COURT FILE NO.: 1163/15
DATE: 2018 05 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
P. Quilty, for the Crown
– and –
GERMAIN EMMANUEL
Defendant
G. Holder, for the Defendant
HEARD: November 21, 22, 23, 24, 27, 28, 29 and December 4 and 22, 2017 in Kitchener
REASONS FOR JUDGEMENT
EMERY J.
[1] On September 18, 2013, three individuals invaded unit 1102 at 2 Silver Maple Court in Brampton. In the course of that invasion, one or more of the invaders had an altercation with the occupants of the unit. One or more of the invaders stole an iPhone, a laptop computer and a wallet.
[2] Two of the invaders have pleaded guilty to robbery. Ryan Watson pleaded guilty shortly after his arrest on September 2013. On the first day of trial on November 21, 2107, Andrew Gonsalves entered a guilty plea. The trial therefore proceeded on one count of robbery against the accused, Germain Emmanuel.
[3] After a nine day trial, I reserved my decision on the robbery charge against Mr. Emmanuel. On December 22, 2017, I found Mr. Emmanuel not guilty for reasons to follow. These are those reasons.
BACKGROUND FACTS NOT IN DISPUTE
[4] Steven Spurway and Piotr Pociecha had lived in the apartment building at 2 Silver Maple Court in Brampton for ten years. For those ten years, they have lived as partners in a committed relationship. For the last two of those years, they had lived in apartment 1102.
[5] Steven and Piotr sublet a room in apartment 1102 to another two individuals, Marco and Tyler. Neither Steven or Piotr know if Tyler and Marco are life partners.
[6] Apartment 1102 is on the eleventh floor on a high rise condominium building in Brampton. The apartment is located at the end of the hallway on the right hand side of the hall, and next to the emergency staircase.
[7] On September 18, 2013, Steven was at home most of the day while Piotr was at work. At around 4:00 pm, Steven left the apartment to meet one of his friends, Danielle Rose, and to purchase cigarettes from a convenience store.
[8] Steven and Danielle walked back to the apartment together. Steven is sure he locked the apartment when he left to meet Danielle.
[9] After Steven and Danielle returned to the apartment, they found their way to the solarium. The solarium is located off the exterior wall of the living room where a balcony would be found if it were not glassed in. The living room and the solarium are separated by glass panels. Access to and from the solarium is gained through a framed glass door that slides to open or close.
[10] Steven and Danielle relaxed in the solarium as they waited for Piotr to arrive home from work.
[11] Piotr arrived home approximately 15 or 20 minutes after Steven and Danielle had returned to the apartment. Piotr first went into the bedroom he shares with Steven to change, and to grab his computer before joining Steven and Danielle in the solarium.
[12] Steven and Danielle were sitting in the solarium across from one another. Steven was sitting at the end of a wicker couch, which is placed against the interior windows and beside the sliding glass door of the solarium. Danielle was sitting on another wicker couch facing Steven. Danielle was therefore facing the living room window and the sliding glass door the solarium.
[13] Piotr had joined Steven on the wicker couch to visit with Danielle when Danielle observed through the solarium door that three men had entered the living room. She first saw the three men at the front door. She states that it all happened very quickly. She dialed 911 and then threw the phone down and started yelling the address of the apartment.
[14] Danielle recalls that one of the men was white, and one of the men was black. They came towards the solarium. They asked for her cell phone and wallet.
[15] According to Danielle’s evidence, a scuffle occurred between Piotr and one of the men. There were no punches thrown. It was more like a struggle involving a holding of arms between Piotr and the man he was fighting with.
[16] Danielle did not notice if any of the three men were wearing gloves.
[17] Danielle believes that she saw a knife during the invasion. She cannot recall who was holding it.
[18] Two of the men came into the solarium and asked them for their belongings. Danielle curled up on the ground to conceal her telephone, which remained connected to 911.
[19] The men left the apartment through the front door. Danielle estimates that the time from when she first saw the three men to the time of their departure was between one and four minutes.
[20] She recalls that the invaders were wearing no disguises, except for hoodies pulled over the top of their heads. Prior to this incident, she did not know anyone named Ryan Watson or Germain Emmanuel.
[21] The police arrived ten to fifteen minutes later. It was determined that only Steven’s laptop had been taken, as well as an iPhone and Steven’s wallet.
