WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— and —

J.J., a young person

Before: Justice Dianne M. Nicholas

Reasons for Judgment released on: March 13, 2012

Counsel:

• Ms. Louise Tansey-Miller for the Crown
• Mr. Jason Gilbert, counsel for the accused J.J.

Judgment

Justice Nicholas:

[1] On December 29, 2010 the Bank of Montreal Lincoln Heights branch was robbed by what appear to be two youthful males. The incident is captured on the bank cameras. Their faces are not seen. The issue is one of identity. I was not informed until the near end of trial that the youth charged was not the actual robber, but rather the second youth who entered the bank with the robber, stood in the main line open area and then left with the accused. No acts of complicity, other than entering and leaving at the same time, are attributed to J.J. by staff or seen on the video. Bank records reveal that the youth before the Court does not have any accounts with BMO. There is no dock identification or otherwise of either of the two males. The Crown's case rests on the video and a palm hand print on the exit door from within the branch which has been matched, long after the fact, with J.J. The evidence reveals that police did not have a set of prints for J.J. at the time the prints from this robbery were captured and processed.

[2] The facts of the robbery itself are not really in dispute. The teller in question was trained in how to deal with robberies. She was at her commercial wicket when she saw two young men come in with bomber style jackets with hoods up according to her evidence. She thought this was odd. It was however winter and, in my view, there was nothing unusual in that their dress and clothing were age and season appropriate. They do not appear to be disguised in any way. Their appearance is what one would see on a daily basis on the streets or malls of this city in winter time. Hoodies are now commonplace attire and no longer have a nefarious connotation.

[3] One youth, wearing a red baseball cap, approached the wicket and told her "give me what I ask for bitch and don't fuck around." She gave some cash to him. He told her to give him what he has asked for and not to "fuck around." She proceeded to retrieve the maximum amount the dispenser would permit. She said that he had lifted his jacket, for a few seconds, to show what looked like a revolver tucked in his waistband. Initially, in recounting the event, she had completely neglected to mention that a demand note had been passed to her, and had not made any reference to a gun. When prompted, she testified that a demand note was produced to her which said "this is a robbery. I want $10,000 or I am shooting. Try me." She then observed the robber leave with his friend who had just stood in the main line. She is mistaken when she says they both entered with hoods up, and the video does not reveal that any gun is shown to her, as the jacket of the robber is zipped up rather than opened as she had described it. There is a brief moment where it does appear that the unidentified male lifts up one side but no object is visible on the video. He may well have intimated that he had a gun. This is rather different than showing it or using it.

[4] The omission of certain details, at the beginning of her evidence, may be due to nervousness but does affect, perhaps, not the credibility but the reliability of her recollection. Therein lies the inherent danger of eye witness identification. I would not conclude that a gun was "shown" to her because she is simply in error with respect to other parts of her identification evidence. She forgot, until prompted, that a demand note had been passed to her. The motion she described was a brief look at what appeared to her to be a handle, and nothing else, for about three seconds. I conclude that there is no reliable evidence that a gun was shown during this robbery. With respect to J.J. she was never asked to identify the second suspect who is described as being near the line for the other tellers. In fact suspect B, alleged to be J.J., does nothing for the short period he is in the bank. He does enter and leave with the red capped person who robbed the teller. No other acts can be attributed to him.

[5] A second witness T. Valiquette was outside and saw two males enter the bank. She is slightly mistaken in her description of clothing. She sees them enter the bank and then leave the bank jogging or running minutes later. She testified that one of them, not wearing the red cap and therefore allegedly J.J., looks "like he put the head of a turtleneck up over his nose." The video does not clearly reveal this as I recollect. She is the second person to say she thought it was odd that people would walk with hoods up. I disagree. It was winter and that type of hooded jacket, particularly in winter, is regularly seen. These two honest witnesses, with respect to clothing and such, remind us of the frailties of identification evidence. In listening to her I noted that her "memory" seems to have improved after she became aware a robbery had occurred. She now questioned where they came from, the route they took when they left, how quickly they were walking, having a hood up in winter or pulling a turtleneck over a nose for example. She does not identify J.J. K. Ross is another bank employee. She also testifies that the robber had a red cap with a "hood over the top." The video says otherwise as my notes indicate. At the time of the offence and in her statement she did not associate in any way any other person in the bank with the robbery. As such, no one in the bank has identified J.J., or attributed any role to him in the robbery. None of the bank witnesses have described him as a lookout.

