement of the appellant’s DNA on the objects in question. In my opinion, having already identified these issues, it is inconceivable that the trial judge then ignored or forgot them when, in the second part of his reasons, he undertook an analysis of the evidence bearing on the appellant’s guilt or innocence.
[23] It is important to emphasize with respect to this ground of appeal that the trial judge considered, and accurately described in his reasons, all the pertinent DNA test results. Those results established that the appellant was the major or sole contributor of all the DNA detected on the balaclava and on the toy gun found in the garbage bin. Importantly, he was the only contributor to the DNA contained in the visible staining area located in the vicinity of the nose and mouth area on the inside of the balaclava.
[24] In my opinion, the appellant’s attack on the trial judge’s review of the DNA evidence is simply an attempt to reargue his submissions at trial concerning the available inferences that ought to have been drawn from that evidence. The trial judge was clearly aware of the scope and limitations of the DNA evidence, having thoroughly reviewed the expert DNA evidence and the defence position on that evidence in his reasons. There is no reason, in my view, to conclude that he failed to consider the entirety of the relevant evidence or the frailties in the DNA evidence posited by the appellant.
(2) Alleged Reversal of Burden of Proof
[25] The appellant next contends that the trial judge, in effect, required him to testify or otherwise proffer evidence of an exculpatory explanation for the presence of his DNA on the articles discovered in the garbage bin. In so doing, the appellant submits, the trial judge erred by misapplying the decision of the Supreme Court in R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, and impermissibly reversing the burden of proof.
[26] On this point, the appellant repeats his contention that the trial judge did not consider that a lack of evidence about the DNA deposits could be fatal to the Crown’s case. He asserts that the trial judge erred by failing to assess whether the Crown’s evidence itself gave rise to a reasonable doubt, in accordance with the principles identified in Lifchus.
[27] I would also reject these arguments, for several reasons.
[28] First, as I have already said, the trial judge appreciated and took account of the alleged failure of the Crown’s evidence to establish the requisite link between the presence of the appellant’s DNA on the items found in the garbage bin and his involvement in the robbery as the assailant who brandished the imitation firearm. His reasons leave no uncertainty that he understood the defence reliance on the limitations of the DNA evidence, including the evidentiary gaps posited by the defence in connection with the DNA deposits, in support of the defence claim that the Crown had failed to meet its burden to establish the appellant’s guilt beyond a reasonable doubt.
[29] That the trial judge was alive to the limitations on the probative value of the DNA evidence is evident from his review, in some detail, of this court’s decision in R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376, 206 O.A.C. 387. In Mars, at paras. 19 and 24, this court indicated with respect to the probative value of fingerprint evidence:
[T]he 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.
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 the 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. [Emphasis added.]
[30] The trial judge quoted these passages from Mars. It follows that he understood that an inference of the appellant’s guilt could not be drawn solely from the DNA evidence. Rather, the probative value of the DNA evidence depended on whether there was other evidence capable of permitting a reasonable inference as to when the appellant’s DNA was deposited on the objects retrieved from the garbage bin.
[31] Second, I do not agree that the trial judge misapplied Noble and effectively required the appellant to testify and assert his innocence or otherwise proffer exculpatory evidence to explain the presence of his DNA on the retrieved items.
[32] The trial judge referred to Noble as an authority concerning the circumstances in which inferences of an accused’s guilt may be drawn from his or her failure to testify at trial. The trial judge quoted that part of the Supreme Court’s reasons in Noble, at para. 79, in which the majority described three scenarios relevant to when the trier of fact may take account of the testimonial silence of an accused:
[T]here are three ways in which the silence of the accused might be considered by the trier of fact:
(1) Once the Crown has proffered a case to meet, the silence of the accused can be used in determining whether an accused is guilty beyond a reasonable doubt.
(2) Inferences of guilt may be drawn from the accused’s silence “only where a case to meet has been put forth and the accused is enveloped in a ‛cogent network of inculpatory facts’’’.
(3) The silence of the accused means that the evidence of the Crown is uncontradicted and therefore must be evaluated on this basis without regard for any explanation of those facts that does not arise from the facts themselves.
