Court of Appeal for Ontario

Date: January 19, 2017 Docket: C59342

Justices: Weiler, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Ronald Marini Appellant

Counsel:

• Melanie J. Webb, for the appellant
• Luke Schwalm, for the respondent

Heard: January 12, 2017

On appeal from: The conviction entered on January 16, 2014 and the sentence imposed on February 14, 2014 by Justice Edward E. Gareau of the Superior Court of Justice, sitting without a jury.

By the Court:

A. Overview

[1] Three break-ins in three Subway restaurants in Sault Ste. Marie took place in the span of five days on July 11, 12 and 15, 2012. The appellant was tried and found guilty in relation to the July 15, 2012 break-in although no theft was committed because the perpetrator was unable to access the safe. The Crown's similar fact evidence application in relation to the July 11 and 12 break-ins, in which the safe was broken into and money stolen, was allowed and the appellant was also found guilty in relation to these break-ins.

[2] The appellant appeals his conviction on one count of break and enter with intent to commit an indictable offence therein (s. 348(1)(a)); two counts of break and enter and commit an indictable offence therein (s. 348(1)(b)); and three counts of possession of break-in instruments (s. 351(1)), all contrary to the Criminal Code, R.S.C. 1985, c. C-46.

[3] Because we are in agreement with the appellant's submissions that the trial judge erred with respect to the use he made of the appellant's criminal record and that his evaluation of the evidence is flawed in material respects, it follows that the convictions must be set aside and a new trial ordered.

[4] Having regard to our decision, it is unnecessary for us to consider the appellant's appeal from his sentence of 3.5 years plus 76 days pre-trial custody.

B. Facts

[5] The three Subway restaurants broken into were each equipped with video surveillance cameras. The trial judge made the following findings of fact:

• July 11 break-in – 153 Great Northern Road: The side door window to the restaurant was smashed and entry was gained at 1:50 a.m. A person wearing a black balaclava over his or her face and a black jacket entered the restaurant. The perpetrator stole $1,556 from the safe.

• July 12 break-in – 216 Second Line, West: Entry was gained through the back door at 4:27 a.m. A person wearing a black balaclava over his or her face and a black jacket entered the restaurant. The perpetrator stole $2,107 from the safe.

• July 15 break-in – 421 Bay Street: A window in the front of the store was smashed and entry was gained at 1:59 a.m. A person wearing a black balaclava over his or her face and a black jacket entered the restaurant. An attempt was made to enter the safe, but was unsuccessful.

[6] Lacey Dalton was a witness to the events of July 15. She saw the perpetrator leave the Subway restaurant after the break and enter had taken place. She was driving home from work when she noticed that the window of the Subway on 421 Bay Street was smashed. She stopped her car and was attempting to call the police when she observed a man run out of the Subway restaurant and get into a van. Dalton testified that the man was wearing a black mask that covered his entire face to his neck. Dalton followed the van into a dead end and then observed a man leaving the driver's side of the van, which she believes was left running with the lights on.

[7] Dalton testified that a short time later (1 to 2 minutes), she observed a man without a mask go into the van and turn the van off (or the lights in the van off). She described the man as wearing a black t-shirt with grey on the sleeves, red shorts, running shoes, and a black hat. She described this man as having the "same stature" as the man she had seen leaving the van earlier. This man told her she should not be parking where she was as the lane was a passenger walkway. He left the scene after he exited the van.

[8] Constable Vautour was dispatched in respect of the Subway break-in. He observed a male wearing red shorts crossing Gore Street. The male was sweaty and out of breath. The man identified himself as Ronald Marini (the appellant). The appellant was subsequently arrested. Constable Vautour was responsible for seizing the appellant's clothing, and he noted that there appeared to be "small shards of reflective glass" on the top of the appellant's baseball hat. A black bag containing burglary tools was located nearby in the direction from which the appellant had come.

[9] Both Constable Vautour and Constable Kovacs (who was also involved in the appellant's arrest) testified that on arrest, the appellant had a large cast on his right hand, from his fingers up to his elbow.

[10] The police found an axe and a sledgehammer in the van, and observed broken glass inside the van. They also found a black balaclava on the ground beside the driver's side door. A swab was taken from outside the mouth area on the balaclava which matched the appellant's DNA.

