COURT FILE NO.: CR12400008090000
DATE: 20131121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NATHAN ROY CADIENHEAD
Defendant
Anna Stanford, for the Crown
Jennifer Hue, for the Defendant
HEARD: November 12-15 and 18, 2013
SPIES J.
Overview
[1] The defendant Nathan Cadienhead is charged with using a firearm to rob Yigal Matusevitz on September 6, 2011, contrary to s. 344 of the Criminal Code. He re-elected trial by judge alone and pleaded not guilty to the charge.
[2] After Mr. Matusevitz testified, Ms. Stanford fairly conceded that based on his evidence it was not clear that a real or imitation firearm was used during the alleged robbery. It is her position, however, that Mr. Cadienhead implied a threat of violence to Mr. Matusevitz given an alleged statement that he made and his revealing to the complainant what appeared to be the grip of a handgun. If proven, this would constitute robbery pursuant to s. 343(a) of the Criminal Code.
[3] It is admitted that on September 6, 2011 Mr. Matusevitz rented a grey Ford Escape (the “vehicle”). He testified that late in the afternoon he drove the vehicle to a plaza at the corner of Keele and Sheppard to meet with two men for a pre-arranged meeting. He understood that they were interested in buying some electronics equipment from him. Instead, the man that he dealt with on the phone to arrange the meeting (Suspect #1) uttered an implied threat of violence as he revealed to the complainant what he believed to be a handgun. At this point the other man (Suspect #2) got into the driver’s seat of the vehicle and as he reversed Suspect #1 got in the front passenger side of the vehicle and they drove off. Mr. Matusevitz chased after the vehicle and called 911.
[4] It is admitted that the vehicle Mr. Matusevitz had rented was found on September 8, 2011 at 1:00 p.m. abandoned in front of 50 Olympia Drive in Toronto. Inside police found a grey zippered hoodie and a package of cigarettes that the complainant said belonged to him. Also found was the rental agreement for the vehicle which is in the complainant’s name.
[5] The Crown’s case against Mr. Cadienhead is entirely circumstantial. Ms. Stanford relies on the evidence of Mr. Matusevitz, which is corroborated to some extent by surveillance video taken by two different cameras from a Shell gas station on the northwest corner of Keele and Sheppard. The gas station is at the end of a strip plaza.
[6] The Crown alleges that Mr. Cadienhead is Suspect #1. Mr. Matusevitz was able to give a general description of Suspect #1 to police but Ms. Stanford concedes that although it is consistent with the appearance of the defendant, it is not specific enough to identify him as Suspect #1. Furthermore, Mr. Matusevitz was not able to pick Mr. Cadienhead out of a photo lineup. The Crown relies on a fingerprint alleged to belong to Mr. Cadienhead, found on the passenger side of the vehicle, and on items relating to a Public Mobile cell phone that was used to set up the meeting with the complainant, which were found, along with a Drivers Licence in the name of Mr. Cadienhead, in a basement bedroom of 20 Upwood Avenue in the City of Toronto.
[7] Mr. Cadienhead did not testify and no other defence evidence was called.
Issues
[8] There are two issues to be determined:
(a) Has the Crown proven beyond a reasonable doubt that Mr. Matusevitz was robbed; and
(b) If so, has the Crown proven beyond a reasonable doubt that Mr. Cadienhead was one of the robbers?
The Evidence
[9] The primary evidence in support of the Crown’s case that Mr. Matusevitz was robbed is the evidence of Mr. Matusevitz. It can be summarized as follows.
[10] In September 2011 Mr. Matusevitz was purchasing different kinds of electronics such as home theatres and projection systems from third parties and reselling them. His business was mostly through word of mouth. He would usually meet his potential client at a location and show them what he had. He would sometimes do the installation as well.
[11] Mr. Matusevitz testified that on September 6, 2011 he got a phone call in the morning from a gentleman who said his friend was moving out and looking for electronics for his new place. He did not recall if this man gave his name. He said there were a few calls so they could agree on an exact location. They agreed on a plaza at Keele and Sheppard and Mr. Matusevitz went there in the late afternoon.
[12] Mr. Matusevitz did not know the person who called him. After the alleged robbery he showed the telephone number to police from the caller ID on his cell phone which was 647-856-7763. His cellular telephone number at the time was 416-991-5526.
[13] Mr. Matusevitz testified that he arrived at the plaza, parked the vehicle and then saw two men approaching him on foot through his rearview mirror. He thought it was the man and friend he was to meet and so he got out of the vehicle, opened the trunk and explained what they could purchase. After that, the person he identified as Suspect #1 said he needed to talk it over with the other person. They stepped a little away from the back of the vehicle and he did as well to give them some privacy.
[14] Suspect #1 then returned and said “Do you understand what is going on?” The words were not spoken in an aggressive manner. Suspect #1 lifted his shirt and Mr. Matusevitz saw the grip of a handgun. The suspect pulled it out real quick and then put it back into the waistband of his pants. The gun was covered by a bandana. Mr. Matusevitz was about 18-24 inches away from Suspect #1 when he spoke and did this. The behaviour shocked him a little bit and he said that he was scared. He gave this person a little push and as he did so, Suspect #2 got into the vehicle and reversed. Mr. Matusevitz testified that Suspect #1 may have held him so the vehicle could reverse but he did not do anything else physical to him that would have drawn attention from people in the plaza. As the vehicle reversed, Suspect #1 jumped in on the passenger side and they drove off. Mr. Matusevitz stated that he chased them but then called 911.
[15] Mr. Matusevitz testified that Suspect #1 was the one who spoke to him on the phone and is the one who showed him the handgun. Suspect #2 was not doing much talking. When Suspect #1 lifted his shirt and he saw what appeared to be a handgun he realized it was a robbery. In cross-examination Mr. Matusevitz admitted he could only see the grip because Suspect #1 was holding onto what looked like a handgun with a bandana over most of it. The grip was black and appeared to be rubber and metal. From the way Suspect #1 was holding it, it just looked like a handgun to Mr. Matusevitz. Mr. Matusevitz said he had no dealings with Suspect #1 before this and did not know him. This man would never have been in his vehicle before.
