CITATION: R. v. Dusanjh, 2016 ONSC 2358

COURT FILE: CRIMJ(P) 1351/15

DATE: 20160408

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. T. Powell, for the Crown

• and -

AMRIK DUSANJH

R. Posner, for the Defence

HEARD: April 5, 2016 at Brampton

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

1The accused pled not guilty to the armed robbery of a Shell gas station in Brampton.

2The trial proceeded principally upon the record of an Agreed Statement of Facts, a surveillance videotape of the robbery, and the evidence of an identification officer who retrieved Mr. Dusanjh’s palm print at the crime scene. No defence evidence was called.

FACTUAL OVERVIEW

3The Agreed Statement of Facts provided the following information:

1. At approximately 9:30 a.m., on Monday, July 1, 2013, a masked assailant entered the cashier area of the Shell gas station, at 10511 Bramalea Road, in Brampton.

2. Kalpita Parekh was working, behind the counter. The individual brandished a knife, and said “Give me the money”. Kalpita Parekh turned over $80. The suspect fled.

3. Witnesses described the culprit, as follows:

a. Male;

b. 5’10 to 6’0 (Mr. Dusanjh is 5’7 ½”);

c. Skinny or thin build (Mr. Dusanjh weights 135 lbs);

d. Brown skin;

e. One witness estimated the culprit as maybe 30 years-old (Mr. Dusanjh was 31 years-old, at the time);

f. Kalpita Parekh, the clerk, told police that the culprit had an accent, “like a brown guy”. During his post-arrest interview with Constable Jackson, Mr. Dusanjh does not appear to have an accent;

g. His right hand was holding a 6-inch kitchen knife, with a brown, faded, wooden handle; and

h. Wearing:

i. one glove, on his right hand

ii. a blue button dress shirt;

iii. a dark baseball cap;

iv. dirty blue jeans; and

v. a red bandana, over his face; and

i. The culprit fled on foot.

4. Video surveillance captured the incident. During the robbery, the suspect placed his ungloved left hand in the vicinity of the clear, plastic lottery display case, that was resting on top of the counter. However, it is an issue, at trial, whether the suspect’s ungloved left hand actually made physical contact, with the lottery display case and, further, whether it left a fingerprint or palm print, on the surface of the lottery case.

5. Following the robbery, Constable Berkeley successfully lifted a print.

6. On October 29, 2014, Peel Regional Police were notified of an “AFIS” match, regarding the print they had lifted.

7. On October 30, 2014, Constable Hofstetter used fingerprints, already on file for Mr. Dusanjh, to compare against the lifted print, from paragraph #5. He successfully matched the lifted print to Mr. Dusanjh’s known prints.

8. On March 30, 2015, at 12:22 p.m. Mr. Dusanjh was arrested, at 52 Mountain Ridge Road, in Brampton. Mountain Ridge Road is approximately 20 km away from the Shell gas station.

9. Mr. Dusanjh’s mother lives at 7 Pinecone Way, in Brampton, which is approximately 350 feet from the Shell gas station.

4It was also an agreed fact that the $80.00 taken in the robbery was not recovered.

THE EXPERT EVIDENCE

5Peel Regional Police Service (PRPS) Constable Joseph Berkeley, a member of the PRPS Forensic Identification Services, was qualified by the court to testify respecting the identification, analysis and comparison of fingerprints and palmprints.

6Const. Berkeley is highly trained and experienced in the examination of crime scenes. The witness had the opportunity to review the crime scene videotape on multiple occasions.

7General information provided by Const. Berkeley included:

(1) human fingers and palms secrete water and salt through skin pores

(2) when contact with sufficient pressure is made with a non-porous surface like glass this sweat is transferred or excreted from the pores onto the surface leaving a three-dimensional ridge-detailed impression

(3) each individual leaves unique print impressions

(4) fingerprint/palmprint analysis cannot scientifically date the time of placement of a print or impression on a host surface

(5) examination of a print may allow a conclusion about the direction of movement of the human hand responsible for placement of the print

(6) a hand or palm touching a non-porous surface may or may not leave an impression depending on the pressure applied to the host surface.