[11] There were no witnesses to the other two incidents.

[12] At trial, the appellant was self-represented. The appellant testified in his own defence. The trial judge had the assistance of amicus. The appellant denied being involved in any of the break-ins and denied being the person in the surveillance tapes. He testified that on the evening of July 14, 2012, he went to a bar and stayed until approximately 1:50 a.m. on July 15, 2012. He left the bar with the intention of walking to his sister's home. At about 2:00 a.m. he saw a person running to a side street off of Gore Street. The appellant testified that the man was wearing dark clothing and it looked like he was carrying something, like a bag. The appellant looked down the alley and saw a van and a car parked behind the van. He noticed that the van was rolling down the alleyway. The appellant testified that he opened the van and put it in park and turned the ignition off. He said he was "sweating a lot" because it was a hot and humid evening. He testified that he "was at the wrong place at the wrong time."

[13] The appellant acknowledged that his DNA was on the balaclava, but he denied that it was his balaclava and, prompted by some leading questions by amicus, explained that he must have touched or sat on the balaclava when he got into the seat of the van. He testified that he saw the balaclava fall to the ground as he was getting out of the van.

C. The Law

[14] In R. v. Morrissey, 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221, Doherty J.A. stated:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict.

At a later point in the same paragraph, he stated:

If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence, then, in my view, it must follow that the appellant has not received a fair trial, and was a victim of a miscarriage of justice. This is so, even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[15] As the Supreme Court of Canada observed after citing Morrissey in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4:

Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors identified must play an essential part not just in the narrative of the judgment but 'in the reasoning process resulting in conviction.'

[16] As we indicate below, that test is met in this case.

D. Applying the Law to the Trial Judge's Reasoning Process

[17] The trial judge set out the principles in R. v. W.(D.), [1991] 1 S.C.R. 742 and concluded that several aspects of the appellant's testimony "strain belief." First, it was difficult to accept the appellant's explanation for his DNA being on the balaclava, given that the swab sample was taken from the mouth area of the item. He concluded at para. 34 of his reasons, "for the DNA sample to be taken from the mouth area, it follows logically that the person with his DNA sample on the balaclava must have been wearing the balaclava – his mouth must have come into contact with the balaclava." Having regard to the evidence that the DNA swab was only taken from the exterior of the balaclava and not the interior, and the lack of any evidence respecting transferability of the DNA, it could not form the basis for the trial judge's rejection of the appellant's evidence that he must have accidentally come into contact with the balaclava when he entered the van and sat on the seat, either by sitting on the balaclava or touching it with his hand.

[18] When addressing the appellant's explanation for being apprehended close to the van that was followed from the location of the last break-in, the trial judge said the following at para. 35 of his reasons:

I also have difficulty accepting Mr. Marini's evidence that he was just "being nosey" by being in the alleyway where the van was parked or that he was playing the role of good Samaritan by putting the van into park. Mr. Marini acknowledged a criminal record which is both lengthy and substantial. This record starts in 1980 with the last conviction being June 21, 2013. The criminal record, entered as Exhibit 31, is replete with property offences, break and enters and possession of stolen property. I am cautious with respect to the use to be made of the criminal record of Mr. Marini. The record is not being considered for the suggestion that Mr. Marini is more likely to have committed the Bay Street break and enter because of his criminal past. Such an approach would be unacceptable and contrary to the law. I do not accept that and that is not why his criminal record is being considered. The record is important to consider Mr. Marini's life experiences and whether given this criminal past and life circumstances, it makes sense for him to hang around what was obviously a crime scene, to help out and to provide assistance by putting the van in park and to speak to the police about the man he saw running carrying a bag. In my view, it does not make sense. The sensible and logical thing for a person with Mr. Marini's past to do would be to get out of the area as fast as he could. I do not accept Mr. Marini's explanation that he was at the wrong place at the wrong time or a victim of circumstance. It does not make sense for Mr. Marini to be hanging around the Manilla Terrace or Gore Street area when he knows there has likely been a crime committed, given his past criminal background and life experiences. The sensible and logical thing for Mr. Marini to do would be to continue on his way, to his sister's on Adelaide Street as expediently as possible. [Emphasis added]

[19] Essentially, the trial judge reasoned that, if the appellant were truly innocent and was in fact in the wrong place at the wrong time, his decision to remain was undermined by his "criminal past and life experiences" (i.e., his criminal record). In other words, if innocent, someone with the appellant's criminal record ought to have fled the scene.