[16] Security video taken from the Shell gas station at the northwest corner of Keele and Sheppard was introduced into evidence through Mr. Patel. He was working at the station at the time in question and was able to identify the images on the security video. The surveillance footage taken at around the time of the alleged robbery was entered into evidence through this witness because there was no issue as to its authenticity. Mr. Patel confirmed that on the day in question it was very busy and there were a lot of people walking around. He said the surveillance video runs all the time and is stored in the back office. He gave no evidence as to the accuracy of the times shown on the surveillance video. He did not remember anything about the day in question.
[17] The surveillance video from the Shell gas station was shown to Mr. Matusevitz. He identified the vehicle he was driving, where he moved and parked the vehicle, the two men he met with and himself as the man in a green shirt. The surveillance video also shows the vehicle reversing and leaving the plaza.
[18] The surveillance video was taken by two cameras at two different angles of the Shell gas station. It is apparent from the video that the gas station has two rows of pumps. The row closest to the building associated with the gas station (Pumps #1) is opposite the first row of parking closest to the stores in the strip plaza. The angle shown from the other camera shows the cars at the other set of pumps (Pumps #2) and, in the background, the end of the plaza parking lot closest to the street.
[19] The observations I have made from the video including references to the times shown on the video, using the images from both cameras, are as follows:
Time
Event
5:11:34
Mr. Matusevitz is seen arriving in the parking lot driving the vehicle. He does not park in a parking spot but rather waits in the driveway of the plaza at the end of the first row of parked cars closest to the plaza opposite Pumps #1.
5:17:51
Two black men are seen walking towards the back of the vehicle. A few seconds later a man in a green t-shirt, namely Mr. Matusevitz, is seen at the back of the vehicle talking to these individuals. The trunk of the vehicle is closed.
5:18:12
Mr. Matusevitz gets back in the vehicle.
5:18:24
The two men walk away from the back of the vehicle towards the plaza and stop still on the driveway of the plaza.
5:18:31
The vehicle is seen pulling into a parking spot next to a red van facing the street.
5:18:32
The two men start to walk towards the vehicle. Nothing can be seen after this until the vehicle starts to move again and any interaction between Mr. Matusevitz and the two men is not recorded.
5:23:29
The vehicle starts to back out of the parking spot.
5:23:42
The vehicle is seen reversing down the driveway between the end of Pumps #1 and the first row of parked cars next to the plaza. A black man in all dark clothing is seen on the passenger side of the vehicle and as the vehicle is reversing, he is at the right rear passenger door.
5:23:44
This man gets into the front passenger seat of the vehicle and the vehicle turns and pulls out across the driveway of the gas station between the building and Pumps #1.
5:23:54
Mr. Matusevitz is seen running after the vehicle.
5:24:00
Mr. Matusevitz is still chasing after the vehicle with his cell phone to his ear as he runs.
[20] After Mr. Matusevitz called 911, Officer Dehsadeghi arrived and took a statement. Mr. Matusevitz admitted doing his best to be truthful. He initialed each page of the statement in the Officer’s notebook and signed it.
Has the Crown proven beyond a reasonable doubt that Mr. Matusevitz was robbed?
[21] The position of the Defence is that there was no robbery and this event was fabricated by Mr. Matusevitz in order to make a fraudulent insurance claim. This was denied by Mr. Matusevitz. There is no direct evidence that any insurance claim was made by Mr. Matusevitz. Ms. Hue relies on what she submits are credibility issues with the evidence of the complainant and some of the facts related to his attendance at the plaza.
[22] For the reasons that follow, I find that I am satisfied beyond a reasonable doubt that Mr. Matusevitz was robbed of some electronics and his wallet, which were in the vehicle taken by two men in the manner that he described.
[23] Dealing first of all with the credibility of Mr. Matusevitz, overall I found him to be a credible and reliable witness. Although the business he was running was unusual and it seems strange that he did not recall more details of who he was buying his electronics from at the time, Mr. Matusevitz does not have a criminal record or any outstanding charges and it was not suggested to him that he was not operating his business within the law. When it looked like Mr. Matusevitz might have to return to complete his evidence the following day, he said this whole thing was a nightmare; he had lost 2 days and that he does not care what happens to Suspects #1 or #2. However, given the position of Ms. Hue, I suppose that his indifference is also consistent with the alleged robbery being a sham. However, I do find that this indifference about what happens to the defendant was not reflected in careless answers to questions. Mr. Matusevitz did not appear to be indifferent to his oath to tell the truth.
[24] As Mr. Matusevitz testified, I found him to be a very fair witness. The best example is his evidence about the alleged firearm. Mr. Matusevitz has had experience shooting handguns. He testified that that he saw what appeared to be a gun for about four seconds. Mr. Matusevitz fairly admitted that he could not say 100% that what he saw was a gun. It could have been a piece of a gun, the handle of a gun or an object that resembled the grip of a gun. He was, however, firm that it looked like metal to him as he is currently in the metal business. Mr. Matusevitz did also not try to make up for the fact that he had not been able to pick Mr. Cadienhead out of a photo lineup. He admitted that he did not recognize him when Mr. Cadienhead was pointed out to him, sitting at counsel table next to Ms. Hue.
[25] There were some inconsistencies in Mr. Matusevitz’s evidence which I will review but I did not find them remarkable.
[26] Mr. Matusevitz told police that there was only one phone call with the man he arranged to meet with before the meeting. The phone records in fact show seven calls:
On September 6, 2011, a Public Mobile phone with the number 647-856-7763 called Mr. Matusevitz’s cell phone number 416-991-5526 at 4:31:21 p.m. (three seconds long), at 4:32:36 p.m. (97 seconds long), at 4:48:17 p.m. (58 seconds long) and at 4:52:47 p.m. (154 seconds long). Mr. Matusevitz called the Public Mobile phone at 5:03:48 (20 seconds long) and received a call from that phone at 5:12:44 (21 seconds long). There was a final outgoing call from the Public Mobile phone to Mr. Matusevitz’s phone that lasted 60 seconds at 5:22:10.
