ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CRIMJ(P):606/14
Date: 20150924
B E T W E E N:
HER MAJESTY THE QUEEN
C. Henderson, for the Crown
- and -
JONATHAN KERR
K. Wells, for the defence
HEARD: July 29, 2015
DECIDED: September 21, 2015
REASONS FOR JUDGMENT
André J.
[1] On September 25, 2009, two masked males robbed a branch of a Scotia Bank in Brampton. The males exited the bank with an unknown quantity of money. While fleeing the scene of the robbery, a dye pack inserted in a stack of notes exploded, forcing one of the robbers to discard the money along with several items of clothing including a black sweatshirt, a pair of gloves, a baseball cap and a black mask. The sole evidence linking Mr. Kerr to the robbery is the testimony of a forensic scientist from the Centre of Forensic Sciences (“CFS”) that Mr. Kerr’s DNA was retrieved from the discarded sweatshirt and baseball cap.
[2] The Crown and the defence are at loggerheads over whether this evidence rises to the requisite legal standard of proof beyond a reasonable doubt.
SUMMARY OF THE EVIDENCE
[3] There is little dispute over the forensic evidence relied upon by the Crown in this trial. The Crown and defence submitted an “Agreed Statement of Facts” in which they indicated, inter alia, that:
There is no issue as to the proper handling or continuity of the items seized during the course of the investigation.
On February 28, 2014, the Peel Regional Police, acting pursuant to a judicially authorized warrant, seized a sample of Mr. Kerr’s DNA from him and sent to it the Centre of Forensic Services for comparison purposes.
The extraction of DNA and the generation of DNA profiles in this case were accomplished following scientific methodology. There is no issue that the DNA profiles generated in this case accurately represents the DNA from which they were developed.
[4] The transcript of the evidence called at the preliminary hearing was marked, on consent, as an exhibit during the trial, as were a number of photographs of the scene of the robbery and the reports of CFS forensic scientist, Melanie Richard, who tested the sweatshirt and baseball cap for DNA evidence.
[5] The critical evidence called by the Crown came from Ms. Richard. The eight year veteran analyzed the items of clothing discarded at the scene of the robbery and tested them for any DNA evidence. Ms. Richard’s expertise in the field of DNA testing and interpretation was not contested by the defence.
TESTIMONY AT THE PRELIMINARY HEARING
[6] Ms. Richard testified at the preliminary hearing that the Peel police submitted two items of clothing, a ski mask and a baseball cap, to the CFS for the purpose of testing for the presence of DNA.
[7] In 2010, the CFS scanned nine locations on the inside headband of the cap for DNA and succeeded in developing a DNA sample from the cap. Ms. Richard interpreted the DNA evidence and concluded that she was unable “with any sort of reasonably (sic) scientific certainty” to determine the number of contributors. She testified that there were at least two contributors to the DNA mixture and at least one of these contributors was male. However, Ms. Richard was not confident as to the proportions of the contributors and as a result, was unable to produce DNA profiles of any contributors to the DNA profiles retrieved from the baseball cap.
[8] Ms. Richard testified that the CFS obtained a DNA mixture of at least one male. She developed a DNA profile from four of nine locations tested on the ski mask. However, Ms. Richard determined that this profile was not suitable for comparison.
[9] Two years later, Ms. Richard received a pair of gloves and sweatshirt which had been recovered at the scene of the robbery. By then the CFS had acquired more sophisticated equipment that enabled her to retest the gloves for DNA.
[10] Using this equipment, the CFS generated a mixed DNA profile for more than one person from one of the pair of gloves received from the police. However, Ms. Richard was unable to determine the DNA profile of any of the contributors.
[11] The CFS then sampled the wrist area of the sweatshirt which would have normally come in contact with the skin of the wearer. They determined that the DNA profile generated was of at least three persons. One of these persons was a male individual. Ms. Richard was able to determine the DNA profile of the person who contributed the most DNA to the mixture. She opined that that person contributed 85% of the DNA mixture and that the profile was suitable for comparison: Transcript of the evidence at the Preliminary Hearing on October 7, 2014 at page 13.
[12] Ms. Richard then analyzed the DNA retrieved from the baseball cap and determined that the DNA from the cap originated from at least three male individuals. She was able to determine the DNA profile of the major contributor and concluded that this profile was suitable for comparison. Ms. Richard opined that 65% of the DNA on the cap originated from the major donor.
[13] Regarding the amount of genetic material or DNA left by each of the minor contributors, Ms. Richard opined that the amount of material could have been left by a mere touch. She noted however, at page 16 of the Preliminary Hearing transcript dated October 7, 2014, that:
[T]he amounts of DNA could be explain (sic) through a one-time contact but I wouldn’t preclude the possibility that it could also be obtained through a wearing situation or a long time contact because it is possible to have contact with objects, with clothing, and not deposit a detectable amounts (sic) of DNA.
