COURT FILE NO.: 7971/19
DATE: 2019-12-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David Didiodato, Counsel for the Crown
- and -
ALEXANDRE JEAN-PIERRE ETHIER
Jennifer Tremblay-Hall, Counsel for the Defendant
HEARD: October 29, 30 and December 3, 2019
GAREAU J.
REASONS FOR JUDGMENT
[1] This matter proceeded to trial on October 29 and 30, 2019. The court received submissions from counsel on December 3, 2019.
[2] The court reserved its decision to today’s date, December 13, 2019.
[3] The accused is charged with six offences set out in an indictment dated February 26, 2019 as follows:
Alexandre Jean-Pierre Ethier stands charged that he on or about the 1st day of August in the year 2018 at the City of Elliot Lake, Ontario, Algoma District, in the said Region, did administer to Bradley Patrick Grier a noxious thing to wit: bear spray (Oleoresin Capsicum) with intent thereby to aggrieve Bradley Patrick Grier contrary to section 245(b) of the Criminal Code;
Alexandre Jean-Pierre Ethier stands further charged that he on or about the 1st day of August in the year 2018 at the City of Elliot Lake, Ontario, Algoma District, in the said Region, did steal from Bradley Patrick Grier a black safe while armed with an offensive weapon to wit: bear spray (Oleoresin Capsicum) contrary to section 344(1)(b) of the Criminal Code;
Alexandre Jean-Pierre Ethier stands further charged that he on or about the 1st day of August in the year 2018 at the City of Elliot Lake, Ontario, Algoma District, in the said Region, did break and enter a certain place to wit: a dwelling-house, situated at 14 Hergott Avenue, Elliot Lake, Ontario, and did commit an indictable offence of robbery with a weapon contrary to section 344(1)(b) of the Criminal Code, contrary to section 348(1)(b) of the Criminal Code;
Alexandre Jean-Pierre Ethier stands further charged that he on or about the 1st day of August in the year 2018 at the City of Elliot Lake, Ontario, Algoma District, in the said Region, with intent to commit an indictable offence robbery with a weapon contrary to section 344(1)(b) of the Criminal Code, did have his face masked contrary to section 351(2) of the Criminal Code;
Alexandre Jean-Pierre Ethier stands further charged that he on or about the 1st day of August in the year 2018 at the City of Elliot Lake, Ontario, Algoma District, in the said Region, did have in his possession a weapon to wit: bear spray (Oleoresin Capsicum), for the purpose of committing an offence contrary to section 88 of the Criminal Code;
Alexandre Jean-Pierre Ethier stands further charged that he on or about the 1st day of August in the year 2018 at the City of Elliot Lake, Ontario, Algoma District, in the said Region, did have in his possession a prohibited weapon while he was prohibited from doing so by reason of an order made pursuant to section 109(2)(b) of the Criminal Code at the City of Sault Ste. Marie by Justice N. Gregson on the 3rd day of April in the year 2012, contrary to section 117.01(1) of the Criminal Code.
[4] The accused entered pleas of not guilty to each of the six counts.
FACTUAL BACKGROUND
[5] This case involves a home invasion which occurred at 14 Hergott Avenue in Elliot Lake, Ontario on August 1, 2018. At the time the masked intruders entered the home, Daniel Ducharme and Bradley Grier were in the home and asleep. They were awakened in the middle of the night to intruders in the home. Bradley Grier was awakened to an individual in his room who sprayed bear spray in his face. It was the evidence of both Mr. Grier and Mr. Ducharme that the remnants of the spray were in the air in the top level of the home and they had difficulty seeing as a result.
[6] Daniel Ducharme had a safe in the closet of the home at 14 Hergott Avenue which was taken by the intruders. Daniel Ducharme was hit in his right check with a metal pipe by one of the intruders which has left him with a scar. At the time of the robbery, there were drugs, cash, and drug paraphernalia in the home at 14 Hergott Avenue, none of which were taken by the intruders.
THE EVIDENCE
[7] The Crown called five witnesses. The accused did not call any evidence at the trial. The issue in this case is clearly identity and whether it can be established beyond a reasonable doubt that it was Alexandre Ethier who was in the home at 14 Hergott Avenue, Elliot Lake, in the early morning hours on August 1, 2018 and applied bear mace to the face of Bradley Grier and who took the safe that was inside that home.