[27] Mr. Matusevitz admitted this inconsistency in his evidence. I do not find it significant that he failed to tell police that there were several calls. These calls were all short and within a 50 minute time frame. Mr. Matusevitz testified that he was not familiar with the area of this plaza. He did not attribute anything important to these calls which were consistent with setting up the meeting. The fact there were a number of calls would not appear to have been important to the circumstances of the robbery apart from the fact a phone with a certain number was used.
[28] Ms. Hue also argued that by comparing the times of these phone calls and the times on the surveillance video it was clear that Mr. Matusevitz was on the phone with the person on the Public Mobile cell phone during the alleged robbery. Mr. Matusevitz said he did not remember being on his cell phone while he was with the two suspects and that once they showed up there was no other calls from Suspect #1. Although Mr. Matusevitz accepted the times on the video as being correct he did not have any basis upon which to make such an admission. He was not even able to say exactly what time he was robbed.
[29] I do find, however, that the times on the phone records are accurate. Mr. Longo, the Director of Security for Public Mobile, provided documents in response to a production order that show every call, voicemail and text made or received by the Public Mobile phone in the relevant timeframe. He testified that the times shown in the phone records are synchronized to the world time and adjusted to Eastern Time and that they are checked daily.
[30] Ms. Hue also argued that Mr. Matusevitz had been inconsistent in his evidence about the value of the electronics equipment that was stolen. He told police that it was worth $1,000 and said at trial it was worth $5,000. Mr. Matusevitz explained at trial that he must have thought the officer was referring to the value of what Suspect #1 had told him his friend was interested in. He said that the whole trunk of items was far greater although he could not remember the specific products that he had in the vehicle. Without knowing the various questions asked of Mr. Matusevitz, by police, leading up to what he said was an incorrect answer, I cannot find that his explanation at trial was unreasonable. In any event it does not fit the Defence theory of an insurance fraud. If this was all an elaborate plan I would have expected Mr. Matusevitz to give police a high number and stick with that to support his claim.
[31] Ms. Hue also relied on the fact that a business card for a personal injury lawyer was found on the floor of the vehicle. Her theory was that Mr. Matusevitz had this card with him as he intended to use this lawyer to assist in the claim. Mr. Matusevitz denied this and said this was the card from a lawyer he had used four years earlier to assist with an accident claim. As for where this card was found, there were a number of business cards and receipts on the front passenger floor of the vehicle. He was not asked if these papers were on the floor when the vehicle was taken. This would be unusual given it was a vehicle only rented that morning. Since Mr. Matusevitz’s wallet was in the vehicle when it was taken, it is just as likely that these papers were in his wallet and discarded on the floor of the vehicle as having no value to anyone else.
[32] The surveillance video shows that Mr. Matusevitz pulled his car to a different parking spot from where he stopped initially. Mr. Matusevitz could not recall why he moved the vehicle from its first location after he had the initial contact with the two men. Ms. Hue suggested to Mr. Matusevitz that he deliberately moved the vehicle to a parking spot where he knew the surveillance cameras from the gas station would not record the area behind the vehicle. He denied this and I accept that evidence. Although he clearly had no recall of this, given he was parked in the driveway when he first met the two men it is not surprising that he would want to move the vehicle so that it was properly parked in order to do business. Also there is no evidence as to how he could have any knowledge of the existence or scope of the surveillance cameras at the gas station. Furthermore, if it was all a fraud, one would expect that Mr. Matusevitz would want the entire robbery recorded on video to support his claim.
[33] Ms. Hue also pointed out that Mr. Matusevitz did not have any bills of sale with him although he testified that when he sold electronics he would give the customer one. Mr. Matusevitz testified that although he was expecting to sell something to these two men he might not have been as prepared as he usually was because it was only a half an hour before the meeting when he was first contacted. Although he was contacted closer to 45 minutes in advance of the meeting, I do not know where he drove from and so this evidence is certainly plausible.
[34] I also rely on Mr. Matusevitz’ reaction when he was asked if he had made an insurance claim. Mr. Matusevitz admitted that he had insurance from the rental car agency but he said that he did not make a claim for insurance. He seemed surprised when the suggestion was put to him that he could have and responded that insurance doesn’t cover a lost product and that he didn’t know that insurance would cover such a thing. That response seemed quite genuine.
[35] The 911 call made by Mr. Matusevitz was entered into evidence. You can hear on this call that Mr. Matusevitz is out of breath. His first words are that he just got robbed and that they took his car “at gunpoint”. As he answered a couple of preliminary questions from the 911 operator, Mr. Matusevitz becomes more and more upset and it seems as though the consequences of the theft of the vehicle are dawning on him. His first realization is that his wallet was in the vehicle and thereafter he repeatedly states “F…” and “Oh my God”. If this was all an act to set up an insurance fraud, Mr. Matusevitz is quite the actor. To me it sounded genuine and sincere.
[36] The Crown argued that I could consider the statements made by Mr. Matusevitz as admissible on the basis of res gestae. Given the submissions of Ms. Hue however, her position is that this was planned as an insurance fraud from the outset. If this were the case presumably what Mr. Matusevitz intended to say on the 911 call would have been considered in advance. I have therefore not relied on the statements for their truth. However, certainly nothing Mr. Matusevitz said to the 911 operator was inconsistent with his evidence at trial.
[37] I have also considered that if Mr. Matusevitz was falsely claiming that he had been robbed as part of an insurance fraud it is not likely that he would make it as elaborate as the robbery he testified to involving two other men and abandoning a rental vehicle in his name.