8With respect to the present case, the expert provided this evidence:

(1) adjacent to the cash register at the Shell station, over top of a selection of lottery tickets ready for sale, was a glass counter top

(2) application of the fingerprint powder technique to this surface did result in powder adhering to two areas (P1 and P2) with clear ridge detail sufficient for individualization analysis

(3) covering all of this host surface was evidence of a number of other human hand contacts but without sufficient ridge detail to be useful for comparison

(4) the P1 site related to an impression originating from the first police officer to attend the scene who received the robbery complaint and then closed the gas station store until Const. Berkeley arrived

(5) P2, the print matched to the accused, was located on the glass counter closer to the customer side than the cashier side – the witness circled the location on Exhibit #2 p. 4

(6) P2 was a good quality print of the side of a left hand, described by the witness as the hypothenar area or a “writer’s palm” print – at the time of the print application, the fingers of the hand were pointing toward the cashier’s side of the counter

(7) the majority of the P2 palm print was stagnant but with some slight smudging at the base of the print the expert concluded that fact to be consistent with that part of the hand last having contact with the glass surface

(8) P2 was a clear and undisturbed print with no evidence of contacts, interference, or disturbance on that print after it adhered to the counter surface – there were no secondary impressions from a human hand nor evidence “that something else came in contact with that impression”

(9) from the expert’s review of the crime scene video, although he determined that the robber’s bare left hand touched the glass counter surface in the location where the P2 print was retrieved, he is unable to say that the robber in the video is the person who left the P2 print because the robber was masked.

THE CRIME SCENE VIDEO

9The crime scene videotape is crisp and clear. It depicts rows of retail shelving as well as a cashier counter with two cash registers. The surveillance cameras are located toward ceiling level above the height of persons in the store.

10The robber can be seen entering the store with the red bandana covering his face. He was wearing white running shoes. There is no height security tape on the door frame to permit a more precise assessment of how tall the robber is.

11In the Exhibit #3 video clip showing the lone cashier, one can see her deal with two customers (C1 and C2). C1 appears to purchase one or more lottery tickets and to slide them across the glass counter at the location which the robber would subsequently touch with the writer’s palm of his left hand. After C1 completed her transaction, C2 placed his can of liquid retrieved from the refrigerated cooler in the same area of the counter.

12As C2 completed his transaction, the robber nearly pushed him out of the way to get to the cashier. At a point, the robber placed the writer’s palm of his bare left hand on the counter surface in the area identified by Const. Berkeley as the location of P2. He appears to be using his left hand to support his body weight, with his left shoulder lowered, as he thrusts his right hand with the knife toward the employee and her cash register drawer.

POSITIONS OF THE PARTIES

The Crown

13On behalf of the prosecution, Mr. Powell submitted that the guilt of the accused had been established beyond a reasonable doubt.

14It was submitted that the surveillance video depicts the robber leaning forward and partially supporting himself with the writer’s palm of his left hand on the glass surface covering the lottery tickets. The palm is at the location described by Const. Berkeley from which he retrieved P2.

15Mr. Powell noted the expert’s evidence that after the P2 impression was made, there was no contamination or smudge or overlay excretion from another source respecting P2. This was said, in the context of a busy retail venue, to support the temporal proximity of placement of the print to the point in time of the robbery captured on video.

16Crown counsel noted points of similarity respecting the accused and evidence relating to the robber – male, light brown skin, thin build, and the accused aged 30 with a witness’ estimate that the robber was 31 years of age.

17Mr. Powell acknowledged the dissimilarities respecting the subjects of height and accent. The witnesses’ statements respecting the height of the robber were estimates given in circumstances of a short time frame and in the context of a robbery. Given that the robber only spoke four (4) words in committing the crime, the issue of whether the robber had an accent may not have accurately perceived by the cashier.

The Defence

18On behalf of the accused, Mr. Posner submitted that prosecution case does not rise above suspicion – it can only be said that a “reasonable possibility” exists that the P2 print was left on the glass counter by the robber.

19Counsel submitted that review of the video, given the high camera angle, does not allow one to see whether the robber’s left hand actually makes contact with the counter surface. It is therefore equally possible that the robber did not leave the P2 print which was proven to be the accused’s palm print.

20Mr. Posner submitted that the evidence at trial goes not further than to suggest that the P2 print was lifted from the general area where the robber’s left hand can be seen in the video.

21It was further argued that with only a few minutes of videotape, there is no way of rejecting the reasonable possibility that the accused’s palm print came to be on the counter during his presence for a lawful transaction an hour, or a day or a week before the robbery.

22It was also submitted that apart from some general or generic identification evidence of similarities between the robber and the accused, the discrepancies relating to height and accent tend to point away from the accused being the masked robber in the video.

ANALYSIS

23With the prosecution’s reliance on circumstantial evidence in the present case, some review of the principles governing consideration of that form of evidence is warranted. In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn while always having regard to the scope of inferential bridges or gaps the trier is invited to make.

24Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70.

