Superior Court of Justice

FRIDAY, SEPTEMBER 26, 2014

D E C I S I O N

RUTHERFORD, J.: (Orally)

On August 11, 2006 a male came into the Canadian Imperial Bank of Commerce branch at the corner of Rideau Street and Sussex Drive in downtown Ottawa. He was dressed in a black “Fila” jacket and dark “Addidas” track pants. He also wore a black “bucket” style hat with a white rim around the brim with the word Canada emblazoned on it. He wore sunglasses. The jacket was done up to the neck and the brim of the hat was pulled down to the sunglasses.

He approached Ms. Boonstra, a teller with just 7 months experience in the position, and said,

“Give me all your money, I have a gun, put the money on the counter, no dye pack or anything, fifties, tens, hundreds.”

Ms. Boonstra complied, handing over $1650 in Canadian currency. Within the money she included a “dye pack,” a device in which was secreted red dye and a mechanism that would automatically explode the pack a short time after it was taken away from the bank, splattering a red dye on nearby bills, hands, clothing or other objects.

Ms. Boonstra described the robber as a white male, approximately 6’ to 6’3” tall, 200 pounds, unshaven, with no blemishes, and a gold hoop earring in one ear. She could not recall which ear. She indicated that he spoke “Ottawa” English, which she described as English without an accent. It was admitted by the defense that her description of the robber’s height, weight and speech was generally consistent with those characteristics of Mr. Woodman.

Two other bank employees testified that they saw the person who robbed the bank after he had entered the bank but before he had approached Ms. Boonstra. Mr. Vettorel was greeting customers inside and Ms. Mazerole was at a fax machine. Both recalled the man, but were unable to add any identifying details to what Ms. Boonstra observed. Ms. Mazerole testified that the man appeared nervous, was checking around, and gave her an odd feeling. She recalled thinking it odd that on a warm summer day he was wearing such a jacket.

The robber took the money, fled on foot, and was last seen in the area underneath Sapper’s Bridge a short distance from the bank. Police responded quickly. Multiple police units, including an airplane, searched the area but were unable to find the robber.

Police did locate the exploded dye-pack in an underpass near Sappers Bridge. A short distance further, underneath the bridge, the black bucket hat, black ‘Fila’ jacket, dark blue Addidas track pants and a pair of sunglasses, lay discarded on the ground. These discarded items matched what was worn by the robber as described by the bank employees and as shown in videos from security cameras inside and outside the bank. There is no room for doubt that they were discarded by the robber.

The sunglasses and hat were submitted to the Centre of Forensic Science (CFS). A DNA sample taken from the frames revealed a profile suitable for comparison which was entered into the Combined DNA Index System, referred to as CODIS. Attempts to profile samples from the hat-band did not provide results suitable for comparison. By January 2007, no suspect had been identified and the robbery investigation was closed as unsolved.

Three years later, the accused, Clayton Woodman, was convicted of breaching a recognizance in Kingston, Ontario, and ordered to provide a DNA sample which was submitted to CODIS for processing and indexing. In March 2012, CODIS returned a match between Woodman’s DNA profile and the profile found on the sunglasses found near the robbery scene six years previously.

Mr. Woodman was arrested and charged with the robbery. A sample of his blood was taken pursuant to a DNA warrant and submitted to CFS for DNA analysis. Further samples were taken from the inside left sleeve cuff and the inside collar of the Fila jacket, and from the waistband of the track pants, and were also analyzed at CFS.

Mr. Gerald Alderson, a forensic science expert from CFS told the court that it was assumed that apart from identical twins, the DNA of every human individual differs from that of all others. However, laboratory comparisons involve examination at only 15 “standard tandem repeat” locations of an individual’s DNA. Where there appears to be a match at those locations, or some of them, between a known donor’s sample and a questioned sample, CFS scientists do not conclude that the two samples come from the same individual, but only that the known donor cannot be excluded as the source of the questioned sample. CFS then uses statistical databases and the extent of the comparability at the STR locations to express an opinion as to what probability there is that a random match would be found with some other person in the population.

The CFS DNA findings relating to the items in this case are as follows:

The Sunglasses.

A major male DNA profile, suitable for comparison, was determined. When compared with the sample taken from Mr. Woodman, he cannot be excluded as the source of the major DNA profile taken from the sunglasses. The probability that a randomly selected individual unrelated to Clayton Woodman would coincidentally share the same DNA profile coming from the sunglasses is estimated to be 1 in 19 billion.

Additional DNA from other donors was detected on the sunglasses, but, due to the small amount and uncertainty with respect to the total number of contributors, it was not suitable for comparison.