[38] Finally, Ms. Hue argued that no one witnessed the robbery suggesting that therefore it could not have happened given how busy the mall was at the time. I do not accept this submission. First of all as Ms. Stanford pointed out, there is no evidence that no one else observed these events. The mall was busy and the gas station had a steady stream of traffic. However, given the manner in which Mr. Matusevitz described the robbery, it was done in a way that would not have drawn attention. If Suspect #1 had a gun, he had it covered with a bandana and pulled it out only for a few seconds. He spoke in normal tones to Mr. Matusevitz. The only unusual part of the event was the vehicle reversing and Suspect #1 getting into it as it was moving. That, however, clearly occurred as it is on the surveillance video and likely was observed by persons in the vicinity.
[39] For these reasons I find that Mr. Matusevitz was robbed of his rental vehicle, some electronics equipment and his wallet, in the manner that he described in his evidence.
Has the Crown proven beyond a reasonable doubt that Mr. Cadienhead was one of the robbers?
[40] The Crown relies on the following circumstantial evidence in support of her position that Mr. Cadienhead is Suspect #1.
The Identification Evidence of Mr. Cadienhead
[41] Mr. Matusevitz remembered some of the description of Suspect #1 but not all until he refreshed his memory from the statement that he gave to Officer Dehsadeghi who met with him immediately after the robbery. In that description he referred to the person with the handgun as Suspect #1 and he described Suspect #1 as male, black, 20-25, six feet, skinny to medium build and a goatee with roughness around it. He was wearing a black baseball cap, black long-sleeved sweater, and dark blue jeans. Mr. Matusevitz said that his description at the scene was made when his memory was fresh and Officer Dehsadeghi confirmed the accuracy of her notes.
[42] Ms. Stanford concedes that this is a general description that is not unique to Mr. Cadienhead. I accept her submission, however, this description is consistent with the appearance of Mr. Cadienhead at trial. Ms. Stanford conceded that she could not rely on the biographical information provided by Mr. Cadienhead at the time of his arrest as she had not brought an application to have it declared voluntary. However, I was able to make my own observations of Mr. Cadienhead. I judge his height to be about six feet and he has a slim build. He appears young; in his twenties. His hair now is quite different than the way it was in the two photos that were taken of him when he was arrested on November 2, 2011. In those photos he had frizzy black hair that was at least two inches long and a goatee. The photo of the side profile does show roughness around the goatee in that he was not clean shaven.
[43] On September 8, 2011 Mr. Matusevitz went to the police station to view a photo lineup of twelve photos. Although a photo of Mr. Cadienhead was in the lineup, Mr. Matusevitz did not identify him. It is admitted that photo #3 is Mr. Cadienhead and that it was taken on March 19, 2008; i.e. over three years earlier.
[44] I am not troubled by the fact Mr. Matusevitz did not recognize Mr. Cadienhead’s photo. In that photo his hair was very short and he was clean shaven save for a very short goatee on his chin and a very faint outline of one around his mouth and upper lip. As Ms. Hue pointed out, this does not mean this is how Mr. Cadienhead looked at the time of his arrest. Mr. Matusevitz testified Suspect #1 was wearing a baseball cap and that would have covered his hair. The goatee Mr. Matusevitz described is consistent with the one shown in the arrest photos. Certainly that alone would explain why Mr. Matusevitz did not recognize Mr. Cadienhead as he looks very different in the arrest photos from the photo in the lineup. Mr. Matusevitz did not recognize Mr. Cadienhead at the preliminary hearing or at the trial either. Of course the trial was just over two years after the robbery. Furthermore, at trial Mr. Cadienhead looked similar to the the photo from the lineup.
[45] I am also not troubled by the fact that Mr. Matusevitz was not able to give a more detailed description of Suspect #1. First of all if that person was Mr. Cadienhead, he has no obvious facial features or tattoos that I would have expected Mr. Matusevitz to have noticed.
[46] Mr. Matusevitz said that the robbery happened so fast that there was nothing in the back of his mind to remember the way the men were dressed or the way they looked. He thought it all happened in less than ten minutes; it was very quick. Based on the surveillance the interaction with the robbers was about five minutes long.
[47] For these reasons I find that at its highest the description Mr. Matusevitz gave of Suspect #1, just a short time after the robbery, while not sufficiently detailed to suggest it is Mr. Cadienhead, was at least consistent with his appearance at the time. It certainly does not rule Mr. Cadienhead out as a possible Suspect #1.
The Fingerprint Evidence – do the “Known Prints” Belong to Mr. Cadienhead?
[48] There is an issue as to whether or not the fingerprints alleged to be Mr. Cadienhead’s are in fact his. This is significant as they were the “known prints” that the Crown’s expert, D.C. Sandra Komarnisky, relied upon in comparing them to the prints found on the vehicle.
[49] Officer Michael Calder was the booker on duty when Mr. Cadienhead was arrested. He testified that he took Mr. Cadienhead’s fingerprints and palm prints and the two photographs of him that I have already referred to. According to his notes P.C. Calder testified that on November 3, 2011 at about 2:41 a.m. he printed and photographed the defendant.
[50] As of September 2011 P.C. Calder had been a booker for one and a half years or even longer and had done a couple of hundred bookings. On the night in question the Division’s live scan machine was down and so P.C. Calder said that he had to revert to using ink. He described the way he did this. He printed a blank form from the live scan machine which had his name pre-printed on it. He is also meant to sign the form where his name is printed but he admitted that the signature on the form did not belong to him and he could not identify it. He testified that he forgets to sign the form a lot of the time. Once he completed the fingerprinting of Mr. Cadienhead he put the original form in an unsealed plastic bag and sent it to the Forensic Identification Service (“FIS”). He did not know if the form had the mysterious signature on it before it went into the bag. He identified this form which was marked as Exhibit 14.
[51] P.C. Calder testified that he had an independent recollection of fingerprinting Mr. Cadienhead, that he recognized Exhibit 14; the document containing what is alleged to be Mr. Cadienhead’s fingerprints, that he identified those fingerprints as belonging to Mr. Cadienhead and that he saw the person he fingerprinted in court, identifying Mr. Cadienhead.
