Court File and Parties
DATE: March 31, 2023 Information No.: 4911-998-21-03860-00 ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING v. DEVONIE WILLIAMS-SENIOR
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE P.C. WEST on March 31, 2023, at NEWMARKET, Ontario
APPEARANCES: C. Lamy, Counsel for the Crown F. Davoudi, Counsel for Devonie Williams-Senior
Endorsement
West, J. (Orally):
Mr. Williams-Senior is charged that on September 30th, 2019, he did break and enter a place, namely a dwelling-house situated at 49 Calico Crescent, in Markham, with intent to commit an indictable offence contrary to section 348(1)(a) of the Criminal Code. He pleaded not guilty.
On September 30th, 2019, Ms. Lu went to work in the morning and returned sometime after 5:00 p.m. After driving into her garage and then coming into her house through the garage, she observed that her front door was ajar and partially open. When she investigated, she saw that the front door had been forced open and it was damaged. She went upstairs and she found the bedrooms had been ransacked with the dresser drawers opened and their contents strewn onto the floor. She also found the back sliding door was unlocked and slightly open. Nobody was in her home at this time. She called 9-1-1, and police attended. Detective Constable Sisto, when he arrived on scene, found the front door to be damaged; the deadbolt in the centre door frame. He requested a Forensic Identification Assistant to attend to take photos and collect any trace evidence.
Ms. Lu testified jewelry worth approximately $10,000 and around $1,000 cash was taken during the break-in. When she left for work that morning, her front door was locked, as was the back sliding door. Her house and the bedrooms, in particular, were neat and tidy, and there was nothing strewn on the floor. The dresser, desk, night table, bathroom doors were all closed. Ms. Lu testified the bedroom where the white top and white bottom of the "trinket box" was found on the floor was in her husband's bedroom where he slept. She could not recall what the white box was. When police first came in it was hard for her to determine what had been taken, but she and her husband, Joseph, ultimately did provide a list in value of items that were missing. And that has been marked as Exhibit 2.
She has never seen Mr. Williams-Senior before. He had never been in their house at any time. She did not know who he was and had never invited him to her home.
Forensic Identification Assistant, Ms. Jennifer Hunter, responded to this address to take photographs and collect evidence. She first observed the front door had a partial shoe mark indicating the door had been kicked or forced open. There were no pry marks. Photos 5996, 5997, and 5999, and photo 6000 demonstrate this. 6000 also shows the deadbolt still sticking out with the door open. At the top of the stairs in the hallway, there was an open red jewelry box on the floor. That's photo 6023. Ms. Hunter took photos of the bedrooms on the second level. Dresser drawers were open, with their content strewn onto the floor, and disturbed within the dresser drawers themselves. Photos 6024 to 6041 show dressers with drawers open, night end tables with drawers open. The floor of this master bedroom is covered with the contents of those drawers. The closet in the master bedroom also had items pulled onto the floor. On the bed, there is a wallet which is opened. Purses also on the bed as well as an overnight bag. Photos 660 to 666 show a bedroom with a desk, a bed, and the desk has its drawers open. There is a night table with its drawers open and there are items all over the floor believed to have been taken from the drawers.
Ms. Hunter testified she was looking for objects with flat, smooth surfaces on items that had been taken out or off of the dressers, drawers, night tables that were scattered over the floor, and would perhaps leave friction ridge impressions, or fingerprints. Photo 6066 shows the bedroom with the desk and the items on the floor. One item is the bottom of what Ms. Hunter believed to be a "trinket box" beside the bed on the floor with an actual photograph and other items that had been removed from the desk drawers, or from on top of the desk, or from on top of the bed, or from on top of the night table. She believed the person who ransacked the bedroom had obviously removed these items, and in particular, the bottom of what she believed to be a trinket box from either a drawer, or the top of the desk, or night table, or any of the drawers that were open and had been tossed onto the carpeted floor in this bedroom. Photo 6066 shows a bedroom with a desk, a bed, and items on the floor. One of the items is the bottom of what Ms. Hunter believed to be a trinket box that was towards the bottom one third of the photo 6066. The top of the trinket box was beside the bed on the floor with an actual photograph and other items. She believed the person who ransacked the bedroom had obviously removed these items from the drawers of the desk or on top of the desk or night table, and then tossed onto the carpeted floor. She believed the two items that she believed formed one item, which was the top of the trinket box and the bottom of the trinket box, would be conducive for obtaining the impressions of fingerprints. She also found other items she thought might be able to obtain friction ridge impressions from the individual or individuals who had kicked in the front door and ransacked the bedrooms.
