COURT OF APPEAL FOR ONTARIO
DATE: 20220210 DOCKET: C68712
Paciocco, Nordheimer and Sossin JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Kevin Janeiro Appellant
Counsel: Colleen McKeown, for the appellant Kristen Pollock, for the respondent
Heard: January 11, 2022 by video conference
On appeal from the convictions entered on February 11, 2020 by Justice Enno J. Meijers of the Ontario Court of Justice.
Paciocco J.A.:
OVERVIEW
[1] Mr. Janeiro appeals his convictions on charges related to the robbery of a donut shop in Bradford, Ontario. For the reasons that follow, I am persuaded that his convictions are unreasonable, and that the trial judge materially misapprehended the evidence with respect to the identity of the robber. I would therefore set aside Mr. Janeiro’s convictions and substitute verdicts of acquittal.
[2] I would also have allowed the appeal of the trial judge’s rejection of Mr. Janeiro’s “lost evidence” Charter application.
MATERIAL FACTS
[3] On November 7, 2011, shortly before 12:42 a.m. when officers from the South Simcoe Police Service were dispatched to the scene, a Country Style donut shop located at 396 Holland Street West in Bradford, was robbed by a person wearing a ski mask or balaclava and who brandished what the donut shop clerk believed to be a firearm. The clerk was the sole donut shop employee working, and the sole person in the donut shop during the robbery. The robbery was captured on video by a security camera inside the premises (the “security video”). Despite the security video and the description provided by the clerk, the robber could not be identified.
[4] During the investigation, forensic evidence that may have been linked to the robber was discovered, consisting of: (1) five unknown fingerprints suitable for comparison on a white plastic “kitchen” garbage bag the robber left on the counter near the cash register; (2) DNA from saliva found over two hours after the robbery approximately 60 metres from the donut shop on the sidewalk in front of the China Garden Restaurant, located at 382 Holland Street West; and (3) DNA from what appeared to be fresh vomit found in a black ski mask (the “balaclava”) that was found in the parking lot of the Bradford District High School at 70 Professor Day Drive, located kitty-corner from the donut shop some 260 metres away.
[5] Despite the collection of all of this evidence, it did not immediately lead to the identification of a suspect and the case went “cold,” but it was not closed.
[6] In January 2017, more than five years after the robbery, Mr. Janeiro was convicted of a criminal offence, which required him to provide a DNA sample for deposit with the National DNA data bank. On April 12, 2017, a routine computer search conducted by the RCMP Information Centre using Mr. Janeiro’s DNA profile identified a “hit” relative to the saliva sample that had been found in front of the China Garden. The Royal Canadian Mounted Police Information Centre notified the Centre of Forensic Sciences (“CFS”), who notified the South Simcoe Police Service on April 13, 2017. Although there was no evidence linking the saliva to the robbery other than its general proximity to the donut shop and its discovery approximately two hours after the robbery, this made Mr. Janeiro a suspect. He would have been 18 years of age at the time of the robbery.
[7] Mr. Janeiro’s DNA proved not to be consistent with the DNA found on the balaclava, but in the opinion of a fingerprint examiner, one of the five fingerprints suitable for comparison from the garbage bag was made by Mr. Janeiro’s left thumb.
[8] Mr. Janeiro was charged with robbery with a handgun, contrary to s. 344(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, and with having his face masked with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code. He was tried before a judge of the Ontario Court of Justice. A blended Charter voir dire was conducted during the trial relating to the loss (described below) by the police of the security video depicting the robbery. At the trial, the only live issues were the identity of the robber, and whether the Crown could establish that the robber brandished a “firearm” as defined in s. 2 of the Criminal Code. I will describe the evidence that was presented.
The Forensic Evidence
[9] An Agreed Statement of Fact (“ASF”) describing the discovery of the three items of forensic evidence – the fingerprint, the saliva and the balaclava – was admitted at the outset of the trial.
[10] A CFS DNA report that was appended to the ASF stated that the probability of a randomly selected individual unrelated to Mr. Janeiro coincidentally sharing the DNA profile of the saliva was estimated to be greater than one in one trillion.
[11] The appended CFS report relating to the DNA from the balaclava confirmed that the DNA profiles from Mr. Janeiro and the balaclava were “from two different individuals”.
[12] With respect to the fingerprints located on the garbage bag, the ASF confirmed that in the opinion of Cst. McCallum, the identification officer who examined the bag, there were “five distinct areas of ‘friction ridge impression detail’ (unknown fingerprints) that were suitable for comparison to known ‘friction ridge impressions’ (known fingerprints)”. Paragraph 9 of the AFS recorded that Cst. McCallum “compared one impression found on the bag to known impressions (fingerprints) that were taken from Mr. Janeiro on April 21, 2016”. Paragraph 10 stated that on September 1, 2017, Cst. McCallum concluded that the “impression #R5 was made by the left thumb of [Mr. Janeiro]”.
The Testimony of the Clerk
[13] The clerk, the sole eyewitness to the robbery, testified on December 2, 2019, slightly more than eight years after the robbery. She described being behind the counter at what she estimated to be 2:00 a.m. when she observed a person wearing a “ski mask” enter the store, pull out a gun and approach her. In cross‑examination she agreed that “for that night it was unusual for someone to be wearing a ski mask”, adding that, “it wasn’t cold enough to be wearing a ski mask”. She based that opinion on her observation that she did not have to wear a jacket when stepping outside to smoke a cigarette.
[14] The clerk testified that when she saw the robber, she felt panicked and was shaking but walked over to the cash register. Although she tried to stay as calm as possible, she had difficulties remembering the codes required to operate the cash register. The robber asked her several times, “do you want to play games” and pointed the gun at her head, including while holding the gun with two hands.
[15] The robber had a white plastic bag and a grey plastic bag. The robber set the white bag on the counter. While pointing the gun with one hand, the robber removed the bills, “around sixty dollars”, from the cash drawer, which the clerk had placed on the counter on top of the white bag. The robber put the money in the grey bag and left.
[16] During her testimony the clerk referred to the robber by using male pronouns. When asked why, she said, “it sounded like a male”. She also said he sounded young.
[17] The clerk described the robber as wearing a brown hoodie with some “graffiti” on it and baggy pants. She said the hood of the hoodie was down, but the robber was wearing a black “ski mask” with two openings for the eyes. She could not recall if there was an opening for the mouth. The skin that could be seen through the eye holes of the “ski mask” was white, but she could not see hair colour. In her testimony, the clerk described the robber as “just a little bit taller” than her, and said she was 5 feet 2 inches. No description of the robber’s build was offered, and no other identifying features were noted.
[18] When asked if the robber was wearing gloves, the clerk testified that she “originally … thought” he might have been wearing gloves but said, “I can’t really recall”. Although she expressed uncertainty on this point in the police statement that she provided shortly after the robbery, the clerk had told the police that she believed that the robber “must have” been wearing “gloves” or “regular mittens”, and that she thought she remembered seeing them. She was shown her statement to refresh her memory as to whether the robber in fact wore gloves, but it did not assist her. She was not asked to adopt the statements she had made to the police.