[52] The original inked set of prints was not tendered as an exhibit. Officer Battistoni is a fingerprint examiner and although he had no recollection of this case and could not identify the mysterious signature, he was able to clarify some of the process and address questions P.C. Calder was not asked. Officer Battistoni testified that the practice when using ink is that the original inked set of prints is scanned into the live scan machine and then copies printed by the machine are used. The booker would provide the photo of the accused and the description; i.e. the biographical data which would also be entered into the live scan machine.
[53] D.C. Komarnisky also gave some additional detail as to how fingerprints are taken and her evidence was consistent with the evidence of P.C. Calder and Officer Battistoni. She testified that when ink is used, the original or master print is scanned into the fingerprint system; the live scan machine, by the booker or a fingerprint technician at FIS. The original form is then stored in the vault at FIS. She does not need the master or original fingerprint to do her comparisons. She works with a printout from the computer. Once the master print is scanned into the computer she has never heard of a situation where it has been altered in some way.
[54] Ms. Hue argued that I should not rely on the evidence of P.C. Calder because he was not truthful when he testified that he had an independent recollection about fingerprinting Mr. Cadienhead. She also submitted that even if I accept his evidence, the Crown had not proven that the fingerprints on the fingerprint form produced by P.C. Calder and the one analyzed by D.C. Komarnisky belong to Mr. Cadienhead.
[55] The fingerprint form produced by P.C. Calder was printed November 7, 2013, shortly before the trial. Although P.C. Calder was not asked about this, this obviously means that this particular copy of the scanned original was printed for the purpose of this trial.
[56] P.C. Calder admitted that the mysterious signature was an error. He was not asked if it was possible that he had mixed up the persons he was fingerprinting and whether or not it was possible that Mr. Cadienhead’s fingerprints had been mixed up with someone else’s arrested that night. Furthermore it was not suggested to him or D.C. Komarnisky that the person who placed the mysterious signature on the form could have altered the fingerprints in some way.
[57] Having considered this issue I find that the fingerprints in evidence are an accurate copy of the inked prints taken by P.C. Calder of Mr. Cadienhead. P.C. Calder testified that he was the only one on duty at this time and that is he usually by himself. He was reasonably experienced by the time he did this work. He said that on the night in question his work was steady but he was not extremely busy. He printed about four to five people that night. P.C. Calder admitted that he could not recall what the other individuals looked like that he printed on the same shift. He said that he couldn’t say if the other people he fingerprinted were black males but he maintained that he did recall the defendant. Although at first blush this seems hard to believe and Ms. Hue argued it was untrue, P.C. Calder had refreshed his memory about fingerprinting Mr. Cadienhead by reviewing his notes, printing off the fingerprint form and obtaining copies of the two photos that he took of Mr. Cadienhead. I accept his evidence.
[58] This evidence of P.C. Calder was also bolstered by the fact that his name was on the form and by his evidence about how the fingerprints were done. He testified that not many officers put palms on the back of the form which was done in this case and in his view is the correct way to do it. He also testified that not many officers have printed in ink before.
[59] I also accept the submission of Ms. Stanford that it would be a remarkable coincidence if another person was arrested at the same time that Mr. Cadienhead was, presumably for a matter completely unrelated to this robbery, and his prints were mixed up with Mr. Cadienhead’s and that it was in fact that person’s fingerprint that was found on the vehicle stolen from Mr. Matusevitz.
[60] For these reasons I find that the fingerprint form identified by P.C. Calder (Exhibit 14) does in fact have the finger and palm prints that he took of Mr. Cadienhead on the night of his arrest.
The Opinion Evidence of D.C. Komarnisky
[61] D.C. Sandra Komarnisky was accepted by Ms. Hue as an expert to give opinion evidence with respect to fingerprint comparison and identification. After her qualifications were reviewed, I accepted her as an expert on that basis.
[62] D.C. Komarnisky dusted the vehicle for fingerprints on September 8, 2011. She examined both the inside and outside of the vehicle for fingerprints. She personally lifted four fingerprints; three from outside the vehicle and one from inside. She explained this process. Only one was identified and that was a latent fingerprint (R3) found on the exterior of the right rear passenger window of the vehicle. She compared it to the known fingerprint of the left ring finger of Nathan Cadienhead taken by P.C. Calder, and concluded that the fingerprint had been left on the vehicle by the left ring finger of Mr. Cadienhead. Her work was approved by Detective Edach. She testified to seven ridge characteristics that were observed to be in the same relative positions on both the “found” and the “known” impressions. She stated however, that those were by no means the only characteristics that were used in determining that these two impressions came from the same source. They were in the way of example only.
[63] D.C. Komarnisky testified that she didn’t identify the other prints. She said they were entered into the system but they didn’t come back and did not belong to the defendant. She admitted that the three unknown prints could belong to three separate individuals.
[64] The copy of the fingerprint form used by D.C. Komarnisky in reaching her conclusion (Exhibit 21) was a different copy than the one provided to the court by P.C. Calder. It was printed on October 3, 2013. Other than the fact Exhibit 14 is a condensed copy of Exhibit 21 it appears to be identical in all respects save for some markings put on Exhibit 21 by D.C. Komarnisky and the fact that the fingerprint form produced at trial by Officer Calder shows a picture of Mr. Cadienhead facing forward whereas the fingerprint form used by D.C. Komarnisky shows a side profile. Officer Battistoni provided an explanation for this. He said that they normally print mug shots having the accused face the camera. For a few months however, they used the left profile on any printouts. He said therefore the difference in photos is simply due to the fact that documents were printed at different times. There is no dispute that both photographs are of Mr. Cadienhead and were taken at the time of his arrest. D.C. Komarnisky compared Exhibits 14 and 21 using a magnifying glass while she was in the witness stand. She confirmed that they are electronic representations of the same fingerprints.
[65] D.C. Komarnisky testified that the fingerprints of two individuals can never be the same. She also admitted that you cannot tell the age of a fingerprint and that she could not say if the print at R3 was less than 24 hours old or as long as a year old. In her opinion, in a proper sheltered environment a print could be there for years. If subjected to water it could be eliminated.