[6] The Crown's case against him rests on fingerprint evidence found on the interior of the bank on the exit door Det. Kyle McIntyre is the forensic identification witness. This case is the first time he has been qualified to testify as an expert witness. The transcript reveals his qualifications, and that voir dire evidence will not be summarized here. Having been qualified, for the first time, as an expert McIntyre testified about the latent prints found at the scene. He produced the C-216 RCMP fingerprint forms and the original lifts from the station. Defence had made a disclosure request for the Fingerprint Expert report, as the Criminal Code entitles him to. What he received instead was Forensic Identification Report but not in a timely manner. As this is clearly a fingerprint case, it matters not whether Defence made a specific request for the particular document. Crown has an obligation to disclose all materials relevant to the case. As such, things did not start off well with McIntyre's evidence. Furthermore the expert's report was required by law to be provided prior to the commencement of trial and a proper one was never produced. In order to proceed with the trial we instead relied on exhibit 7 the Report referenced above.

[7] McIntyre described having made 139 forensic identification fingerprint verifications and identifications. As the primary officer his role is to say "this latent matches the C-216." A verifier goes through the same process and confirms the first officer's conclusions. He was unable to say whether any of his identifications had been successfully proven in any trials. His proffered expertise is in the lifting, identification, matching and and the verification of prints. He has been an identification officer with OPS since January 2010.

[8] With respect to this matter he attended at the scene, took photos and captured the latent prints with digital photography. There are photos of the scene and a video of what occurred inside the bank which we watched repeatedly over the 3 day period. He had been advised that there were two suspects. One had touched the counter of the teller that was robbed, and a palm print was visible on the interior door glass of the interior exit door from the bank. It is not necessary to detail the lifting process. Once prints are lifted, the photos of it are archived and the lifted latent prints are scanned then forwarded to AFIS (Automatic Fingerprint Identification System) to be compared against the national database of fingerprints. No hits were identified by AFIS on R1-B and R1-E, the prints deemed to have sufficient detail for a search. The lifted prints were stored as an unknown print with AFIS and constantly run against new prints. This is an automatic as opposed to human process which matches new known prints to unknown prints. When an unknown print is subsequently matched to a newly submitted print, he would receive "a reverse hit" report, communicated to him by email. At a much later date, he was advised by email that the unknown print from the bank door had been returned to J.J. the youth before the Court, and identified with an FPS number. He did not include that email in disclosure, any of the materials he brought to court, because he considered it "an administrative detail really." I could not disagree more. The lack of the legally required Expert Report being provided to Defence counsel in a timely manner, the failure to disclose the email which informs police for the first time of a reverse hit, and subsequent misidentification of some prints, are concerning. One would expect an officer testifying for the first time as an expert to have ensured his/her ducks were in order as it were. Without the AFIS documents being filed, his evidence on this rather critical issue is all hearsay if tendered for the truth of its contents, which it was in this case. It was at the Court's prompting that it occurred. It matters not particularly that he verified that information which proved to be correct. The unknown print, from the crime scene, was matched to a print taken of the accused following an arrest on May 2, 2011. Defence advised that the C-216 prints (ex. 8), from that arrest of May 2, 2011, were provided to Defence only the day before the start of trial. At trial, McIntyre had not provided us the record and/ or notification of the hit until I ordered it disclosed. Clearly, it is necessary and important for any such documentary evidence, the subject of expert evidence, to be provided to Defence promptly. I fail to see how anyone could have drawn the conclusion that it was not necessary to do so. This should have been disclosed to defence well before the start of trial.

