COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Searay, 2020 ONCA 726

DATE: 20201112

DOCKET: C65067

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Searay

Appellant

Adam Searay, acting in person

Janani Shanmuganathan, duty counsel

Jessica Smith Joy, for the respondent

Heard by videoconference: November 4, 2020

On appeal from the conviction entered on October 20, 2017 and the sentence imposed on February 23, 2018 by Justice Wendy L. Harris Bentley of the Ontario Court of Justice.

REASONS FOR DECISION

[1] Mr. Searay was convicted of robbery, with a gun, and disguise with intent to commit an indictable offence. He was sentenced to six years’ imprisonment less credit for pre-sentence custody. He appealed against conviction and sentence. However, at the oral hearing of the appeal, he abandoned his sentence appeal, apart from his request that the victim fine be quashed.

[2] For the reasons that follow, the appeal against conviction is dismissed.

BACKGROUND IN BRIEF

[3] On November 12, 2015, a stolen truck was parked outside a Scotiabank in London, Ontario. A man in the truck was seen pulling a “hoody” over his head. He then entered the bank, with his face covered by white fabric except for a space for his eyes. He was wearing blue jeans with a rip, light brown running shoes, and black gloves – and carrying a handgun. He yelled at everyone to “get down” as he “did not wish to kill anybody” that day. The bank surveillance video clearly showed that the robber was wearing a dark hoody with the hood up and that the robber’s face was covered by white fabric, with space for his eyes.

[4] The robber demanded money – hundreds and fifties – shouting he did not want any “dye packs”. One teller got up and moved to a wicket where he got money and gave it to the robber. After receiving around $10,000, the robber ran out of the bank where he was seen climbing into the passenger seat. One witness was able to recall most of the license plate number of the truck.

[5] The stolen truck was being driven by Kenneth Rowe, Mr. Searay’s co-accused. Mr. Rowe drove off at a high rate of speed and almost ran over a pedestrian as he turned into the driveway of a shopping plaza. The pedestrian saw the truck stop. The robber left the truck. Another witness saw Mr. Rowe drive further into the parking lot, almost striking people, and abandon the truck, taking with him a bag from the truck and walking away.

[6] A police officer later used a dog to track Mr. Rowe’s movements, based on his scent in the truck. The dog tracked from the driver’s side of the truck to a bus stop with a green garbage bin. Inside the bin, the officer found a pair of shoes, a screwdriver, jeans, a black hooded sweatshirt, and a white T-shirt (the “Items”). The dog continued tracking to a Kentucky Fried Chicken outlet where other police officers were in the process of arresting Mr. Rowe. The police also found a handgun under a dumpster at a store next to the Kentucky Fried Chicken outlet.

[7] The Items were sent for DNA testing. Of the Items, only the white T-shirt had a DNA profile suitable for comparison. The DNA from the T-shirt showed at least three contributors. Profile 1, that of a female, was discovered on the areas inside the front and back neckline. Profile 2, that of a male, was located on the inside front-center of the T-shirt, below the neckline. The profiles were sent to the DNA databank and there was a hit with respect to Profile 2. A warrant was obtained and a blood sample provided by Mr. Searay. He could not be ruled out as the source of the DNA in Profile 2: the odds were “1 in 800-quadrillion” that the DNA profile came from someone else in Ontario.

[8] Mr. Searay was arrested for these offences in December 2015. At the time of arrest, Mr. Searay, a Caucasian, was 25 years old, 5’8’’ in height, weighed 170 pounds, and had a medium build and short dark hair. He spoke without an accent.

[9] At the judge-alone trial, the defence conceded that all of the elements of the offences were made out with the exception of identity. Thus, the sole issue at trial was the identity of the robber.

[10] Joseph Cooke, a drug dealer who supplied Mr. Searay with drugs, testified that he had a discussion with Mr. Searay before the robbery in which they discussed escape routes for a robbery at the bank. He also testified that Mr. Searay spoke with him after the robbery and was told that he “got away with it”. Mr. Cooke saw that Mr. Searay had new clothing and about $1,500 in crisp new bills. Mr. Cooke had a lengthy criminal record that included crimes of dishonesty.

[11] Mr. Rowe testified that he was the driver during the robbery. His evidence matched that of many of the witnesses in terms of where he went after the robbery with the truck and the Items found in the garbage bin and under the dumpster. He testified that he committed the robbery with a “black guy” whom he had only briefly met and it was not Mr. Searay. He said that after being picked up in the stolen truck, he and the robber stopped at the “trap” house (the drug house) and picked up clothes for the robber to wear during the robbery. He said that Mr. Searay was in and out of the trap house on a regular basis. Mr. Rowe did not describe the person as black in his statement to the police. He had a close friendship with Mr. Searay.