[22] Danielle suggested that the police use the “Find My iPhone’ app on her telephone to find the iPhone that one of the invaders had taken. The use of this app led to the location of the iPhone at unit 90 on Leacrest Cresent in Brampton.
[23] Steven, Piotr and Danielle attended later at the police station. As a result of the police investigation, the laptop was also retrieved from 90 Leacrest Crescent. Steven’s wallet was found close by in a bush.
[24] After Steven, Piotr and Danielle had given statements at 21 Division, officers from Peel Regional Police converged on apartment 1102 to gather evidence and to further the investigation. Peel Regional Police obtained video footage from the property manager of the building taken from the camera positioned toward the front entrance, and from the camera directed at the ground level of the stairwell leading to the exit door off the north side of the building.
THE EVIDENCE AT TRIAL
[25] Steven, Piotr and Danielle gave evidence at trial about their respective accounts of the invasion and the time leading up to it. None of them could identify the accused as the black man of the three people who invaded the apartment on September 18, 2013. The three witnesses were unable to make an identification even though each testified that there was only one black man among the three invaders, and that the black man was the only one not wearing a bandana.
[26] The Crown also called Garry Gonzaga, the superintendent of the apartment building at 2 Silver Maple Court, through whom video of the front lobby and side door was introduced. The video showed a black man with a cap pulled down over his head entering the building through the front door on the day in question. It also showed that he subsequently let two other individuals into the building through the side door on the north side of the building, after which all three disappeared up the stairs. The face and identity of the black man on the video remained unidentified.
[27] The Crown called police witnesses, starting with the investigating officer, Constable Craig Rodrigues who received the initial call from Steven about the invasion. Constable Emmanuel Pineiro and the supervising officer Detective Darren Sheridan were called as witnesses, as they had attended 90 Leacrest Crescent to gather evidence.
[28] The Crown called Christine McMahon, who Mr. Emmanuel’s fingerprints once he was arrested. These fingerprints were captured as images on form C216 by Ms. McMahon. The Crown also called Constable Garry Thomas as an expert to give evidence about fingerprint identification and the preservation of fingerprint images for comparison purposes.
[29] Mr. Emmanuel was not arrested by the police anywhere near 2 Silver Maple Court. The only evidence that connects him to the complaint underlying the charge is a set of his fingerprints from a previous conviction in the APHIS database, and a partial fingerprint lifted from the solarium doorframe on September 18, 2013. It is for this reason that the evidence of Steven, Piotr and Danielle is important about what happened with the solarium door at the time, and what evidence was given by the police officers that lead to the decision to charge Mr. Emmanuel with robbery.
Steven
[30] Steven and Piotr had a pet dog. Steven was visiting with Danielle when he heard the dog barking, and turned around to look into the living room to see what was going on. Upon turning around, he saw two people in the living room standing beside each other. One of those persons was wearing dark coloured pants, a dark hoodie, and a fitted hat. This person was also wearing a bandana that covered his face. Steven described the colour of his skin as suggesting a Latin or Hispanic heritage. The second person was dressed in dark pants, a dark coloured hoodie, and wore a bandana to cover his face. Steven testified that he could discern from this person’s skin that he was white.
[31] A third person entered the living room from a side hallway leading to the bedroom area of the apartment. This third person wore dark pants, a dark hoodie or sweater, and a fitted hat. Steven described this person as a black man between 18 and 21 years of age. He did not wear any covering to his face. This man was taller than Steven, of medium build, and had trimmed facial hair.
[32] The man Steven described as Hispanic displayed a knife upon confrontation, although he did not point it at Steven. The Hispanic man and the white man approached the solarium, but only the Hispanic man did the talking. He demanded that Steven empty his pockets, and asked him where his wallet was. Steven responded that it was not on him. Steven told the court that he would normally throw his wallet on the bed when he returned home.
[33] Piotr then emerged from the solarium and entered the living room. The Hispanic man grabbed Steven’s cell phone. Piotr moved to intervene, and an altercation took place between Piotr, the Hispanic man and the black man about the cell phone.
