Court File and Parties

Ontario Court of Justice

Date: 2016-11-30

Court File No.: Durham Region 998 16 35761

Between:

Her Majesty the Queen

— and —

Jonathan Kloos

Before: Justice J. De Filippis

Heard on: November 15, 2016

Reasons for Judgment released on: November 30, 2016

Counsel:

• Mr. K. Saliwonchyk, counsel for the Crown
• Ms. K. Manitius, counsel for the Defendant

Reasons for Judgment

De Filippis J.:

[1] The defendant is charged with robbery and wearing a disguise with intent to commit an offence. There is no question that the crimes were committed. The only issue is whether the Crown has proven that the defendant is one of the two culprits.

[2] The evidence is not in dispute; in fact, much of it was reduced to writing and filed with the court. I reproduce the agreed upon evidence in its entirety:

Police Evidence

PC Ken MacKinnon #3592 attended the Shopper's Drug Mart to perform SOCO (Scenes of Crime Officer) duties.

He was directed to a garbage can near the front cash registers to retrieve the garbage bag. While he was there, Rubiya Munir told him that she had picked up the bag from the floor, not realizing that it had been dropped by a suspect. The garbage bag was placed in a paper bag and sealed. The sealed paper bag was given to PC Presner to transport it to the DRPS FIU (Forensic Identification Unit). PC MacKinnon also located 4 potential finger and palm prints on the glass doors of the pharmacy. These doors were sliding doors, so there would be no reason for customers to touch the doors. The prints were lifted and labelled R1, R2, R3, R4. The fingerprint lifts were submitted to the FIU.

Pharmacist Statement

Pharmacist Shafina Bhanji provided a statement to the police indicating:

I was in the counselling room doing a medication review with a patient when she (sic) heard a loud bang. There was a man dressed in dark jeans, a ripped, hooded sweater, and a half-mask. He looked nervous. I screamed.

He told me to give him all my "oxys" and fentanyl patches. He kept opening a black garbage bag that he was holding. I said, "okay," and started to go to the safe. At that time, the assistant front store manager came into the room and grabbed the man from behind. They struggled for a bit and then the man got loose.

The man sounded nervous. He did not have an accent. He did not have a weapon. She was not hurt or threatened.

The man was tall, 6'0", dark jeans, hooded sweater with the hood up, sleeves had rips, hoodie was zipped up, black bandana mask up over his nose.

The incident lasted maybe 20 seconds.

Assistant Front Store Manager Statement

Assistant Front Store Manager Steven Burrows provided a statement to the police, indicating:

At about 20 to 5:00, I heard a loud bang and yelling. I ran to the consultation room. The door was mostly closed. I heard someone yell to 'put it all in the bag'. I opened the sliding glass door and saw the back of the culprit, the pharmacist and a patient.

I attempted to grab him in a bear hug, but I didn't get a good hold of his right arm. He was trying to spin out of my grasp. I let go of him and pushed him into a second doorway. I stepped back as he fell and yelled at him to 'get the hell out of here'.

At that point he started to run towards the front of the store and I followed him. As I came out of the pharmacy, I see a co-worker (Michelle Harris) chasing him. As he comes to the front of the store, he barrels through cashes 4 and 5 and knocks over a newspaper rack. This slowed him down enough that Michelle was able to grab his hoodie. I told her to let go of him. She did and he went through the doors and across the parking lot, leaving the plaza between the Shopper's Drug Mart and the next building.

He was about 5'10", thin build, black, low-riding jeans, boxers, gray, light-coloured hoodie, close-shaved head, stubble, black half-mask.

Assistant Store Manager Statement

Assistant Store Manager, Michelle Harris provided a statement to the police, indicating:

I was helping a customer with the blood pressure machine when I head a bang and then a scream. I saw Steve Burrows running into the pharmacy consultation office, so I followed him. I heard him yell for someone to get out. I entered the office as Steve was pushing a man out. The man took off through the pharmacy. Steve was behind him, so I ran up a different aisle to try to head him off. I grabbed the back of his sweater to try to hold him and his hood came off. We fell into the newspaper rack and I lost my grip. The man ran out the doors, running east through the plaza. When he ran outside, his mask fell off.