[33] Later in its reasons, the majority of the Supreme Court held that an inference of guilt arising from the accused’s testimonial silence could not be drawn in the first two scenarios described above. In the majority’s view, to draw such an inference based on these scenarios would violate both the accused’s right to silence and the presumption of innocence.
[34] The appellant submits that by referring to all three scenarios described in Noble, without qualification or any express recognition that the Supreme Court rejected the first two scenarios as affording a permissible basis for an inference of guilt, the trial judge failed to appreciate the actual holding in Noble and, acting on that misapprehension, improperly relied on the appellant’s testimonial silence as a marker of his guilt.
[35] I disagree. In my view, this submission misinterprets the trial judge’s reasons and his reliance on Noble.
[36] I recognize that the trial judge did quote, without express qualification, all three scenarios described by the Supreme Court in Noble, at para. 79, in his reasons. To repeat, the third scenario is as follows:
(3) The silence of the accused means that the evidence of the Crown is uncontradicted and therefore must be evaluated on this basis without regard for any explanation of those facts that does not arise from the facts themselves.
[37] However, with respect to this third scenario, the trial judge also referenced the following comments of Sopinka J., writing for the majority of the Supreme Court, at para. 82 of Noble:
The third position, which I have attempted to explain in my reasons, simply recognizes the fact that the evidence of the Crown stands alone. It must be evaluated on this basis. Contradictions that have not been offered cannot be supplied. No inference of guilt is drawn from the silence of the accused. Rather, the silence of the accused fails to provide any basis for concluding otherwise once the uncontradicted evidence points to guilt beyond a reasonable doubt. [Emphasis added.]
[38] After quoting these comments, the trial judge immediately stated his view that the third scenario described in Noble “most closely reflects the present situation”.
[39] The trial judge then briefly reviewed what he regarded as the uncontradicted evidence pointing to the appellant’s guilt on the offences charged. This evidence included the following:
- the Bank teller was robbed by a male wearing a balaclava, who brandished a gun with a white cloth around it;
- the teller observed the two robbers leave the Bank and turn in the direction of the transit station;
- the mall manager saw a man, wearing a balaclava, run by his office accompanied by a second man; he chased the two men into the transit station;
- the police arrived at the scene shortly after the robbery;
- just 45 minutes after the robbery, the police discovered the toy gun, with a white cloth, and a balaclava in the garbage disposal at the transit station, in close proximity to the Bank; and
- the items retrieved from the garbage bin bore the appellant’s DNA.
[40] After detailing this evidence, the trial judge explicitly directed himself, in accordance with the principles in Noble to which he had already referred, that: “no inference of guilt can be drawn from the silence of the accused”.
[41] Read in this fashion, the trial judge’s reasons do not support the claim that he erred in his appreciation and application of Noble. To the contrary, the trial judge recognized two critical holdings in Noble: (1) the testimonial silence of an accused cannot ground an inference of guilt; and (2) the testimonial silence of an accused simply means that the Crown’s case stands uncontradicted, and is to be assessed on that basis.
[42] It may have been preferable if the trial judge had confined his references to Noble to those parts of that decision that address situations where, due to the accused’s failure to testify or to offer evidence contrary to that of the Crown, the Crown’s case is uncontradicted. Nonetheless, the trial judge’s reasons confirm that he relied on Noble only for the guidance it provides on the manner in which the Crown’s case is to be evaluated in the face of an accused’s testimonial silence and for the important principle that an inference of guilt cannot be drawn from an accused’s silence at trial.
[43] In particular, the trial judge, in effect, twice directed himself that no inference of guilt could be drawn from the appellant’s failure to testify (once by quoting this principle from Noble and, again, by explicitly reiterating this principle). He referred to the undisputed evidence that he viewed as connecting the appellant to the robbery at the relevant time and place. Having found that this evidence convinced him of the appellant’s guilt beyond a reasonable doubt, he then noted the absence of any basis for concluding otherwise.
[44] This reasoning, in my view, reflects no legal error. To the contrary, it accords with the principles outlined by the Noble court. Nor is this reasoning tantamount to a reversal of the burden of proof. It simply articulates and explains the trial judge’s conclusion that the Crown had met its burden of proof and his ensuing observation, to paraphrase Sopinka J. in Noble, at para. 82, that an accused’s testimonial silence means that “the evidence of the Crown stands alone” and “must be evaluated on this basis.”
