ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v. -

RONALD JOHN MARINI

T R A N S C R I P T O F P R O C E E D I N G S

BEFORE THE HONOURABLE JUSTICE W.L. WHALEN

on April 4, June 7, 2013 and June 21, 2013,

at SAULT STE. MARIE, Ontario

APPEARANCES:

D. Peterson Counsel for the Crown
B. Willson As Amicus Curiae

ONTARIO

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

Reasons for conviction – Whalen, J. Page 1

Submissions on Sentence Page 12

Reasons for Sentence – Whalen, J. Page 45

Transcript Ordered: August 1, 2013

Transcript Completed: August 26, 2013

Thursday, April 4, 2013

R E A S O N S F O R C O N V I C T I O N

WHALEN, J. (Orally):

Ronald John Joseph Marini is charged with break, enter and theft at Trio Auto Supply, at 20 Second Line, East in Sault Ste. Marie on or about June 20, 2012. It is not contested that the offence occurred. The question is whether the accused was the perpetrator.

The underlying facts are fairly straightforward. On June 20, 2012 shortly after 7:00 a.m., Shelley McLarty, a sales clerk with Trio, arrived at work to open up as was her routine. From her car, she could see that the glass of the left door of the double-entry front doors had been broken. Glass shards were on the ground. The employee did not get out of her car, but decided to go for help. As she pulled away, she noticed two police cars parked in the area at the rear of the building. She approached these officers, who were in conversation at the time with each other, and advised them of the apparent break-in. Thus Constable, now Sergeant Baskcomb – I’ll refer to him as Sergeant Baskcomb – and Constable Pavoni accompanied Ms. McLarty to the front of the business to investigate. The officers noted that the glass pane on the left-sided double door had been broken. Soon, two blood drops and a blood smear were discovered below the broken pane on the white door as can be seen circled in photo Exhibit 2C. Broken glass littered the floor on both sides of the door. A video, made in black and white, by Trio’s security system was seized and entered into evidence as Exhibit 3. It showed the offensive act and the time stamp on the video recording was the evening of June 20, 2012. The hour of recording may have been out by an hour; that is the time of the recording on the stamp, may have been out by an hour because of adjustment for daylight savings time, but nothing really turns on that. The video provided a side view that did not show the door itself – in other words, it was not a head-on shot of the door, but completely from the side. One could see shards of glass being projected into the interior as the glass was breaking; then an individual could be seen entering at window level, shimmying or crawling on his or her stomach through the window space; falling onto the floor; standing; proceeding to the cash register area very briefly; then going to an area on the other side of the counter where the cash register was; picking up a generator that was on the floor; carrying it to the door area; putting it through the opening and bending in the process, probably to ease it to the ground; and then crawling back through the window level again head first on the front part of the body. The thing took less than two minutes. The video images showed a person dressed in dark clothing, head and face totally covered in dark materials and wearing dark gloves. Bare skin did appear at the wrists between the cuffs and gloves when the perpetrator extended his arms and hands. Otherwise, the perpetrator’s body and face were completely covered. The police photos in Exhibit 2 showed the glass remaining in the window frame of the place of entry was jagged and sharp around the edges. A piece of string-like dark fabric was observed caught on the glass shards at the bottom edge of the pane about two-thirds of the distance across the pane towards the center handle. This was visible both from inside and outside as the photographs show. The blood on the white door beneath the window was about two-thirds of the way to the left side of the opening and perhaps three-quarters of the width of the door itself, away from the center handles, that is, towards the hinge side. After checking the premises, the owner concluded that coinage left in the till at closing had not been taken and that the only item missing was a generator, which had a value of $194.78 including tax. The cost of repairing the front door was $260.76.