[9] In his own verification process, he identified the R1-E from the bank to the left thumb of the fingerprints on a C-216 form that was linked to the accused by D6 the known print from the C-216 form. He also made an identification between the R1-B and D9 on the C-216. Following the lunch hour, the Court and Defence were provided with the AFIS notification. Defence should never be receiving documents such as these from an expert mid trial. The entire case, given that there is no eye identification whatsoever of this accused, and no statement, rests entirely on this identification of that palm print, in my view. Defence counsel has conducted himself in an exemplary manner of cooperation, despite this very late disclosure of several documents in the possession of this expert witness who should have provided them to the Crown in a timely fashion. In reviewing the transcript it became clear to, only then, that Defence had been attempting to make an objection to the introduction of this AFIS notification. It is clear that, at the bottom of p. 25, I put to him that he was not objecting and obviously did not hear the two words "yes I was." I proceeded to file the document. That was clearly an error on my part. I disregard any evidence given by this officer as to what the verifier did. Again this is clearly hearsay and outside of the scope of the expert opinion this witness could provide.

[10] McIntyre was cross-examined at length. Defence confronted the witness with his purported identification report (ex. 7) which speaks of R1-F being matched to D6 and not R1-E as exhibit 9 reveals. The expert's response was "that could be a typo" and then "that should have been caught by me. That's my mistake. R1-E is the latent I dealt with." (p. 88, January 27). This same erroneous reference is repeated twice. Defence accurately confronted him with the fact that letters E and F are not near each other on the keyboard thus making the "typo" reference quite unlikely. In addition, he could not explain to my satisfaction why the ridges in the unknown appear, to the naked eye, to be thinner than the ridges in the known. He guessed that it might be due to the pressure applied in taking the print. This is a little disturbing. One would assume that, in preparing to testify as an expert for the first time, the basis of his opinion would have been carefully reviewed.

[11] He was also cross-examined on the technique of ridge to ridge comparison which makes reference to 10 points of comparison being the minimum amount required for forensic print specialist evidence. His answer was that he was not trained that way and that "some people" with lots of experience may look at 3 lines and says "it's an ident." In this case he did 8 comparisons. He only highlighted 3 of them on exhibit 9. He was referred to portions of Forensic Evidence in Canada, 2nd edition, Chayko & Gulliver, Canada Law Book Inc., 1999 and its reference to 10 to 12 points of comparison being accepted by various courts as sufficient to establish identity. His response was "It's part of one interpretation yes." He spoke of dozens of other texts but did not produce any. In listening to him, testifying to the best of his ability for the first time, I noted that he was clearly satisfied that he had a print in accordance with is training. The issue, however, is whether his evidence and the manner it was presented, reaches the level of beyond a reasonable doubt. It is difficult to test the mere assertion that he was satisfied with the match. A further example of this is found at p. 116 on the issue of distortions between D5 and C-216 where quite a bit of the D6 print is not shown as it's displayed on the C-216. A similar situation occurred with respect to the issue of the powder and possible ridge alteration it may cause. He was firm in his opinion but could not back it up scientifically when the scientific texts were produced to him in a very well prepared cross-examination based on scientific literature. I am not concluding that he is in error in any of his assertions. However quite often I was left with his opinion, which was unsupported other than by reference to his training.

[12] In re-examination, Crown made reference to exhibit 9 which is the exhibit that compares the known to unknown, namely D6 and the C-216 from a May 19th arrest. That particular C-216 document was never filed. Rather, the document filed as exhibit A, was a known C-216 print from the May 2nd arrest. The witness therefore produced to the Court, as part of his expert evidence, a C-216 form that relates to an arrest of May 19th and not the May 2nd prints, as we all believed. The source for D6 was in fact from the May 19th arrest not the May 2nd arrest which was produced to the Court. I heard this for the first time in re-examination by Crown counsel, who was repeatedly put in a very awkward position by these perhaps inadvertent, but nonetheless concerning discrepancies in the documentation.

[13] Crown clarified by clearly leading the witness, at page 131, to the fact that, the C-216 from May 2nd was the source for the D6 print that he used to do his comparison for R1-E. Therefore, he did not do his comparison from unknown to known from the only known document that was filed with the Court. In fact he never, as I review the transcript, alerted counsel or the Court of this fact. The Crown attempted to rehabilitate the witness by stating that the May 2nd filed C-216 form was merely used for "comparison purposes". I cannot fathom why a C-216, different from the only one filed, would be used for this reason without also filing the C-216 from May 19th and making it abundantly clear to the parties. Crown had to admit that she also only learned of the source for D6 during cross-examination. An expert witness is called to educate and explain scientific matters outside the knowledge of the Court. His explanation as to why the C-216 from May 2nd rather than May 19th was filed is less than impressive and raises serious questions about the proper preparation that went into his expert testimony. When asked about references to R1-F rather than R1-E in his report he stated that "the only thing I can come up with is that it was a typing error and a lack of concentration on my part." This is an incredibly damaging assertion from the expert testifying on a case based entirely on this fingerprint evidence. I have grave reservations about the quality of his preparation and evidence.