25In considering the whole of the evidence in a circumstantial case, and in particular the search for alternative “innocent” explanations other than the prosecution’s theory of guilt, the court is not limited to inferential explanations based on “proven facts” but rather may take into account, as to whether reasonable doubt exists, alternate rational possibilities grounded in the evidence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 57-8; Fontaine v. Loewen Estate, 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424, at para. 33; R. v. Bui, 2014 ONCA 614, at paras 22-9; R. v. Campbell, 2015 ABCA 70, at paras. 51-3; R. v. Dipnarine, 2014 ABCA 328, at paras. 22-28; R. v . Pryce, 2014 BCCA 370, at paras. 6-12; R. v. Maxie, 2014, SKCA 103, at para. 35; R. v. Robert (2000), 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.), at paras. 14-25. “If the defendant is able to offer only speculation, that is not likely to be enough” (R. v. Chudley, 2015 BCCA 315, at para. 18) and the advance of circumstances whereby inculpatory evidence could come to be innocently at a crime scene which “are in the realm of speculation rather than reasonable inference” must be rejected: R. v. Wong, 2011 ONCA 815, at para. 5.

26Further, while there is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt, it does not reverse the burden of proof upon the Crown to ask whether such explanations, as may be pointed to, amount to nothing more than speculation, conjecture or irrational inferences: R. v. Mufuta, 2015 ONCA 50, at paras. 22, 26, 47-9; Griffin, at para 35; R. v. Ibrahim, 2014 ONCA 157, at paras. 31-43; R. v. John, 2012 ONCA 114, at para. 3; R. v. C.(D.) (2012), 2012 SCC 48, 290 C.C.C. (3d) 64 (S.C.C.), at paras. 25, 28; R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont.C.A.), at paras. 35, 42; R. v. Vu, 2002 BCCA 659, at para. 25.

27The prosecution case is entirely circumstantial. The identity of the robber cannot be discerned from viewing the videotape of the crime because his face was deliberately obscured or masked by a bandana. The Crown seeks to assign identity to the robber by what it maintains is the videotaped evidence of the robber depositing unique trace evidence at the crime scene.

28Trace evidence is a particular species of circumstantial evidence which is probative where it involves a deposit, whether cellular material, or an impression such as a fingerprint or palm print, or other material, transferred from an offender to a host surface at a crime scene in connection with commission of the alleged offence(s). This can afford compelling evidence capable of establishing guilt.

29Where trace evidence is discovered at a crime scene on an article which is movable, commonplace or reusable, such as a plastic bag or pizza box or scarf, the prosecution is confronted with problems of proof that the individual linked to the trace evidence brought the portable host surface to the crime scene during involvement in the alleged crime(s): R. v. Ahmed, 2015 ONCA 848; R. v. Wills, 2014 ONCA 178 (leave to appeal refused [2014] S.C.C.A. No. 73); Ibrahim; Bryon, [2015] EWCA Crim 997; Dunbar v. Her Majesty’s Advocate, [2015] HCJAC 22 (Scot.).

30As noted in FNC, [2015] EWCA Crim 1732, at para. 30, there is a difference where it is established that, rather than trace evidence on a movable article left at a crime scene, the relevant trace evidence is “directly deposited in the course of the commission of the offence by the offender”. Such is the case with a fingerprint or a palm print on an immovable surface or fixture which places the offender at the crime scene.

31Retrieval and examination of trace evidence linked to an accused, such as a palm print, does not itself support an inference as to when that individual was at the scene. Other evidence may assist with proving a time frame, for example where a witness can say when the relevant host surface was last cleaned: see Mufuta, at para. 41 (“given the washroom cleaning schedule…”); R. v. Johnstone, 2014 ONCA 504, at para. 6 (“palm print was recovered from an otherwise clean stove”). In other instances, the forensic evidence can describe a chronological order of events for example where an identifying print is found in blood: see R. v. Hamade, 2015 ONCA 802, at para. 6; D.P.P. v. Walsh, [2015] EWCA 90, at para. 16; R. v. Kailayapillai, 2013 ONCA 248, at paras. 15, 17, 23.

32Where an accused’s palm print is discovered at a crime scene, the timing of the deposit of this trace evidence is crucial as it may have been deposited in entirely innocent circumstances from a lawful attendance at the scene on an occasion other than the time of the commission of the alleged offence: R. v. Ricketts, 2011 BCCA 402, at paras. 8-12. Accordingly, it has been observed that:

[w]hile fingerprint evidence is powerful evidence that the person whose print is on the object touched that object, the connection with the crime will depend on the existence of other evidence capable of establishing that the accused touched the object at the relevant time and place: R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 19.