[8] I do not intend to review the evidence of Daniel Ducharme or Bradley Grier in detail. Suffice it to say that Mr. Ducharme was awoken to sounds in the home and testified that there were two masked intruders in the home on 14 Hergott Avenue in the early morning hours of August 1, 2018. Mr. Ducharme testified that he was awakened from sleep by Bradley Grier that was yelling his name. When Mr. Ducharme got out of bed he saw “a shape standing in the hallway”. Mr. Ducharme said that he couldn’t make out exactly what the shape was because his eyes were burning from what was in the air in the home. He eventually made the shape out as a person standing in the hallway. Mr. Ducharme testified that he “charged – like a football player” at the shape and tackled the person, wrestling the person “for a minute” until the person ran down the stairs. Mr. Ducharme was unable to offer a description of the person he saw other than “he was my size, maybe a bit bigger”. There was another individual in the home, but Mr. Ducharme was unable to provide any description of the individual. Mr. Ducharme described the entire incident as being “in the midst of a blur” with shapes moving about the home. Mr. Ducharme testified that at that point he attended to Bradley Grier who was at his bedroom door “bleeding everywhere with his eyes hanging out of his head”. Eventually, Mr. Grier went into the shower to wash himself off and Mr. Ducharme left the home to look for his dog who got loose as a result of the commotion in the home.
[9] Bradley Grier testified that he was renting the home at 14 Hergott Avenue in Elliot Lake, Ontario and that he had been living there for approximately one year prior to August 1, 2018. Mr. Grier was asleep and woke up to the sound of spraying. He described it as “super confusing”. He saw a person with a mask on spraying him with a can. That person got up on his bed and another person came in his bedroom. Mr. Grier testified that he was hit in the right check with a metal pipe and that “his face was saturated with bear mace”. Mr. Grier testified that he couldn’t see anything and that he started to scream. The two people in his home took something out of his closet and left his bedroom. Both these individuals were wearing masks. Due to the bear spray in his eyes, Mr. Grier could not offer a description of the two people in his home. As he put it in his evidence, “I don’t know that they were men”. It was Mr. Grier’s evidence that Mr. Ducharme came into his room and that Mr Grier went into the shower to wash off the bear mace and clean himself up. Mr. Grier testified that while he was in the shower, “blood was spurting from his cut” and that he was starting to feel “woozy”, so he telephoned for an ambulance. It was Mr. Grier’s evidence that in addition to an ambulance, the police arrived at the home at 4:05 a.m.
[10] The police officers that arrived at 14 Hergott Avenue on August 1, 2018 at 4:05 a.m. were Constable Brandon Leeson and Constable Adrienne Wenzler. Constable Wenzler confirmed that she and Constable Leeson arrived at the home at 14 Hergott Avenue at 4:05 a.m. She testified that she stayed at the main door entrance while Constable Leeson entered the home. It was the evidence of Constable Wenzler that she did not enter the home and while outside at the front door entrance, she looked at the ground and saw a black cannister of bear mace. This black cannister was at the edge of the walkway by the steps leading up to 14 Hergott Avenue. Constable Wenzler marked with an “X” on Exhibit 7 where she located the cannister. Constable Wenzler put her gloves on and placed the cannister in an OPP plastic evidence bag which was locked in the police cruiser. Constable Wenzler testified that July 31, 2018 was a sunny, dry day with a temperature of approximately 30 degrees Celsius. It was the evidence of Constable Wenzler that she does not recall ever having any dealings with Mr. Ethier prior to August 1, 2018.
[11] Constable Brandon Leeson attended at 14 Hergott Avenue with Constable Wenzler on the morning of August 1, 2018. Constable Leeson testified that they arrived at the residence at 4:05 a.m. Constable Leeson entered the residence and could hear a male inside yelling that he was dying. Constable Leeson indicated that in the home he could smell an “overwhelming odour similar to pepper spray”. The air in the home was contaminated by that smell. At 4:06 a.m., an ambulance arrived, and Mr. Grier was attended to by paramedics. It was the evidence of Constable Leeson that he observed Bradley Grier to have marks and blood on his cheek and that his eyes were red and watering. Constable Leeson testified that after Mr. Grier went into the ambulance and was outside the residence that Constable Wenzler indicated to him that she had located a cannister on the grass by the front steps right outside the house. Constable Leeson placed an “X” on Exhibit 1, photo 1, indicating where the cannister was observed. Constable Leeson confirmed the evidence of Constable Wenzler about how the cannister was secured after it was located. In cross-examination, Constable Leeson confirmed that no mask, balaclava, pipe or weapons of any kind were retrieved at the scene of the crime. In cross-examination, Constable Leeson acknowledged that he cannot say that the cannister of bear mace found on the lawn outside 14 Hergott Avenue was the bear mace that was inside the home and sprayed on Bradley Grier inside the home.