[34] It is Steven’s evidence that Piotr then closed the solarium door to separate himself, Steven and Danielle from the three invaders. The black man and the Hispanic man pried open the solarium door by pulling the handle built into the door frame. Those men then entered the solarium. Piotr stood between the two invaders and Danielle and Stehen. All the while Danielle was on her cell phone calling 911.
[35] The three men then fled the scene through the living room. In the course of leaving, the white male grabbed Steven’s laptop computer that was sitting on the table by the living room wall closest to the front door. The invaders turned right after exiting the apartment, and escaped down the emergency stairwell.
Piotr
[36] Piotr came home close to 4 o’clock on the day of the incident.
[37] Piotr told the Court that the door to the apartment was locked when he got home. He unlocked it and entered the apartment. He did not lock it behind him.
[38] Steven and Danielle were in the apartment. They were relaxing in the solarium, which is a glassed in room located on the other side of the living room from the front door.
[39] When Piotr got home, he put down his backpack and took off his boots. He went to join Steven and Danielle in the solarium. He had just lit a cigarette when Danielle said to him and to Steven, “Guys, you have someone in your house out there.”
[40] Steven said, “Oh my God, we are being robbed.”
[41] Piotr remembers looking into the living room from the solarium, and seeing three men standing there. He cannot remember what happened next. All he remembers is one of the men saying, “Give me your money.”
[42] Piotr describes one of the men as being a black male, approximately 5’11 or 6” feet tall. This man had short hair and was approximately 25 to 30 years old. He was wearing a red top, like a hoodie. He was not wearing anything on his head or face. He cannot recall anything else about his man.
[43] Piotr described another man that was standing directly behind the black male. This man was Hispanic, between 18 to 25 years of age. He was wearing a baseball cap with a flat round brim, and a green bandana on his head covered his face from the nose down. Piotr recalls that he had green eyes. He was roughly the same height as the black male. This was the man who was holding a knife.
[44] Piotr also recalls a third man. He was roughly the same height as the other two men. Piotr described him as also being Hispanic. He was wearing a bandana across his face that covered his features from the nose down. Piotr seems to recall that this man had brown eyes. He was roughly the same age as the other Hispanic male. Piotr had the least contact with this man.
[45] Piotr told the Court that the dog, who had been in the solarium with them before the invaders entered the apartment, ran into the living room. Piotr described how he slowly backed the dog as well as Steven and Danielle back into the solarium and tried to close the sliding glass door. He did this to separate his friends and the dog from the three men, who were still in the living room. Piotr testified that the black man grabbed the door and pressed it open. Piotr pushed him back into the living room, and the black man pushed Piotr back toward the solarium, forcing him to fall onto a wicker chair. At this point, Danielle was crawling on the floor, calling 911 on her cell phone.
[46] Although Piotr testified that his memory of the subsequent events remain foggy, he states that once the black male knew that Danielle was calling 911, he ran out of the apartment. One of the other men grabbed Steven’s cell phone from the solarium and took it with him.
[47] During the altercation, Piotr noticed that none of the invaders were wearing gloves. Piotr could also identify the man who grabbed the sliding glass door as the black man.
Danielle
[48] Danielle testified that she would often visit Steven at the apartment. On the afternoon in question, Danielle was sitting with Steven in the solarium. They had each lit a cigarette and were waiting for Piotr to arrive home.
[49] Piotr arrived five minutes later. The three of them were sitting in the solarium when she heard the door to the apartment open. She looked into the living room and saw three men with bandanas over their faces. She states she called 911 right away.
[50] Danielle described what occurred as happening very quickly. She threw down her cell phone and started yelling the address to the 911 operator.
[51] She states she was not able to describe any of the three men because of the time that has elapsed since the event. She did testify that two of the men were wearing bandanas to cover their faces and one was not. One of the men was not wearing a bandana at all. She recalls that one of the men was white and one was a black male. She guesses that each of them were approximately 20 to 22 years of age, and maybe younger.
[52] Danielle described how the men walked towards the solarium after she had alerted Steven and Piotr that they had been seen in the living room. The men asked her for her cell phone. They also went through her wallet.
[53] Danielle describes a scuffle occurring between Piotr and one of the men. There were no punches during the scuffle; it was more like holding arms between Piotr and the other man at the solarium door.
[54] Danielle states that she did not notice if any of the three men were wearing gloves. She did not see them take anything from the solarium.