[14] Crown advised that she intended to call in re-examination the verification officer. She had only given Defence verbal notice of this on the previous court day. Defence counsel maintained his objection. On the 30th we heard from Det. Jacobs and we reviewed the video clips. No faces are shown. There is evidentiary value in the clip that shows the male that was not wearing the red cap appearing to handle or touch the door as he exited. Upon viewing the video again, I expressed the view that his left hand appeared to touch the door.

[15] Crown then applied for permission to call Det. Garneau who is a forensic identification officer with OPD who worked with Det. McIntyre and appeared on the original witness list, yet was not subpoenaed to attend. She notified Mr. Gilbert at the end of the last day of this intention, and Defence noted his objection for the record. No expert report was provided for him. She intended to call him with respect to the verification process he undertook. Given the manner in which McIntyre testified, and the oversights and slip ups, I can appreciate her desire to rehabilitate her case. She relied on the fact that his verification was provided to defence in disclosure in support of her application for permission to him, at this late stage, as an expert witness. Reference was made to s. 657.3 of the Criminal Code which stipulates that, when no report is prepared, a summary of the anticipated evidence must be provided. She agrees that the 30 days notice provision has not been complied with but refers to the remedies for non compliance, such as adjournments to permit defence to prepare for cross-examination or ordering the preparation of an expert report. She submits that preventing a party from calling such a witness is not a remedy and relied on R. v. Horan 2008 ONCA 589.

[16] Crown made detailed submissions found at pp. 62-78. I acknowledge that Crown was put in a difficult situation because of the problems with the evidence of her expert McIntyre. In reply Defence, at pp. 78-94, argued that he had not received much by way of will-states or notes, nor had a C.V. been provided as is required for an expert witness. In fact that will-say document merely states that he is a member of the OPS assigned to Forensic Identification, that he was notified by McIntyre to compare the C-216 print for the accused J. to two of the fingerprints retrieved at the scene of a bank robbery and that he verified the match. This is hardly what is envisaged by the Code and does not adequately put Defence on notice of the basis of the expert evidence and opinion to be called.

[17] Crown attempted to call Det. Garneau who is also a forensic identification officer and a colleague of Det. McIntyre. He was clearly being called to rehabilitate somewhat the evidence of Det. McIntyre. As stated previously, he had been on the witness list, and Crown made a decision not to call him. Defence objected, with reason, in my view. There is an established protocol in this jurisdiction for this type of evidence, namely the notice and production of a report. None of this was done. This late attempt to call an expert without notice was on the last day of trial and just before the weekend. The extent of Garneau's evidence would be that he verified the identification work of McIntyre. It is true that his verification work was part of disclosure. Crown relies on s.657.3 of the Code which deals with expert evidence. I cannot agree that the disclosure made here constitutes and fulfills the Crown's disclosure obligation.

[18] Furthermore, none of Garneau's qualifications or C.V. were disclosed. Crown argues that the remedies provided in the Code do not permit me to prevent the Crown from calling this witness. I disagree. She refers to the decision in R. v. Horan 2008 ONCA 589 which deals with both the "trial judge's management power" and the issue of disclosure. I will add to that consideration that this is a youth trial, and the Y.C.J.A. makes specific reference to timeliness. Defence opposes the request for the two reason stated above. There is an issue of prejudice to be considered, as this was the last day of trial and I was seized with a number of matters for the following months. There is also an issue of fairness of trial in my view. Rosenberg J.A.'s analysis of the disclosure issue is found at paragraphs 25-27. At par. 28 he specifically references the fact that the issue only came up after the trial commenced. In the case before me, Garneau was on the witness list and Crown made a decision not to call him. There is no element of surprise that prevented the disclosure of a C.V. and expert report. It was a deliberate decision by the Crown's office. Det. Garneau's evidence only became relevant when Det. McIntyre made the errors that he did in the documents he prepared for court, which I have referenced above. His evidence fell below the standard expected of an expert witness. I refer specifically to his misidentification of the known sample as well as his failure to disclose that he used as a known C-216 sample taken on a different date from the arrest of this youth on this matter, and referenced to a different matter. In fact, he did his verification on prints that he did not lift himself. At par. 30 Rosenberg J.A. makes plain that when a breach of Crown's disclosure obligations, which are very clearly spelled out in matters of expert witnesses, occurs the trial judge has "an arsenal of remedies." He also specifically states that, in some cases, "an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of an in-custody accused. In such a case, an appropriate remedy could be the exclusion on undisclosed evidence." We are dealing here with expert witnesses, and the Horan judgment deals with and refers to the right of an accused to have an adequate opportunity to respond to the prosecution case. On the last day of trial, this was hardly the case. As it was, the time spent on this issue used up the time allotted for trial and written reasons were required as a result.

