R. v. Tapp, 2017 ONSC 5632

CITATION: R v. Tapp, 2017 ONSC 5632

COURT FILE NO.: CR16-0746

DATE: 2017-09-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Gordon tapp

Applicant

J. Masse, for the Respondent

D. Anber and M. Wolfson, for the Applicant

HEARD: September 15, 2017

Hurley, J.

REASONS FOR DECISION

1The applicant, Gordon Tapp, was committed to stand trial on charges of robbery and disguise with intent by Mr. Justice Knott on June 26, 2017. He applies for certiorari to quash the committal.

2The following facts are taken from the reasons for judgment delivered by Mr. Justice Knott on June 26, 2017 and those referred to in the factums of the parties.

3On January 10, 2016, a male of average height, armed with a knife, robbed an employee of the Petro Canada gas station at 325 Stewart Blvd. in Brockville shortly before 12:26 a.m.

4This male was wearing two pieces of clothing on his face, one white and the other red, in order to conceal his identity. Both were knotted at the back.

5Members of the Brockville Police Service arrived at the scene soon after the robbery in response to a 911 call made by the employee.

6They searched the area and found two T-shirts, one white and the other red, about 100 metres from the gas station. One was hanging from a tree and the other lying on the ground below it. Both were knotted. The police seized them and subsequently sent both to the Centre of Forensic Sciences for a DNA analysis.

7The DVD recording of the robbery depicts a male entering the business wearing articles of clothing disguising his face that were comparable to those seized by the police. After brandishing a knife at the employee, the robber is handed money from the till and immediately flees.

8Shortly after the robbery, a taxi driver spoke to a male who was walking on Stewart Boulevard. The taxi driver was later shown a series of photographs which included one of Mr. Tapp. He did not identify Mr. Tapp as the person he spoke to on January 10, 2016.

9There was no snow or dirt on the two pieces of clothing. They were not wet. They appeared to be in good condition without any indication that they had been outside, exposed to the weather, for any period of time.

10A forensic analysis of them disclosed that the applicant’s DNA was on both. There was DNA from another unidentified source found on the red T-shirt.

11From these facts, Mr. Justice Knott concluded that a reasonable jury, properly instructed, could draw the following inferences:

(i) both articles of clothing had been recently discarded at the location where they were found.

(ii) because both articles of clothing resembled those worn by the robber and were located in good condition in close proximity to the scene of the robbery soon after it took place, it was the same clothing worn by the robber.

(iii) the robber was Mr. Tapp because his DNA was found on both articles of clothing.

12In his reasons for judgment, Mr. Justice Knott also adverted to the absence of evidence that could establish who the robber was but there was no admissible evidence that would exculpate Mr. Tapp (e.g. the robber depicted in the video recording was female, not male).

13The applicable legal principles both with respect to committal to stand trial and the standard of review on an application for certiorari were summarized by Madam Justice Fuerst in R v. Brown, 2012 ONSC 6565 at paras. 17 – 21:

The Supreme Court of Canada confirmed in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21, at para. 21, that a preliminary inquiry judge must commit an accused to stand trial where there is “admissible evidence which could, if it were believed, result in a conviction”. The test is the same whether the evidence is direct or circumstantial. If there is direct evidence as to every element of the offence charged, the preliminary inquiry judge must commit the accused to stand trial. Where the evidence is circumstantial, however, there is an inferential gap between the evidence and the matter to be established. The judge must therefore weigh the whole of the evidence in the limited sense “of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw”: Arcuri, at para 23. The court emphasized that the preliminary inquiry judge does not draw factual inferences, or assess credibility, or ask whether he or she would conclude that the accused is guilty. The judge asks only “whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt”: Arcuri, at para. 30. The task of limited weighing is an assessment of “the reasonableness of the inferences to be drawn from the circumstantial evidence”: Arcuri, at para. 30. In other words, the preliminary inquiry judge “must engage in a limited weighing exercise in order to determine whether a properly instructed jury could reasonably draw the suggested inferences”: R. v. Slessor, 2007 ONCA 336.

Where there are competing inferences to be drawn from circumstantial evidence, the preliminary inquiry judge does not choose among them. Only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77. As long as there is available a reasonable inference in favour of the Crown, then the preliminary inquiry judge must draw it, regardless of its strength: R. v. Sheardown, 2010 ONSC 4235. However, “[s]uch inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence then the accused must be discharged as there would be an absence of evidence on an essential element” of the offence: Sheardown, at para. 19.

The Supreme Court of Canada reiterated in R. v. Russell, 2001 SCC 53, that the jurisdiction of a reviewing court on an application for certiorari is very limited. It may overturn the decision of the preliminary inquiry judge only where the judge exceeded his or her jurisdiction. It may not overturn the decision of the preliminary inquiry judge merely because he or she made an error of law or reached a conclusion different from that which the reviewing court would reach.

It is jurisdictional error for a preliminary inquiry judge to commit an accused to stand trial where there is no evidence on an essential element of the offence charged: R. v. Sazant, above; R. v. Deschamplain, 2004 SCC 76.