(R. v. D.D.T., 2009 ONCA 918, at para. 14)

33The existence of “other evidence capable of establishing that the accused touched the object at the relevant time and place” can come from a variety of confirmatory sources: Wills (police baton in accused’s possession similar to weapon used in robbery); Bryon (similar fact evidence of earlier break and enter committed in same unique way); or possession of the stolen property when the accused is arrested. The additional evidence may come in the form of a videotape, as in R. v. Sykes, 2014 NSCA 57, which afforded evidence that the retrieved fingerprint was deposited by the disguised robber at the time of the robbery.

34The descriptions of the robber by the witnesses in the Shell gas station store were general in nature. The points of correspondence between their descriptions and the accused before the court were generic and did not exclude the accused. While the discrepancies relating to height and accent must be considered, in the context of the totality of the evidence these features are worthy of little weight as identification-detracting factors.

35Assessment of height is an opinion upon which witnesses often disagree. For at least one of the witnesses who was immediately beside the robber at the time of the offence, this would have been a stressful situation. There is no suggestion that any witness had a lengthy opportunity to view the suspect. While the accused is 5’ 7½”, the wearing of footwear would increase his height. Viewing of the video, to the extent that it assists, does not suggest that the robber was six feet tall.

36The issue of accent must be assessed having regard to the fact that the robber only spoke four words. Apart from this very brief baseline of language, the perception of the cashier must be considered having regard to her own first language and linguistic experience.

37At the outset, it is perhaps helpful to state what is not in issue:

(1) the accused’s palm print was discovered on the glass counter surface beside the cash register of the Shell station from which the $80 was stolen at knife-point

(2) the robber was masked in an effort to conceal his identity while committing the robbery.

38Review of the video reveals that immediately after the robbery the victimized cashier made a telephone call which it can reasonably be inferred was to summon the police. Const. Berkeley testified that on his arrival at the Shell station, an hour after the robbery, the store was closed and secured by two police officers. As a result, there was no contamination of the crime scene by ongoing customer transactions at the cash register counter.

39On the evidence of Const. Berkeley and review of the surveillance videotape, I find as a fact that the robber’s bare left hand writer’s palm touched the glass counter beside the cash register where the cashier was situated. While Mr. Posner is correct in submitting that the camera angle does not enable a trier of fact to actually see surface-to-surface contact, the robber’s sequence of movement clearly permits an observer to conclude that as the robber leans forward and across the glass counter he supports his weight in part by placing his left hand on the counter.

40This evidence further supports the finding that the robber placed the writer’s palm of his left hand with sufficient pressure to leave a print at the location where Const. Berkeley retrieved the accused’s palm print.

41There was no contradiction of the officer’s evidence on three further points:

(1) the accused’s palm print had fingers pointed in the direction of the cashier

(2) the slight smudging at the bottom of the P2 impression suggested it was the last part of the left hand to leave the glass surface

(3) the lifted palm print of the accused was a clear print with no evidence, subsequent to its contact placement, of interference or disruption by other forces such as other overlay impressions.

42Const. Berkeley’s evidence respecting items (1) and (2) is consistent with the motion of the robber’s left hand as may be observed in the surveillance videotape.

43Turning to the third point, the relevant glass counter had a large number of hand-part impressions without sufficient ridge detail for retrieval and comparative examination. The import of the evidence is that this was on account of insufficient contact pressure initially or because of subsequent disruption and interference with prints which at one time had identifiable ridge detail. The expert witness related to the court that an existing fingerprint or palm print may be compromised by such events as the lay down of further contacts on the print as for example by additional human contact at that site.

44While caution is warranted in describing P2 as a “fresh” print, there is an important context to where this print was located. P2 was lifted from a counter in what appears to be a busy commercial establishment, on a major thoroughfare in an urban centre, serving the public paying for such things as gasoline, products obtained from the product shelves or lottery tickets. Persons touching the glass counter surface with their hands with sufficient pressure to leave a contact print in setting items down, pointing to a lottery ticket selection, etc. can smudge or disrupt pre-existing print impressions as, it seems, would other items dragged across an impression with sufficient pressure. That was not the case here. The prints (P1) of the PRPS officer who first responded to the scene also remained available for individualized analysis. These circumstances tend to strengthen the inference that the robber was the donor of P2.

45Considering the totality of the circumstances, with no evidence that the accused ever touched the glass counter at any point in the area touched by the robber during a lawful attendance at the premises, the Crown has established beyond a reasonable doubt that the only rational inference that can be drawn is that the accused is the individual depicted in the surveillance video robbing the Shell facility while masked.

CONCLUSION

46The accused is found guilty of both counts in the indictment.

Hill J.