[14] Ms. Richard further noted at page 16 that:
And I can tell you that in our experience that it’s, it’s not unusual to, to find background levels, low levels of DNA on other clothing because it comes into contact with our environment and they come into contact with people. So it’s not
an unusual sign then.
Ms. Richard testified that when she compared the major profiles from the baseball cap and that from the sweatshirt, she concluded that those profiles could have originated from the same source. She could not rule out that the profiles came from the same donor.
[15] On March 6, 2013, Ms. Richard received a blood sample from Mr. Kerr which had been obtained pursuant to a search warrant. She then compared Mr. Kerr’s DNA profile to the profile from the major donors received from the baseball cap and sweatshirt. She could not exclude Mr. Kerr as the source of the major donor DNA profile from the sweatshirt or the baseball cap.
[16] Ms. Richard then performed a statistical calculation regarding the likelihood that the DNA profile did not originate from Mr. Kerr. With respect to the sweatshirt, she concluded that, the probability that a randomly selected individual unrelated to Johnathan Kerr would coincidentally share the observed DNA profile was estimated to be 1 in 1.0 quadrillion. She also concluded that the random match probability in relation to the hat was one in 2.6 trillion.
[17] Ms. Richard conceded in cross-examination that:
(1) A possible explanation for these male DNA profiles on the inside of the headband of the cap was that three different males wore the hat at various times.
(2) She could not say when DNA was deposited on an item.
(3) She could not say whether cellular material from Mr. Kerr had come into contact with the baseball cap and sweatshirt as a result of prolonged wearing, incidental touching or some other form of transfer.
(4) She never generated any other DNA profiles for testing.
TESTIMONY AT THE TRIAL
[18] Ms. Richard testified in cross-examination that she tested one square centimetre of the left wrist of the sweatshirt. She found the DNA of two persons on the sample, with 85% of the DNA coming from Mr. Kerr. She conceded that she could not say when or how the DNA was placed on the sweatshirt. Neither could she say whether Mr. Kerr ever wore the sweatshirt or whether someone else repeatedly wore the sweatshirt.
[19] Regarding the baseball cap, Ms. Richard conceded that she sampled one square centimetre of the sweatband of the cap. She concluded that the DNA profiles of three persons were present. The major contributor of the DNA was Mr. Kerr. As with the sweatshirt, Ms. Richard could not say when and how the DNA was deposited on it.
[20] In re-examination, Ms. Richard testified that the level of DNA on the sweatshirt was indicative of “prolonged and repetitive contact.” She cautioned however, that she could not say that the DNA profile detected on an item of clothing must come from the last wearer. Furthermore, she could not exclude the possibility of transfer of bodily fluid from inside the headband of the hat onto the sweatshirt.
[21] Mr. Kerr did not testify neither did he call any evidence in his own defence.
ANALYSIS
[22] The Crown advances the following arguments in support of his contention that the evidence establishes Mr. Kerr’s guilt beyond a reasonable doubt:
(1) There was no evidence of cross contamination in this case. Specifically, there is little to no likelihood that the DNA on the baseball cap could have been transferred to the sweatshirt.
(2) The amount of Mr. Kerr’s DNA found on the baseball cap and the sweatshirt supports a conclusion that Mr. Kerr used them repetitively and therefore belonged to him.
(3) The high level of Mr. Kerr’s DNA on the noted items of clothing excluded any possibility that someone else used his clothing on the day of the robbery.
(4) Mr. Kerr’s DNA was found on two items of clothing, which, based on the surveillance evidence of the robbery, were used during the robbery.
[23] The Crown also relies on the cases of R. v. Ibrahim, 2014 ONCA 157, 318 O.A.C. 1, and R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, in support of its position.
[24] Prior to analyzing the evidence, it is necessary to state the legal principles that apply in this case. First and foremost, the Crown bears the burden of proving Mr. Kerr’s guilt beyond a reasonable doubt. Second, given that the Crown’s case is entirely circumstantial, Mr. Kerr can only be convicted if guilt is the only rational inference to be drawn from the totality of the evidence: see R v. Griffin, 2009 SCC 28, [2009] 2 S.C.R 42 at para. 33. Third, given the paucity of direct and indirect evidence linking Mr. Kerr to the robbery, the DNA evidence alone cannot support an inference that Mr. Kerr was one of the robbers or that either the baseball cap or sweatshirt belonged to him: see Wills, at para. 36. Fourth, DNA evidence found on an item of clothing cannot say when that DNA was placed on the item of clothing and therefore could not identify Mr. Kerr as the perpetrator of the robbery: see Wills, at para. 36. Fifth, there must be other evidence, combined with the DNA evidence, which permits a finding that Mr. Kerr was one of the bank robbers: see R. v. Samuels, 2009 ONCA 719; R. v. Wong, 2011 ONCA 815.
