COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wills, 2014 ONCA 178

DATE: 20140307

DOCKET: C54968

Doherty, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Wills

Appellant

Carlos Rippell, for the appellant

David Lepofsky, for the respondent

Heard: November 26, 2013

On appeal from the convictions returned by a jury presided over by Justice Mark L. Edwards of the Superior Court of Justice on October 19, 2011, in Newmarket, Ontario, and on appeal from the sentences imposed on January 16, 2012.

Doherty J.A.:

I

[1] The appellant was found guilty by a jury on two counts of robbery with a firearm (counts 1 and 2), one count of unlawful confinement (count 3), one count of disguise with intent to commit an indictable offence (count 4), and two counts of possession of a weapon for the purpose of committing an indictable offence (count 5 – a baton; count 6 – a firearm). The trial judge stayed count 6, relying on R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The appellant received sentences totalling 10 years which after credit for pre-trial custody resulted in a net sentence of seven years and four months. He appeals his conviction and sentence.

[2] The charges arose out of a home invasion. Two masked men forced their way into the Sacchetti residence. One viciously assaulted Mr. Sacchetti when he attempted to prevent their entry into his home. The other robber forced Mrs. Sacchetti to the floor in the kitchen, put a gun to her head, and demanded money. The two men fled the scene with a small amount of cash.

[3] The appellant was tried alone. Identity was the central issue at trial. Not surprisingly, neither victim could identify either assailant. The Crown’s case rested on DNA evidence linking the appellant to two bandanas used by one or both of the robbers, and evidence that a police baton similar to the weapon used to beat Mr. Sacchetti was seized from the appellant’s bedroom closet about two months after the robbery.

[4] The appellant did not testify.

[5] Counsel advanced several grounds on the conviction appeal. I would dismiss that appeal. I would, however, allow the sentence appeal by making the two-year consecutive sentence imposed on count five for possession of a weapon (a baton) for the purpose of committing an offence, concurrent to the sentences imposed on the robbery charges. This variation results in a net sentence of five years and four months.

II

the evidence

(a) The Robbery

[6] Mr. Sacchetti, aged 78, and his wife, aged 75, live together in Woodbridge, Ontario. At about 7:30 p.m. on a February evening, Mr. Sacchetti heard loud banging on the front door followed by shouting. He opened the door and two men rushed forward into the house. Both men were masked and wearing hoods.

[7] One of the robbers (the first robber) pushed Mr. Sacchetti backward into a closet door, shattering the glass on the door. A struggle ensued. The first robber pulled Mr. Sacchetti outside into the snow and beat him severely with a stick-like weapon. Mr. Sacchetti pulled a white mask from the first robber’s face during the struggle.

[8] Inside the house, the second robber confronted Mrs. Sacchetti in the kitchen. He ordered her to the floor and when she had difficulty getting down because of her scoliosis, the second robber put his foot on her back and pushed her to the floor.

[9] The second robber left Mrs. Sacchetti lying on the floor for a moment but then returned with what appeared to be a handgun. Pointing the handgun at Mrs. Sacchetti’s neck, and then at her face, the robber said, “Mrs., you see this? … Where is the money?” Mrs. Sacchetti directed the robber to a drawer in the buffet containing cash.

[10] The second robber left Mrs. Sacchetti and joined the first robber, who was continuing the assault on Mr. Sacchetti at the front of the home. The second robber pushed snow into Mr. Sacchetti’s mouth in an effort to keep him quiet. The first robber indicated they should leave and both men fled off through a nearby ravine. The home invasion lasted five to ten minutes.

[11] The Sacchettis were terrorized by the incident. They thought they were going to die. Mr. Sacchetti was taken to the hospital and treated for a broken nose, cuts to his head, and injuries to his torso.

(b) The Victims’ Description of the Robbers

[12] Mr. Sacchetti could not identify either robber. He described the first robber as:

• A black man, but not “an African black, just maybe one step down”.

• A little taller than Mr. Sacchetti, perhaps five feet, seven inches or five feet, eight inches.

• A normal build, “not a big guy”, with a “slim” face.

• “[I]n the 20s, 21, 22. You know, something like that.”

[13] Mrs. Sacchetti never saw the face of her attacker. She did not know if he was white or black. She described him as tall, maybe six feet, and as neither fat nor skinny. Her assailant said something to her in Italian.

(c) The DNA Evidence

[14] The police found the white bandana Mr. Sacchetti had pulled from the face of the first robber. There was blood on that bandana. The police found a second blue bandana in the ravine along the escape route followed by the robbers. An impression of a footprint found very close to that bandana matched an impression of a footprint taken from the Sacchetti’s house. It was a fair inference that both bandanas were worn during the robbery by either or both of the robbers.