[66] The opinion of D.C. Komarnisky that the known print of Mr. Cadienhead’s left ring finger matches the R3 print that she lifted from the vehicle was not challenged. Given D.C. Komarnisky’s expertise and the evidence that she gave explaining how she came to this conclusion which I accept, I find that Mr. Cadienhead’s left ring finger touched the vehicle in the position shown at R3, namely the lower right corner of the rear passenger window.
The Results of the Search of 20 Upwood Avenue
[67] D.C. Taylor and D.C. Hewitt testified about their participation in the execution of the search warrant at 20 Upwood Avenue in the City of Toronto on November 3, 2011. The property is a semi-detached home. No one was home at the time of the search. Mr. Cadienhead had already been arrested so he of course was not present or expected to arrive. Eventually a woman came who said the house belonged to her mother but I heard no further evidence about this.
[68] Both officers searched a basement bedroom that contained some male clothing. There was an unlocked safe in this bedroom and inside D.C. Taylor found a G1 Ontario Driver’s Licence in the name of the Nathan Roy Cadienhead which he seized. No other identification was seized from this bedroom. The photo on licence is of Mr. Cadienhead as he appeared at trial. There is a white sticker on the licence that states it is a “Valid Photo Card Only” with the province of Ontario logo, (the ‘sticker’). The licence was issued in September 2007 and was to expire September 2012. In cross-examination D.C. Taylor admitted that because of the sticker it is possible that a new licence was issued and that this one was old.
[69] What purports to be Mr. Cadienhead’s signature is on the back of the licence but it is quite different than one on the more recent Consent Bail Variation document. I draw nothing from this as one’s signature can change over time.
[70] There is other biographical information on the licence as one would expect. Whether or not I can rely on the truth of this evidence is an evidentiary issue that I must still determine as the issue arose after the Driver’s Licence had been admitted into evidence. The licence states Mr. Cadienhead’s address as 20 Upwood Avenue, Toronto, ON, M6L 3A5 and his date of birth as February 2, 1990. The height of Mr. Cadienhead is shown as 180 centimeters tall.
[71] D.C. Hewitt focused his search on the same bedroom in the basement. He found a white plastic Public Mobile bag with the box and invoice for phone # 647-856-7763 on the floor of the bedroom near the TV. He turned these items over to D.C. Taylor who was the Exhibit’s Officer.
[72] Once a backpack was removed from the top of the safe, four telephones and what appears to be a case were visible on top. However, they did not include the Public Mobile phone. In fact, neither the actual Public Mobile phone associated with # 647-856-7763 nor any handgun nor any electronics were found anywhere in the home during the course of the search. Mr. Cadienhead was found in possession of a BlackBerry cell phone when he was arrested.
[73] Mr. Paul Longo, the Director for Security for Public Mobile, testified about the Public Mobile phone and the phone records that were entered into evidence. When buying a phone, Public Mobile asks for the customer’s name but does not insist on the customer providing one. Even if a name is provided they do not verify the name. The customer is also asked to provide a signature or initial but a lot of people decline to sign the form. It is therefore common for Public Mobile to have a phone number associated with a specific phone and not have any name or address as was this case.
[74] The box of the Public Mobile phone (a KYOCERA G2GO) that was found identifies it as a Public Mobile phone as does the plastic bag that it was found in. The documentation found with it includes a “Public Mobile Account Summary” dated August 4, 2011, the start date for this phone. The mobile number for the phone in question is 647-856-7763 and it is the same model number as on the box. The phone was paid for in cash and it was bought at World Comm, a Public Mobile dealer at 1700 Wilson Avenue in Toronto.
[75] There is an initial on the Account Summary that should be from the customer. The Crown conceded that this customer initial is vastly different than the initial of Mr. Cadienhead on his Recognizance of Bail. I agree. However, this initial has some resemblance to the start of Mr. Cadienhead’s signature on the Consent Variation of Bail document where it seems he used his full signature. I would therefore not conclude that it was not Mr. Cadienhead who purchased this phone based on this handwriting analysis. Furthermore, on the account summary it is stated that customer information is “not provided” and none is. It may be that if Mr. Cadienhead is the one who purchased this phone that he did not want that to be something that could be determined. He would have no reason to use his normal initials or signature.
[76] Photos that were taken before the house was searched show a few suitcases filled with clothes in the basement bedroom and two beds. D.C. Taylor agreed that two people slept in this basement bedroom. After the search was done, the photos show a few documents on the floor next to the open safe. There are also other bedrooms in the house. D.C. Taylor did not know who lived in the house.
The Location Where the Vehicle was Abandoned
[77] D.C. Taylor testified that he walked the distance from 20 Upwood Avenue to 50 Olympia Drive where the abandoned vehicle was found and that it took him almost 16 minutes walking at a normal pace.
Analysis
The Law
(a) The Driver’s Licence
[78] An evidentiary issue arose as to what use I could make of the photo ID/driver’s licence in the name of Nathan Roy Cadienhead found in the open safe. Pursuant to the decision of Hill J. in R. v. Emes, [1999] O.J. No. 1311 at para. 36 (S.C.O.) affirmed at 2001 3973 (ON CA), [2001] O.J. No. 2469, this document is relevant for the fact of its existence as real or tangible evidence and there is no doubt that its probative value relates to the circumstantial inferences that can be drawn from its presence in this location quite apart from whether or not the truth of the contents of the driver’s licence can be relied upon by the Crown.
[79] As Justice Hill stated (at para. 37) and as affirmed by the Court of Appeal, “personal papers are, as a general rule, maintained in a location to which a person has access and control.” In his case there were numerous documents including income tax forms, cancelled cheques, leases and insurance papers and the like and he found it was surely
a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense. While the existence of the papers at the location in question could be as a result of the documents being stolen, or simply stored there, or abandoned, such explanations do not, in my view, accord with the factual probabilities of the circumstances here.