She estimated she examined approximately 15 different items or objects. She was putting black fingerprint powder on those items, but the only two items she was able to find usable friction ridge impressions was the top and bottom of what she believed to be a "trinket box." Photos 6067 to 6070 and 6072 to 6074 are of the white top of this trinket box, which had one friction ridge impression or fingerprint, and she labeled it R-1, that she believed could be used for analysis. The photographs that I just described are photos showing where these objects were exactly in the bedroom and then close-ups of the ridge impressions that show the black fingerprint powder. Photos 6071, and 6075 to 6082 are of the five fingerprints labeled R-2(a), R-2(b), R-2(c), R-2(d), and R-2(e). All of the photos taken by Ms. Hunter were marked collectively as Exhibit 1.
Ms. Hunter did lifts of the impressions she had photographed by using clear tape to lift the black impressions and then put those on a backing card and labeling each card with either R-1 or R-2(a), R-2(b), R-2(c), R-2(d), or R-2(e). These cards together with her photographs when she got back to the station were put in an envelope back to the police station and labeled, "Case Submission to be Provided to an Examiner with York Regional Police," and in this case that was Detective Constable Sirotkin.
Detective Constable Sirotkin was qualified as an expert on the consent of the defence in the area of identification, collection and comparison of fingerprint or friction ridge impression evidence. His CV was marked as Exhibit 4. He examined the friction ridge impression cards prepared by Ms. Hunter and prepared a report respecting R-1. R-1 had sufficient details for comparison and was submitted to the Automated Fingerprint Identification System, AFIS, for a search on their database. It returned with a person of interest from the AFIS database. Detective Constable Sirotkin analyzed the friction ridge impression on R-1 and compared it to a fingerprint bearing the name Devonie Senior with a birth date of June 21st, 1991. This fingerprint was taken on January 17th, 2013, by a Special Constable, Sarah Carey. And R-1 was identified to the left thumb on this form of Devonie Senior. Detective Constable Sirotkin's report was admitted by Mr. Davoudi and it was marked as Exhibit 3. He identified R-1 as coming from Devonie Senior, birth date June 21st, 1991. As I say, he determined R-1 was the left thumb of Devonie Senior. And his report and findings were verified by York Regional Police Forensic Identification Officer, Detective Constable Bulats, badge number 1801. Mr. Davoudi did not ask any questions of Detective Constable Sirotkin.
Detective Constable Sirotkin also did comparisons with R-2(a), R-2(b), R-2(c), R-2(d), and R-2(e), and found they were identified as friction ridge impressions of Devonie Senior when compared with the 2013 fingerprint form referred to above. Further, Detective Constable Sirotkin also did comparison with a more recent set of Devonie Senior's fingerprints taken by York Regional Police on April 27, 2021, that he also found on the AFIS database, which is kept by the RCMP. He came to identical similar conclusions that all of the unknown fingerprints on R-2(a) to R-2(e), those five fingerprints were matched with the known and more recent fingerprints of Mr. Senior from April 2021.
The defence chose not to call any evidence on this trial, which is Mr. Williams-Senior's right, and he cannot be criticized for this as the burden of proving this charge beyond a reasonable doubt rests with the Crown throughout the trial.
Crown identified the essential elements of the offence of break and entering a dwelling-house with intent to commit an indictable offence, and went through the various sections. Sections 448(1)(a), 321, 350(a), and 348(2). Mr. Lamy argued the heart of this matter is that this is a case about identity. Mr. Davoudi during his submissions advised he was not contesting that there was a break and enter to commit an indictable offence on September 30th, 2019, at 49 Calico Crescent, in the City of Markham. The place was obviously a dwelling-house and a residential property. He conceded his client, Devonie Williams-Senior, had no reason to be inside this house. He also conceded, because of his submission of Detective Constable Sirotkin's report and his expertise, that his client's fingerprints were found on this white trinket box; the top and the bottom. The only issue according to both counsel is that of identification. Mr. Davoudi argued Mr. Williams-Senior's fingerprints on the item, the white box in the bedroom, was not nearly enough to prove his client's guilt beyond a reasonable doubt.