[12] Mr. Searay did not testify or call any evidence at trial.

[13] The trial judge gave lengthy reasons explaining why she did not accept the evidence of Mr. Cooke and parts of Mr. Rowe’s evidence, including his “unbelievable story” about whom he had committed the robbery with and his description of that person.

[14] Based on the descriptions of the robber given by the various witnesses, the trial judge found that the robber was male, Caucasian, between 5’8” and 5’10” in height, between 160 and 195 pounds, in his mid-20’s, and had short dark hair and spoke without an accent. She found that description generally matched Mr. Searay and that it did not rule him out as the robber.

[15] The trial judge described the DNA evidence and its limitations, as identified by the forensic expert. Those limitations included that it was not possible to determine: the mechanism or how the DNA was deposited on the T-shirt; whether it was deposited directly or by secondary transfer; or when the DNA was deposited on it.

[16] The trial judge carefully and thoroughly explained how she reviewed the video surveillance of the robbery, made findings about the white fabric over the robber’s face, its location above and below the robber’s eyes, that it was hemmed, how it matched the white T-shirt found at the garbage bin at the bus stop, and why she found that the T-shirt had been positioned with the front part of the neck below the robber’s eyes. The trial judge found that the white T-shirt was worn by the robber during the robbery and that Mr. Searay’s DNA was located on it in the area where the robber’s nose and mouth were located. As the robber was a male, she excluded the female DNA, being Profile 1, as belonging to the robber.

[17] The trial judge concluded that, on the whole of the evidence, the only rational inference that could be drawn was that Mr. Searay was guilty of the offences, having committed the armed robbery while wearing the white T-shirt around his head.

THE ISSUE

[18] With the able assistance of duty counsel, Mr. Searay submits that the conviction is unreasonable. He maintains that the trial judge had only two pieces of evidence on which to base the conviction: the DNA evidence and a generic description of the bank robber. These, he contends, were insufficient to support the inference of guilt.

[19] In terms of the DNA evidence, he points out that multiple people had access to the T-shirt and other people’s DNA was on it. Therefore, he says, other inferences were available and the trial judge erred in finding that he wore the T-shirt during the robbery. As for the description of the robber relied on by the trial judge, he contends it was so generic that it could not be afforded much weight.

ANALYSIS

[20] We do not accept the appellant’s submission.

[21] The trial judge did not base the conviction solely on the DNA evidence and the description of the bank robber. The other evidence on which she relied included:

• the bank video surveillance;
• the testimony of the bank teller who interacted with the robber and gave him the money;
• the testimony of the witnesses who saw the robber outside the bank;
• the tracking of the stolen truck from the bank to the point where it was abandoned;
• the canine tracking of Mr. Rowe that led to the discovery of the Items and then to him;
• the location of the stolen truck at its point of abandonment and of the recovered Items and handgun;
• the close personal connection between Mr. Rowe and Mr. Searay;
• those parts of Mr. Rowe’s testimony that she accepted and were confirmed by other evidence; and
• her finding that the white T-shirt discovered in the garbage can was used during the robbery.

[22] In terms of the DNA evidence, the trial judge fully understood and addressed the concerns that the appellant raises on this appeal. She was alert to the presence of DNA profiles other than that of the appellant and to the limitations of that evidence. However, based on her findings about the nature of the fabric of the white cloth covering the robber’s face and its location on the robber’s face, she concluded that the only rational inference was that Mr. Searay had committed the offences while wearing the white T-shirt around his head.

[23] In terms of the description of the robber, as found by the trial judge, we do not share the appellant’s view that it was so generic it warranted little weight. The trial judge arrived at that description after careful consideration of the descriptions given by the various witness and review of the bank video surveillance. She concluded that it could not rule out Mr. Searay. We agree.

[24] The Crown relies on R. v. Ibrahim, 2014 ONCA 157, 318 O.A.C. 1, in which this court upheld convictions in a bank robbery, based on the DNA evidence in conjunction with the trial judge’s findings. We agree that the present case is similar to Ibrahim and that the reasoning in Ibrahim supports the dismissal of this appeal.

[25] The trial judge articulated the correct legal principles for a circumstantial Crown case. In careful, thorough reasons, she explained why, on the whole of the evidence, the only rational inference that could be drawn was that Mr. Searay was guilty of the offences. In our view, the constellation of facts, as found by the trial judge, support the inescapable inference of guilt.

DISPOSITION

[26] For these reasons, the conviction appeal is dismissed.

[27] The sentence appeal is dismissed as abandoned. With the consent of the Crown, the victim fine is quashed.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”