[80] There is an additional issue with respect to this photo ID/driver’s licence that I have considered. The position of Ms. Stanford is that by virtue of a combination of s. 210(7) of the Highway Traffic Act (“HTA”) and s. 40 of the Canada Evidence Act (“CEA”), the information stated in this document is proof, in the absence of evidence to the contrary, of the facts contained therein.
[81] Section 210(7) of the HTA provides that a copy of any document filed with the Ministry under this Act or any statement containing information from the records required to be kept under this Act is proof, in the absence of evidence to the contrary, of the facts contained therein. The driver’s licence/photo identification found in the name of Mr. Cadienhead was not certified by the Registrar under seal but of course is an original document and as such in my view that was not necessary. Section 40 of the CEA provides that in a criminal proceeding the laws of evidence in force in the province also apply.
[82] This argument was accepted albeit with a different provincial statute in mind, in a decision of the British Columbia Court of Appeal; R. v. Bell, [2001] B.C.J. No. 342. In that case the court upheld a decision of the trial judge who relied on a certificate of registration issued by the Deputy Registrar of Motor Vehicles under the Alberta Motor Vehicle Act (“MVA”) to prove ownership of a vehicle in a prosecution under the Narcotic Control Act, by virtue of a combination of s. 40 of the CEA and s. 82 of the MVA.
[83] I agree with Ms. Stanford that a combination of s. 210(7) of the HTA and s. 40 of the CEA permit me to consider the statements in the Driver’s Licence as true at least as of the date it was issued namely September 2007. On this basis I could conclude that Mr. Cadienhead considered 20 Upwood Avenue as his residence in September 2007.
(b) The Fingerprint Evidence
[84] R. v. Mars, 2006 3460 (ON CA), [2006] O.J. No. 472 (Ont. C.A.) deals with the probative value of fingerprint evidence. Since depending on environmental factors a fingerprint can remain on a surface for a lengthy period of time, the court in that case held that the probative value of fingerprint evidence depends on the totality of the evidence. Although fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that the accused touched the object at the relevant time and place so as to connect the accused to the crime (at para. 19). In other words, in this case I must consider if the Crown can point to any evidence that makes the inference that Mr. Cadienhead touched the vehicle in connection with the robbery a more likely inference than the inference that he touched the vehicle at some other time (at para. 21).
[85] At para. 23 the court in Mars also stated:
If the Crown’s evidence was capable of supporting the conclusion that the [finger] print was put on the [pizza] box in connection with the robbery, the absence of any innocent explanation could well have made it easier for the trial judge to draw the inference of guilt. …An appellant’s failure to testify or otherwise advance an ‘innocent’ explanation cannot add weight to the Crown’s case so as to justify drawing what would otherwise be an unreasonable inference of guilt; R. v. LePage.
[86] Ms. Hue relied on R. v. D.D.T., 2009 ONCA 918, [2009] O.J. No. 5486 (Ont. C.A.). That case is distinguishable however, because the sole evidence linking the young person to the crime was two fingerprints found on windowpanes at the point of entry to the building. There was no other evidence that the young person touched the windows at the relevant point in time.
[87] Ms. Hue also argued that the case at bar is distinguishable from the case of R. v. Samuels, [2009] O.J. No. 4177 (Ont. C.A.). In that case, the court did have more evidence capable of permitting a reasonable inference that the palm print and fingerprint on the windshield of a car were placed there when one of the invaders fled the scene. The court concluded that that evidence together with the fingerprint evidence was capable of supporting a reasonable inference that it was the appellant who ran from the house and touched the car as he fled from the scene of the crime, namely a home invasion. The fact that the evidence in that case was stronger than the case at bar does not make the case distinguishable. Each of these cases turn on their own facts and the application of the principles from Mars.
Findings
[88] In this case the strongest piece of evidence for the Crown is the fingerprint evidence and the fact that Mr. Cadienhead’s left ring finger fingerprint, R3, was found on the right rear passenger window of the vehicle. As I have stated, I find that this means that he touched this vehicle, a rental vehicle, at some point in time.
[89] I turn then to whether this fingerprint evidence connects Mr. Cadienhead to the robbery of Mr. Matusevitz. I find that there is evidence from the evidence of Mr. Matusevitz, as corroborated by what I can observe from the surveillance video, connecting Mr. Cadienhead to this robbery. Mr. Matusevitz was clear that Suspect #1 got into the vehicle from the passenger side and that it was Suspect #2 who was driving. As I have already stated, the vehicle is seen reversing back down the driveway of the plaza and a black man in all dark clothing is seen on the passenger side of the vehicle. As the vehicle is reversing, he is at the right rear passenger door. This man then gets into the front passenger seat of the vehicle.
[90] I do not accept Ms. Hue’s submission that it is not likely that Suspect #1 touched the window in the location of R3 as he got into the vehicle. She argued that his fingerprints would be on the front passenger door and that the presence of other fingerprints, and in particular the prints on the support between the two passenger doors (R2) suggests that someone else was involved. She queried why R2 and R3 would not belong to the same person and pointed out that this was a rented vehicle.
[91] The first difficulty with this submission is that R2 is a print belonging to someone else and its presence does not provide an explanation for why Mr. Cadienhead’s print is where it was found. I see nothing unusual about the fact that other prints belonging to other people are on the vehicle given it is a rental vehicle and was left abandoned. The issue is what inference can be drawn from the fact that Mr. Cadienhead touched this vehicle.
[92] If Mr. Cadienhead was Suspect #1, based on the evidence of Mr. Matusevitz, that suspect got into the front passenger side of the vehicle. The vehicle was reversing at that point as observed on the video. Although I am not able to see whether or not this person actually touched the rear passenger window with his left hand, there is certainly nothing to suggest otherwise. At one point this suspect was standing directly opposite the rear passenger window and a fraction of a second later he was opening the front passenger door and getting into the front passenger seat. It is quite likely that in doing so his left hand touched the rear window as he tried to get into a moving vehicle. That would also explain why there is some obvious movement in the print itself. The fact other prints by the same person are not found elsewhere is of no moment.