[12] As part of its case, the Crown called two witnesses, Dr. Hendrik Dorn and Ronald Lai, who were qualified by this court as experts to provide opinion evidence to the court. Dr. Dorn has a PhD in chemistry. He has been employed in forensic sciences in chemistry by the Centre of Forensic Sciences in Toronto, Ontario since October 2001. Dr. Dorn was qualified as an expert in forensic chemistry and identification and properties of lachrymators. Lachrymator is the chemical substance that causes water or tearing in the eyes and burning to the eyes and throat. Examples of such chemical substances include pepper spray, tear gas and chemical mace.
[13] Entered as Exhibit 2 at trial was the chemistry report dated September 26, 2018 that was authored by Dr. Dorn. That report indicates that two items, a swab from a headboard from Hergott Avenue and an aerosol dispense from Hergott Avenue, were examined. The headboard was examined to determine whether or not lachrymators could be identified. The aerosol dispenser was examined to determine whether or not it is an operational lachrymator dispenser. The substance on the headboard was typical of pepper spray and so the answer to that question is yes, lachrymators were identified on the headboard, although Dr. Dorn could not comment on the concentration of the chemicals found on the headboard. As to the aerosol dispenser, Capsaicin (CAP) and Dihydrocapsaicin (DHC) were found on the nozzle of the dispenser which was practically empty and non-operational. In cross-examination, Dr. Dorn acknowledged that he cannot say that the pepper spray on the headboard came from the aerosol dispenser that was tested by him.
[14] Ronald Lai is also a scientist at the Centre of Forensic Sciences. Mr. Lai has a Masters Degree in Forensic Sciences. He was qualified by this court to give opinion evidence relating to forensic DNA analysis, including the collection, comparison, transfer and analysis of DNA.
[15] Mr. Lai described DNA as a “substance that is found in all living things – it’s essentially the blueprint for life. And we each inherit half of our DNA from either parent, so half of my DNA comes from my mom; half of my DNA comes from my dad. And when you compare different – different human individuals the vast majority of DNA, more than 99% will be the same. After all, that’s what makes us human versus being a dog or a cat. And forensic DNA analysis with the focusing on the very small portion of DNA that differ between different individuals”.
[16] Mr. Lai testified that DNA is found in all body fluids and cells of our bodies, such as blood, saliva, bones. It was the evidence of Mr. Lai that DNA can be transferred by primary transfer or by secondary transfer. Mr. Lai explained this by stating that primary transfer involves only one step, so, for example, if a person spits on something and leaves his DNA on that item, it is primary transfer. Secondary transfer involves more steps in the transference of DNA. The example given by Mr. Lai is if a person spat on a table, that is primary transfer, and if someone touches the table where the spit is and they pick up the DNA, that is secondary transfer.
[17] As to how long DNA retains on a surface, Mr. Lai indicated in his evidence that how long DNA remains stable depends on numerous factors. In explaining this, Mr. Lai testified that, “if DNA was exposed to extreme environmental conditions, such as heat and sunlight, UV light, then that would degrade DNA very quickly. Whereas, on the other hand, if say DNA is stored in a cool and dry location and is away from sunlight, then that DNA can remain stable for a very, very long time, decades, even possibly longer than that”.
[18] Mr. Lai indicated in his evidence that DNA testing he performed cannot determine how long the DNA was on an object or how the DNA got on the object.
[19] In the case at bar, Mr. Lai was involved in two reports. The first report, dated September 13, 2018, was authored by Michael Bissonnette. This report was entered as Exhibit 5 at the trial. Mr. Bissonnette is a scientist at the Centre of Forensic Sciences and was unable to testify as he was on leave. Mr. Lai testified about the results contained in the September 13, 2018 report. The purpose of this report was to see if DNA profiles could be generated from a swab of a bear spray can. From the testing performed, Mr. Lai could not indicate whether the DNA was from blood, semen or saliva, but he did indicate in his evidence that a DNA profile and sex determining marker were able to be generated. A DNA profile from a male was discovered that was suitable for comparison.
[20] As indicated on page two of the September 13, 2018 report (Exhibit 5), a DNA profile was generated that could be submitted to the National DNA bank for comparison. The further report dated February 22, 2019, prepared by Michael Bissonnette (Exhibit 6), relates to a DNA comparison sample received from Alexandre Ethier. This generated a DNA profile and the conclusion of this report is that the profile gave the same results as the DNA profile on the bear spray can. Based on that, the accused Alexandre Ethier, cannot be excluded as the source of the DNA found on the bear spray can. As indicated on page one of the February 22, 2019 report, under the heading conclusions, “The probability that a randomly selected individual unrelated to Alexandre Ethier would coincidentally share the observed STR DNA profile is estimated to be one in greater than one trillion”.