[19] In the following exchange, the clerk offered testimony relating to the balaclava the robber was wearing, which she called a “ski mask”:
Q. Okay. Do you recall a few days after this happening an officer showing you a photo of a mask?
A. I do remember and I remember telling him that it was not the mask.
Q. Okay.
The Court: I’m sorry.
A. I do remember. I just don’t, I remember telling him that it wasn’t the mask.
Q. Do you remember what, what the mask looked like in the photo?
A. It was, it was a different type of style. That’s all I can really remember right now.
Q. Okay. So, you don’t remember what made it different?
A. I think that it had … No. It just, it was a different style altogether.
[20] Mr. Janeiro’s trial counsel returned to this line of questioning in cross‑examination:
Q. And I’m going to suggest to you that at the time what you told the officer was actually that you weren’t sure if it was the same mask. Does that sound right?
A. More than likely.
Q. And that, further, that you had thought that there was no mouth hole on the mask the person was wearing but that you weren’t sure?
A. Correct.
[21] PC Fawcett, who had been assigned as the Officer in Charge (“OIC”) of the investigation, testified that on December 6, 2011, he showed the clerk “pictures of the ski mask that was seized”. He then described the “photo” that he showed her as “a photo of the, of the ski mask that our scenes of crime officer took”. He continued, “I believe it was the so, a photo from where it was seized from”. The photos of the balaclava taken “from where it was seized” show the balaclava laying on the ground, crumpled, as it was found. None of those photographs are close up photos of the balaclava that clearly depict its features.
[22] The balaclava that was seized was not shown to the clerk but was made an exhibit at the trial through PC Fawcett. With the exhibit in hand he described the balaclava as black, with “two eyelets” and a “mouth hole lid”.
The Security Video
[23] The security video that captured the robbery on DVD was filmed by a ceiling mounted security camera in the donut shop. The camera was pointed towards the public doors at the front of the donut shop and provided a view of customers as they approached the counter. The security video was seized and viewed by four police officers of the Criminal Investigation Bureau (“CIB”) as part of the investigation. By the time of trial, the security video had gone missing.
[24] At the outset of the trial, Mr. Janeiro brought a “lost evidence” Charter challenge claiming that the loss of the security video violated his ss. 7 and 11(d) rights guaranteed by the Canadian Charter of Rights and Freedoms. He requested that this breach be remedied by a stay of the proceedings. As indicated, the evidence relevant to this Charter motion was heard during the trial as part of a blended voir dire.
[25] Evidence presented during the blended voir dire confirmed that on December 5, 2011, the security video came into the possession of the OIC, PC Fawcett, then of the CIB. PC Fawcett never made a copy of the security video, although he said that the practice for logging digital evidence had since changed and that at the time of his testimony digital evidence would be uploaded on a server. PC Fawcett kept the security video in a file folder along with photographs in a locked drawer that belonged to him in the criminal investigation office. The security video remained there after the donut shop robbery investigation was designated as “inactive pending further” due to the absence of new leads in the summer of 2012.
[26] PC Fawcett testified that when he was transferred to the “uniform branch” three years later, in 2015, he secured permission to store multiple videos in his possession in a cabinet in a CIB office where case files were placed by officers who transfer from the unit. He labelled the security video with the occurrence number for the donut shop robbery and then placed it in an unlabelled brown evidence bag, along with multiple other unrelated videos. He then placed the unmarked evidence bag containing these congregated videos in a cabinet in the CIB office, accessible to CIB personnel. The key to the cabinet lock was kept in the lock itself, and the cabinet was not otherwise kept locked.
[27] PC Fawcett testified that although there is a locked property room where evidence is logged by identification officers, and it was “procedure” to store evidence there, he had never seen the locked property room used to store digital evidence, and that there was “no procedure with regards to digital evidence”. He explained, “when I think of a property room, I think of, I don’t know, stolen items recovered or drugs and that sort of thing would go in a property room”.
[28] PC Fawcett also provided evidence that he had viewed the security video on one occasion but took no notes of his observations. His testimony reflected no meaningful recollection of the details of the security video. He explained that “it was eight years ago”. He said that he did not recall observing a firearm, or whether the robber wore gloves, and believed that the video was in colour but was unsure of this.
[29] In 2017, after the donut shop robbery investigation was reactivated following the DNA “hit” relating to Mr. Janeiro, DC Johnson was assigned as OIC. He looked unsuccessfully for the security video. He testified that he looked in the locked and controlled property room, noting that this is where he stores the surveillance videos that come into his possession. He also reached out to the “records department” to locate the security video without success. DC Johnson testified that an investigator might hold onto a video while working on it, but he would put the whole file in the property room if the investigation became inactive, commenting, “well, it’s kind of, everybody does it”.
[30] DC Johnson contacted PC Fawcett to assist him in his search and upon learning that the security video had been placed in a paper bag inside the CIB office, DC Johnson recalled seeing a “paper bag that had a bunch of videos in it” in the CIB office. He said that all police officers, and not just CIB officers, would have had access to the CIB office, and that it contains multiple filing cabinets, some of which remain unlocked. He testified that the CIB office was not kept locked at the time, but it has since become practice to do so. He said he searched for the security video on multiple occasions but “didn’t find the bag”.
[31] DC Johnson testified that he was unaware whether PC Fawcett had also personally searched the office to find the missing security video, but PC Fawcett testified that he did so on more than one occasion, without success. He even looked in old storage bins in the CIB office but never found the evidence bag of videos.
[32] DC Johnson also testified that he had viewed the security video on November 9, 2011, with a view to determining whether “persons of interest” known to him may have been responsible for the robbery or could provide material information. He was particularly interested in checking clothing. He did not view the entire video but prepared a supplementary report of what he observed. He relied heavily on this supplementary report when testifying, stating that he did not remember the content of the video at the time of trial. He believed the video had been in colour because he noted colours in his report. In his testimony he referred only to a “white” horizontal stripe running down the robber’s pant leg, “from hip to toe”. He also testified that the video enabled him to see sufficient detail so that he could see that the robber’s finger was on the trigger of the “gun”.
[33] DC Johnson recorded two additional observations relevant to this appeal. First, he inferred that the robber was left-hand dominant because the robber used his left hand when holding the gun with only one hand. He used his right hand when reaching into the till.
[34] Second, DC Johnson observed that the robber appeared to be the approximate height of the bottom of a poster on a front door to the donut shop. After standing next to the poster, DC Johnson estimated that the robber was approximately 5 feet 9½ inches, his own height, or little bit taller or shorter when allowing for the camera angle. During cross-examination, he agreed that he could not be “confident in a sort of more precise height measurement” because the camera was not at eye level. Moreover, the public entrance had two sets of doors. DC Johnson testified that he could not recall whether the poster was on the inside doors or the outside doors.