Constable Rodrigues
[55] In September 2013, Constable Rodrigues was assigned to the Central Robbery Bureau for Peel Regional Police. Constable Rodrigues was the investigating officer in this investigation.
[56] On September 18, 2013, Constable Rodrigues had started the afternoon shift. At 4:50 pm, he received a call that a robbery had just taken place. The robbery was described as a home invasion that had occurred at unit 1102, 2 Silver Maple Court in Brampton.
[57] Constable Rodrigues left 21 Division to attend the scene of the complaint. On route, he was informed by radio that Peel Regional Police had received information that the owner of an iPhone stolen in the invasion had tracked its location through GPS. As a result of that information, his police cruiser was diverted back to 21 Division. He met with the complainants there and was shown a laptop or ipad with the “Find My iPhone” application installed on it. Using that application, he located the iPhone that had been stolen from Steven at 90 Leacrest Crescent in Brampton.
[58] Constable Rodrigues later attended at unit 1102 at 2 Silver Maple Court around 7:00 o’clock that evening. The police service spoke with the building manager, who provided them with the video footage of the front and side door of the building. After watching that recording, and using the information obtained from the app “Find My iPhone”, Constable Rodrigues attended at 90 Leacrest with Detective Sheridan. Of the individuals at 90 Leacrest, the police officers recognized a male who was wearing the same attire as one of the individuals seen on the video recording when he entered the building that day. This male identified himself as Andrew Gonsalves. Detective Sheridan placed Mr. Gonsalves under arrest at that time. Steven’s laptop computer was recovered from 90 Leacrest at this time.
[59] Around the same time that evening, a police team attended at unit 1102 to dust for fingerprints. Constable Rodrigues and Detective Sheridan were informed shortly thereafter that a fingerprint had been obtained from the scene of the home invasion for comparison with other fingerprints stored on the police database.
[60] Constable Rodrigues received an email from Detective Sheridan some days later to advise him that the fingerprint taken from the solarium door on September 18, 2013 (the “solarium door print”) matched a fingerprint belonging to Germain Emmanuel stored on the police database. Constable Rodrigues then called Piotr to ask him if he or Steven had a male black friend who had visited one or both of them in the apartment recently. Piotr told Constable Rodrigues that they did not.
[61] Ultimately, the police service matched the print taken at the scene of the invasion with the fingerprints of Germain Emmanuel stored on the police database. Officers obtained a warrant to enter Mr. Emmanuel’s residence on Linwood Drive in Brampton. No property or items of interest were seized from that home during that search.
[62] Germain Emmanuel was ultimately arrested at his home on September 26, 2013 and taken to 21 Division for questioning. A fresh set of his fingerprints were taken on that occasion. Those fingerprints were compared to the solarium door print. Following the comparison of those fingerprints, Mr. Emmanuel was charged with one count of robbery under section 344 of the Criminal Code.
[63] The police had formed reasonable and probable grounds to arrest Mr. Emmanuel at the time the warrant was executed. Blue jeans found in his home were confiscated as an item of interest and made an exhibit. The police concluded that these jeans had tears in them similar to the pair of jeans worn by the black male recorded on the video footage recorded at 2 Silver Maple Court on September 18, 2013.
Constable Garry Thomas
[64] Constable Garry Thomas was called as an expert on fingerprint evidence. He has been a police officer with Peel Regional Police for 28 years. In 2012, Constable Thomas completed a two week program on Scenes of Crime at the Toronto Police Service, and a nine week training course at the Police College for the Ontario Provincial Police, as well as other subsequent courses on crime scene evidence. On September 18, 2013, he was the forensic identification officer on duty at 21 Division.
[65] At trial, Constable Thomas was qualified to collect, compare and evaluate fingerprints. However, he was not qualified at this trial to give opinion evidence on the analysis of fingerprints.
[66] Constable Thomas dusted the solarium door for prints. From the prints made visible through dusting, Constable Thomas lifted several fingerprints off the solarium door frame. From those prints, part of a single print was obtained for comparison purposes. The police dusted the solarium door frame for fingerprints because Steven, Piotr and Danielle had told police that one of the invaders had grabbed the solarium door or its frame to force it open during the altercation with Piotr.