[21] Mr. Lai was thoroughly cross-examined about the results in the two aforementioned reports and, in particular, about the matter of transference, that is, the transfer of DNA. Mr. Lai was candid in his testimony that he could not provide an opinion as to how Mr. Ethier’s DNA came to be on the bear spray can, how long ago the DNA might have been deposited on the can, or whether only one person handled this item. Mr. Lai also indicated in his evidence that it is possible for a person to have handled the can and not deposited DNA and that it is possible for a person’s DNA to be deposited on the can without that person ever handling the can. Mr. Lai indicated in his evidence that the testing done cannot confirm that Mr. Ethier sprayed the bear spray can at any time or that he was the last person that handled the can. Mr. Lai agreed with the suggestion put to him by defence counsel that the DNA on the can may have been deposited there prior to offence and at some earlier time.
[22] In cross-examination of Mr. Lai, defence counsel put the following question to him, “So, ultimately then, the DNA that was found on the cannister belonging to Mr. Ethier does not mean he touched that cannister, correct? You can’t say that.” Mr. Lai’s response was, “That’s correct, not necessarily.”
DISCUSSION/ANALYSIS
[23] There is no direct evidence that the accused, Alexandre Ethier, was in the home at 14 Hergott Avenue, Elliot Lake, Ontario in the early morning hours of August 1, 2018. The Crown is correct when it asserts that the issue in this case is identity and that the case is a circumstantial one. On the totality of the evidence, there is no doubt that there was a home invasion at 14 Hergott Avenue, Elliot Lake, Ontario on August 1, 2018, that Bradley Grier was sprayed with bear spray, and that a safe was taken from his home. The question is whether the court is satisfied beyond a reasonable doubt that it was the accused, Alexandre Ethier, who did this.
[24] The Crown takes the position that the proof in this case hinges on the forensic evidence, and the evidence of the two experts called from the Centre of Forensic Sciences. The Crown urges the court to draw two inferences from the evidence which it says will point to the guilt of Alexandre Ethier. The first inference is that the can of bear spray found outside the home was in fact the can of bear spray used in the home invasion. The second inference is that the DNA on the trigger and handle of the can of bear spray was placed there by the person who committed the offence.
[25] It is the position of the Crown that these inferences are supported by the evidence of Dr. Dorn, and Mr. Lai, the forensic science expert who testified that the DNA on the bear spray can came from a single source and that it was Mr. Ethier’s DNA that was found on the bear spray can which was found outside the home at 14 Hergott Avenue, Elliot Lake, Ontario by Constable Wenzler.
[26] Does the evidence of Dr. Dorn and Ronald Lai support these inferences to be drawn by the court to support a finding of guilt beyond a reasonable doubt? The court must reflect upon the totality of the evidence at the trial, including the totality of the evidence given by Dr. Dorn and by Mr. Lai.
[27] With respect to Dr. Dorn’s evidence, his evidence confirms that the headboard in the Hergott Avenue home had identifiable lachrymators which is consistent with bear spray being sprayed on it. This confirms the evidence of Mr. Grier and Mr. Ducharme that bear spray was sprayed inside the home at 14 Hergott Avenue. As to the aerosol dispenser, chemicals consistent with bear spray was located on the dispenser which was non-operational. Dr. Dorn’s evidence does not link the substance on the nozzle of the aerosol can to the substance found on the headboard in the Hergott Avenue home. In his evidence, Dr. Dorn clearly stated that he cannot say that the pepper spray on the headboard came from the aerosol dispenser found on the lawn at 14 Hergott Avenue, Elliot Lake, Ontario and tested by him.
[28] With respect to the evidence of Ronald Lai, the court can conclude from his evidence that Alexandre Ethier’s DNA cannot be excluded as the male DNA profile on the can of bear spray and that probability is high. What the court cannot conclude from the evidence of Ronald Lai is as follows:
(1) How the DNA got on the bear spray can;
(2) How long the DNA was on the bear spray can;
(3) How Mr. Ethier’s DNA got on the bear spray can;
(4) Whether only one person handled the bear spray can;
(5) Whether Mr. Ethier even handled the bear spray can;
(6) Whether someone other than Mr. Ethier handled the bear spray can.
[29] It is to be noted in the evidence of Mr. Lai that he cannot confirm that Mr. Ethier sprayed the bear spray can at any time, or that he ever touched the bear spray can, or that Mr. Ethier’s DNA was deposited on the bear spray can at the time of the alleged offence.
