ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-08549
DATE: 20150722
BETWEEN:
Her Majesty the Queen
– and –
Shane Alexander Smith-Thomas
Jonathan Fuller, for the Crown
Luka Rados, for the Defendant
HEARD: June 24, 2015
REASONS FOR JUDGMENT
EDWARDS J.:
Overview
[1] The accused Shane Alexander Smith-Thomas (“Thomas”) is charged with robbery, contrary to section 344 of the Criminal Code and committing the indictable offence of Theft, having his face masked by means of a bandana, contrary to section 351(2) of the Criminal Code.
[2] The robbery occurred on August 1, 2011 in the driveway of the victim, Carolyn Krebs (“Krebs”), who had just returned home from picking up rental cheques and cash from tenants at one of the apartment buildings that she owned. The sole issue in this case is identity. The Crown’s case rests on circumstantial evidence, which includes identification of a male black individual approximately six feet in height and in his early to mid-twenties, together with evidence of a palm print found on Krebs’ vehicle.
[3] The trial was conducted without a jury over a two and a half day period. The accused did not testify.
The Facts
[4] The essential facts are, for all intents and purposes, not in dispute. There is no dispute
that there was a robbery and that the robbery occurred next to Krebs’ vehicle. It is not disputed that the perpetrator took her purse and a bag containing chequebooks and cash. It is not in dispute that the perpetrator went into her vehicle and took the bag with the chequebooks. It is not disputed that the rear door of her vehicle had to be opened and closed. Photographs of the vehicle confirmed that the vehicle was somewhat dirty and that there was road dust on the vehicle, more so on the lower portion than the upper portion of the car. It is not in dispute that Krebs’ vehicle had been used by her to drive to the various rental properties that she and her husband owned in the City of Toronto and in Oshawa. Finally, it is not disputed that there were three individuals involved in the robbery, all of whom were in their twenties and at least one of whom had his face covered.
[5] It is equally not disputed on the evidence that a palm print found on Krebs’ vehicle was the palm print of the accused, Thomas. What is seriously in dispute is when that palm print became affixed to Krebs’ vehicle.
[6] The events leading up to the robbery were witnessed by a next door neighbour of Krebs, Susan DeLuca (“DeLuca”). DeLuca confirmed that on August 1, 2011 she witnessed two men, one of whom was masked and running towards her home located on Michael Court, in the City of Vaughan. DeLuca, in her evidence, stated that she heard Krebs scream and that she entered her home to make a 911 call. She exited her home and at that point saw Krebs running after the individual involved in the robbery. She also observed a roofer, who was occupied in undertaking roofing repairs to another neighbour’s home, give chase after the robbery.
[7] DeLuca’s evidence, in many material respects, confirms the evidence of Krebs and also confirms the evidence of Shahriar Khademi-Astaneh (“Astaneh”) who was the roofer seen giving chase after the robbery.
[8] Krebs gave evidence that she initially saw two men running down Michael Court, one of whom had his face partially masked and the other was wearing a full ski mask. Initially, from her evidence, she was not overly concerned as she stated that something similar had occurred in the past where individuals had run towards her and then left the scene without anything untoward happening.
[9] Krebs described the individual she saw as being black, 25 or 26 years of age and approximately six feet tall. The second individual had a similar description but was slightly younger, put in the age range of 21 to 22 years of age.
[10] Krebs gave evidence as to what actually then took place in terms of the robbery. She stated that she was assaulted and then tried to shield herself under a portion of the vehicle. She stated that at all material times she was able to observe the individual who entered the rear seat of her vehicle, and was able to do so out of her peripheral vision. It was her evidence that she had a distinct memory of this individual placing his fingers on the rear driver’s door. She was ninety-nine percent certain that she saw this. Subsequent to the robbery when the police were called, Krebs advised the investigating police officer as to where she believed the police might be able to find fingerprints.
[11] After the robbery Krebs gave chase and believed she was closing in on one of the robbers as they turned right off of Michael Court onto York Hill Boulevard. At this point the perpetrator was able to make his escape when he was picked up by a vehicle which left the scene, heading in a easterly direction.