[15] A Crown expert examined both bandanas for DNA. Three sections were cut from the white bandana. On one section, the expert detected the DNA of at least one individual. There was insufficient DNA to allow a comparison. The DNA of at least three unidentified people was found on a second cut-out section. Once again, that DNA was not suitable for comparison. The DNA of at least two individuals was detected on the third cut-out section from the white bandana. One of the DNA samples matched the appellant’s DNA profile. The expert opined that the chance that two different persons could share that DNA was something in the order of one in 48 billion.

[16] The Crown expert acknowledged that there was DNA on the white bandana from at least three persons, stating:

[W]e say at least three because we don’t know how many individuals are in that mixture. There could be four, there could be five, we don’t know, but there’s at least three.

[17] The expert cut one section from the blue bandana found in the ravine. Testing of that section revealed DNA from at least two individuals. The DNA from one of the individuals matched the DNA of the appellant. The chance of a random match with another individual was one in 9.2 billion. The expert could not say how many individuals’ DNA might be on the cut-out section from the blue bandana.

[18] The Crown expert testified that he could not say when the DNA was placed on the bandanas and he could not estimate how long the DNA may have been on the bandanas. Nor could the expert say how the DNA had come to be placed on the bandanas. DNA could have been placed on the bandanas by direct or indirect contact. The expert also agreed that the person or persons wearing the bandanas during the robbery may not have left his or her DNA on the bandana. Finally, the expert could not comment on the presence or absence of DNA on the parts of the bandanas that were not tested.

(d) The Weapon

[19] Mr. Sacchetti described the weapon used by the first robber in some detail. He described it as having what appeared to be a wooden handle that was about eight inches long and a metal end that was about 12 inches long. Mr. Sacchetti testified that the handle was black or brown and the metal end of the weapon was silver. He described the metal end of the weapon as flexible, comparing it to the microphone attached to the witness box and to a piece of BX wire. He also described the metal end as “like a whip”.

[20] Mr. Sacchetti likened the weapon used against him to the “wood piece” that policemen “carry on the side of their legs”. He testified:

I never been involved with the police that they gonna use at me, but I see the police walk with this thing on their thing, but I don’t know how far it goes into the pants. But that was the – but this thing, I don’t know if policeman Canadian have the same metal piece on the top. I didn’t see this. All I know, I see when they walk and I see this thing on their legs and it’s the same, about the same colour. I figure it’s wood, but I don’t know at the end the way it is.

[21] The police seized a metal baton from a gym bag found in the appellant’s bedroom closet about two months after the robbery. The officer who seized the baton described it as “an asp, it is just – for the jury, basically an asp is what the majority of police officers carry. It is a metal baton, it is a metal stick.”

[22] The officer indicated that uniformed police officers wear the baton on their belt. He explained that these batons extend when swung. Once extended, the baton is rigid.

[23] The police officer who found the baton in the appellant’s closet agreed that police batons can be purchased over the Internet and in certain “self-defence stores”. The officer was shown a series of pictures of batons taken from the Internet. The batons varied somewhat in shape and size and were different colours. That same officer and others testified that in their experience, police batons are seldom found in the possession of persons who are the subject of police searches.

[24] Mr. Sacchetti was shown the baton seized from the appellant’s bedroom closet and asked to compare it to the weapon used against him in the robbery. He described the handles as “about the same length” although the handle on the baton was thinner. Mr. Sacchetti further testified that the non-handle portion or “end” of the weapon used against him was “a little longer” than the end of the baton. Mr. Sacchetti also indicated that the weapon used in the robbery had a wooden handle, whereas the baton had a metal or rubberized handle. Mr. Sacchetti went on to indicate, however, that he did not actually touch the handle of the weapon during the attack.

[25] Mr. Sacchetti pointed out three other differences between the baton seized from the appellant’s bedroom closet and the weapon used in the robbery.

• The end of the baton seized from the appellant’s closet was black, although specks of the black paint had come off the tip of the end, exposing the silver coloured metal underneath. The end of the weapon used in the attack was silver.

• The end of the baton shown to Mr. Sacchetti was firm. That end of the weapon used against him moved and was “like a whip”.

• The tip of the end of the baton seized from the appellant’s bedroom closet had a mushroom-like shape. The weapon used in the robbery had a more pointed tip.

III

were the verdicts unreasonable?

A: The Test

[26] Counsel for the appellant submits that the evidence could not reasonably support a finding that the appellant was one of the perpetrators. Counsel maintains that, without that finding, the appellant could not be convicted on any of the charges.