[30] I found the evidence of Ronald Lai to be candid, impartial, and extremely balanced. The impression created by him was that he was testifying to assist the court and not to advance any position or theory of the case. The scientific evidence in this case, especially the evidence of Mr. Lai, does not support the inferences that the Crown is asking the court to draw to point to the guilt of Alexandre Ethier. Dr. Dorn cannot say that the substance from the cannister is the same substance on the headboard inside the home. He cannot satisfy the court that it was that can of bear spray that was used in 14 Hergott Avenue. The evidence of Ronald Lai does not lead the court to conclude, beyond a reasonable doubt, that just because Mr. Ethier’s DNA cannot be excluded as the DNA found on the bear spray cannister, that he was the person that used the bear spray inside 14 Hergott Avenue and therefore committed the crime. It is entirely possible, on Mr. Lai’s own evidence, that Mr. Ethier’s DNA was deposited on the can of bear spray without him even having handled the can.
[31] In order to convict Mr. Ethier of the offences for which he is charged, I must be satisfied of his guilt beyond a reasonable doubt. The standard of having the Crown prove the two inferences it wishes the court to draw, on a balance of probabilities – that it is more likely than not – does not apply in a criminal case. The court must be satisfied beyond a reasonable doubt that it was Alexandre Ethier inside the home at 14 Hergott Avenue, Elliot Lake, Ontario on August 1, 2018; that it was Alexandre Ethier who sprayed bear spray in the face of Bradley Grier; that it was Alexandre Ethier who took the black safe from the home at 14 Hergott Avenue, Elliot Lake, Ontario on August 1, 2018 and; that while he did so, Mr. Ethier was wearing a face mask.
[32] In considering whether the Crown has met its burden of proof and in considering the totality of the evidence led at this trial, the court must bear in mind the principle of reasonable doubt, which is a cornerstone in the criminal justice system in Canada. It is helpful for the court to remind itself of the direction the court gives a jury concerning the principle of reasonable doubt. If this case was before a jury, the trial judge would provide the following instructions on reasonable doubt to the jury before they began their deliberations:
The phrase “beyond a reasonable doubt” is a very important part of our criminal justice system.
A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.
It is not enough for you to believe that the accused is probably or likely guilty. In those circumstances, you must find him not guilty, because Crown counsel would have failed to satisfy you of his guilt beyond a reasonable doubt. Proof of probably or likely guilt is not proof beyond a reasonable doubt.
You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.
If, at the end of the case, after considering all the evidence, you are sure that the accused committed the offence, you should find the accused guilty of it, since you would have been satisfied of his guilt of that offence beyond a reasonable doubt.
If, at the end of the case, based on all of the evidence or the lack of evidence, you are not sure that the accused committed the offence, you should find him not guilty of it.
[33] On the totality of the evidence before me, I am not sure that Alexandre Ethier committed the offences set out in the indictment dated February 26, 2019. The case against him is a circumstantial one. The fact that Mr. Ethier’s DNA is on the bear spray can that is found outside 14 Hergott Avenue does not lead to the sole inference that he was inside 14 Hergott Avenue and used the bear spray on Bradley Grier. From the evidence of Ronald Lai, there are other conclusions that can be drawn by the court and the evidence does not lead this court to conclude that the only reasonable inferences that can be drawn by this court are the two advanced by the Crown. The circumstantial evidence presented in this case is reasonably capable of supporting inferences and conclusions other than the guilt of Mr. Ethier. As stated by Justice Cromwell in R. v. Villaroman, 2016 SCC 33, at paragraph 55,
Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.
[34] In the charges involving Alexandre Ethier, I cannot be satisfied that the only reasonable conclusion capable of being reached is the accused’s guilt. On the totality of the evidence, I am left with a reasonable doubt. In my view, it would be reckless to convict Mr. Ethier solely on the DNA evidence given the limitations of that evidence as to what it can show and what it cannot show, and the frailties of that evidence as so candidly described to the court by Ronald Lai of the Centre of Forensic Sciences.
[35] On weighing the evidence in this case against the standard of proof required in a criminal case, I cannot conclude that the Crown has discharged its burden to establish Mr. Ethier’s guilt beyond a reasonable doubt.
[36] Accordingly, the six counts set out in the indictment dated February 26, 2019 are dismissed.
Gareau J.
Released: December 13, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ALEXANDRE JEAN-PIERRE ETHIER
REASONS FOR JUDGMENT
Gareau J.
Released: December 13, 2019