He was a young male, white, but had a tan. I don't know if he was European or if he had a tan. He had a buzz cut/shaved head. I think his hair was brown. He was wearing black pants, gray sweatshirt. He was about the officer's height (5'11"). He was a good looking kid, face about the same shape as the officer's [no details provided], brown eyes. He kept yelling at me, but I can't remember what he was saying. He was saying "don't fucking touch me," trying to get me to let go of him. Don't remember anything about the way he spoke.

Employee Stephanie Dickey Statement

Employee Stephanie Dickey provided a statement to the police, indicating:

On 24 June 2016, at about 4:40 p.m., I was at the blood pressure machine, when I heard a scream. I looked up and the first suspect was standing next to the register/gate into the pharmacy. He immediately started running to the front of the store. There was a commotion in the consultation room and a second suspect came out, followed by Steve Burrows.

Both men had a black covering over their lower faces. The first was wearing jeans, a long-sleeved shirt/sweater, light-coloured, and a hat. I did not get a good look at the second guy. The first guy was white, 5'8"-5'10", not thin but not fat

Employee Rubiya Munir Statement

Employee Rubiya Munir provided a statement to the police, indicating:

I was on the front cash serving customers when I saw two guys coming in the store wearing masks. I knew they were up to something bad. I kept looking back and wondering what to do as I kept working. I heard a scream and saw the first guy running out of the store. I stood in front of the path of the next one, holding a basket. As he approached me, I tried to stop him. He was yelling, "don't touch me," as my other co-workers were trying to grab him. I pushed him with the basket and he pushed it back. His mask came off and he ran out, going the same way that he came from.

He knocked the newspaper stand off and dropped the black garbage bag and ran out of the store by pushing on the sliding door.

I saw his face for a second. He has a little stubble, blue eyes, he was in his early 20's, (blond) dark brown hair.

Employee Amy Rankine Statement

Employee Amy Rankine provided a statement to the police, indicating:

She saw a "young guy in a hoodie and a face mask run up aisle 1 toward the front of the store." He was holding a black garbage bag as he was running toward the front of the store. She described him as "I'd say pretty slim build, white, I don't remember dark features on his face, I think fair features and hair. He had on a black face mask up to his nose. Just his eyes were showing."

Employee Raakel Barbeit Statement

Employee Raakel Barbeit provided a statement to the police, indicating:

I was working in the derm section with Amy at the back of the store, just beside the pharmacy when two males came out of the boutique. They were wearing hoodies and long pants. The lower part of their faces was covered with black cloth. They were moving very quickly and the second suspect told me to "get in the back."

I didn't do what he told me and I thought he was going to come after me. I knew that Steve Burrows was in Aisle 1, and I proceeded to go there. That's when I heard a scream coming from the pharmacy and I continued walking to the front of the store.

Then I saw one of the suspects trying to leave at the front. Steve, Rubiya and Michelle were trying to apprehend the suspect, but he got away. He ran east from the store towards Wicks Avenue.

The first male was shorter than the second one that spoke to me. He had an olive complexion, hoodie and black cloth covering the face, could only see eye area.

The second guy was taller. He looked at me. Maybe he recognized me or he's a regular. I thought he looked familiar and he told me to get to the back and I thought it was in my interest not to go. He was white. His eyes were hazel colour. I couldn't see much of his hair. He was slim. Maybe 6'0". Gray hoodie, mask was black, covering the bottom portion of his face.

I knew Steve was in the first aisle and I went to tell him and that's when I heard the scream from the pharmacy. When I walked to the front is when the shorter guy was already at the front of the store trying to get out. He was shouting, "get your f'ing hands off me" or something like that. I think the shorter guy was 5'5". I looked at the sign when I left.