[35] Mr. Todd Ferrier, a retired police officer and a Sergeant at the time of the robbery, also testified to viewing the security video on a computer monitor at the donut shop the night of the robbery. He was interested in identifying areas of investigative interest. Specifically, he was looking for areas the robber touched, with a view to identifying fingerprints.
[36] Retired Sgt. Ferrier testified that he did not have an “exact” memory of the contents of the video but had taken notes. In those notes he recorded the chronology of the very brief robbery, which he estimated lasted no more than two minutes. That chronology matched very closely the sequence of events that the clerk had described.
[37] He also testified that the security camera captured the point of entry and the “cash”. He noted that the robber had not touched the counter but had touched the door handle upon leaving. He had not recorded a description of the robber but suggested that the robber would not have been wearing gloves. This suggestion was not based on memory or a recorded direct observation, but on extrapolation. Retired Sgt. Ferrier inferred that this must be the case, otherwise there would have been no point in his own efforts to identify locations the robber had touched.
[38] PC Dietrich testified that he watched the video at the donut shop with then Sgt. Ferrier. He testified that the video was in colour, but “definitely was not high definition”. While attempting to get the most accurate description of the robber possible, he made notes of the description of the robber that he “saw” on the video. He recorded, “male, black handgun, black sweater, gloves”. He said he described the perpetrator as a man because that is how it was described in the dispatch, but he agreed that he did not make an independent assessment of the robber’s gender based on his observations of the video itself. He also testified that he could not offer a description of the height of the robber from the video.
Mr. Janeiro’s Testimony
[39] Mr. Janeiro testified in his own defence. He denied being the robber. He also denied having access to firearms or fake guns. In the course of his evidence, he said he was approximately 5 feet 7 inches and left-handed.
[40] Mr. Janeiro testified that at the time of the robbery he lived a 30 second walk from the donut shop and worked at a Sobeys grocery store, also a 30 second walk from his place of residence. He had no specific recollection of where he was the night of the robbery, and when asked if he could recall walking by any place that was closed off by police tape he said “I think I might have. But I guess it’s a really long time ago. So, I don’t even remember any place actually to be honest”.
[41] During cross-examination, the Crown explored the “coincidence” that Mr. Janeiro’s saliva would be on the sidewalk in front of the China Garden on the same night the robbery occurred and where his fingerprint was identified on the bag left behind by the robber. When asked, “and were you in the habit back in November of 2011 of going for walks at 12:30 at night”, Mr. Janeiro said, “I could say yes”. He continued, “I’m a teenager. We’re out at night”. He did not know what he would have been doing in front of the China Garden at that time, commenting that he could have been walking to get a slice of pizza, or meeting friends. He said he did not remember whether he was working the night of the robbery but agreed that if he was working that night, he would probably not have had to pass by the China Garden to get home. He said it would not be a “coincidence” for him to be “walking past the donut shop at 12:30 [at night]” because it was not uncommon for him to do so. He also testified that he smokes and has a habit of spitting.
[42] In cross-examination, the Crown explored Mr. Janeiro’s familiarity with the donut shop. Mr. Janeiro testified that he was unsure of how many times he would have gone to the donut shop during his night shift at Sobeys, estimating maybe one or two or three times, although he had no specific recollection of it being “a regular thing”. He said he did not notice how many people were working at the donut shop at night but did not disagree with the Crown’s suggestion that at that time of night there would be a skeleton staff working.
[43] When asked, “do you remember hearing about this incident at Country Style?” He said, “I don’t remember”. In response to follow up questions, he said he heard about it but does not remember when he did, commenting it was “so long ago”.
[44] Mr. Janeiro testified that he did not know how his fingerprint ended up on a bag used in the robbery. When pressed for an explanation he said that perhaps he brought the bag to work and threw it out or disposed of it. He then said he recalled reading a statement from the clerk in an online news article, he is pretty sure after he heard about the robbery, in which she said that the robber was a “bum”, and he suggested that the “bum” may have searched through the trash and retrieved the bag.
[45] When the Crown explored whether Mr. Janeiro would have been motivated to commit the robbery to get money for drugs, Mr. Janeiro admitted to using marijuana at the time but denied using hard drugs at that period in his life.
The Decisions
(1) The Reasons for Conviction
[46] The trial judge convicted Mr. Janeiro of the included offence of robbery, contrary to s. 344(1)(b) of the Criminal Code, but not of the charged offence of robbery with a firearm. The trial judge had been left in reasonable doubt as to whether the robber had been armed with a real or imitation firearm. He also convicted Mr. Janeiro of having his face masked, contrary to s. 351(2) of the Criminal Code.
[47] The trial judge’s Reasons for Judgment address both his reasons for convicting Mr. Janeiro, and for rejecting his “lost evidence” Charter application.
[48] In finding Mr. Janeiro guilty, the trial judge concluded that the clerk was a “clear and strong witness” who provided a “clear, consistent and compelling” narrative. In contrast, he found Mr. Janeiro to be a “cagey” and unreliable witness who seemed to contrive explanations when pressed by the Crown. The trial judge did not believe Mr. Janeiro’s evidence, nor was he left in a reasonable doubt by it, and he was persuaded on the balance of the evidence that the Crown had established beyond a reasonable doubt that Mr. Janeiro was the robber.
[49] In summarizing his conclusion as to Mr. Janeiro’s guilt, the trial judge said:
The juxtaposition of all the circumstances, as related by the Crown, especially the fresh spit containing DNA that matches Mr. Janeiro’s profile in front of the restaurant, the scene of the robbery, and his fingerprint on the bag being placed on the counter by the robber, in my view lead inescapably to the conclusion beyond a reasonable doubt that Mr. Janeiro was the robber.
[50] I will describe in more detail the trial judge’s reasons relating to the material evidence in the case.
The Description of the Robber
[51] Based on the testimony of the clerk, the trial judge found that the robber was a “white male”. The trial judge recounted DC Johnson’s conclusion that the robber was left hand dominant because he held the gun in his left hand, and he said DC Johnson “deduced that the robber’s height was about five-nine”. He noted that Mr. Janeiro testified that he was left-handed and “approximately five-seven”. And he recounted the Crown’s submission that the robber is “about [Mr. Janeiro’s] height” and “the robber appears to be left-handed, as is Mr. Janeiro”.
[52] No mention was made of the clerk’s estimate that the robber was “just a little bit taller” than her height of 5 feet 2 inches.
The Fingerprint Evidence
[53] During the course of his reasoning, the trial judge referred to the fingerprint evidence. He said that the police “were able to retrieve an identifiable fingerprint” from the plastic bag that was left on the counter by the robber.” Shortly after, he said:
The police also compared the Friction Ridge impression, or the fingerprint impression, detail from the fingerprint found on the bag at the scene, left by the perpetrator, and compared them with the known fingerprint sample from Mr. Janeiro. Constable McCallum concluded that the unknown print had been left by the left thumb of Mr. Janeiro. [Emphasis added.]
[54] There was not, in fact, “an identifiable fingerprint” on the plastic bag. There were five of them. No mention was made by the trial judge of the four fingerprints that remained unidentified.