Further, it is jurisdictional error if the preliminary inquiry judge commits an accused based on an inference or inferences that cannot be reasonably drawn from the evidence. This was explained in R. v. Sheardown, above, at para. 21: “To commit an accused on such a basis constitutes jurisdictional error as there is no evidence from which the inference or inferences reasonably can be drawn and thus, there would be an absence of evidence on an essential element of the charge

14In R v. Pinnock [2007] O.J. No. 1599, Mr. Justice Hill expressed the standard of review in these terms at para. 42:

The court reviewing by certiorari a committal for trial exercises limited authority for intervention:

a) The court may, in its discretion, provide a remedy for jurisdictional error alone: R. v. Russell, 2001 SCC 53 at 10, 13.

b) The reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he or she could form an opinion that the evidence is sufficient to put the accused on trial: R. v. Collin, [2004] O.J. No. 791 (C.A.) at para. 2; R. v. Tuske, [1978] O.J. No. 1253 (C.A.) at para. 3; R. v. Coke, [1996] O.J. No. 808 (S.C.J.) at para. 12-13.

c) The reviewing court is not permitted to overturn a committal decision merely because the preliminary inquiry judge “reached a conclusion different from that which the reviewing court would have reached”: R. v. Russell, at 10.

15The applicant relies upon three decisions of the Court of Appeal: R v Ahmed (2015) O.J. No. 6388; R v Mars (2006) 2006 CanLII 3460 (ON CA), OJ No.472 ; and R v Wills,2014 ONCA 178,appeal dism’d 2014 SCC 73. Each of these cases considered whether or not the verdicts were unreasonable. The applicant argued that the legal test for an unreasonable verdict is the same as the legal test for a committal. Because in two of the decisions (Ahmed expressly and Wills by implication) the court concluded that DNA evidence on items found at or in close proximity to the crime scene was insufficient to sustain a guilty verdict, the applicant submitted that I should take the same approach and quash the committal in this case since the only evidence that implicated the applicant was the DNA evidence.

16In R. v. Wills, the accused was charged with robbery. His DNA was found on two bandannas, one torn from the face of a robber and the second found discarded on the escape route taken by the robbers. Mr. Justice Doherty, in writing the majority judgment, stated at paras. 34 to 36:

The DNA evidence was obviously important evidence. The jury could readily infer that one or both of the robbers had worn the bandanas during the robbery. The DNA evidence also established, almost to an absolute certainty, that the appellant, among others, had direct or indirect contact with both bandanas at some point in time before the police found the bandanas at the robbery scene.

The finding of the appellant’s DNA on both, as opposed to just one, of the bandanas was also suggestive of some connection between the appellant and the robbery. The DNA evidence went some way toward identifying the appellant as one of the perpetrators.

However, the DNA evidence alone could not support the inference that the appellant was one of the perpetrators or that either bandana belonged to the appellant. The expert evidence called by the Crown precluded those inferences based exclusively on the DNA evidence. Like the fingerprint evidence in R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376, at paras. 20-21 (Ont. C.A.) and R. v. D.D.T., 2009 ONCA 918, at para. 26, the DNA evidence alone could not say when that DNA was placed on the bandanas and therefore could not identify the appellant as the perpetrator of the robbery. There had to be other evidence which, combined with the DNA evidence, would permit a finding that the appellant was the perpetrator, e.g. see R. v. Samuels, 2009 ONCA 719; and R. v. Wong, 2011 ONCA 815.

17Ultimately, the majority concluded that other evidence found by the police at the appellant’s apartment, which was a metal baton similar to that used in the robbery, was enough to uphold the verdict.Pepall,J.A. dissented, concluding that, even with the discovery of the baton, the verdict was still unreasonable. An appeal to the Supreme Court of Canada was dismissed.

18The legal tests for both committal and unreasonable verdict use similar language (“sufficient evidence upon which a reasonable and properly instructed jury could convict” and “whether a properly instructed jury, acting judicially, could have convicted”) but the applicant did not refer me to any cases in which an appellate court had concluded that they are the same.

19The applicant’s position is that, without proof of when the DNA was deposited on the clothing, there was insufficient evidence to commit him to stand trial and he should have been discharged.

20The Crown argued that the unreasonable verdict test is not applicable because, in that situation, the court is considering not whether there was sufficient evidence upon which a properly instructed jury could convict but whether, on the totality of the evidence, the inference of guilt was the only reasonable inference that the circumstantial evidence permitted.