[19] I am mindful that Horan makes plain that any remedy must be just and appropriate in the circumstances. This case is not, in reality, a typical disclosure case. Crown made a conscious decision not to call the witness Garneau, and not to provide an expert report. At par. 33 Rosenberg J.A. again references the management power of the trial judge with respect to managing use of court time and ensuring all parties are treated fairly. The "relevance" of the purported evidence was known all along. Clearly Crown felt it necessary to rehabilitate, to the extent possible, the issues that arose with her expert. An informed decision not to call this witness had been made before trial. The equities of this matter lie with the youth in my view. I do not fault in any way the trial Crown who reacted to the situation she found herself in. Given my trial commitments and that of counsel a "short adjournment" as referred to in par. 33 was not possible.

[20] Defence opposed the adjournment and read to the Court the sum of the disclosure provided to him with respect to Garneau. It consisted of a few short sentences that merely stated he was a member of the Identification Unit, and that he compared the C-216 print for the accused J.J. He verified the match. The disclosure is silent as to Garneau's qualifications, or verification methodology. It does not meet the requirements for an expert witness. The facts before me, as pointed out by Defence, are significantly different in Horan. It would not be equitable for this youth, now in custody, to have his trial adjourned on the very last day, for a period well in excess of a month. Crown made a deliberate decision not to call Garneau, and must live with it, as there has been no compliance with the expert evidence protocol. Crown offered to release J.J. from custody pending the continuation date, which we collectively tried to come up it. I denied the Crown request for an adjournment to call Det. Garneau when it became obvious that I could not offer a continuation date for several months. As such I did not grant the adjournment request.

[21] In argument, Crown relies on s. 21 of the Code and law of parties in this case. As mentioned above, I was not made aware until the last day of trial that the youth before the Court was not, in fact, the "robber" but the other youth who entered and left with him and stood near the main aisle. No suspicious behaviour is observed I conclude. The actus reus requirement for a party, as per Charron J. in R. v. Briscoe 2010 SCC 13, par. 14, is referred to as doing something to assist, or encourage the perpetrator. The aider or abettor must also have the requisite mens rea, and any assistance offered must have been for the very purpose of aiding the principal to rob that BMO bank. Therefore, knowledge and intent must be present in order for s. 21 to apply, it must be something more than mere presence which I conclude is all we have here. The presence of J.J. in and outside the bank with the robber, is suspicious and questionable but is not the kind of evidence on which a conviction can rest. It might bear some mention that J.J. is the only person standing trial for this offence and the young male who actually robbed the bank has not been charged.

[22] On the issue of the use of the firearm I agree with Defence that there is simply no factual basis for this Court to conclude that a "firearm", as particularized in the charges, was shown or used. The evidence of the teller was somewhat vague and no weapon can be seen on the video. She may well have believed that what she saw was the handle of a firearm. I conclude, not only that a firearm was not "used" as is alleged in the Information, but also that there is no credible evidence that a "firearm" as that term is defined was ever brought into the bank. The handle could well have been the handle of a replica and/or it may not have been a handle at all. The fact that the note makes reference to the offender starting to shoot, if he did not receive the money, makes plain that he wished the teller to believe that he had a firearm. Something far more than a motion to the waist is required for a court, on a beyond a reasonable doubt basis, that a firearm was "used" as alleged.