[67] Constable Thomas gave evidence that he attended at unit 1102 at 2 Silver Maple Court around 5:50 pm on September 18, 2013 to investigate and to collect evidence. He was the officer who took the photographs of the scene of the crime marked at Exhibit 1B. In particular, he took the photograph of the handle, frame and glass of the solarium door described by Piotr as the place where the scuffle had occurred between himself and one of the invaders. A photograph of the door frame after white powder had been applied, numbered photograph DSC_9047, shows where fingerprints of interest were found.
[68] In photograph DSC_9049, a cluster of fingerprints are shown. These are the fingerprints from which he developed a profile of the most complete print found on the door frame. Two of the three prints taken off the door frame were insufficient to make them suitable for identification.
[69] Constable Thomas also identified photographs numbers DSC_9050, 9051, and 9052 as photographs of the same single fingerprint taken off the door on a larger scale. Constable Thomas advised the court he had developed those photographs for comparison purposes.
[70] Constable Thomas testified that he applied the fingerprint tape to fingerprints found on the solarium door frame and lifted those fingerprints by applying a plastic slide to preserve them, including the one fingerprint that was most complete. Constable Thomas testified in his evidence in chief that he was not aware of any other fingerprints located around the solarium door where Steven and Piotr had reported the altercation with one of the invaders.
[71] Constable Thomas compared the single fingerprint lifted from the solarium door to the panel of fingerprints on the form C216 fingerprint form obtained from Mr. Emmanuel on September 26, 2013. As precaution, Constable Thomas also described how he had obtained fingerprints from five other people to rule them out when comparing the fingerprint found at the scene.
[72] Constable Thomas testified that he compared the fingerprints of Mr. Emmanuel on form C216 with the fingerprint shown on photograph DSC_9050 on or about January 14, 2015. It was his evidence that upon comparing those fingerprints, he formed the conclusion that the unknown print and the fingerprints shown on form C216 were “similar enough.” He therefore concluded from the identification of the fingerprints on form C216 that the unknown print taken off the solarium door frame belonged to Germain Emmanuel.
[73] Constable Thomas also testified that he does not need a full print for comparative purposes as long as he is satisfied with the quality of the print and its aspects.
[74] Constable Thomas also acknowledged in his evidence that he cannot tell how long a fingerprint has been on a surface where it is found. Nor can he tell how any finger mark was made to begin with.
Detective Sergeant Sheridan
[75] Detective Sheridan testified that he was told by Piotr and Steven that “they grabbed the solarium door and tried to open it.”
ANALYSIS
[76] The case against Germain Emmanuel is largely, if not entirely based on circumstantial evidence. That circumstantial evidence is the one partial fingerprint taken off the solarium door frame by Peel Regional Police. The core issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Emmanuel left a fingerprint on the solarium door on September 18, 2013 to tie him to the robbery.
[77] No evidence was called by the defence. Mr. Emmanuel did not testify at the trial. The strength of the Crown’s case therefore depended on the evidence called to prove Mr. Emmanuel’s identity as one of the invaders of apartment 1102 on September 18, 2013.
[78] The Supreme Court of Canada has provided guidance on how circumstantial evidence must be considered. This guidance was given in the case of R. v. Villaroman found at 2016 SCC 33, [2016] 1 SCR 1000. In the Villaroman, Justice Cromwell made the following statement on the current treatment of circumstantial evidence:
- At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts.”
[79] After citing a number of authorities, Justice Cromwell concludes by holding that:
“Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.”
“I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.”
[80] The statements made by Justice Cromwell recognize that evidentiary gaps can occur in the evidence to prove a case may result in inferences other than guilt. The court is called upon to assess the evidence that is given, or inferences that can be drawn from facts in evidence that support a reasonable doubt.
[81] In the absence of evidence offering proof, it is open for the court to assess whether there are other plausible possibilities that are open for the trier of fact to consider. The court in Villaroman cautioned that the trier of fact does not have to exhaust every possible conjecture, but must address reasonable possibilities that reflect the presumption of innocence of the accused when assessing circumstantial evidence:
37 When assessing circumstantial evidence, the trier of fact should consider "other plausible [page1020] theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but cerTylernly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[82] An alternate theory consistent with the presumption of innocence must therefore be reasonable and not the stuff of speculation. The basic question for the trier of fact is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than a finding that the accused is guilty.