The Crown argued the circumstantial evidence put Mr. Williams-Senior inside this residence. He argued there was no direct evidence putting him inside the residence, but his fingerprints were left inside the residence. A residence that he had no business being inside. This white box referred to as a "trinket box" by Ms. Hunter. And I will stop here to say that I should note Mr. Davoudi did not challenge or question Ms. Hunter concerning her description of the white box or her evidence that this box was obviously removed from a drawer or taken from the top of a dresser, or desk, or night table in the room, and was among the items strewn on the bedroom floor from the searching and ransacking committed by the perpetrator. Further, Mr. Davoudi did not challenge her belief from her observations of where the two pieces of the box were located on the floor. And she testified, "Someone obviously had to have handled this." That was her direct evidence in-chief. Not challenged in any way, shape or form.
The Crown argued the white box was of a size that a person could lift with one hand. And upon dusting it for prints, Ms. Hunter's belief that she would find friction ridge impressions capable of being analyzed proved to be correct. The top of the white box had one fingerprint, and the bottom of the white box had five fingerprints. Ms. Hunter's photographs, in my view, show that these two items had been handled by the person who ransacked the bedroom, as they were discarded on the floor amongst the other items removed from the drawers. That was also described by Ms. Lu, who is the owner and one of the occupants of this residence. The Crown submitted the only reasonable inference available from this circumstantial evidence when taken in light of the totality of the evidence led by the Crown was that Mr. Williams-Senior was the person who broke and entered this dwelling-house and committed the indictable offence of theft over.
Mr. Davoudi first argued the fact that the two shoe prints, which had been found by Ms. Hunter in the basement in the dust, for which she took photographs of, were never compared with anything. It is my view this does not impact in any way my determination of whether the Crown has proved beyond a reasonable doubt Mr. Williams-Senior's guilt.
I do not know anything about those two footprints because no evidence was led about them. It is a non-issue in my view, and not something that I take into account.
Mr. Davoudi submitted there was nothing in DC Sirotkin's report, Exhibit 3, about the dating of fingerprints, or when they were deposited on the item they were found on. He submitted there was no evidence where this white box came from, or when it was purchased. He suggested the fingerprints could have been deposited the day before, or six months before, or two years before. Mr. Davoudi did not question DC Sirotkin at all, and did not question DC Sirotkin about how long fingerprints can last on an item. I have no evidence on that issue in this trial whatsoever. He did not ask DC Sirotkin whether he could say when the fingerprints were deposited on the white "trinket box." In fact, as I have said, Mr. Davoudi did not ask the expert a single question about the trinket box. Mr. Davoudi advised me there were two questions that I had to ask in order to decide the only issue in this trial, identity of the person who did the break and enter.
Those two questions were, namely: 1. Whether or not this movable item (the white box) could have been handled by Mr. Williams-Senior prior to the date of the offence, in light of the fact that this item could have been available to the public sitting on a shelf at Walmart or some other store? 2. There was no evidence before the court as to when Mr. Williams-Senior's fingerprint was deposited on this item, and it cannot be reasonable to assume it was deposited on the date of the incident. He argued, the fact that Mr. Williams-Senior could have handled this box in the store where it was later purchased raises a reasonable doubt that Mr. Williams-Senior was the perpetrator of this B&E. He argued, this was a reasonable, innocent explanation for why Mr. Williams-Senior's fingerprints were found on this white box. This, therefore, according to Mr. Davoudi, challenges whether the presence of the fingerprints on the top and bottom portion of this white box establishes Mr. Williams-Senior's presence in this residence at the time the offences were committed.
I agree with both counsel that the only issue to be determined by me in this case is identity of the perpetrator of the break and enter. The evidence relating to this issue is purely circumstantial. I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that the proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion, or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from a particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offence, in this case, beyond a reasonable doubt.
Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offence to beyond a reasonable doubt, the test pursuant to R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at paragraphs 55 to 56, is: "...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...." See also R. v. Griffin and Harris (2009) 2009 SCC 28, 244 CCC (3d) 289, decision of the Supreme Court of Canada at paragraphs 33 and 34, and R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868, decision of the Ontario Court of Appeal, at paragraphs 9, and 14 to 15.