[55] In the course of his Reasons for Judgment, the trial judge recounted that the clerk “thought” the robber “had gloves on, but she could not be certain about that”. He also recounted how then Sgt. Ferrier “surmised that the suspect was not gloved because he did note what the suspect did and did not touch”, and he recounted P.C. Dietrich’s evidence that based on the security video, he described the suspect as having gloves. The trial judge did not make any finding relating to whether the robber had been wearing gloves, saying, “whether or not the robber had gloves would not in my view change the relevance of the fingerprint on the bag”.
The Saliva
[56] The trial judge recounted the DNA evidence that demonstrated that Mr. Janeiro deposited the saliva that was found on the sidewalk in front of the China Garden. He also recounted the defence position that there is no evidence that the saliva was left before the robbery, or that it is connected to the robbery.
[57] The trial judge expressed two reasons for rejecting the theory that the saliva may have been left after the robbery. First, he said that, had this occurred, one would expect Mr. Janeiro to have remembered walking by the police tape or the large police presence, even after the years that had passed, as the robbery was a major occurrence. He then said:
Photos 16 and 22, of the agreed statement of fact, show the view inside the restaurant from the outside entrance facing Melrose Street. Photo 20 shows the view inside the Country Style restaurant from the sidewalk on Holland Street where the spit was found. A pretty compelling argument could be made that the robber was taking in the broader view available through the front window of the restaurant from Holland Street to be sure that the clerk was alone before going inside. In other words, casing the target.
[58] In fact, as the Crown conceded during oral argument on appeal, photo 20 does not show the view inside the donut shop from where the spit was found. It shows the view into the donut shop from the sidewalk directly across from the donut shop. None of the photos show the view into the donut shop that one would have from where the saliva was found, but, as can be seen on the Google map image that was included in the ASF, the perspective from where the saliva was located to the front of the donut shop engages a much sharper angle and involves a greater viewing distance. Put simply, it is materially misleading to assess how opportune the view into the donut shop was from where the saliva was left, by looking at the view depicted in photo 20.
The Balaclava
[59] The trial judge recounted the discovery of the balaclava in the parking lot of a high school, located kitty-corner of the donut shop, approximately 260 metres away, and he noted that the DNA profile generated from a swab from the balaclava “did not match the profile from the sidewalk”.
[60] He recounted that the clerk described the “ski mask” as having two eye holes. On three occasions, he stated that the police showed her the balaclava that was seized by the police from the high school, and that she said, “that it was not the same one as the robber wore”. In fact, that was not the evidence. As described above, PC Fawcett showed the clerk a photograph of the balaclava as it lay on the ground. The trial judge made no mention of the clerk’s testimony in cross‑examination in which she agreed with defence counsel that what she likely told the officer was that she could not say whether it was the balaclava the robber wore.
[61] With respect to the balaclava that was put into evidence, the trial judge held that he was, “satisfied that that was the mask that [the clerk] testified about when she said it did not match the one that the robber wore”.
(2) The Reasons for Rejecting the “Lost Evidence” Charter Motion
[62] The trial judge recognized that the security video was “disclosable evidence” but denied Mr. Janeiro’s Charter application, finding that although better steps could have been taken, “the process [for storing the security video] described by PC Fawcett was reasonable in all of the circumstances”. He also found that the loss of the security video was not so prejudicial to Mr. Janeiro’s right to full answer and defence that its loss impaired his right to receive a fair trial.
[63] In describing the steps that PC Fawcett took in storing the video in January 2015 as he was leaving the CIB, the trial judge said, “he took the video, as well as other evidence from other cases, put it in an evidence bag, labelled the occurrence number, and stored it in an evidence filing cabinet in the CIB office.” He repeated later in his reasons that he “kept the video in a labelled bag, in a filing cabinet where other such evidence was kept, in a detective office, in a police station.” In fact, when asked if the brown paper bag was labelled, PC Fawcett said, “No. It wasn’t”. Nor did PC Fawcett describe the cabinet he put the bag into as an “evidence filing cabinet”. He said that case files were kept by officers who transfer from the CIB in the cabinet in the Criminal Investigations Unit, where the key was left in the lock.
[64] The trial judge understood that in assessing the reasonableness of the steps taken, he should consider the relevance of the evidence. He concluded that the security video was of “little help” on the issue of identity and said, “the video’s usefulness to what would have been at the crux of the case is in my view largely peripheral”. He explained:
[The] sum total of what [the police] could glean with respect to identity from the video was not much at all. A male with a black sweater, an opinion he might be left hand dominant, and his approximate height. Specifically, they could not tell from the video weight, skin colour, or eye colour, or hair colour, or appearance of the face.
[65] The trial judge recognized that the security video may have shed light on the details of the balaclava, enabling the clerk’s evidence to be challenged, but concluded that “we do not know”, and “given the forensic evidence that is before the court, the balaclava is in my view a bit of a side issue”. As for the suggestion that the video might clarify whether the robber was wearing gloves, “whether or not the robber had gloves would not in my view change the relevance of the fingerprint on the bag”.
[66] He also found that “in any case, the video has been viewed by police officers who took notes and were available for cross-examination”.
THE ISSUES
[67] Mr. Janeiro appeals his convictions on three grounds. It is convenient to consider the first two grounds together. The issues on appeal can therefore be described as follows:
A. Did the trial judge err by arriving at an unreasonable verdict and/or misapprehending evidence?
B. Did the trial judge err in denying Mr. Janeiro’s “lost evidence” Charter application?
[68] I would allow both grounds of appeal.
A. Did the trial judge err by arriving at an unreasonable verdict and/Or misapprehending evidence?
[69] I am persuaded that the verdicts arrived at by the trial judge are unreasonable, and that the trial judge materially misapprehended the evidence.
The Legal Principles
(1) Unreasonable Verdicts
[70] A verdict will be unreasonable if it is one that a properly instructed trier of fact could not reasonably have rendered on the totality of the evidence: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26; R. v. Yebes, [1987] 2 S.C.R. 168, at para. 23; and see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. In assessing whether this is so, appellate courts must afford great deference to the trier of fact, including by paying due regard to the advantages the trier of fact had at trial: R. v. W.H., at paras. 2, 27; Biniaris, at paras. 36-37. As Doherty J.A. explained in R. v. Mars, 205 C.C.C. (3d) 376 (Ont. C.A.) at para. 3:
Where the reasonableness of the verdict is raised, the appellate court must review the entirety of the evidence using its accumulated training and experience to determine not whether the appellate court would have convicted the appellant, but whether a reasonable trier‑of-fact properly instructed and acting judicially could have convicted.
[71] Guidance has been given on the application of this standard in cases that depend wholly or substantially on circumstantial evidence: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 36. In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, Cromwell J. instructed:
Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.