[27] Jury verdicts are regarded as the gold standard in criminal law. However, as with any human institution, juries can make mistakes. Where the mistake is a wrongful conviction, the cost to the accused can be measured in years of his or her life. Appellate review, and, in particular, review under s. 686(1)(a)(i), serves to protect against jury error in those cases where the trial is free of legal error and is entirely fair, but the evidence cannot justify the conviction of the accused: see R. v. W.H., 2013 SCC 22, at para. 39. Section 686(1)(a)(i) reads:

686(i) On the hearing of an appeal against a conviction … the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.

[28] Section 686(1)(a)(i) requires the appellate court to test the jury’s verdict against a reasonableness standard. That standard asks whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

[29] In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40, Arbour J., for a unanimous court, described the appellate court’s function in assessing the reasonableness of a jury verdict:

When an appellate court arrives at that conclusion [that the verdict is unreasonable] it does not act as a “thirteenth juror”, nor is it “usurping the function of the jury”. In concluding that no properly instructed jury acting judicially could have convicted, the reviewing court inevitably is concluding that these particular jurors who convicted must not have been acting judicially. In that context, acting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. This, in my view, is the assessment that must be made by the reviewing court. It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction. [Emphasis added.]

[30] The “lens of judicial experience” refers to the appellate court’s examination of the cogency of the evidence as informed by the court’s awareness of the risk of wrongful convictions associated with certain kinds of cases and certain kinds of evidence. The court, as an institutional participant in the criminal justice system, has an appreciation of those risks that a jury in a specific case cannot have.

[31] Section 686(1)(a)(i) requires the appellate court to independently weigh the totality of the evidence. The court weighs the evidence, however, not with a view to making its own assessment as to the appropriate verdict, but for the more limited purpose of determining whether the verdict is beyond the reasonableness limit. In making that assessment, the court must give due weight to the advantage a jury gains from actually seeing the witnesses and hearing the narrative unfold: see W.H., supra, at para. 27.

[32] In this case, the “lens of judicial experience” must focus both on the nature of the crime and the nature of the evidence. This was a terrible crime committed against innocent and particularly vulnerable members of the community. Law-abiding members of the community could easily see themselves as the victims of this kind of random violent crime. A jury’s understandable concern that criminal activity of this kind does not go unpunished could subconsciously influence the jury’s assessment of whether the circumstances—which no doubt pointed the finger of suspicion at the appellant—were sufficiently compelling to justify a finding of guilt beyond a reasonable doubt.

[33] Not only is this the kind of case where jury objectivity is tested, but also the evidence relied on by the Crown was purely circumstantial. The reasonableness of the verdicts must be assessed with regard both to the inferences reasonably available from the totality of the evidence and to the Crown’s ultimate burden to demonstrate that guilt is the only reasonable inference to be drawn from the totality of that evidence: see R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at pp. 186-90; and R. v. Barrett, 2004 NSCA 38, at paras. 15-20. There is a risk that a jury could use the DNA evidence, which provided incontrovertible evidence connecting the appellant to the bandanas, to draw the further, but much weaker, inference connecting the appellant to the robbery.

B: Application of the Test to this Case

[34] The DNA evidence was obviously important evidence. The jury could readily infer that one or both of the robbers had worn the bandanas during the robbery. The DNA evidence also established, almost to an absolute certainty, that the appellant, among others, had direct or indirect contact with both bandanas at some point in time before the police found the bandanas at the robbery scene.

[35] The finding of the appellant’s DNA on both, as opposed to just one, of the bandanas was also suggestive of some connection between the appellant and the robbery. The DNA evidence went some way toward identifying the appellant as one of the perpetrators.

[36] However, the DNA evidence alone could not support the inference that the appellant was one of the perpetrators or that either bandana belonged to the appellant. The expert evidence called by the Crown precluded those inferences based exclusively on the DNA evidence. Like the fingerprint evidence in R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376, at paras. 20-21 (Ont. C.A.) and R. v. D.D.T., 2009 ONCA 918, at para. 26, the DNA evidence alone could not say when that DNA was placed on the bandanas and therefore could not identify the appellant as the perpetrator of the robbery. There had to be other evidence which, combined with the DNA evidence, would permit a finding that the appellant was the perpetrator, e.g. see R. v. Samuels, 2009 ONCA 719; and R. v. Wong, 2011 ONCA 815.

[37] The Crown argues that the evidence that a police baton similar to the weapon used in the robbery was found in the appellant’s bedroom closet less than two months after the robbery provides the necessary added evidence, which, when combined with the DNA evidence, could establish that the appellant was one of the robbers.