[93] I find that this evidence makes the inference that Mr. Cadienhead touched the vehicle in connection with the robbery as he was trying to get into the front passenger seat a more likely inference than the inference that he touched the vehicle at some other time.
[94] The other important piece of circumstantial evidence is of course the Public Mobile phone. Given my finding that the robbery occurred as Mr. Matusevitz testified to, it is beyond doubt that this phone was the one used and on the evidence of Mr. Matusevitz it was used by Suspect #1 to set up the meeting.
[95] The only evidence possibly linking Mr. Cadienhead to the Public Mobile phone is the fact that his Driver’s Licence/Photo ID was found in the same bedroom as where the material related to the Public Mobile phone were found.
[96] Ms. Hue argues that the Emes case is distinguishable from the case at bar as there were a considerable number of personal documents found in that case. She also relies on the fact that there were a number of documents found in this bedroom as shown in the post search photos and yet the only document seized related to Mr. Cadienhead was the Driver’s Licence. Finally she relied on the fact that this licence was now only useful for photo ID and suggested that it was therefore likely Mr. Cadienhead had abandoned this G1 licence once he got a new Driver’s Licence.
[97] There is no evidence as to why the photo ID sticker was affixed to this licence. I accept as a logical inference that the fact that the Mr. Cadienhead’s G1 Driver’s Licence had the sticker means that it was no longer valid as a driver’s licence. However, that does not mean that the document was no longer valuable to Mr. Cadienhead and had been abandoned by him as argued by Ms. Hue, even if he had been issued a new licence.
[98] Although without considering the information set out in the licence as being true, I have no evidence as to Mr. Cadienhead’s age, he clearly appears before me as a young man in his 20s. Two years ago he would have looked even younger. It is a well-known fact that photo identification is necessary, if demanded, in order to establish proof of age in order to purchase alcohol and to access most bars. This photo/ID would be of value to a young person who might not want to risk losing their current Driver’s Licence. The fact that this licence/photo ID was located in a safe, even though the safe was open, also suggests that it was considered to be important.
[99] I do not find it necessary to rely on the truth of the contents of the licence as at its highest that would only establish that four years earlier Mr. Cadienhead considered 20 Upwood Avenue to be his residence in September 2007. That does not establish much if anything more than the fact the licence was found in the open safe in a bedroom at that address.
[100] On this evidence I find that although the inference to be drawn is not as strong as in the Emes case, given there is only this one document belonging to Mr. Cadienhead in this basement bedroom, a fair inference can be drawn that Mr. Cadienhead had some measure and control over this basement bedroom as a matter of logic and common sense. Although there was at least one other person who had access to this bedroom, Mr. Cadienhead had access to this room and as such some measure of control over the materials clearly related to the purchase of the Public Mobile phone that is connected to this robbery. The fact the Public Mobile phone was not found in the bedroom and the fact Mr. Cadienhead was not found in possession of the Public Mobile phone does not alter my opinion. The phone had been used in setting up a robbery and given the timing of the purchase it is just as likely that it had been discarded.
[101] Although I am well aware of the frailties of identification evidence, they have less application here as Mr. Matusevitz has not positively identified Mr. Cadienhead as Suspect #1 and the only description he gave was given immediately after the robbery to Officer Dehsadeghi. There was no suggestion that she influenced his description by her questions or any suggestion that the photo lineup was done in an unfair way. The only question then is the reliability of Mr. Matusevitz’s evidence describing Suspect #1 and the significance of that description.
[102] I have no difficulty in finding that the description Mr. Matusevitz gave is reliable evidence. He spoke to Suspect #1 for about five minutes and was within 18 to 24 inches from Suspect #1 when he flashed what he believed to be a gun. He did not embellish his evidence and try to provide details he did not recall.
[103] As for the significance of this evidence, although there is not enough detail to positively identify Mr. Cadienhead from this description, there are a number of details, particularly the detail about the rough goatee that likely fit Mr. Cadienhead. Certainly there is no part of Mr. Matusevitz’s description that is at odds with the appearance of Mr. Cadienhead.
[104] Finally Ms. Stanford relied on the location of the vehicle and the fact that it was a 16 minute walk to 20 Upwood Avenue where she alleges Mr. Cadienhead was living at the time. I do not consider this evidence terribly helpful. Even accepting that Mr. Cadienhead was living at 20 Upwood Avenue at the time, the area where the vehicle was abandoned is heavily populated. Speaking geographically, anyone could have abandoned the vehicle where it was found.
[105] I have also considered the fact that no electronics equipment was found at the time of the search. Furthermore no handgun was found in the house or on Mr. Cadienhead when he was arrested. The search was almost two months after the robbery. The fact no electronics equipment was found is not surprising as it could have been sold. As for the handgun, it is not clear that there was one in the first place.
[106] Although the inferences to be drawn individually are not strong enough to make a finding of guilt, considered together, for all of the reasons I have given, I find that the Crown has proven beyond a reasonable doubt that Mr. Cadienhead was Suspect #1 and that he was one of two men who robbed Mr. Matusevitz in the manner that he described of the vehicle containing his wallet and electronics equipment.
[107] Furthermore, having reached this conclusion, as the court in Mars stated, at para. 23, the absence of any innocent explanation, given Mr. Cadienhead’s decision not to testify or call any defence evidence, makes it easier to draw the inference of guilt. There is no innocent explanation about which I must speculate; see Emes at para. 40 citing R. v. Noble.
Disposition
[108] Mr. Cadienhead would you please stand.
[109] For the reasons I have given I find you guilty of robbery contrary to s. 343(a) of the Criminal Code.
SPIES J.
Released: November 21, 2013
Edited Released November 21, 2013
COURT FILE NO.: CR12400008090000
DATE: 20131121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
NATHAN ROY CADIENHEAD
Defendant
REASONS FOR JUDGMENT
SPIES J.
Released: November 21, 2013