The Bucket Hat.

The DNA sample from the hat-band is a mixture of DNA from at least three individuals. Due to uncertainty with respect to the total number of contributors, it is not suitable for comparison.

The FILA Jacket.

A DNA sample from the inside left sleeve cuff of the jacket revealed a DNA profile suitable for comparison. When compared with the sample taken from Mr. Woodman, he cannot be excluded as the source of the DNA from the jacket sleeve cuff. The probability that a randomly selected individual unrelated to Clayton Woodman would coincidentally share the DNA profile from the sleeve cuff is estimated to be 1 in 1.8 thousand. Mr. Alderson explained that this probability ratio is much smaller than that in the case of the sunglasses because of the lesser number of STR locations matches in this comparison than in the sunglasses comparison. As well, the databases used segregate the DNA by racial groups and as a matter of policy, CFS estimates conservatively by confining the probability calculation to the racial group data yielding the most conservative probability.

The DNA profile detected from the inside front collar of the jacket is a mixture of DNA from at least four individuals, at least one of whom is male. Due to the uncertainty with respect to the total number of contributors and the relative amounts of DNA present, this DNA profile is not suitable for comparison.

The Track Pants.

The sample taken from the waistband of the track pants yielded insufficient DNA to develop any profile.

I should add from my own examination of the items found, that they all seemed quite new. The surfaces on the sunglasses and frames appear un-worn with use. The lettering inside the arms is clearly legible. The plastic on the nose-pads and at the posterior where the arms go over the ears appears unworn, and the hinges on the arms themselves are quite stiff, as if used only slightly.

The hat appears hardly worn. It is clean, the fabric unfaded, and the hat-band inside looks unworn. The hat has the appearance of possibly being shortly off the shelf. The same can be said of the jacket and track pants. Creases suggestive of packaging or shipping folds are still visible, and the sleeve cuffs, ankle cuffs and jacket collar all suggest very little, if any, wear.

CFS expert Gerald Alderson told the court a number of other things about DNA and its analysis. He said that with wearing apparel, apart from body tissue fluids like blood with their own cellular composition, DNA deposits are primarily the result of cells from the body sluffing off onto surfaces with which the body comes in contact. The more friction between the surfaces, the more likely a cellular deposit will occur. Even with saliva and perspiration, it is the epithelial tissue cells that get carried by those liquids that would leave behind a DNA sample on the contact surface.

Mr. Alderson testified that DNA can remain quite stable on a surface for a long time, especially at cool temperatures or, if not exposed to eroding or degrading circumstances, some of which he described. Hence, he cautioned that in most cases, it would be impossible to tell when a particular DNA deposit was made on an inert surface. In this case, he could give no indication of when the DNA detected would have been deposited on the items examined.

Three other items of evidence pertaining to Mr. Woodman require mention. First, it was admitted that he was known to be in the downtown Ottawa area around the time of the robbery. He was observed on

August 10, 2006, at approximately 8:42 a.m. on the property of York Street Public School, at 310 York Street in Ottawa;

On August 15th, 2006, at approximately 2:03 p.m. at the Rideau Centre at 50 Rideau Street in Ottawa (across the road from the CIBC branch where the robbery occurred);

August 15th , 2006 at approximately 4:22 p.m. at the intersection of George Street and Dalhousie Streets in Ottawa; and

On August 17, 2006, he booked himself for one night at the Salvation Army Men’s Shelter at 171 George Street.

The second thing pertaining to Mr. Woodman is that in two of four photographs of him, filed as exhibit 5 by admission by counsel, he is shown wearing an earring in his left earlobe. In one photo, the earring could well appear to be a “hoop-style” ring. In the other, it is unclear if the ring is “hoop-style.” Those two photographs were taken on May 7th, 2004 and August 24, 2005. In the other two photographs, taken on 11/08/2005 and 09/09/2006, he wore no ring in either ear. All four photographs were taken in the Kingston Police station and are identification-type colour photographs, frontal views of Mr. Woodman’s head and shoulders.

The third point is that in all four of those photographs, a darkish mole about the size of the end of the eraser on the end of a pencil, not particularly prominent but none-the-less visible, can be seen a few centimetres to the left of his upper lip.

I ought to say, perhaps at this point, that I am alive to the importance of my drawing no adverse inferences whatsoever, from the evidence of police contact with Mr. Woodman emanating from these photographs, or from the evidence of his conviction for recognizance breach in Kingston in 2010 which led to his known DNA profile being submitted to CODIS. The latter is used only for narrative and the photographs and their taking, only for what the photographs show.