[38] Counsel for the appellant takes a very different view of Mr. Sacchetti’s evidence. He contends that Mr. Sacchetti’s description of the differences between the weapon used against him and the baton seized from the appellant’s closet compels the conclusion that the seized baton was not the weapon used in the robbery. On this view of Mr. Sacchetti’s evidence, the police baton seized from the appellant’s bedroom closet added nothing to the Crown’s case.

[39] The appellant’s position assumes that a reasonable jury would accept Mr. Sacchetti’s detailed description of the weapon used against him in the attack. Certainly, a reasonable jury could accept the entirety of his evidence. If the jury accepted the detailed description as accurate, it would follow that the police baton seized from the appellant’s apartment was not the weapon used in the robbery.

[40] However, there is another reasonable view of Mr. Sacchetti’s evidence. A reasonable jury could conclude that Mr. Sacchetti’s general description of the weapon used against him as like the “wood piece” that police “carry on the side of their legs” was accurate and reliable but that his description of the details of the weapon was not reliable because of the circumstances in which he observed the weapon. For example, a reasonable jury might well take Mr. Sacchetti’s reference to the weapon as being “like a whip” as explained by the manner in which his assailant swung the weapon in a downward motion at Mr. Sacchetti who was lying on the ground. Similarly, Mr. Sacchetti’s description of the end of the weapon used to strike him as silver could be explained by the exposure of the metal surface of the weapon where the paint had been scratched off. The lighting conditions where Mr. Sacchetti was attacked could well have affected his perception of the colour of the object being used to bludgeon him.

[41] Allowing for the clearly advantageous position of the jury who saw and heard Mr. Sacchetti testify and who had an opportunity to examine the baton seized from the appellant’s closet, I think a reasonable jury could conclude that Mr. Sacchetti was struck with a police baton that was similar in appearance to the police baton seized from the appellant’s bedroom closet.

[42] The reasonableness of the finding that the appellant was one of the perpetrators ultimately depends on the probative value of evidence that the appellant had in his bedroom closet some two months after the robbery a police baton that was similar to the weapon used in the robbery. In considering the probative value of the evidence, one must bear in mind that a police baton is not the kind of object that is commonly found in a household or in the possession of persons other than police officers. The somewhat uncommon nature of the weapon adds some probative force to the evidence from the Crown’s perspective.

[43] I do not think that Mr. Sacchetti’s very general description of one of the robbers, at para. 12, adds any force to the Crown’s case. It is relevant to the reasonableness inquiry only in the sense that it is not inconsistent with the appellant’s appearance and does not, therefore, as in Mars, at para. 26, diminish the potential force of the circumstantial evidence. Mrs. Sacchetti’s description has no evidentiary value.

[44] This is a close call. I am, however, satisfied that the DNA evidence linking the appellant to the two bandanas used in the robbery, combined with evidence permitting the inference that some two months after the robbery the appellant had a police baton like the police baton used in the robbery, is sufficient to render the jury’s finding that the Crown had proved that the appellant was one of the perpetrators a reasonable one. In holding that the verdicts survive the reasonableness analysis I have taken into account the appellant’s failure to testify: see R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at pp. 280-81.

IV

the convictions on the “armed robbery” charges

[45] Counts one and two in the indictment alleged that the appellant “did use a firearm to rob” the victims. At trial, counsel for the appellant moved for a directed verdict at the end of the Crown’s case. He argued that, as the alleged firearm had not been fired during the robbery and as the police had not recovered the alleged firearm, the Crown could not prove beyond a reasonable doubt that the alleged firearm was, in fact, a firearm, as defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46. Counsel submitted that the evidence was at least equally consistent with the use of an imitation handgun during the robbery. An imitation handgun is not a firearm, as defined in s. 2.

[46] The trial judge rejected this argument and charged the jury that, to convict on the robbery with a firearm counts, the jury must be satisfied beyond a reasonable doubt that a firearm was used in the robbery. He gave the jury the definitions of both “weapon” and “firearm”. An imitation handgun does fall within the definition of “weapon”, although, as indicated above, it is not a “firearm”. The jury convicted on both counts.

[47] Counsel renews this submission on appeal, arguing that there was no evidence that the weapon used by the second robber was a firearm, as defined in the Criminal Code.