[25] I am prepared to draw an inference that one or both of the robbers had worn the baseball cap and sweatshirt during the robbery. Indeed, the surveillance photographs clearly show one of the robbers wearing a rather distinctive turquoise baseball cap and black sweatshirt during the commission of the offence.
[26] I am also prepared to find as a fact that the DNA evidence has established with great certainty that Mr. Kerr had direct contact with the cap and sweatshirt at some point in time before the police recovered them at the scene of the robbery.
[27] Third, I am also prepared to find that Mr Kerr’s DNA on both the cap and sweatshirt raises an inference that he was involved in the robbery.
[28] However, the difficulty posed by the DNA evidence is that it does not indicate when and how Mr. Kerr came into contact with the cap and sweatshirt. Ms. Richard opined that the high amount of Mr. Kerr’s DNA on the cap and sweatshirt was suggestive of repetitive and continuous use.
[29] On the other hand, this evidence does not eliminate the possibility that one or two others could have used the cap and sweatshirt on the day of the robbery. Ms. Richard conceded in cross-examination that a possible explanation for three male DNA profiles on the inside of the headband on the cap was that three different males wore it at various times. Furthermore, Ms. Richard could not say when Mr. Kerr’s DNA was deposited on either the baseball cap or sweatshirt. This is significant given Ms. Richard’s inability to conclude that the presence of Mr. Kerr’s DNA on the cap and sweatshirt supports a conclusion that he was the last user.
[30] Furthermore, Ms. Richard could not exclude the possibility that the unknown individuals whose DNA was found on the cap and sweatshirt had also worn the items as opposed to merely having had incidental contact with them. Neither could she exclude the possibility that such contact could have occurred on the date of the robbery. It is therefore difficult to conclude, based on the facts of this case, that Mr. Kerr’s guilt is the only rational conclusion to be drawn from the DNA evidence.
[31] The Crown submits that the Wills and Ibrahim cases are similar to the facts of this case and that they support a finding of guilt.
[32] The case of Wills however, is distinguishable from this case in one critical respect: the DNA evidence was not the sole evidence linking Mr. Wills to the robbery.
[33] In Wills, two masked men forcefully entered a residence, assaulted its residents and then stole a quantity of money. DNA evidence linked Mr. Wills to two bandanas used by the robbers and significantly, the police found a baton, similar to that used during the robbery, in his residence.
[34] A jury convicted Mr. Wills, a decision upheld by the Court of Appeal. The Court of Appeal held at paragraph 36 that DNA evidence alone could not support the inference that Mr. Wills committed the robbery or that either bandana belonged to him. However, it concluded that the jury’s verdict was reasonable, given the DNA evidence and the evidence that two months following the robbery, Mr. Wills was in possession of a police baton similar to that used in the robbery (at paragraph 44).
[35] In Ibrahim, two masked men used a gun covered in a white sheet to rob a bank teller. Police recovered two balaclavas, a gun and white sheet from a garbage bin in a transit station. Mr. Ibrahim was found to be the sole contributor of DNA on one balaclava and the main contributor of DNA found inside the other balaclava and on the gun. DNA belonging to two other persons was also found on the gun and on one balaclava. The trial judge nevertheless convicted Mr. Ibrahim of the robbery and other related charges.
[36] On appeal, the Court of Appeal upheld the trial judge’s decision. Of the DNA evidence, the court noted at paragraph 23 that:
These results established that the appellant was the major or sole contributor of all the DNA detected on the balaclava and on the toy gun found in the garbage bin. Importantly, he was the only contributor to the DNA contained in the vicinity of the nose and mouth on the inside of the balaclava.
[37] The Ibrahim decision can best be explained by the fact that the DNA evidence supported a conclusion that the only rational inference to be drawn from the evidence was the guilt of the appellant. He was the sole contributor of the DNA detected on one balaclava. Second, he was the only contributor to the DNA found on a part of a balaclava. This evidence supported an inference of use rather than incidental touching.
[38] In my view, the evidence in this case does not support a similar conclusion of exclusive use. Mr. Kerr’s DNA was not the only DNA found on the inner side of the headband of the cap or on the inner sleeve of the sweatshirt. While the presence of a high level of his DNA on the cap and sweatshirt makes it very likely that he was one of the robbers, it does not exclude the real possibility that another male was the perpetrator.
DISPOSITION
[39] For the above reasons, Mr. Kerr is acquitted of all charges.
André J.
Released: September 24, 2015
COURT FILE NO.: CRIMJ(P):606/14
DATE: 20150924
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JONATHAN KERR
REASONS FOR JUDGMENT
André J.
Released: September 24, 2015