[23] The evidentiary value of the print must be addressed. In R. v. Mars, a fingerprint was found on a pizza box that was used as a ruse to enter an apartment. It contained the fingerprint of the accused. The Ontario Court of Appeal in Mars concluded that probative value of fingerprints depended on the totality of the evidence. In this case it may well afford evidence that J.J. touched that door, and the video does appear to show a touching of the door in question on the day of the robbery. There is, of course, a significant evidentiary leap required from the finding of a print on a door to a conviction as a party in a bank robbery. Unlike the facts in Mars, the video does at least show the youth alleged to be J.J. touch the door. I have reviewed all of the cases submitted by the Crown. There are cases such as R. v. Rajalinkham [2005] O.J. No. 2240 which state that, given the nature of an offence and the location of the print, it may be possible to conclude in some cases that this evidence is consistent with guilt and inconsistent with any other verdict. In this case however, we see at all times the conduct of the 2nd youth. There is no lookout evidence whatsoever, neither of the teller witnesses found anything noteworthy in his conduct. He was merely present. No acts can be attributed to him in furtherance of the bank robbery. He came in and left with the accused nothing more and nothing less.

[24] Defence has provided a lengthy written submission. At pp. 1-2 he outlined five different bases on which I could arrive at a reasonable doubt with respect to the guilt of J.J. If I conclude that the Crown has not proven beyond a reasonable doubt that the prints lifted from the bank door are the prints of J.J. he must be acquitted. I have serious reservations, not with Det. McIntyre's qualifications to identify fingerprints, but with the quality of the expert evidence he has given. He was, after all, qualified for the first time in this case. Defence raises concerns, at page 2 of his submission, with the fact that another officer had placed a sheet of paper over the print. That officer was not called. It is unknown therefore to me whether or not the quality of the print could have been affected by this fact. That officer was not called as a witness. He refers to the placing of a sheet of paper, which appears lower down on the door that the sheet shown in photos 18-20. I agree with Defence that the expert report filed did nothing more than state a conclusion. In fact, it was not even an expert report, it was the document filled out on the identification he made. The methodology is not described. I agree with Defence that the document disclosed was not in the nature of an expert report; it merely states a conclusion. As an example, he does not explain, as he should have to enable Defence to prepare and respond, what ridge to ridge analysis is. One would expect that kind of information to be disclosed in an expert's report. I agree with Defence that, during cross-examination, he came up short in terms of explaining discrepancies. McIntyre had been blunt in his answer to Defence that ridge to ridge comparison was now preferred and that the "points of comparison" analysis Defence referred to was an outdated mode of identification. He was contradicted somewhat on that by the content of Forensic Evidence in Canada, 2nd edition, Chayko & Gulliver, Canada Law Book Inc., 1999. He acknowledged the long used practice of 10-12 point comparisons. He proffered that it was customary but not mandatory. In this case he was satisfied with 8 or 9 ridge comparisons.

[25] Of course Defence points out the errors in his report (ex. 7) when he refers to R1-F, a left hand palm print, as being identified allegedly in J.J.'s known print on C-216 when, in court, he referred to the digit as R1-E which is a left hand thumb print. He described that as "a typo." Defence points out that the letters "f" and "e" are not on the same line. At the very least, he was inattentive in the production of these documents. Defence makes reference to the lack of verification evidence. As referred to above, Crown made a conscious decision not to call Det. Garneau who was on the witness list. For this reason and as stated above, I refused the last minute request to do so. There is no admissible evidence filed with the Court with respect to the identification made by Garneau. Defence submits therefore that, absent evidence of the verification of McIntyre's evidence, which OPS itself requires, it cannot be concluded beyond a reasonable doubt that the print is that of J.J.

[26] In my notes I have noted that, based on the failure to produce an appropriate expert report, the two actual misidentification of digits, and the evidence, discovered by Defence in cross-examination, that in fact he used not the known print of J.J. from this arrest, but rather the one from another arrest without disclosing it to the parties, makes his evidence unreliable. I do not question that he is qualified to give fingerprint evidence. However, the manner in which he testified in this case, the oversights and documentary errors on the very matter he was to give opinion evidence on, and his refusal to acknowledge the other recognized methods of identification, are such that I have doubts as to the reliability of his evidence. The last note I made at the conclusion of his evidence was that I would reject his opinion on the basis it could not be substantiated to the degree required in a case such as this. If I am correct in reaching that conclusion, then the Crown has failed to prove the identity of J.J. through a fingerprint on a beyond a reasonable doubt basis.