[48] I agree with Crown counsel’s contention that the appellant’s submission and the trial judge’s instructions mischaracterize the offences alleged in counts one and two of the indictment. To convict on those counts, the Crown was required to prove that the appellant committed robbery, as defined in s. 343 of the Criminal Code. Use of a firearm is not an essential element of robbery, as defined in s. 343. The Crown was not required to convince the jury beyond a reasonable doubt that the appellant used a firearm. If the jury was satisfied that the Crown had proved robbery, as defined in s. 343, the jury was obliged to convict the appellant on counts one and two. It was for the trial judge on sentencing to determine whether the Crown had proved beyond a reasonable doubt that the appellant used a firearm in the commission of the robbery, thereby triggering the mandatory minimum penalty under s. 344(1): see R. v. Moore, 2012 ONCA 770; and R. v. A.D., 2003 BCCA 106, (2003), 173 C.C.C. (3d) 177. Any deficiency in the Crown’s proof that a firearm was used in the robbery is appropriately considered on the sentence appeal.

[49] I will, however, address the appellant’s submission that, absent proof that a firearm was discharged or the recovery of a firearm, the Crown could not prove that the weapon used in the robbery was a firearm, as defined in s. 2. As I understand this argument, counsel relies on Parliament’s creation of the discrete offence of using an imitation firearm in the commission of an indictable offence in s. 85(2) and asserts that the Crown cannot prove that a firearm, as opposed to an imitation firearm, was used, unless the alleged firearm is discharged during the offence or recovered after the offence and tested to demonstrate that it meets the definition of firearm in s. 2. There is some support for this proposition: see R. v. Lemoine, [1998] O.J. No. 601 (C.A.); and R. v. Taing, 1998 ABCA 108.

[50] I do not conclude from Parliament’s decision to criminalize the use of imitation firearms, an obviously dangerous activity, that the normal rules of proof do not apply to an allegation that an accused used a firearm, as defined in s. 2 of the Criminal Code. The Crown may prove that the alleged firearm fell within the definition by inference from the totality of the circumstances, even if the alleged firearm was not fired or recovered. This court has upheld trial decisions that have drawn that inference even though the firearm was not discharged or recovered: see R. v. Richards, 2001 CanLII 21219 (ON CA), [2001] O.J. No. 2286 (C.A.); R. v. Carlson, [2002] O.J. No. 1884 (C.A.); and R. v. Charbonneau, 2004 CanLII 9527 (ON CA), [2004] O.J. No. 1503 (C.A.).

[51] I do, however, accept that, where the Crown alleges the use of a firearm and the firearm was not recovered or discharged, it is incumbent on the trial judge to clearly explain to the jury the essential elements of the definition of firearm in s. 2 and to make it clear to the jury that the use of something resembling a firearm does not constitute proof of the use of a firearm. Assuming the jury is properly instructed, and assuming that the inference that the alleged firearm was, in fact, a firearm is reasonably available, it is for the jury to decide whether that inference should be drawn.

V

THE ADMISSIBILITY OF THE BATON SEIZED FROM THE APPELLANT’S APARTMENT

[52] Two arguments are advanced in support of the appellant’s position that the baton was inadmissible. The first presumes, based on Mr. Sacchetti’s evidence, that the baton was not the weapon used in the robbery. For reasons outlined above, I am satisfied that a jury could reasonably conclude that the police baton seized from the appellant’s bedroom closet was similar to the police baton used in the robbery. That similarity, particularly in light of the relatively uncommon nature of the weapon involved, was sufficient to render the baton admissible as a piece of circumstantial evidence going ultimately to the question of identity, a material fact in issue.

[53] The appellant also argues that the baton was inadmissible because there was no evidence that he was in possession of the baton. The baton was found in the closet of the appellant’s bedroom. He lived there with his girlfriend and a young child. The baton was in a gym bag containing what appeared to be adult male clothing. There was no evidence that any other adult male lived in the apartment, although there was some evidence that at least one other male visited the apartment. These circumstances provided an ample basis upon which a jury could conclude that the appellant was in possession of the baton when it was found by the police. I think the jury could also infer, particularly in the absence of any evidence to the contrary, that the appellant was in possession of the baton some two months earlier.

VI

the instruction on circumstantial evidence

[54] The appellant submits that the trial judge erred in law in failing to instruct the jury that, as the case was purely circumstantial, it could convict only if guilt was “the only rational inference”: see R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33. The trial judge could have instructed the jury in the words urged by the appellant. However, as long as the trial judge adequately explained to the jury how to use circumstantial evidence to draw inferences and explained the burden on the Crown to prove guilt beyond a reasonable doubt based on those inferences, no particular semantic formulation was necessary: R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 38. The trial judge’s instructions adequately conveyed the required message.