[72] The inquiry identified in Villaroman is helpful because it tests the reasonableness of the verdict bearing in mind the standard that is required to prove guilt beyond a reasonable doubt based on circumstantial evidence. As Doherty J.A. affirmed in Mars, at para. 4, “[w]hen assessing the reasonableness of a verdict, the appellate court must have regard to the burden of proof applicable in a criminal case”. A verdict will not be unreasonable on this standard if a trier of fact, acting judicially, could reasonably have been satisfied that the accused’s guilt is the only reasonable conclusion: R. v. Youssef, 2018 ONCA 16, 428 D.L.R. (4th) 612, at para. 4, aff’d 2018 SCC 49, [2018] 3 S.C.R. 259.
[73] This is a case that turns wholly on circumstantial evidence. Apart from whether the Crown proved that the object observed by the clerk was a “firearm”, the sole contested issue at trial was whether the Crown had proved beyond a reasonable doubt that Mr. Janeiro was the robber, and there was no direct evidence on this key question.
[74] Although the reasonableness of any conviction turns on the specific facts of the case, the decision in Mars is useful in considering the application of the unreasonable verdict test in a case that turns wholly or mainly on fingerprint evidence. In Mars, a conviction that depended on a fingerprint on a pizza box that had been used by robbers to entice the victims to open the door to their home was found to be unreasonable because the presence of the fingerprint alone was not evidence that the accused’s fingerprint came to be on the box in connection with the robbery. As Doherty J.A. explained, at para. 20:
In this case, the fingerprint evidence clearly established that the appellant had touched the pizza box at some point in time. However, the probative value of the fingerprint evidence on the charges depended upon whether the entirety of the evidence reasonably permitted the inference that the appellant touched the pizza box in connection with the robbery and not at some other time and place. The fingerprint evidence standing alone did not permit any inference as to when the appellant’s fingerprint was placed on the pizza box. The reasonableness of the verdicts, therefore, turns on whether the inference that the appellant touched the pizza box in connection with the robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself.
[75] In R. v. D.D.T., 2009 ONCA 918, [2009] O.J. No. 5486, at para. 15, Epstein J.A. suggested a “two-stage approach” in reviewing the reasonableness of verdicts that depend on fingerprint evidence in 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.
(2) Misapprehensions of Evidence
[76] A trial judge may misapprehend evidence by a failure to consider evidence relevant to a material issue in the case, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. Morrissey, 22 O.R. (3d) 514 (Ont. C.A.), at p. 538. If such errors do not constitute errors of law, which they generally do not, a misapprehension of evidence will not alone ground a successful appeal unless “those errors play an essential part in the reasoning process resulting in a conviction”: Morrissey at p. 541 quoted in R. v. Lohrer, 2004 SCC 80, 2004 SCC 90, [2004] 3 S.C.R. 732 at paras. 1, 2. If misapprehensions of evidence were essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred: Morrissey, at p. 541. This is a stringent standard that does not apply to peripheral reasoning, but to material errors that go beyond the narrative of the judgment: Lohrer, at para. 4.
[77] In Morrissey, at p. 540-41, Doherty J.A. described the relationship between misapprehensions of evidence and an unreasonable verdict. Simply put, a verdict can be unreasonable without a misapprehension of evidence, and misapprehensions of evidence will not, on their own, render a verdict unreasonable. That said, “a finding that the trial judge did misapprehend the evidence can … figure prominently in an argument that the resulting verdict was unreasonable”: Morrissey, at p. 540-41.
[78] Although an unreasonableness decision can be informed by misapprehensions of evidence, an appeal court should resolve whether the verdict is unreasonable before considering whether a misapprehension of justice has, on its own, constituted a miscarriage of justice: Morrissey, at p. 540.
The Convictions Were Unreasonable
[79] No issue can be taken with the trial judge’s decision to reject Mr. Janeiro’s testimony. He was entitled to do so. The issue in this case is whether a trial judge could reasonably convict based on the remaining evidence.
[80] I will begin with the eyewitness testimony. The clerk’s testimony supported a reasonable inference that the robber was a young male, based on her testimony that the robber’s voice sounded young and male. It also supported the inference that the robber was white, from her observation into the balaclava’s eye holes. She also estimated the robber’s height as slightly over 5 feet 2 inches. Beyond this, her testimony did not contribute any further evidence identifying the robber.
[81] The only other direct testimony capable of providing evidence relevant to the robber’s identity was offered by DC Johnson, consisting of what the trial judge called DC Johnson’s “opinion” that the robber “might be left hand dominant”, arising from the hand he held the gun with, and DC Johnson’s height estimate of approximately 5 feet 9 ½ inches, which was derived from an imperfect experiment using a poster in the donut shop.
[82] Assuming that a trier of fact might reasonably disregard the clerk’s height estimate, which was materially inconsistent with Mr. Janeiro being the perpetrator, and accept DC Johnson’s height estimate, the most that could be said from the eyewitness evidence is that both Mr. Janeiro and the robber are white, young, males, possibly around the same height, and that the robber may have been left handed, as Mr. Janeiro is.
[83] Those similarities, of course, remain generic. Mr. Janeiro cannot be ruled out as the perpetrator if the clerk’s height estimate is disregarded, but the eyewitness description evidence contributes little in identifying him as the robber. As the trial judge observed in his decision, the “essential issue” of “identity” is largely informed by the scientific evidence, namely the fingerprint evidence and the DNA evidence. Because the DNA evidence obtained from the balaclava was not inculpatory, the reasonableness of the conviction comes down to the fingerprint evidence and the DNA evidence obtained from the saliva located on the sidewalk. I will address each item of forensic evidence, in turn.
[84] The Mars case illustrates the challenges the fingerprint evidence poses. The fingerprint on the plastic bag used by the robber proved that Mr. Janeiro touched the bag, but it is incapable, on its own, of proving that he touched the bag in connection with the robbery. This is not a case where there is circumstantial evidence showing that this forensic evidence was deposited during the event, such as in R. v. Samuels, 2009 ONCA 719, where a fingerprint on a motor vehicle was in the same location the perpetrator was seen to touch it, and bore indications of direction and movement consistent with the manner in which the perpetrator was seen to touch the vehicle. To the contrary, there is evidence creating doubt about whether the print was deposited on the bag during the robbery.
[85] First, although the trial judge only referred to the one matching fingerprint in his Reasons for Judgment, there were in fact five fingerprints on the bag that were suitable for comparison. Only one fingerprint was linked by evidence to Mr. Janeiro. As the Crown fairly conceded during oral argument on appeal, the evidence does not eliminate the possibility that those other prints on the bag could belong to one or more other individuals who also touched the bag.
[86] Second, there was evidence from Cst. Dietrich that the robber was wearing gloves, a conflicting inference from retired Sgt. Ferrier derived from his own conduct that the robber must not have had gloves on, and testimony from the clerk that she believed he had gloves on but could not remember for certain. This conflict in the evidence is material because if the robber was wearing gloves, the prospect that the robber’s fingerprints were placed on the bag during the robbery is reduced, if not eliminated. I therefore disagree with the trial judge’s conclusion that “whether or not the robber had gloves would not in my view change the relevance of the fingerprint on the bag”. But I leave my disagreement with the trial judge’s reasoning aside in evaluating the reasonableness of the verdicts. The instant point is that the prospect that the robber may have been wearing gloves reinforces the possibility that the fingerprint attributable to Mr. Janeiro is not linked to the robbery.
