Court of Appeal for Ontario

CITATION: R. v. Ahmed, 2015 ONCA 848

DATE: 20151204

DOCKET: C60160

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nouradine Ahmed

Appellant

Counsel:

Neil Weinstein, for the appellant

Mary-Ellen Hurman, for the respondent

Heard: November 23, 2015

On appeal from the conviction entered on March 27, 2014 by Justice C.S. Dorval of the Ontario Court of Justice.

ENDORSEMENT

[1] Following the oral hearing of this appeal, for reasons to follow, we allowed the appeal, set aside the appellant’s conviction for robbery and entered an acquittal. These are the reasons for our decision.

[2] The appellant appeals from his conviction for robbing a bank. He submits that the trial judge erred by relying entirely on evidence confirming that the appellant’s DNA was present on a plastic shopping bag used in the robbery to support a finding of guilt in the absence of any other evidence linking the appellant to the crime. Relying on R. v. Mars, 2006 CanLII 3460 (ON CA), [2006] O.J. No. 472 (C.A.), the appellant asserts that the verdict is unreasonable.

[3] We accept the appellant’s submission. In this case, the bank robber was observed holding a plastic bag in his bare hands during the robbery and during a subsequent pursuit by the bank manager. After catching up with the perpetrator, the bank manager ripped away from the culprit the portion of the plastic bag from which DNA samples were taken. We accept that this case can be analogized to R. v. Mars.

[4] The portion of the plastic bag that was analyzed revealed four DNA samples, albeit only one in sufficient quantity to generate a profile. Although the DNA analysis made it clear that the profile generated was that of the appellant, we conclude that there was no other evidence capable of linking the appellant to the crime. The trial judge found, “there’s no identification evidence from the eye witnesses to this robbery.” Further, a surveillance tape did not permit the trial judge to identify the appellant as the culprit.

[5] The expert evidence led at trial revealed the following:

• not everyone deposits DNA in the same proportions;

• when a DNA profile is found on an item, that does not mean the identified contributor touched the item last;

• there is no relationship between how long a DNA sample is present and the strength of the profile; and

• DNA can remain on an object for decades.

Further, the DNA analysis did not particularize the source of the DNA sample as either fluid or skin cells.

[6] The Crown submitted that the court should adopt the two-stage approach for appellate review set out in R. v. D.D.T., 2009 ONCA 918, [2009] O.J. No. 5486,[^1] and, at the first stage, rely on certain evidence from the eyewitnesses to connect the appellant to the robbery. In this latter regard, the Crown pointed to evidence indicating a general similarity in appearance between the appellant and the perpetrator (dark-skinned male, 5’5” to 5’7” in height, spoke English without an accent) and, in particular, the teller’s evidence that the appellant’s face was the same shape as the perpetrator’s face.

[7] We do not accept the Crown’s submission. The trial judge, who saw the witnesses and was in the best position to assess their evidence, found that the only evidence identifying the robber was the DNA evidence. In any event, in our view, the generic nature of the evidence relied on by the Crown is insufficient to support a conclusion that the appellant’s DNA was deposited on the plastic bag during the robbery. As appellant’s counsel pointed out, plastic shopping bags are commonplace, portable, disposable and reusable. In the light of these factors, and because of the generic nature of the eyewitness descriptions relied on by the Crown, the eyewitness evidence simply does not go far enough to be capable of supporting an inference that the appellant deposited his DNA on the shopping bag during the bank robbery.

[8] Based on these reasons, we concluded that the verdict was unreasonable. We therefore allowed the appeal, set aside the conviction and entered an acquittal on the robbery charge.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”

[^1]: At para. 15 of D.D.T., this court stated: 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.