Justice Cromwell, for the Court in Villaroman, cautioned at paragraph 30:
It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences... The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [Emphasis added]
Justice Cromwell continued at paragraphs 36 to 38:
I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt [he cites]: R. v. Comba, [1938] OR 200 (C.A.), at pp. 205 and 211, per Middleton J.A., [it is] aff'd R. v. Comba, [1938] SCR 396; [also a case] R. v. Baigent, 2013 BCCA 28, [or also reported at] 335 BCAC 11, at para. 20; [and] R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] SCR 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. Inference must be carefully distinguished from conjecture and speculation. At all times in assessing circumstantial evidence a trial judge must be alert to explanation or contradiction or inference pointing to innocence. As indicated in Villaroman, circumstantial evidence is not to be evaluated piecemeal, or rather cumulatively. In considering the whole of the evidence in a circumstantial case, and in particular the search for alternative "innocent" explanations other than the prosecution's theory of guilt, the court is not limited to inferential explanations based on "proven facts" or rather may take into account as to whether reasonable doubt exists based on alternative rational possibilities grounded in the evidence. However, if the defendant is able to offer only speculation, that is not likely sufficient, and the advance of circumstances whereby inculpatory evidence could come to be innocently at a crime scene, which: "Are in the realm of speculation rather than reasonable inference" must be rejected. R. v. Wong, 2011 ONCA 806, [2011] O.J. No. 5846, (C.A.), at paragraph 5.
Mr. Davoudi submitted that R. v. Mars, [2006] O.J. No. 472, (C.A.), and R. v. D.D.T., 2009 ONCA 918, [2009] O.J. No. 5486, (C.A.), were two Court of Appeal cases which will be helpful in determining the issue in this case, namely identification, of whether the evidence of Mr. Williams-Senior's fingerprints being on this white box proves beyond a reasonable doubt his identity as being the perpetrator of this B&E. And is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence.
In the case of R. v. D.D.T., at paragraph 15, Justice Epstein 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.
In D.D.T. there were fingerprints. Seven were able to be lifted, found on window panes removed from a window of an office of the Children's Aid Society when the premises was broken into, and a refrigerator and computer equipment was stolen. The appellant's fingerprints were identified a year later. Two fingerprints of the seven that were taken were able to be lifted. Entry to the office was through the window where the glass panes were removed. And the officer who identified the prints testified they looked new, and had been taken from the edges of the glass where a person would have grasped the pane to remove it from its clips. It was the defence arguments that the fingerprints only demonstrated that the appellant at some point in time touched the glass and fell short of connecting him to the break-in. Court reviewed the evidence relating to the numerous fingerprints on the glass that were found on the edges, in the middle of the glass, and as the officer testified, throughout the glass. Although the officer testified the fingerprints looked new, he could not say how long the prints were there. Further, the office did not identify the two prints of the appellant as specifically being found on the edges of the glass. In my view, the facts in D.D.T. are very different from the facts in Mr. Williams-Senior's case, given the gaps in the evidence presented in the officer's testimony in D.D.T.
In Mars, Justice Doherty stressed that each case must be assessed on its own particular facts. And said on applying the reasonableness standard to fingerprint cases, at paragraph 5:
The application of the reasonableness standard to a particular fact situation, however, involves a weighing, albeit a limited one, of the evidence. That process must be case-specific. Both counsel in their able submissions referred the court to numerous cases in which the Crown's case rested mainly or entirely on fingerprint evidence. Counsel referred to different cases to support their respective positions that these verdicts were or were not unreasonable. Reference to prior cases is helpful as reflective of "the bulk of judicial experience" (see Biniaris, supra, at p. 24). Reasonableness assessments in prior cases cannot, however, be determinative of the reasonableness of a verdict in a subsequent case. As reasonableness is ultimately a fact-based determination, prior decisions, even those made in similar cases, cannot have binding authority. [Emphasis added]
And for similar comments, see R. v. D.D.T., which I have already cited, at paragraph 18.