[87] The Crown seeks to overcome the Mars problem – the absence of evidence that the fingerprint is linked to the robbery – by arguing that there is an additional piece of evidence linking Mr. Janeiro to the offence – namely, the DNA evidence obtained from the saliva.
[88] I do not dispute that additional evidence can overcome the Mars problem. In Youssef, for example, Mr. Youssef’s DNA found on a knife left behind by the perpetrator could not alone link Mr. Youssef to the crime, but that deficit was overcome when additional DNA from Mr. Youssef was found on a t-shirt in the getaway car. Similarly, in R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, aff’d 2014 SCC 73, [2014] 3 S.C.R. 612, Mr. Wills’ DNA was found on a bandana left at the scene, another bandana on the ground on the flight path the perpetrators took, and he was later found in possession of a weapon similar in appearance to the description of the weapon used in the crime – a police baton.
[89] The problem with the Crown’s attempt to use the DNA saliva evidence to accomplish a similar outcome in this case is that, unlike in Youssef and Wills, there is no evidence linking the additional evidence – the saliva on the sidewalk – to the robbery. This is not a case where the DNA was extracted from the crime scene or a known flight path, nor was it on an object or vehicle linked to the crime scene. The saliva was found approximately two hours after the robbery approximately 60 metres away from the donut shop on a public sidewalk where Mr. Janeiro could reasonably be expected to have been. Nobody observed the robber in that location either before or after the robbery. Put simply, the DNA put Mr. Janeiro on a public sidewalk in front of a business within metres of his home and his place of employment at some point in time on the evening or night of the robbery. It did not put him at the robbery or otherwise connect him to the robbery.
[90] There are problems with the trial judge’s decision that inform the reasonableness inquiry as they explain why the reasoning that he relied upon cannot overcome the unreasonable verdict challenge.
[91] First, the trial judge appears to have rejected defence counsel’s submission that Mr. Janeiro could have deposited the saliva while innocently on the sidewalk after the robbery, primarily on the basis that Mr. Janeiro did not recall seeing police tape or police activity at the donut shop, something he would have remembered four years later had he been there. Even if the reasonableness of this arguably questionable inference is left unchallenged, it does not address whether Mr. Janeiro innocently deposited the saliva prior to the robbery or while it was occurring, possibilities that cannot be ruled out or diminished on the evidence.
[92] Second, the trial judge attempted to draw the link between the saliva and the robbery based on the “pretty compelling argument … that the robber was taking in the broader view available through the front window of the restaurant from Holland Street to be sure that the clerk was alone before going inside. In other words, casing the target.” As I have described, the trial judge based this inference on the view inside the donut shop depicted in photo 20. In fact, photo 20 did not show the view from where the saliva was located. Photo 20 was taken from outside the donut shop itself, with a vantage point that was directly across from donut shop. In contrast, the view into the window from where the saliva was deposited was on a materially sharper angle. Although the distance between the location where photo 20 was taken and the location where the saliva was found was not measured, it is evident from the Google map image that was included in the ASF that the photographer was much closer to the donut shop when photo 20 was taken than they would have been if photo 20 had been taken from where the saliva was found. Put simply, the angle and distance between where the saliva was deposited and the donut shop materially weaken any suggestion that the robber would have chosen that location to “case” the donut shop.
[93] In any event, even leaving aside the distorting impression that using the wrong photo would have produced for the trial judge, the inference that the robber stood on the sidewalk before the robbery to “case the target” was entirely speculative in the absence of supporting evidence, such as evidence that prior to the robbery someone was seen or filmed standing there, or evidence indicating that this was an unusual location to be and provides a hidden, opportune vantage point.
[94] The Crown seeks to overcome the absence of a connection between the DNA from the saliva and the robbery by emphasizing the unlikelihood of coincidence that Mr. Janeiro’s DNA would be found in saliva approximately 60 metres from the scene of a robbery in which Mr. Janeiro’s fingerprint was located on a plastic bag used by the robber. The flaw in this reasoning is significant. As indicated, there is absolutely no evidence that this saliva is linked to the robber, or the robbery, and no evidence that diminishes the realistic prospect that Mr. Janeiro, an 18-year old who lived and worked in close proximity to where the saliva was located, could have innocently been in that location when he spit. If the saliva cannot be linked to the robbery, it cannot stand as evidence that Mr. Janeiro was the robber. Moreover, it is entirely circular to rely on Mr. Janeiro’s fingerprint to infer that the saliva must have been connected to the robbery, only to then infer from the saliva that the fingerprint must itself have been connected to the robbery, as opposed to having been placed on the bag on a prior occasion unconnected to the robbery.
[95] Finally, the eyewitness description evidence is not discriminating enough to support a reasonable inference that Mr. Janeiro’s fingerprint came to be on the plastic bag in connection with the robbery. As I have pointed out in paras. 82-83 above, the eyewitness description evidence lacks the kind of detail that could meaningfully link Mr. Janeiro to the robbery.
[96] In my view, the verdicts, both of which depended on the presentation of sufficient identification evidence to establish Mr. Janeiro’s identity as the robber beyond a reasonable doubt, were therefore unreasonable. Having laid out the details and having pointed out the limitations of the evidence, I can explain in summary form why the verdict is unreasonable. Simply put, I am persuaded that it would not be reasonable for a trier of fact to be satisfied that the accused’s guilt is the only reasonable conclusion that arises in this case, where the accused’s fingerprint is identified along with four unidentified fingerprints as having been placed at some unknown time on a plastic bag used in the robbery; where the description of the robber is limited, indistinct and generic; where there is absolutely no other evidence linking the accused to the robbery; and where it is not suspicious for the accused to have possibly been present in the neighbourhood of the robbery around the time it occurred.
[97] I would set aside the convictions as unreasonable and substitute verdicts of acquittal.
There Were Material Misapprehensions of the Evidence
[98] In explaining that the verdict is unreasonable, I have already described instances where the trial judge materially misapprehended the evidence. I will review them here.
[99] With respect to the fingerprint evidence, the trial judge said that the police “were able to retrieve an identifiable fingerprint” from the bag. That is incorrect. There were five identifiable fingerprints on the bag, only one of which had been identified as belonging to Mr. Janeiro. I have explained the materiality of the fact that there were five identifiable fingerprints, not one.
[100] The trial judge also failed, in my view, to give proper consideration to the evidence that the robber may have been wearing gloves, believing that it was not relevant. The Mars decision makes clear that a fingerprint linked to a crime scene is not incriminating unless there is a basis for concluding that the fingerprint was placed on the object in connection to the crime, at the relevant time and place. These errors materially and mistakenly increased the probative value of the fingerprint evidence in the mind of the trial judge.