[20] As acknowledged by the trial judge in his reasons, the appellant's criminal record could not be used as evidence of the appellant's propensity to commit the offences with which he was charged. The trial judge could simply have used the appellant's extensive criminal record, which included many entries for breaking and entering, in assessing his credibility and relied on it to reject his evidence. This use is permissible under s. 12(1) of the Canada Evidence Act, R.S.C., 1985, C-5. In our opinion, however, the trial judge's use of the appellant's criminal record went well beyond the limited use permitted by the CEA. We are not persuaded that references made by the appellant in his evidence about his criminal past and having been to prison mitigated this error.

[21] The trial judge also considered the fact that the appellant had a cast on his right arm from his fingers to his elbow at the time of the break-ins. But he rejected the appellant's submission that as a result of his injury, he could not swing an axe or use any of the tools used in the break-ins. The trial judge referred to the still images taken from the video surveillance and noted that there was no picture showing the perpetrator holding a heavy object in his right hand. Rather, the photos showed that the heavier objects (such as the axe) were held in the perpetrator's left hand, and the right hand held a crowbar.

[22] The surveillance videos from both the July 11 and July 15, 2012 incidents show the perpetrator holding a heavy object with his right hand higher on the shaft and using his right hand to pull the head back and to propel it forward with significant force. Thus, the trial judge ignored relevant evidence that he was required to consider before rejecting the appellant's evidence.

[23] The trial judge stated he accepted the evidence of Constables Vautour and Taylor that there were fine glass particles on the appellant's hat and shirt. He rejected the appellant's assertion that the hat had a "metallic flair", and noted that this was contradicted by the actual hat, which was entered into evidence as an exhibit.

[24] The respondent acknowledges that the trial judge misapprehended the evidence in saying that there were glass particles on the appellant's shirt and running shoes. The constables made no observations of glass particles on his shirt or running shoes.

[25] Crown counsel did state during the course of her remarks during the examination-in-chief of Detective Taylor that small white packets enclosed with the clothing exhibits contained glass particles found on the clothing. However, what Crown counsel says is not evidence. Detective Taylor did not have any personal knowledge of glass particles having been found on the clothing the appellant was wearing at the time of his arrest. No glass particles were found on the clothing or shoes seized when the appellant was arrested.

[26] The only evidence regarding shards or flecks of glass on the appellant's baseball cap came from Const. Vautour and he acknowledged that they were no longer on the hat. In response to the suggestion of amicus that he could not have known that what was on the appellant's hat were glass particles, Const. Vautour stated, "They were a reflective material, something that would make the light glint off them…" The trial judge used the absence of any reflective material on the hat in court against the appellant in assessing his credibility but not in assessing Const. Vautour's.

[27] More importantly, the surveillance evidence indicated that in all three break-ins, it was a balaclava, not a hat that was worn. No evidence was adduced, or theory advanced by the Crown as to how glass debris could have been transferred to the hat worn by the appellant at the time of his arrest. Even if it was open to the trial judge to accept that there was evidence of glass particles on the appellant's baseball hat at the time of his arrest, the hat was not linked to the commission of the crimes and the evidence of the glass particles could not be used by the trial judge without connecting the hat to the crimes alleged.

[28] The trial judge's misuse of the appellant's criminal record, standing alone, would warrant appellate intervention in this case. In addition, the cumulative effect of the trial judge's mistakes in assessing the evidence meet the stringent standard of being material to his reasoning and of going to the substance rather than the detail of his reasons. Even although the evidence adduced at trial may have been capable of supporting the appellant's conviction, the errors the trial judge made in assessing the evidence played an essential part in his reasoning process with the result that the convictions are not "true" verdicts in the sense of having been arrived at in accordance with the rule of law.

[29] Accordingly, the appeal is allowed, the appellant's convictions are set aside and a new trial is ordered on all counts.

Released: January 19, 2017

"Karen M. Weiler J.A." "S.E. Pepall J.A." "G.T. Trotter J.A."