Constable Pavoni testified that he may have been the first to notice the blood on the door beneath the broken window and he may have pointed it out to Sergeant Baskcomb. Sergeant Baskcomb, who was trained in basic crime scene forensics, took the photos tendered into evidence and took swab samples of the three spots of blood on the door. Ultimately, he submitted them to the Center for Forensic Science for analysis. There appeared to be no contest in the sampling or testing process, which ultimately matched DNA in the swab samples with DNA profiles registered in federal indexes and subsequently confirmed by a further warranted sample from the accused. The forensic center’s conclusion was that the probability that a randomly selected unrelated individual in Ontario’s population mix would be about one in 8.2 quadrillion. Based on those odds, it was a fair certainty that the blood found on Trio’s door was the accused’s. Those odds would fall to about one in 257,000 where the blood in question might be that of a brother, including a fraternal twin. Identical twins would have the same DNA.

According to the evidence, the accused has a twin brother, Donald Marini. Donald Marini thought they were fraternal twins because of significant physical differences, although to his knowledge they had never been tested to establish the fact, so he could not exclude that they were identical twins, in which case the blood on the door could as likely have been his as the accused’s. However, Donald Marini testified that for the 10 days before 5 or 6 p.m. on June 20, 2012 he had been working at a site 80 kilometers north of Kapuskasing, an 8-hour drive away. He explained how he had been working 10 days on and 5 off for some time at this site. Therefore, he was on the road driving home to the Sault on the evening of June 20th and did not arrive until around 2:00 a.m. on the morning of June 21st, 2012. Although he had shopped at Trio in the past and he even thought the accused had accompanied him there, although he couldn’t say when, he denied that he had ever cut his hand on Trio’s door and he denied having broken into the store or robbed it on the date in question. He could not have done it if he was driving home as he said.

I thought Donald Marini was a straightforward witness who tried to be helpful. He was not hesitant in any of his answers and I thought he was direct. Quite apart from that, I would exclude him as the perpetrator in this case. Donald Marini testified that he weighed 290 pounds and was six foot three tall, both now and on June 20th, 2012. He is a big man, burly and with a bit of a lumbering gait. This was observable from his appearance in court. I am quite satisfied that he was much larger and less agile than the individual in the video, who I conclude was fairly lively. In the end, I do not think the accused disputes that the blood found on the door was his.

The question then, as Mr. Willson ably stated, is whether this fact is sufficient in all of the circumstances to conclude beyond a reasonable doubt that the accused committed the offence charged. Mr. Willson allowed that the presence of the identified blood was suspicious, but suspicion is not a sufficient basis for a finding of criminal guilt. Mr. Willson characterized the blood and DNA as circumstantial evidence, from which an inference may be drawn. I agree. While acknowledging that circumstantial evidence is equally good as direct evidence and potentially as powerful, Mr. Willson cautioned that any inference drawn from it by the court must be reasonable and the only reasonable inference that might be drawn on the basis of the evidence before the court. He submitted that three spots found on the outside door were not strong evidence. And he provided the court with a number of scenarios to demonstrate the point, including having a trail of blood (perhaps blood drops) on the floor inside leading to the cash register or the area of the stolen generator; or if the generator was subsequently located with the accused’s blood on it. He observed that the blood spots on the door were in a more public area being outside and he noted that the evidence could not give a clear view as to how old the blood was and how long it might have been there. No evidence had been led to show that it might not have found its way to the door after 4:30 p.m. on June 20th, when Ms. McLarty and the owner, Mr. Walls, had left for their homes on June 20th, 2012. And the point of that was that the business was open until 5:30 p.m. so there was an hour gap where there was no witness to comment on the presence or not of blood on that door. Also, there was no evidence of blood being found on any of the glass shards left in the window frame after the intrusion, let alone the accused’s blood. Nor had the fabric shred been connected in any way with the accused.