[12] Much evidence was elicited through Krebs with respect to her driving habits of the red Camry that was involved in the robbery. She stated that she essentially only used this vehicle for the purpose of visiting the various rental properties that she and her husband owned, one of which was 500 Dawes Road in the City of Toronto. Unquestionably the red Camry would have been parked outside the rental property at 500 Dawes Road on many occasions and, inferentially, it is reasonable to assume that she would have parked her vehicle at one or other of the 12 properties that she and her husband owned elsewhere in the City of Toronto and in Oshawa.
[13] As to the amount of money stolen, Krebs gave evidence that on this particular occasion she had approximately $20,000 in cash as well as various rental cheques. It was her evidence that she and her husband insisted, through the various apartment superintendents, that rental payments by the tenants only be made by cheque and that cash was not allowed. While this was their policy, it was Krebs’ evidence that it would not be unusual for her to pick up cash but in a much lesser amount, generally speaking $2,000 to $3,000. It is also interesting to note from Krebs’ evidence that no claim was made through her insurance company for the monies that were stolen. Her explanation in this regard was that she was concerned that her insurance premium would increase and possibly she might run the risk of not having any insurance coverage in the future.
[14] On the essential evidence as it relates to the robbery, as I have already indicated there is really no dispute with respect to what happened on August 1, 2011. Aspects of Krebs’ evidence, however, do give the court some cause for concern. Specially, her evidence that she did not know until giving her evidence in court that there had been a match between the fingerprint found on her vehicle and that of the accused. In point of fact, the officer in charge of the investigation, Steven Blenkhorn, confirmed in his evidence that he had called Krebs to advise her of the print match-up found on her vehicle and that of the accused.
[15] Police Constable Steven Seale was called as a witness with respect to the discovery of and removal of the fingerprints/palm print found on Krebs’ Camry.
[16] In the area of the vehicle described as R2 (the rear passenger door, drivers side), Constable Seale located a print that he identified as a partial palm print. He used fingerprint powder and then lifted the palm print off using clear tape and placed it into a vacuum bag.
[17] The print was then sent for forensic testing and comparison by Sergeant Steve Ross who was qualified as an expert in friction ridge comparison. Sergeant Ross examined the palm print and concluded that it matched a known palm print of the accused Thomas. Noteworthy, however, is the evidence of Sergeant Ross to the effect that he could not say when the print was made. He did conclude, however, that given the configuration and orientation of the palm print on the rear passenger door, it was likely placed on the vehicle by someone closing the door to the vehicle. No fingerprints were located on the door handle.
[18] Sergeant Ross was cross-examined at length with respect to the timing of when the palm print would have been placed on the Camry. Sergeant Ross confirmed in his cross-examination that he could not determine when it was left there nor its age. It was, however, highly unlikely that such a print would have remained on the vehicle for years, but he could not form an opinion as to whether it had been there for months.
[19] Astaneh was called as a witness to the robbery. Mr. Astaneh was the roofer who heard screaming on August 1, 2011. He saw someone running down Michael Court and jumped down and gave chase. He observed the individual drop something which he picked up. He stated that after he gave chase he returned what he described as chequebooks in a binder to Krebs. Krebs, in her evidence denied initially that she received anything back after the robbery, but did acknowledge when pressed on this point that it might be possible that she in fact did receive these items back.
[20] In cross-examination of Mr. Astaneh by the Crown (Mr. Astaneh having been called by the defence), he confirmed that the individual who he saw mugging Krebs and taking her purse was an individual in his twenties, male black and approximately five feet ten to six feet in height. He also confirmed that this individual had a bandana over his face and probably was wearing running shoes. His description of the perpetrator essentially corroborates the description made by Krebs in her evidence.
[21] Thomas is a black individual who appears to be in his early to mid-twenties and has the same type of build and height as testified to by the witnesses who testified in this trial. No facial description was made of the accused, Thomas, as his face was masked. The only evidence therefore, directly linking Thomas to the events of August 1, 2011, was the matching of the palm print on the Krebs vehicle to Thomas’ known palm print.
Analysis
[22] The Crown has the burden of proof throughout this case. The case is undeniably a circumstantial case. It is entirely logical, and perhaps some might say common sense, to suggest that it would be a highly unlikely coincidence that Thomas’ palm print was placed on Krebs’ vehicle at some time other than the robbery in question. While it may seem logical and common sense, the real issue that this court has to grapple with is whether such an inference is not only logical but brings the level of proof to the level of proof beyond a reasonable doubt.