[83] Fingerprint evidence is circumstantial evidence that must be treated with care. Justice Doherty explained in R. v. Mars, 2006 CarswellOnt 722 that “fact finding is primarily the function of the trial court.” And at paragraph 19 in Mars, Justice Doherty states that “the probative value of fingerprint evidence depends on the totality of the evidence.”
[84] The principles articulated by Justice Cromwell in the Villaroman decision are in good measure a culmination of principles developed in earlier cases. Those cases have developed the view that specific evidence, not speculation, must inform the trier of fact. The court must take the totality of the evidence into account when assessing whether the Crown has satisfied the burden of proof.
[85] This is particularly important where there is only evidence of a generic nature, or questionable eye witness identification. In those circumstances, the Court of Appeal in R. v. Ahmed, 2015 ONCA 848 concluded the verdict of guilt was unreasonable where only the DNA of the appellant was found on a plastic shopping bag used in a robbery. The court found that the DNA evidence was insufficient, and the eye witness evidence simply not enough, to support the inference that the appellant deposited his DNA on the shopping bag during the robbery.
[86] The appeal reasons in R. v. Ahmed are consistent with the burden of proof on the Crown to prove the guilt of the accused beyond a reasonable doubt. In the case before this court, there is not even an eye witness identification of the accused, but only a description of an unmasked man among the three invaders having a skin colour and stature that was similar to the accused.
[87] On the evidence given at trial, I find as a fact that the residents of apartment 1102 often left the front door of the apartment open. Another person could have entered the apartment on a day prior to September 18th, 2013, without the knowledge of either Steven or Piotr, the main tenants, and could have left a fingerprint while there. The Crown did not call the sub-tenants, Tyler and Marco who lived in the apartment at the time. The Court heard no evidence that Tyler and Marco, did not know Mr. Emmanuel, or that they had never invited Mr. Emmanuel to the apartment as their guest.
[88] There was also evidence that most of the entertaining at the apartment was done in the solarium. If anyone was a visitor to the apartment before September 18, 2013, they likely would have been entertained in the solarium and could have touched the frame and glass of the solarium door at that time.
[89] I also heard Piotr testify that he had observed two individuals in the hallway outside apartment 1102 the previous day. He only saw these individuals momentarily. They appeared to be coming from, or lurking in the door well of apartment 1102 off the hall, before disappearing down the stairwell. When he later asked Steven if they had been in the apartment, he answered they had not.
[90] I do not make any finding with respect to Piotr’s observations the day before, except to note that individuals he did not recognize had frequented the front door of the apartment the day before the invasion. However, this evidence suggests there were individuals seen in the hallway in the vicinity of the apartment 24 hours before who were unknown to Steven and Piotr.
[91] The burden to prove that Mr. Emmanuel left his prints on the solarium door as one of the invaders lies heavily on the Crown. The greatest weight of evidence called to meet that burden is the circumstantial evidence called by the Crown to connect Mr. Emmanuel to the invasion through the fingerprint found on the solarium door.
[92] The Crown argues that the analysis in Ahmed and in Mars can be distinguished from the facts of the case because the circumstantial evidence in each of those cases was found in or on disposable articles. While this may be an intriguing argument, from the evidence given by Crown witnesses, the opportunity for someone like Mr. Emmanuel to have come into contact with the door frame of the solarium at an earlier date remains an open question not answered by the evidence of any witness. Like the plastic bag in Ahmed or the pizza box in Mars, it is the uncertain circumstances in which the DNA or fingerprint could have been left on the host article, and not the nature of the article itself, that makes the evidence inconclusive on its own.
[93] None of those people present in the apartment at the time of the robbery identified Mr. Emmanuel as one of the invaders.
[94] The Crown called Ryan Watson, who was one of the invaders. Mr. Watson was a 15 year old Caucasian male at the time. Mr. Watson could not identify the accused as one of the men who entered the apartment with him on September 18, 2013. In fact, he did not even know the name of the black man who accompanied himself and Mr. Gonsalves to the apartment that day.
[95] Mr. Gonsalves was not called by the Crown to testify.
[96] There was no requirement on Mr. Emmanuel to testify at trial in order to explain how his fingerprint could have been left on the solarium door. His counsel makes the submission that his decision not to give evidence should not be held against him.