VII

the sentence appeal

[55] The trial judge imposed sentences of five years and four months concurrent on the two robbery counts. He did so on the basis that the jury had found that the appellant was liable as a party to the use of a firearm during the commission of the robbery, thereby triggering the four-year minimum sentence in s. 344(1)(a.1).

[56] As explained above, at paras. 45 to 48, it was not for the jury to determine whether a firearm was used in the robbery. The trial judge should have made that determination on sentence.

[57] The Crown argues that the appellant was not prejudiced by this misallocation of the responsibility for determining whether a firearm was used in the robbery. Counsel observes that the trial judge was not asked to revisit the issue on sentencing and that no objection was taken to the trial judge’s acceptance of the jury’s finding that a firearm was used for the purposes of sentencing.

[58] I have difficulty with the Crown’s argument on two fronts. First, I cannot agree that, where the law requires a trial judge to make a particular determination, there is no prejudice when the jury makes that determination and the trial judge merely accepts the jury’s finding. There is no way of knowing what finding the trial judge would have made in respect of the claim that a firearm was used in the robbery. Second, any reliance on the jury’s verdicts is tainted by the trial judge’s misdirection as to the meaning of the word “firearm”. During his instructions on the robbery charges, the trial judge confused the definitions of “weapon” and “firearm”. No clarification was provided to the jury despite an objection by counsel for the appellant.

[59] This court is left with two options. The court could make its own finding as to whether the Crown had proved beyond a reasonable doubt that a firearm was used in the robbery, or it could assume in the appellant’s favour that the Crown had failed to prove that the firearm was used in the robbery and, on that assumption, determine the appropriate sentence. I will follow the latter course.

[60] All home invasion robberies are very serious crimes and will usually merit significant penitentiary sentences: R. v. Wright, 2006 CanLII 40975 (ON CA), [2006] 83 O.R. (3d) 427 (C.A.). This home invasion was a particularly egregious example of the crime. The gratuitous violence and threats made against the elderly victims are shocking and despicable. Even if the weapon pointed into the face of Ms. Sacchetti as she lay helpless on the ground believing she was about to die was not a firearm, it nonetheless terrorized Ms. Sacchetti. I am sure the vision of that gun and the terror it generated will never leave her mind even if one cannot say for certain that it was a real gun: see R. v. Steele, 2007 SCC 36, [2007] 3 S.C.R. 3, at paras. 20-23.

[61] Taking into account the pre-trial custody, the trial judge imposed an effective sentence of eight years on the robbery. Regardless of whether the weapon used to terrorize Ms. Sacchetti was a real firearm, the totality of the circumstances justifies a sentence of eight years. I would not interfere with the sentences imposed on the robbery charges.

[62] There is, however, merit to the appellant’s argument that the trial judge should not have imposed a consecutive two-year sentence on the charge of possession of a weapon (the baton) for the purposes of committing the offence of robbery. This count was part and parcel of the robbery charges. In my view, the vicious and senseless beating administered with the baton is one of the aggravating factors taken into account in fixing eight years as an appropriate sentence on the robbery charges. To impose a further consecutive sentence is to double count that conduct in calculating the appropriate sentence. The sentence on the charge of possession of a weapon (the baton) for the purpose of committing the offence of robbery should have been made concurrent to the sentences on the robbery charges.

VIII

conclusion

[63] I would dismiss the conviction appeal. I would allow the sentence appeal and make the two-year sentence on the charge of possession of the baton for the purpose of committing the offence of robbery concurrent to the sentences on the robbery charges. This variation results in an effective sentence of eight years, which taking into account pre-trial custody, results in a sentence of five years and four months.

“Doherty J.A.”

“I agree M.L. Benotto J.A.”

Pepall J.A. (Dissenting):

[64] With respect, I disagree with my colleague that the conviction appeal should be dismissed. In my view, the evidence could not reasonably support a finding that the appellant was one of the perpetrators of the crimes for which he was convicted and, as such, the verdict was unreasonable.

The Test

[65] In making this determination, I appreciate that, to use my colleague’s terminology, jury verdicts are regarded as the gold standard in criminal law. An appellate court is not to act as a “thirteenth juror”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40. That said, in my opinion, the verdict in this case is beyond the limits of reasonableness. It is not one that a properly instructed jury, acting judicially, could reasonably have rendered.

Application of the Test

[66] Neither of the victims identified the appellant as one of the robbers. The case against the appellant was based solely on circumstantial evidence. As such, in order to convict, the jury had to be satisfied beyond a reasonable doubt that the only rational inference that could be drawn from the circumstantial evidence was that the appellant was guilty: see R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.

