COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grayston, 2016 ONCA 784

DATE: 20161026

DOCKET: C62179

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Joseph Grayston

Appellant

Frank Joseph Grayston, acting in person

Philip Norton, appearing as duty counsel

Jocelyn Speyer, for the respondent

Heard: October 3, 2016

On appeal from the convictions entered on March 16, 2016 and the sentence imposed on April 29, 2016 by Justice Jane A. Milanetti of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals from convictions for theft under $5,000 and possession of property obtained by crime. The property that was stolen is a 1988 Pontiac Sunbird. Identity was the sole issue at trial.

[2] Through duty counsel, the appellant’s primary argument was 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. C-46.

[3] In our view, the evidence does not support the verdict. We would therefore allow the appeal.

The Facts

[4] Between midnight and 5:00 a.m. on February 18, 2015, the Sunbird was taken from the premises of the Barton Truck company. Around the same time and in the same vicinity, an attempted break and enter of a jewellery store and a robbery of a large quantity of drugs from a pharmacy took place.

[5] On February 20, 2015 the Sunbird was located abandoned in a parking lot. Police found a black skeletal balaclava in the car. Investigation led the police to the appellant’s apartment where they discovered drugs.

[6] The balaclava was sent for forensic testing. DNA from inside the garment around the mouth area showed a mixture of DNA from at least three individuals. One DNA profile was determined for comparison. It matched the appellant’s DNA to a degree of statistical certainty.

[7] The appellant was charged with various offences arising out of the theft of the Sunbird, the robbery of the pharmacy and the attempted break and enter of the jewellery store.

[8] To establish that the appellant participated in the theft of the Sunbird, the prosecution relied on the DNA evidence and the fact that the attempted break and enter of the jewellery store and the robbery of the pharmacy took place close to where the car was stolen.

[9] The appellant neither testified nor called any evidence.

The Trial Judgment

[10] The trial judge convicted the appellant of the two counts relating to the theft of the Sunbird. The trial judge acquitted the appellant of all other counts on the basis of insufficient evidence connecting him to those offences.

[11] The entirety of the trial judge’s analysis leading to her conclusion that the Crown had proven beyond a reasonable doubt that the appellant stole the car is as follows:

[W]hen the vehicle was found on the 20th of February 2015, police discovered a black skeletal balaclava, which was sent to CFS and a DNA match with Mr. Grayston was quite convincingly determined. The numbers were in the quadrillions. Moreover, Mr. Morrow [the owner of the car] (who was an excellent witness) said it was not his, did not know what it was, until a balaclava was explained to him. He didn’t even know what it meant. … [T]he vehicle was found abandoned in a parking-lot behind a Bank of Montreal at 386 Barton Street East. I note that all of these offences occur in the Barton Street East vicinity; the pharmacy, the truck stop and the truck shop, and the third one is the Centre Mall, where the jewelers is. I, thus, conclude that it has been established that the Crown has proven both count one and two beyond a reasonable doubt that Mr. Grayston broke into the Barton Truck facilities stole the Morrow Sunbird vehicle and had it in his possession.

Analysis

[12] In circumstances where the appellant challenges the reasonableness of the verdict, 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: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 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] We start with the evidence that the appellant’s DNA was found on the balaclava. While DNA evidence is powerful evidence that the person whose DNA is on the object was in contact with that object, the connection of the accused with the crime will depend on the existence of other evidence capable of establishing that the accused was in contact with the object at the relevant time and place: R. v. Mars, 2006 CanLII 3460 (ON CA), [2006] O.J. No. 472 (C.A.), at para. 19.

[15] In R. v. D.D.T., 2009 ONCA 918, [2009] O.J. No. 5486, at para. 15, this court suggested a two-stage approach for appellate review of the reasonableness of a verdict in cases where evidence of this nature provides the sole evidence capable of identifying the perpetrator:

The first stage involves an examination of the reasonableness of the inference that the [DNA was] 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 was wearing or had the balaclava with him in connection with the theft of the Sunbird is a more likely inference than the inference that he was in contact with the balaclava on an unrelated occasion. Second, the appellant’s guilt must have been the only rational conclusion available on the totality of the evidence.

[17] Based on the limited nature of the evidence presented at trial, we are not satisfied that the inference that the appellant was in contact with the balaclava in the course of the theft of the car was a reasonable one. The Crown cannot point to any evidence that makes the inference that the appellant was in contact with the garment in connection with the theft more likely than the inference that he was in contact with the balaclava at some other time. Evidence of his DNA on the balaclava only demonstrates that he likely wore the garment at some point in time and falls short of connecting him to the theft of the car on February 15, 2015. The discovery of the balaclava with the appellant’s DNA on it in the abandoned stolen car, by itself, did not permit any such inference.

[18] Crown counsel attempts to bolster the force of the trial judge’s reliance on the DNA evidence by pointing to the proximity of the locations of what she referred to as a crime spree on the night in question.

[19] In our view, the proximity between the Barton Truck company premises, where the Sunbird was stolen, and the jewellery store and pharmacy is of no relevance given the trial judge was not satisfied that the evidence supported a finding that the appellant was at all connected with the other thefts.

[20] In our view, there was an insufficient evidentiary footing for the trial judge to conclude that the appellant's guilt was the only reasonable conclusion available on the totality of the evidence. While the evidence supported the inference that the appellant had worn the balaclava at some point, there was insufficient evidence to support an inference that he was wearing it or otherwise was in possession of it at the time the car was stolen. His conviction is therefore unreasonable within the meaning of s. 686(1)(a)(i).

Disposition

[21] The appeal is therefore allowed. The conviction is quashed and an acquittal entered.

“J.C. MacPherson J.A.”

“Gloria Epstein J.A.”

“P. Lauwers J.A.”