[97] In R. v. Johnson, 1993 CanLII 3376 (ON CA), [1993] O.J. 206, the Court of Appeal held that “no adverse inference can be drawn if there is no case to answer”. The court further explained that the weakness of the Crown’s case cannot be strengthened if an accused chooses not to testify. The court continued at paragraphs 27 and 28 by saying:
Finally, the authorities reviewed by Anderson J.A., including an annotation by A.E. Popple in (1948), 4 C.R. 374, "Failure to Testify", link the permissible inference to the strength of the Crown's case. No adverse inference can be drawn if there is no case to answer. A weak prosecution's case cannot be strengthened by the failure of the accused to testify. But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908), 1908 CanLII 243 (BC SC), 14 C.C.C. 221 at p. 230, 14 B.C.R. 61 (C.A.), "circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned". That point, it seems to me, can only be the point where the prosecution's evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt.... As Doherty J. pointed out in R. v. Manchev, an unreported judgment of the Ontario High Court, August 23, 1990, the accused's failure to testify is not an independent piece of evidence, to be placed on the evidentiary scale. It is rather a feature of the trial which may assist in deciding what inferences should be drawn from the evidence adduced. In Manchev, Doherty J. concluded that the failure of the accused to testify did not assist in determining the credibility of the Crown's witnesses. As he put it (at p. 30): "If the Crown witnesses cannot be believed, or if one cannot be satisfied to the necessary degree based on their evidence, then they do not become more believable because the accused did not testify": see also R. v. Chambers (1980), 1980 CanLII 2835 (MB CA), 54 C.C.C. (2d) 569, 9 Man. R. (2d) 13 (C.A.).
On the other hand, in the face of proven facts calling out for an explanation, the failure of the accused to testify has evidentiary significance when the accused is in a unique position to provide such an explanation. Failure to testify is not evidence of guilt. It cannot be used to relieve the Crown of its burden of proving guilt beyond a reasonable doubt. However, when an innocent explanation for an incriminating set of facts is not offered by the accused, or when his explanation comes solely from an out-of-court statement which has been introduced in evidence, if he does not submit himself to cross- examination, the judge or jury may properly draw from that an inference unfavourable to the accused.
[98] The accused has the right to remain silent. The exercise of this right does not offend the presumption of innocence an accused is entitled to rely upon.
[99] The presumption of innocence is, and always has been, a corner stone of our criminal justice system. As Justice Sopinka wrote for the majority in R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 SCR 874:
78 Such treatment of the silence of the accused does not offend either the right to silence or the presumption of innocence. If silence is simply taken as assuring the trier of fact that it need not speculate about unspoken explanations, then belief in guilt beyond a reasonable doubt is not in part grounded on the silence of the accused, but rather is grounded on the evidence against him or her. The right to silence and its underlying rationale are respected, in that the communication or absence of communication is not used to build the case against the accused. The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, but simply is not used as exculpatory evidence. Moreover, the presumption of innocence is respected, in that it is not incumbent on the accused to defend him- or herself or face the possibility of conviction on the basis of his or her silence. Thus, a trier of fact may refer to the silence of the accused simply as evidence of the absence of an explanation which it must consider in reaching a verdict. On the other hand, if there exists in evidence a rational explanation or inference that is capable of raising a reasonable doubt about guilt, silence cannot be used to reject this explanation.
[100] Having regard to the law and the evidence as a whole, I find that the presence of one partial fingerprint that Constable Thomas testified was “similar enough” to the fingerprints of Mr. Emmanuel taken upon his arrest is not enough for a conviction. The case for the Crown does not prove beyond a reasonable doubt that Mr. Emmanuel left a fingerprint on the solarium door of Apartment 1102 on September 18, 2013.
[101] Mr. Emmanuel is presumed innocent unless and until proven guilty beyond a reasonable doubt. The Crown has not discharged its burden of proof. I therefore find Germain Emmanuel not guilty of the charge of robbery.
Justice Emery
Released: May 11, 2018
COURT FILE NO.: 1163/15
DATE: 2018 05 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GERMAIN EMMANUEL
REASONS FOR JUDGMENT
EMERY J.
Released: May 11, 2018