[23] It has been said many times in the jurisprudence that while fingerprint evidence is powerful evidence to link the individual whose print is found on the object touched to the crime charged, that in and of itself is not enough. The connection with the crime will depend on the existence of other evidence which is capable of establishing that the accused touched the object at the time of the commission of the offence and the place where the offence occurred, see R. v. Mars, (2006) 2006 3460 (ON CA), 205 C.C.C. (3rd) 376 (ONCA) at para. 19.
[24] In R. v. D.D.T. (A Young Person), 2009 ONCA 919, Epstein J.A. suggested a two-stage approach for appellate review of the reasonableness of a verdict in cases where fingerprints provide the sole evidence capable of identifying the perpetrator. At paragraph 15 of her reasons, Epstein J.A. states:
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.
[25] Fundamentally, the issue that this court has to deal with is whether the palm print evidence, taken with all of the other available evidence at trial, is capable of supporting a reasonable inference that it was Thomas who touched the Krebs vehicle as he was involved in the robbery, specifically entering or exiting Krebs’ vehicle to remove the bag containing the chequebook belonging to Krebs, or whether the palm print could just as likely have been placed on the Krebs vehicle at some other time and place.
[26] Counsel on behalf of the accused essentially submits that as in Mars, evidence of his client’s palm print on Krebs’ vehicle merely demonstrates that he touched Krebs’ vehicle at some point in time and in no way establishes beyond a reasonable doubt that he was connected with the robbery of August 1, 2011.
[27] There can be no doubt that the palm print evidence clearly establishes that the accused did, at some point in time, touch Krebs’ vehicle. The probative value of the palm print evidence, however, depends on whether the entirety of the evidence at trial reasonably permits this court to infer that the accused, Thomas, touched Krebs’ vehicle in connection with the robbery and not at some other point in time. The reasonableness of such an inference, that he touched Krebs’ vehicle in connection with the robbery, is entirely dependent on whether it could reasonably be drawn from the evidence other than the palm print itself.
[28] Thomas did not testify at trial. As such, this court heard no evidence from Thomas that might link him to a location where Krebs may have parked her car, thus giving an opportunity for Thomas to have innocently placed his palm print on her car. However, as Doherty J.A. pointed out at paragraph 24 of Mars, supra:
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.
[29] Crown counsel, in my view, correctly argues that I can use the same common sense that trial judges urge jurors to use when looking at circumstantial evidence. The application of everyday common sense, so says the Crown in this case, can only lead to one conclusion – that being the palm print found on Krebs’ vehicle was placed there by Thomas during the robbery. While common sense may allow this court to draw a reasonable circumstantial inference, I cannot draw speculative or unreasonable inferences. Fundamentally, I have to be satisfied based on all of the evidence at trial that Thomas touched Krebs’ vehicle in connection with the robbery as the only reasonable inference that I can draw. Put differently, is there any other evidence that allows for a reasonable and innocent inference to be drawn about how the palm print came to be located on Krebs’ vehicle.
[30] On the evidence before me there is other evidence that may allow for a reasonable, innocent explanation for the palm print. That evidence is Krebs’ habit of driving to at least 12 separate locations in the City of Toronto and the City of Oshawa, when it is conceivable that Thomas may have leaned up against her car and innocently placed his palm print on the driver’s side passenger door area. It cannot be said that with this evidence Thomas’ guilt is the only rational conclusion on the totality of the evidence. As in Mars, evidence of Thomas’ palm print on the Krebs vehicle demonstrates that Thomas touched the vehicle at some point in time and falls short of connecting him to the August 2011 robbery. This is particularly so, as Sergeant Ross could not confirm in his evidence as to how long the palm print had been on the Krebs vehicle.
[31] It has been said many times that to be satisfied of an accused’s guilt beyond a reasonable doubt requires that no other inference available on the facts of the case raises a reasonable doubt. If any inference does raise a reasonable doubt the accused must be acquitted. On the facts of this case, if the burden of proof was on a balance of probability the Crown would have proven on all of the circumstantial evidence, including the palm print, that it is more probable than not that Thomas was the person who robbed Krebs on August 1, 2011. However, I cannot conclude that I am sure that this is what occurred. On the facts before me there is room for a reasonable doubt as to Thomas being the robber and, as such, Thomas is acquitted on all charges.
Justice M.L. Edwards
Released: July 22, 2015