Let me turn briefly to the point of law raised by the defence. I think Mr. Willson was referring to what has been known in Canadian law as the “Rule in Hodges Case”. The “Rule”, as it were, stated that where the crown’s case depended exclusively on circumstantial evidence, the circumstances must be consistent with the conclusion that the act was committed by the accused and inconsistent with any other conclusion. I think it fair to say that the Rule in Hodges Case became controversial in Canadian law. Whereas judges regularly gave a Hodges Case direction to juries in these situations and were even expected to do so, since the decision in R. v. Cooper 1977 11 (SCC), [1978] 1 SCR 860 that is no longer so, and the Rule in Hodges Case has lost considerable favour. Today, we instruct juries simply that both direct and circumstantial evidence count and are treated equally by the law. Neither is necessarily better or worse than the other. Juries are advised that their conclusions must be based on the evidence as a whole; that they must decide using their common sense and experience. I take that instruction myself in dealing with this case. Nevertheless, I accept that where the crown’s case depends wholly or even largely on circumstantial evidence, I should be careful in weighing it. A decision made or inference drawn from such circumstantial evidence should be logically and rationally based on the evidence as a whole. The circumstantial evidence should have a rational, logical connection to the accused and the act complained of for there to be a valid finding of guilt. The inference should be free of speculation, presumption or bias. In short, it must be compelling, realizing however, that what is compelling to one person may not be to another.

When I consider the circumstances surrounding the blood in question in this case, I am satisfied that the blood very likely found its way to the lower exterior front door panel in the course of the theft in question and very probably while the perpetrator was exiting the premises. Photo Exhibit 2D presented a close-up of the blood on the door. The two bottom spots were droplets and not large ones, but large enough for gravity to have them roll down slightly leaving a small trail behind. The top mark was more of a smear on the edge of a decorative panel, square panel that was on the bottom part of the door. It was there as though exposed skin had touched the edge of the decorative panel. I agree with Sergeant Baskcomb that the blood depicted in the photos was more red than brown, indicating some degree of freshness, albeit dried by the time it was found. My common sense and experience leads me to conclude that the falling pattern of the two droplets, together with the redness, indicate that the blood had not been there that long. I would expect darkening and fading, (especially of the short path covered by each droplet), with time, especially if exposed to exterior light and elements for a few days or more. I do not think it had such exposure. There was no evidence that the blood had been noticed before the theft. Mr. Walls testified that he would have seen it, but did not as he entered and left the day of and Ms. McLarty indicated she had not noticed it either before or after. I would have expected someone to notice this and recognize it as blood had it been there for any length of time during business hours. We just don’t know. I think it was pretty visible though. I therefore conclude that the blood found its way to the door as a result of the perpetrator cutting himself on the broken glass, probably as he exited and while extending his arms and exposing forearms or wrists as he left. As I have already said, I observed the same exposure to skin when the perpetrator extended or stretched his arms and hands while inside the store as shown in the video exhibit. And I think it very likely that he had to extend his arms and hands to get out. I also agree with the crown’s observation that there is significance to the location of the blood toward the hinge side of the door rather than the handle area. A person with a cut hand would be reaching for the handle area. The door had to be pulled from the outside to be opened; it didn’t open inwardly into the building. Also, a person moving forward would not likely drip blood ahead of them. Forward movement would likely cause blood droplets to fall slightly behind the movement, or at least not ahead of it. At least, that’s how I understand the rules of motion and gravity. In any event, why would a person be entering a store while dripping blood? In my view, the blood was clearly identified as the accused’s, especially when the brother was eliminated as the possible source. While I acknowledge that the accused has no obligation to testify or explain, and that the court cannot draw an adverse inference about him on that basis, I can conclude that there is no evidence rationally and logically supporting an alternative conclusion or consistent with an alternative conclusion. The court must take care not to speculate one way as well as another. While Mr. Willson’s examples may have pointed more strongly and directly to an inference of guilt, those were not the evidence in this case. Relative weakness or strength of comparative situations is not always helpful. The evidence must still have the qualities I have discussed and attempted to consider and apply in this case.

In all of the circumstances, I conclude that the blood found on Trio’s front door and identified as the accused’s was rationally and logically linked to the circumstances of the unlawful entry and theft. I find this evidence sufficiently compelling to conclude beyond a reasonable doubt that the accused was the perpetrator. For all these reasons, a conviction will be registered.

C O U R T C L O S E D

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Karen A. Berto, certify that this document is a true and accurate transcript of the recording of R v Marini in the Superior Court of Justice held at Sault Ste. Marie taken from Recording No. 0131.CR2.20130404.0946.11.WHALENLA, which has been certified in Form 1.

Karen Berto

Certified Court Reporter

Dated: August 23, 2013