From a careful reading of Mars, it is significant that the force of the fingerprint evidence was diminished by exculpatory identification evidence of the two victims of the home invasion and a neighbour who observed three men, who he described as black individuals, leave the victim's apartment and get into a vehicle and drive away. Mr. Mars, the appellant, was described in the judgment as being a white man. The facts in Mars are quite different from the facts in this case. Mr. Davoudi has posited what he argued is a reasonable alternative inference that Mr. Williams-Senior could have handled this white box prior to the break and enter on September 30th, 2019, before this white box was purchased by Ms. Lu or her husband. Thereby depositing his fingerprints as they were found by the Forensic Identification Assistant, Ms. Hunter. There are other decisions of the Ontario Court of Appeal where an item which is movable common place or reusable, such as a plastic bag or pizza box or scarf creates problems of proof for the prosecution that the individual linked to the trace evidence brought the portable host surface to the crime scene during involvement in the alleged crime. (R. v. Ahmed, 2015 ONCA 848, and R. v. Wills, 2014 ONCA 178, leave to appeal was refused in [2014] SCCA No. 73.)
Mr. Davoudi, as I have said, did not bring out any evidence respecting how long fingerprints can last on an object, or what factors might or might not affect that, or any evidence as to the fingerprints that were found by Ms. Hunter and examined by the expert, Detective Constable Sirotkin, as to how they might have been deposited on the surface of the white trinket box.
It is my view considering the totality of the evidence presented in this case, there is a significant difference where it is established that rather than trace evidence on a movable item left at a crime scene, the relevant trace evidence is directly deposited in the course of the commission of the offence by the offender. Given the location and the position of the white box top and the white box bottom in the bedroom, together with numerous other items that have been removed during the search for items to steal in the dresser drawers, the desk, the night table drawers that were also found on the floor, the only reasonable inference is that the perpetrator handled this trinket white box and deposited his fingerprints at the time of the break and enter, and the rifling and searching for items to steal in the various bedrooms of the second level of this residence. Further, the break-in occurred when Ms. Lu was at work. And when she arrived at her home, she discovered the break-in and the ransacking of the bedrooms. She called the police immediately. Detective Constable Sisto attended within a short time of the 9-1-1 call, and confirmed Ms. Lu's evidence. Further, Forensic Identification Assistant, Ms. Hunter, attended and also confirmed Ms. Lu's evidence, and was able to collect these six fingerprints identified as belonging to Mr. Williams-Senior by Detective Constable Sirotkin.
The short space of time, the fact that no one else had access to the items that were strewn over the floor that were seen in the photographs, Exhibit 1, that were observed both by Ms. Lu and by Detective Constable Sisto, as well as Ms. Hunter, in my view, demonstrates also circumstantial evidence showing what occurred during this break-in.
The fact that Ms. Lu and her husband were able to determine that jewelry was taken is also a piece of circumstantial evidence that can be taken into account when considering this white box that was referred to by Ms. Hunter as a trinket box. And this was not challenged by Mr. Davoudi.
When one looks at the totality of the circumstantial evidence in this case, in my view, there is only one reasonable inference, which I will get to in a moment.
It is further my view that Mr. Davoudi's alternate inference is completely speculative and irrational, and does not accord with human experience. It is my view that the possibility of Mr. Williams-Senior handling this specific white box before it was purchased by Ms. Lu or her husband, assuming it was even purchased by Ms. Lu or her husband, is completely farfetched, unbelievable, completely speculative, and must be rejected.
In my view, the two stages identified in D.D.T., the first being an examination of the reasonable inference that the fingerprints were placed on the object with connection to the crime at the relevant time and place. And in my view, the only reasonable inference is that Mr. Williams-Senior's fingerprints were placed on this particular object during the break and enter and the search for items to steal, which would have been at the relevant time and place.
The second stage involved an examination of the soundness of the conclusion that the totality of the evidence and the reasonable inferences available to the trial judge were sufficient to prove the appellant's guilt beyond a reasonable doubt. And in my view, the totality of this evidence demonstrates beyond a reasonable doubt Mr. Williams-Senior's guilt on the charge of break and enter.
I find there is no other rational inference to be drawn from the proven facts. Keep in mind the strength of the circumstantial evidence assessed in the context of the entire evidence, and there will be a conviction registry, and a finding of guilt.