The second male went out of the store the same way. It was a blur.

[3] The only other evidence in this case is the testimony of P.C. Oerlemnas. He was qualified as a fingerprint expert. The opinion he gave is not controversial. He testified that there were two fingerprints found on a black crumpled garbage bag left behind by the culprits. On the bottom of the bag is a print from the right middle index finger. It belongs to the defendant. A second print was found on the top of the bag. It is from an unknown person. The officer cannot say when these prints were left on the bag. He testified that none of the prints found on the door to the pharmacy came from the defendant.

[4] The still photographs taken from the surveillance cameras in the pharmacy show a man that is consistent with an arrest picture of the defendant taken in January 2016; that is, both show a person with a shaved head, tan coloured skin, and similar round facial structure.

[5] The Crown submits that although it cannot be determined that the still photograph taken at the crime scene and the arrest photograph of the defendant several weeks later are of the same person, this fact is proven beyond a reasonable doubt because the defendant's fingerprint was found on the bag left at the pharmacy. The Defence argues that the only evidence against the defendant is the fingerprint and all this proves is that at some time he came in contact with the bag.

[6] The Crown must prove guilt beyond a reasonable doubt.

[7] A fingerprint is powerful evidence that the person touched that object, but the connection with the crime will often depend on the existence of other evidence establishing that the person touched the object at the relevant time and place: R v Mars (2006), 205 C.C.C. (3d) 376 (O.C.A.) In the present case the other evidence relied upon by prosecution are the still photographs taken from the pharmacy surveillance cameras, the police photograph of the defendant taken several weeks after these events, and the description of the culprit as provided by the store employees. The Crown argues that all the evidence proves that the defendant was one of the two robbers.

[8] I was referred to R v Mufuta 2015 ONCA 50, a case in which a woman in a restaurant washroom stall looked up to see a black man staring down at her from the adjoining stall. She screamed and three black men were seen fleeing the premises. Video footage showed a person who looked like the defendant entering the washroom. A pop bottle found in the adjoining stall contained the defendant's DNA. The Court of Appeal for Ontario upheld trial judge's decision to convict on the basis that it would stretch coincidence beyond the realm of reasonableness to speculate that the pop bottle was innocently placed on the toilet tank by the defendant at some earlier time or that someone else placed it there while committing the offence.

[9] The present case is different than Mufuta. I do not consider the Defence assertion that the fingerprint could have been innocently placed on the garbage bag on a date before the events in question to be speculative. Indeed, I am satisfied that the person the Crown claims to be the defendant, as captured in the pharmacy photographs, is wearing gloves. Any fingerprint that may have been left by that person was deposited before the culprits entered the store. The difficulty is that I do not know when the defendant's fingerprint was placed on the bag – and the timing is obviously important. The matter is further complicated by the presence of a second unknown fingerprint. Accordingly, in this case, it is necessary to determine if other evidence establishes that the defendant is one of the robbers.

[10] The evidence from the store employees describes the quick and violent entry of two masked individuals. Not surprisingly, their description of the suspects is not the same, but it is generally consistent. However, the details provided by these witnesses is such that it adds little to the still photographs from the pharmacy surveillance cameras. Those photographs do not support a positive identification of the defendant. At its highest, when compared to his arrest photograph, they establish that the defendant could not be excluded as a suspect.

[11] There is no doubt the defendant touched a garbage bag left at the scene of the robbery, at some point, before that crime was committed. There is a reasonable doubt about whether he was one of the two culprits who entered the pharmacy with that bag. To be specific, this being a circumstantial case, it cannot be said that the defendant's guilt is the only reasonable inference to be drawn from the presence of his fingerprint on the bag.

[12] The Crown has not met its burden of proof. The charges are dismissed.

Released: November 30, 2016

Signed: "Justice De Filippis"