[27] I will address the other theories in the event that I am in error in rejecting the expert opinion of McIntyre. I am not persuaded by the second argument of Defence, namely that if the lifted print is a print of J.J., Crown still has not proven when it was left there. There is evidence that he was not a customer of that bank. However the video does reveal that the person alleged to be J.J. placed a hand on the exit door from the interior of the bank. I do agree that the presence of that print is not sufficient for a conviction, particularly in light of the law of parties which I have described above. I agree with Defence that the video evidence is weak and grainy. My conclusions on theory #2 stem from my lack of confidence in the documentary evidence submitted by McIntyre in support of his conclusion as to the fingerprint of J.J. being left at the scene. It cannot be analyzed in a vacuum. Theories 1 and 2 are sufficient in my view, to acquit J.J.

[28] In theory 3, Defence advances an argument that, even if J.J. was present and those prints on the exit door are his, this does not equate with guilt for an offence of robbing a bank while using a firearm, as well as using a firearm in the commission of an indictable offence. The cases make plain that mere presence is insufficient. There are no acts of furtherance of the offence or even knowledge that can be attributed to J.J. The identity of the robber is unknown to the Court. Furthermore, there is no evidence of a relationship between the two, of any planning, the writer of the note is not identified, and there is no evidence whatsoever, I have concluded, that a firearm was even "used" as that term must be interpreted. The teller's conclusion is not accepted. She, for sure, believed in the situation she was in and given the note, that the motion to the side of the robber meant he had a gun. It is not even a logical inference to draw in this case. He may have wished her to believe it was a weapon but none was "used" in this robbery. Use is more than mere possession. I agree with Defence that there is no evidence whatsoever of J.J.'s knowledge, assuming he was found to be the person in the bank based on the fingerprint, of the intention of the youth with the red cap to rob the bank. I agree with Defence that, at best, J.J.'s behaviour if I am in error with respect to the fingerprint evidence, is merely suspicious. No words or actions are attributed to him. That issue is well settled since the judgment in R. v. Dunlop and Sylvester v. the Queen. There is no evidence here of facilitating the offence, such as keeping watch, of any act to hinder interference with the robbery, of any communication between the two, or of gesturing. J.J. did not even attract the attention of either teller involved in the robbery even though he was also a youth just standing in the middle aisle and not approaching a counter. With respect to theory number 4, I have already expressed my view that there is complete lack of admissible or reliable evidence that the handle, purportedly shown with a brief thrust of a hip for a second, could ever constitute evidence that a firearm was "used." There is a difference between showing and using. It simply cannot be concluded on a beyond a reasonable doubt basis that a firearm was shown let alone used. There is a precise definition to the term "firearm" and a complete absence of evidence to lead any judge to conclude this was a firearm. The witness we need to rely on for the presence of a gun was mistaken in saying the jacket of the robber was open and that she could see the handle, in fact the jacket was zipped up and nothing is visible on the video. I agree with Defence that her evidence is honestly believed by her, but not reliable. One cannot conclude that an item as a "firearm" when only the handle as opposed to the barrel is visible.

[29] The Crown has failed to prove the "use" of any firearm, an essential element of the offence with which J.J. is charged. He could not, therefore, be convicted of any robbery while "using" a firearm if I were found to be in error in choosing not to rely on the identification evidence of McIntyre. I have already addressed theory 5 of the Defence with respect to the lack of evidence of knowledge of any robbery plan, which negates the presence of the required mens rea with respect to J.J.

[30] I agree with the Crown assertion in her written reply submissions that a finding of guilt on the lesser and included offence of robbery would have been available had I been satisfied beyond a reasonable doubt on the identity and mens rea elements of the offence. However I am not. I thank counsel for the excellent advocacy and detailed written submissions. In conclusions, Crown has failed to prove the guilt of this youth on the required beyond a reasonable doubt basis and he is found not guilty of the charges against him.

Released: March 13, 2012

Signed: Justice Dianne M. Nicholas