[101] With respect to the DNA from the saliva, the trial judge mistakenly believed that photo 20 showed the view from the location of the saliva into the donut shop. This mistake materially supported his conclusion that the DNA evidence obtained from the saliva was linked to the crime.
[102] Mr. Janeiro argues that the trial judge also misapprehended the clerk’s evidence when he said that she testified that the balaclava was not the same “ski mask” that the robber wore. He argues that given the clerk’s agreement during cross-examination that she likely told the officers that she was not sure if it was the same mask, this does not accurately represent her testimony. I would not give effect to this argument, given that a trier of fact is entitled to accept all, some, or none of the evidence a witness gives. The clerk did testify at one point that the balaclava was not the same “ski mask” the robber wore. It was open to the trial judge to act upon that testimony in preference to the balance of her evidence, and the trial judge may have been doing so as opposed to misapprehending her evidence.
[103] Having said this, the trial judge did misapprehend the evidence when finding that the police showed the clerk the balaclava itself when she told them “it was not the mask” that the robber wore. That is not what happened. The police showed her a photo of the balaclava as it lay on the ground. The photos of the balaclava laying on the ground that were placed in evidence do not depict the features of the balaclava with the clarity that seeing the actual item would. In my view, this was a material error. There were already significant challenges in accepting the clerk’s testimony that the balaclava the police located was not the “ski mask” worn by the robber, including: (1) the answer she gave on cross-examination that I describe immediately above in para. 102; (2) her inability to identify any features that were different; (3) her inability to recall whether the “ski mask” had a mouth hole; (4) the fact that both the balaclava found by the police and the “ski mask” worn by the robber shared the two characteristics she could describe – they were both black and both had two eye holes; (5) her testimony that it was not cold enough to be wearing a balaclava, thereby reducing the prospect that a balaclava unconnected to the robbery would happen to be laying nearby in the parking lot of the high school; and (6) evidence that the officers had information that the robber fled in the direction of the high school where the balaclava was found. In this context, had the trial judge appreciated that the clerk had never been shown the actual balaclava or a clear photo of its characteristics when eliminating it as the mask she saw, he may not have accepted her testimony that it was not the same “ski mask” that she observed.
[104] I have borne in mind the admonition that misapprehensions of evidence on peripheral points do not lead to reversible error; only “errors [that] play an essential part in the reasoning process resulting in a conviction” will lead to reversible error: Morrissey at p. 541; quoted in Lohrer, at paras 1, 2. I have already explained why I would find that each of these errors was material. The misapprehensions relating to the fingerprint evidence and the saliva DNA evidence had the effect of materially inflating their probative value in a problematic Crown case that depended on the probative value of this evidence. Meanwhile, the misapprehension related to the potentially exculpatory balaclava DNA evidence had the effect of deflating its probative value. Beyond any doubt, together, these errors played an essential part in the reasoning process that resulted in Mr. Janeiro’s conviction. The convictions were not, therefore, true verdicts and the misapprehensions of evidence caused a miscarriage of justice. I would allow this ground of appeal. Had I not found the verdicts to be unreasonable, I would have ordered a new trial.
B. Did the trial judge err in denying the “lost evidence” Charter application?
[105] In my view, the trial judge erred in denying the “lost evidence” Charter application. Although this issue may appear moot in light of the decision that I have already arrived at, it is not. As I will explain, I would remedy the “lost evidence” Charter breach I identify by drawing an inference contrary to the Crown that had the lost security video been available, it would not have assisted the Crown. This inference reinforces the unreasonableness of the verdicts that I have identified.
[106] I have considered the issues in the order that I have because of the well settled admonition that unless the appropriateness of a stay of proceedings is manifest at the outset of trial, applications for stays of proceeding should not be adjudicated until after the evidence in the case has been heard so that issues of prejudice can be more meaningfully assessed: R. v. Bero, 137 O.A.C. 336, 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 18. That same admonition applies, for similar reasons, to the order in which a denial of a stay of proceedings should be considered on appeal.
The Legal Principles
[107] Where a Charter applicant has shown that disclosable evidence has been lost, a Charter breach contrary to s. 7 will be found unless the Crown has provided a satisfactory explanation for that loss, thereby demonstrating that an abuse of process has not occurred. The Crown may do so by establishing that the evidence has not been destroyed or lost by unacceptable negligence, that is, negligence that goes beyond mere negligence. This can be accomplished by showing that reasonable steps were taken in the circumstances to preserve the evidence, bearing in mind the relevance that the evidence was perceived to have at the time it was lost or destroyed: R. v. La, [1997] 2 S.C.R. 680, at paras. 20-22; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 30.
[108] Indeed, the relevance or importance of the evidence is an important consideration in setting the degree of care expected. As the relevance of the evidence increases, so too does the degree of care required in preserving the evidence: La, at para. 21; Hersi, at para. 30. Similarly, as the relevance decreases, the required degree of care is reduced. In R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, for example, before audiotapes of police interviews were destroyed, a decision had been made not to charge the accused. The investigation was reopened only years later. This reduced the reasonable perception of the importance of the evidence at the time it was destroyed, lowering the standard of care required.
[109] Alternatively, a Charter applicant will succeed even in the face of a satisfactory explanation for the loss or destruction of evidence if they establish that the lost evidence is so important that its loss undermines the fairness of the trial: La, at para. 24. This is a difficult hurdle. In Bero, at paras. 49, 52, Doherty J.A. made it clear that showing a reasonable possibility that the lost evidence could have assisted the defence is not enough to establish that the right to full answer and defence has been undermined. This is so even though the inability to determine whether the lost evidence was harmful, neutral, or helpful to the defence may arise because of the loss of the evidence by the police. In order to demonstrate irremediable prejudice when seeking a remedy, a Charter applicant must establish that the evidence would have played an important role in their defence. I see no reason why the same standard would not apply in determining whether a Charter breach occurred on the basis that the loss of evidence undermined the fairness of the trial.
[110] Since it is entirely unknown in this case whether the lost security video would have aided or harmed Mr. Janeiro’s position, I will say no more about this branch of the lost evidence test and I will examine whether a breach occurred by considering solely whether the lost security video was destroyed or lost by unacceptable negligence.
[111] If a breach is identified on either of the alternative bases I have just described, the second question – the appropriate remedy – arises. In this case, Mr. Janeiro sought a stay of proceedings. As I will reinforce below, that remedy is provided only in extraordinary circumstances, where real irremediable prejudice to the right to full answer and defence has occurred: La, at paras. 23, 24; Hersi, at para. 25; Bero, at para. 42.
The Trial Judge Erred in Finding There Was No Charter Breach
[112] In my view, the trial judge made three errors in determining that the Crown had shown that the police had taken reasonable steps to preserve this evidence and had not lost the evidence as the result of unacceptable negligence.
[113] First, he once again misapprehended the evidence. He found that before he placed the exhibit bag containing the security video into a cabinet in the CIB office, PC Fawcett labelled it. That was not the evidence. PC Fawcett said he did not label the brown paper exhibit bag. This was therefore a case where the security video was stored in an unmarked bag, not a case where the contents of the bag could be readily identified.