The photos are, of course, of significance to the evidence of Ms. Boonstra, the bank teller, who noted, firstly, that the robber wore a hoop-style ring in one ear, and secondly, her evidence that she did not observe or note any facial blemishes or irregularities on the robber. She did note that he was unshaven for a day or two and since he appears clean shaven in all four photographs, it can only be estimated to what degree the mole would be obscured by a day or two’s whisker growth.

Another factor to consider concerning Ms. Boonstra’s observations of the robber is the brevity of the period of time she and the robber were opposite each other. It is agreed by counsel to have been between 30 and 60 seconds. This they calculated by piecing together the time-clock readings on the various security camera exposures showing the robber inside the bank. Different cameras picked him up as they were triggered by motion detection as he moved about inside. How much of that 30 to 60 second interval she would have been looking at him, as opposed to looking elsewhere as she withdrew bills and a dye-pack from her cash drawer and pushed them over the counter, is impossible to say. Suffice it to conclude that her observation of him was brief, although she testified that she was aware from her training that it was important for her to be as observant as possible in order to facilitate the inevitable police investigation following a robbery.

The arguments of both the Crown and of the defense were very capably made and supported by references to various authorities, a number of which included robberies by persons masked or otherwise incapable of being identified by eyewitnesses, and in which resort to forensic evidence, including fingerprints and DNA deposits, was required.

In this case, the prosecutor, Mr. Lee-Shanok, argues that on all the evidence, an inference that the robber was in fact, Mr. Woodman, is irresistible, and is the only reasonable conclusion that can be reached on the facts. He points out that Mr. Woodman meets the physical and linguistic characteristics that bank employees and video pictures show the robber to possess. Indeed, Mr. Spratt admitted that Mr. Woodman generally meets the height, weight and speech description attributed to the robber. This is not a case in which a witness attributes a characteristic to a perpetrator that is not able to be attributed to the accused. Mr. Lee-Shanok argues that the wearing of a hoop ring in his ear is a quite distinctive characteristic which significantly shrinks the circle of possible perpetrators.

Further, after noting Mr. Woodman’s presence in the area around the time of the robbery, Mr. Lee-Shanok points to the finding of DNA consistent with that of Mr. Woodman, not only the sunglasses, but also on the jacket, both of which the robber discarded shortly after leaving the bank with the loot. While there may be some possibility of it being a coincidence that Mr. Woodman’s DNA is found on one item discarded by the perpetrator, Mr. Shanok asks rhetorically, what is the likelihood of Mr. Woodman’s DNA being found on two items discarded by the perpetrator, if he is not, in fact, the perpetrator? As for the probability of someone other than Mr. Woodman being the source of the DNA on the jacket sleeve cuff, a probability that Mr. Alderson of CFS estimated to be 1 in 1.8 thousand, Mr. Lee-Shanok said that while it was a much different order of probability than that pertaining to the DNA match on the sunglasses, it was still a very high order of improbability that someone else, by coincidence, could be the source of the jacket sleeve DNA that so resembles Mr. Woodman’s. Mr. Lee-Shanok submits that Mr. Woodman should be found guilty of the robbery.

For the defence, Mr. Spratt emphasizes that it is impossible to know when the DNA deposits in issue were made to the items in question. He also underscores the generality of the eyewitness descriptions of the robber, noting that many males would possess those characteristics. He says that the use of earrings by males in recent times is hardly unique and noted that the two most recent photographs of Mr. Woodman in exhibit 5 do not depict him wearing such an earring.

Mr. Spratt contends that Ms. Boonstra’s failure to note the mole on his face, given her awareness and training to be as observant as possible in the circumstances, contributes significantly to a reasonable doubt that the robber was Mr. Woodman. He also submits that the DNA findings on the sleeve cuff permits of a probability of some source other than Mr. Woodman on a much higher order than the probability calculation for the sunglasses DNA.

The proper conclusion I should reach, says Mr. Spratt, is that the evidence does not rise to the level of conclusive proof that Mr. Woodman was the robber of the bank. Mr. Spratt argues that there is room for doubt that Mr. Woodman was the robber and that he should be found not guilty.

I have given the evidence and the arguments of counsel anxious consideration. Cases in which the identification of a perpetrator depends on forensic identification evidence can be difficult, as counsel pointed out. In R. v Mars 2006 3460 (ON CA), [2006], 205 C.C.C. (3d) 376 (Ont. C.A.) the appellant was convicted of offences arising out of a home invasion robbery. Identity was the issue at trial. The only evidence connecting the appellant to the robbery was his fingerprint found on a pizza box used as part of a ruse to gain entry to the victims’ apartment. Neither victim could identify the appellant as one of the robb