The Evidence

[67] As my colleague indicates at paragraph 3 of his reasons, the Crown’s case rested on DNA evidence connecting the appellant to two bandanas used in the robbery and evidence of a baton seized from the appellant’s apartment.

(a) DNA Evidence

[68] As noted in paragraph 34 of my colleague’s reasons, the DNA evidence does establish that the appellant, among others, had direct or indirect contact with both bandanas at some point in time before the police found them. However, the timing of when the appellant’s DNA was placed on the bandanas cannot be determined. As the Crown’s DNA expert testified: “There’s no way to determine how long any of those DNA profiles have been on that bandanna.” Furthermore, both bandanas contained the DNA of multiple individuals and had DNA from more individuals than there were perpetrators to the offences.

[69] As my colleague states at paragraph 36 of his reasons, the DNA evidence alone could not support the inference that the appellant was one of the perpetrators or that either bandana belonged to him.

(b) The Baton

[70] Turning to the evidence of the baton, about two months after the crime, a baton was found in a closet in the appellant’s apartment (the “apartment baton”). At trial, it was marked as an exhibit and described as a black baton. It consisted of three sections: the handle, the middle, and the end section. The detectives described the apartment baton as being steel with a rubber handle and that, while the end section of a police baton usually extended out, the apartment baton was jammed.

[71] Four points are of note. First, the victim, Mr. Sacchetti, did not identify the apartment baton as the baton used during the crime. No one else did either.

[72] Second, in his testimony, the victim identified how it was dissimilar to the baton used in the crime. The victim repeatedly testified that the bottom of the baton used in the crime was wood and the metal top swivelled. Neither of these features is found on the apartment baton.

[73] Third, there is no evidence connecting the apartment baton to the crime.

[74] Fourth, while it may be true, as my colleague notes, that batons are not common possessions, it is also true that they are not complete rarities. They can be bought on-line and in self-defence stores. They come in various colours, composite materials and designs. Exhibits consisting of photographs of various batons included a silver baton with a black handle, a grey baton with a black handle, a solid silver baton with grooves and a silver and white baton with a black handle. While the seizure of batons was not common in the experience of the police officers who testified, two officers – Detective Abreu and Detective Walsh – acknowledged having seized a baton from a residence at least once or twice over the course of their careers.

(c) Mr. Sacchetti’s Evidence

[75] The victim, Mr. Sacchetti, provided various descriptions of the baton used against him.

[76] He first discussed the baton in his examination-in-chief (at p. 161 of the transcript):

A. He’s on the top of me and not really on the top of me like a real position, and he was whacking me and beating me with this piece of metal. Well, the bottom I guess was wood…

Q. I’m going to ask you to slow down a little, okay?

A. …and the top was a piece of metal that swivels. It’s not straight. Like when you hit, it moves around.

[77] His second description of the baton was also given in his examination-in-chief (at p. 166-167 of the transcript):

A. He was, yeah, whacking me with this piece of – the bottom was wood and it was about eight inch, about like this, and then the top was something that you move it around, you know? Like, for example, like this, you know. You whack ‘em around and it moves.

[78] His third description was also given in his examination-in-chief, at pp. 169 of the transcript. It was at this juncture that he referred to a police baton.

[79] With respect, the comparison Mr. Sacchetti drew to a police baton was not a “general description” of the weapon used against him. He was addressing the bottom. The comparison he drew to a police baton began as a way to describe the bottom of the baton. He then proceeded to contrast the two weapons and commented on their differences just as he had commented on the differences between the weapon used against him and the apartment baton. The relevant exchange is set out below:

Q. Now, I want to ask you, I’m going to ask you some questions about the item that you were being hit with that this person had, okay? So I want you to describe – you’ve told us a little bit about it already. You’ve used the word “bottom” and “top”, okay?

A. Yeah.

Q. Can you tell us in terms of what you mean by the bottom? [Emphasis added.]

A. Like, you know like the policeman has that wood piece that they use to carry on the side of their legs, the Canadian policeman”? But then this thing, he had a piece of metal on the top of that…

Q. Okay. Just you’re going to have to slow down. Just a second. He had a piece of metal on the top of what?

A. On the top of the wood handle.

Q. Okay.

A. And this piece of metal is like whip that swivels, you know, moves around when you – like, you know, it’s not like a piece of wood that it doesn’t move. He had me and he moves this piece of metal. It’s something like that, swivels.

Q. Okay. So you’re just waving your hand and your arm and your finger back and forth?

A. Like, you know the whip, like when they had the horse? The whip, except this thing was like – for example, like BX wire. You know, like wire that the electrician used to use, is a metal that moves, you twist it the way you want it.