[114] Second, the trial judge erred in principle in concluding that the security video was of “little help” and “largely peripheral” with respect to the issue of identity, a determination that reinforced his conclusion that PC Fawcett’s storage plan was adequate. In fact, the video was not peripheral. It was a “silent witness” to the entire robbery, providing many, if not all, of the observations that the clerk testified to. Indeed, had the clerk become unavailable to testify, the security video could have been used by the Crown in her stead in prosecuting the case. On this ground alone, a reasonable police officer, properly informed of the prosecution’s disclosure obligations, would have understood the need to take significant care in preserving this evidence.
[115] The trial judge formed the view that the video was of “little help” and “largely peripheral” because he incorrectly evaluated its relevance based solely on whether the video showed identifying detail of the robber. I make no quibble with the apparent shortcomings of the security video in disclosing identifiable features of the robber. However, the security video may have informed the degree of confidence that could be put in DC Johnson’s height estimate. More importantly, as the trial judge recognized, the security video may have clarified whether the robber was wearing gloves or provided information relevant to whether the balaclava that was found was the one worn by the robber.
[116] The trial judge considered the role that the video would play in clarifying whether the robber was wearing gloves to be irrelevant to the probative value of the fingerprint. I have already expressed my disagreement with that suggestion; given that the probative value of the fingerprint evidence turned on a determination of whether there was evidence that could link the fingerprint to the robber, this detail was important.
[117] The trial judge also concluded that the unavailability of the video depicting the balaclava was unimportant because “the balaclava is in my view a bit of a side issue.” With respect, the question of whether the balaclava that was found was the same one worn by the robber was not a side issue. It was a central issue. If there was a reasonable doubt about whether the balaclava found with fresh vomit inside from a third party was the balaclava that the robber wore, the balaclava evidence would have been powerful exculpatory evidence. There is no question that the security video would have provided the trier of fact with observations that could have assisted them in determining whether the balaclava DNA evidence could be disregarded, or whether it raised a reasonable doubt about Mr. Janeiro’s identity as the robber.
[118] Third, the trial judge erred in concluding that the notes that the police officers took when watching the security video diminished the importance of preserving the security video itself. That conclusion is not reasonably available given that the police notes gave rise to disagreement between the officers on the important question of whether the robber was wearing gloves at the time of the robbery.
[119] Moreover, I take issue with the trial judge’s conclusion that “several police officers viewed the video and took notes with an eye to gleaning from it any information it could yield as to the identity of the robber”. PC Fawcett took no notes. DC Johnson watched only part of the security video to look for persons of interest known to him. Apart from describing the pants worn by the robber, DC Johnson gave no evidence from his notes about the description of the robber. Retired Sgt. Ferrier took no notes of the robber’s appearance either, given that his interest was in finding areas where fingerprints may have been left. PC Dietrich alone testified that he attempted to record his observations of the robber, but he did not even mention the balaclava that was worn or describe the pants depicted in the video, as DC Johnson did. The notes of the officer’s observations of the security video, such as they were, do not materially diminish the importance of preserving the security video itself. It was contrary to the evidence for the trial judge to find so.
[120] Given the material factual and legal errors made by the trial judge, it is not appropriate to defer to his conclusion that PC Fawcett took reasonable steps to preserve the security video. Based on the evidence, even in light of the factual findings made by the trial judge, I would find that Mr. Janeiro established a s. 7 Charter breach on the basis that the loss of the evidence was not satisfactorily explained.
[121] I begin with the fact that the security video was important evidence that required care in its preservation. As I say, it depicted the entire robbery, and although it was not in high definition, the coloured security video had sufficient resolution to enable DC Johnson to determine that the robber’s finger was on the trigger of the “gun”. The fact that the investigation was inactive does not diminish the importance of this evidence since the investigation remained open in the expectation that new evidence could emerge.
[122] I agree with the trial judge that no issue can be taken with PC Fawcett’s decision to keep the security video in a locked drawer in his office prior to his transfer. Problems emerged when PC Fawcett left the unit and decided to preserve important evidence relating to the serious charge of robbery with a firearm by putting it into an unmarked brown paper bag along with unrelated videos from other investigations and then placing that unmarked brown paper bag into a cabinet in the CIB office, accessible to all police officers. This was far removed from secure or responsible storage. There is no evidence that the bag was filed in an orderly way. It was placed in a “communal filing cabinet” ordinarily used for case files. Moreover, the contents of the bag were not catalogued, and the bag was not labelled to assist in the ready identification of its contents. And those contents were mixed randomly instead of being segregated according to case. Given that the bag was unmarked and filled with videos from unrelated cases, there was every possibility that, if they could find it, numerous officers connected to various investigations would have reason to disturb, or even take or move the bag in connection with their own matters.
[123] PC Fawcett chose this method of storage for important evidence notwithstanding the availability of a controlled property room where evidence is logged, and in the face of his knowledge that it was “procedure” to store evidence there. For some unexplained reason, he believed that digital evidence was somehow different, contrary to DC Thomson’s testimony that “everybody” stored their video evidence in the property room. Although I believe it to be a difficult finding to make on the evidence I have just described, I do accept that it was open to the trial judge to find, as he did, that there was no specific policy that video evidence was to be stored in the property room and that “it was left to each officer” to determine how to store video evidence. However, that does not alter my view that the choice that PC Fawcett made was not reasonable in all the circumstances. Much more should readily be expected of police officers, who control important evidence on which individual liberty will be determined.
[124] In my view, given the importance of this evidence, the steps that PC Fawcett took to preserve that evidence were more than merely negligent, and resulted in the loss of evidence that may well have assisted Mr. Janeiro in his defence. In all the circumstances, I would find that the loss of the evidence breached s. 7 of the Charter.
[125] I would not, however, stay the proceedings based on this breach. A stay is a remedy of last resort, reserved for the clearest of cases where important evidence has been deliberately destroyed, where the unacceptable negligence is extreme enough to cause irreparable harm to the integrity of the justice system, or where the accused establishes that the loss of the evidence has irreparably deprived them of evidence without which they cannot effectively present a defence: Bero, at paras. 42-44.
[126] An alternative remedy is to invite the trier of fact to infer that the lost evidence would not have assisted the Crown: Hersi, at paras. 35-36. I would apply that remedy in this case. I would infer that the security video would not have assisted the Crown in showing that the robber was not wearing gloves, or in demonstrating that the balaclava differed from the balaclava that was put into evidence, or in providing verification for the legitimacy of DC Thomson’s height estimate. These inferences reinforce the finding I have already made that Mr. Janeiro’s convictions are unreasonable.
CONCLUSION
[127] I would allow the appeal, set aside Mr. Janeiro’s convictions, and substitute verdicts of acquittal.
Released: February 10, 2022 “David M. Paciocco J.A.” “I agree. I.V.B. Nordheimer J.A.” “I agree. Sossin J.A.”