21On this issue, she relied upon the decision of Mr. Justice Hill in R v Foster, (2008) O.J. No.827. In that case, the accused was discharged on a charge of robbery. Following the robbery, the police found a piece of clothing which one of the robbers had used to conceal his identity. The accused’s DNA was on this clothing. In allowing the Crown’s application to quash the discharge order, Mr. Justice Hill stated at paras. 42-46:

The Crown argues that an additional inference arises from the evidence – that the respondent was the wearer of the mask at the scene of the robbery. Mr. McGuire seeks to fill the inferential gap arguing that the following applications of logic, common sense and human experience reasonably lead to the further inference:

(1) The mask was not an ordinary thing like a pizza box or a kleenex but originated from a shirt owned and worn by someone. DNA on a shirt commonly arises from its wearer sweating or wiping his or her mouth on the garment. The disguise was custom-made from a shirt in the sense that a decision was made that the cloth material would no longer function as a shirt but, through destruction of the shirt, as a mask. The owner and wearer of the shirt designed a mask for the purpose of participation in a robbery and wore the disguise during the commission of a robbery,

or in the alternative,

(2) having disguised himself with a torn piece of clothing bearing no transference of DNA material prior to the robbery, the act of wearing the mask obstructing the mouth and nasal passages resulted in the transfer of mouth saliva or nasal discharge onto the disguise during the robbery.

Of course there exist alternative explanations, some of them reasonable, for the presence of the disguise containing the respondent’s DNA discovered at the robbery scene. Mr. Foster may have owned and discarded the host shirt, donated it to Goodwill, lent it and never received it back, or had it stolen. In these situations, the respondent’s DNA would already be on the shirt before the garment came into the hands of some third party who created the mask. Or the shirt may have been torn while in Mr. Foster’s possession and the relevant piece of cloth used as a cleaning rag or in some other fashion with his DNA transferred to the cloth before and/or after separation from the host shirt with a third party subsequently using the cloth as a mask to commit the robbery.

With sensitivity to mistaken eyewitness identification, and the challenge to perpetrator identification where a disguise is worn during an offence, DNA evidence now factors prominently as circumstantial evidence tending to prove the identity of persons who commit robbery (R. v. Casey, [2005] O.J. No. 2464 (C.A.) at para. 2, 5, 14 (armed robbery by masked intruder; C. apprehended in vicinity of the stolen property and an abandoned bandanna bearing his DNA); R. v. Stjepanovic, [2006] B.C.J. No. 735 (C.A.) at para. 2-4, 7, 9-11 (accused’s DNA on steering wheel of stolen car used as a getaway vehicle in bank robbery); R. v. Dionne, 2004 BCCA 274, [2004] B.C.J. No. 1181 (C.A.) at para. 3,5 (bank robbers wearing masks and baseball caps; baseball cap with D.’s DNA seized a few blocks from bank shortly after robbery); R. v. Baal, [2004] B.C.J. No. 1131 (C.A.) at para. 3-9, 36 (mask left at scene of robbery bearing B.’s DNA); R. v. Davis, [2003] B.C.J. No. 2113 (C.A.) at para. 2, 8, 11, 13 (jacket dropped at robbery scene containing accused’s DNA); R. v. Abernathy, [2002] B.C.J. No. 14 (C.A.) at para. 3, 13, 40-1 (jewellery store robbery by four masked men; A.’s DNA in a glove in stolen getaway vehicle located shortly after robbery)). Indeed, in examining the reasonableness of identification of a suspect, the court may consider the absence of a forensic trace of the accused’s presence at a crime scene: R. v. Wise (2002), 2002 BCCA 80, 162 C.C.C. (3d) 1 (B.C.C.A.) at 8 (“There was no DNA evidence linking Wise to the deceased, or the crime scene”); R. v. Tebo (2003), 2003 CanLII 43106 (ON CA), 175 C.C.C. (3d) 116 (Ont. C.A.) at 119-120 (absence of fingerprint evidence linking accused to stolen property).

At a trial, as in Mars and other cases (R. v. Yonkman (2005), 2005 BCCA 561, 202 C.C.C. (3d) 289 (B.C.C.A.) at 291-4; R. v. Dionne, at para. 5, 12, 15-6; R. v. Wise, at 8-9, 14-16; R. v. W.J.S., [1995] B.C.J. No. 318 (C.A.) at para. 2, 4, 6-7), forensic evidence relating to an accused found at or near the scene of a crime may not, when considered in the totality of the circumstances, make it more likely that a forensic trace from the accused occurred in connection with the crime as opposed to on some other occasion.

But this was a preliminary hearing, not a trial. Had Mr. Foster’s DNA been on a surface in the kitchen of the restaurant, as opposed to on an item left in the facility, the inference of his presence at the time of the robbery might be more compelling. But the strength and quality of inferences are matters for the triers of fact. The inference of presence at the time of the robbery based on the mask is a reasonable one. Whether or not the circumstantial chain of events ending with the abandonment of the mask in the victimized restaurant has an innocent explanation based on a different reasonable inference, not implicating Mr. Foster in the robbery, is also for another forum.

22While Mr. Justice Hill’s decision is not legally binding on me, I find it persuasive. In the case at bar, two articles of clothing were used as a disguise. The applicant’s DNA was on two similar articles of clothing found in close proximity to the scene of the robbery at a time of year and in a condition that supports the inference that they were recently discarded there. It was open to Mr. Justice Knott to find that this constituted sufficient evidence upon which a reasonable jury, properly instructed, could conclude that the applicant committed the robbery wearing this clothing in order to conceal his identity. As a result, the application is dismissed.

Hurley, J