(3) Sufficiency of Reasons
[45] The appellant also submits that the trial judge’s reasons fail to meet the sufficiency of reasons standard set out in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; and their progeny. He contends that the reasons do not permit this court to determine the basis for the trial judge’s findings of guilt, apart from the presence of the appellant’s DNA on the tested objects found in the garbage bin.
[46] In my view, this submission must fail. When the trial judge’s reasons are read as a whole, as they must be, they readily reveal the basis for the verdicts against the appellant. As I read the reasons, the presence of the appellant’s DNA on the tested items was but one factor, albeit a powerful one, that drove the trial judge’s conclusion that the Crown had established the appellant’s culpability for the crimes charged. I will return to this issue in the discussion that follows concerning the reasonableness of the verdicts.
(4) Reasonableness of the Verdicts
[47] During his oral submissions before this court, the appellant’s argument focused on the reasonableness of the verdicts. He argued that the inference that he participated in the robbery and that he was the person who was wearing the balaclava and wielding a gun at the time of the robbery is not the only rational inference available from the circumstantial evidence as a whole. Accordingly, on the authority of R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, 43 D.L.R. (4th) 424; R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, 157 D.L.R. (4th) 603; R. v. Bouzied, 2013 ONCA 276; and similar cases, the appellant maintains the verdicts are unreasonable. In particular, he contends that to draw an inference, based on the mere presence of his DNA on the tested objects, that his DNA was transferred during the course of the robbery is improper on this record and, consequently, that such an inference would be insufficient to reasonably found verdicts of guilty.
[48] In my opinion, this argument must also fail.
[49] The trial judge’s reasons reveal that the verdicts of guilty were not based solely on the presence of the appellant’s DNA on the items retrieved from the garbage bin. Rather, a constellation of facts, including the presence of the appellant’s DNA, supported the inescapable inference of his guilt. These included the following:
(1) two men robbed the Bank;
(2) both robbers wore balaclavas during the robbery;
(3) one of the masked robbers brandished what appeared to be a gun, wrapped in a white cloth;
(4) the two assailants were observed by the teller to flee the Bank, in the direction of the transit station;
(5) the mall manager observed two robbers fleeing towards the transit station, one of whom was wearing a balaclava;
(6) within 45 minutes from the time of the robbery, the police discovered a balaclava, white cloth and toy gun sitting at the top of a garbage bin located at the transit station where the two robbers had been seen to flee;
(7) the transit station was situated about 90 metres from the Bank;
(8) the balaclava retrieved from the garbage can appeared to be new;
(9) the appellant’s DNA profile was the only profile detected in the area of visible staining around the nose and mouth area of the recovered balaclava;
(10) the major DNA profiles on both the recovered balaclava and the toy gun were those of the appellant; and
(11) the additional sources of DNA on the balaclava and the toy gun were not suitable for comparison due in part to the low amount of DNA that was detected.
[50] These findings were amply grounded in the evidentiary record. Indeed, they were essentially uncontradicted. Contrary to the appellant’s submission, these facts connected the appellant to the Bank robbery at the relevant time and place. They fully supported the trial judge’s conclusion that the only reasonable inference in all the circumstances was that the appellant was the masked robber who brandished an imitation firearm during the Bank robbery.
[51] Moreover, there were no reasonable inferences available on the evidence that were inconsistent with the appellant’s guilt. For example, the suggestion that the appellant may have worn the recovered balaclava and handled the toy gun at some other time and on another occasion is entirely speculative. As the trial judge pointed out, unlike the facts in Mars and other authorities cited by the appellant, there was no exculpatory evidence at trial that could anchor a conclusion other than that of the appellant’s guilt.
[52] In these circumstances and on this evidentiary record, I conclude that the verdicts are not unreasonable.
E. Disposition
[53] For the reasons given, I would dismiss the appeal.
Released: February 28, 2014
“E.A.C.” “E.A. Cronk J.A.”
“I agree David Watt J.A.”
“I agree K. van Rensburg J.A.”
[^1]: The appellant abandoned his appeal against sentence.
[^2]: The man who pursued the assailants, as observed by the mall manager, was not called as a witness or identified by name at trial.