Q. No, I have no idea. I have no idea what that is.

A. Well, this thing, you could twist it the way you want, this piece that they had on the top of this wood. It’s like a piece of metal that it’s not stiff. You know, it’s not one piece, it moves around.

[80] Later in his examination-in-chief, he was asked whether he was able to tell how many parts there were to the baton. He responded as follows (at p. 171 of the transcript):

A. Well, the only part there were of this item was the two, was the handle, the wood handle at the bottom and this flexible tube on the top.

[81] At p. 172 of the transcript of his examination-in-chief, Crown counsel asked:

Q. Mr. Sacchetti, one of the things you said when I asked you to describe this item, you said it was like the policeman has, that wood…

A. Well…

Q. Let me finish. You said it was like what the policeman has, that wood piece they carry at the side of their legs. I want you to tell us, what was the same or what was different about this item than what the police carry? What are you thinking about in terms of what the police carry?

A. Now, what I know, I never been involved with the police that they gonna use at me, but I see the police walk with this thing on their thing, but I don’t know how far it goes into the pants. But that was the – but this thing, I don’t know if policeman Canadian have the same metal piece on the top. I didn’t see this. All I know, I see when they walk and I see this thing on their legs and it’s the same, about the same colour. I figure it’s wood, but I don’t know at the end the way it is.

Q. You’ve been referring to the handle or the end as wood.

A. Yes.

Q. Why are you calling it wood? What is it about the object that makes you think it’s wood?

A. Well, as far as I understood, as far as my knowledge, I think it’s made out of wood. I don’t know.

Q. Did you ever actually touch this item yourself?

A. No.

Q. Other than it being hit on your body, did you touch it at all? The handle or…

A. No.

[82] It is unclear from this last exchange whether Mr. Sacchetti is talking about the baton that Canadian policemen carry or the baton used by the perpetrator or both.

[83] Later, Mr. Sacchetti was questioned on the apartment baton. Crown counsel showed him the apartment baton and the following exchange ensued:

Q. I want you to look at that object and you can see if it moves at all, but I want to ask you, how does that object I’ve given you compare to what you saw that night when you were being whacked?

A. Well, the handle was about the same length, the bottom was about the same length, but top, it’s long, about this long.

Q. The item that was used?

A. Yeah, the thing was on the top of his hand, but was flexible, you know. See, this thing, it’s straight. It doesn’t move, doesn’t flex.

A. Well, that thing was as little longer than this thing, but the difference is that this thing is solid, it doesn’t move, and that thing, you could move it.

Q. And how does the colour compare to the item that was used?

A. Well, this is black. That was a silver colour.

Q. And what part was the silver colour that you saw?

A. This is the – the top part was the silver colour.

Q. So just for the record, you’re showing the part that is – the top part that is not the handle, the thinner part.

A. The metal, the thin part, yeah.

Q. Okay.

A. This about the size, the five/eight or a finger, but….

Q. Okay. Now I want to ask you about the size around. How does the size around of the item you are holding which is Exhibit A, how does the handle size around compare to what you saw that night?

A. The bottom was thicker than this.

Q. And how about the top portion?

A. The top was about….

Q. How does – let me finish my question. How does it compare around to what you recall of that night?

A. About the same as this and go into a point.

Q. What do you mean it went into a point?

A. It doesn’t have, like, this had, like this one has. For example, the finger goes from here to a point.

Q. Okay. So let’s make sure we’re talking about the same thing. You’ve said that the item you’re holding which is Exhibit A has a point at the end.

A. This one has a little head like a mushroom, that one wasn’t.

Q. And so that night it did not have like the mushroom shape?

A. No.

[84] The lighting in the area of the assault was good as confirmed by both Mr. Sacchetti, and by one of the investigating officers who had immediately attended at the crime scene. The former said “it was fully bright” and the latter recalled that the exterior of the house was “very well lit”.

[85] With respect, based on the evidence, I do not believe that a properly instructed jury acting judicially could reasonably render a guilty verdict. The Crown’s evidence in this case amounted to inconclusive DNA evidence coupled with a baton that was identified as being dissimilar to that found in the closet of the appellant’s apartment and as dissimilar from a police baton, and that bore no identifiable connection to the crime scene. In my view, the guilty verdict in this case was unreasonable. The evidence could not reasonably permit the conclusion that the appellant was the perpetrator of the crimes for which he was convicted.

[86] I would allow the appeal, set aside the conviction and enter acquittals on all charges.

RELEASED: “DD” “MAR 07 2014”

“S.E. Pepall J.A.”