



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Wills, 2014 ONCA 178

DATE: 20140307

DOCKET: C54968

Doherty,
Pepall
and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Wills

Appellant

Carlos Rippell, for the appellant

David Lepofsky, for the respondent

Heard:  November 26, 2013

On appeal from the convictions returned by a jury
    presided over by Justice Mark L. Edwards of the Superior Court of Justice on October
    19, 2011, in Newmarket, Ontario, and on appeal from the sentences imposed on January
    16, 2012.

Doherty J.A.:


I



[1]

The appellant was found guilty by a jury on two counts of robbery with
    a firearm (counts 1 and 2), one count of unlawful confinement (count 3), one
    count of disguise with intent to commit an indictable offence (count 4), and
    two counts of possession of a weapon for the purpose of committing an
    indictable offence (count 5  a baton; count 6  a firearm).  The trial judge
    stayed count 6, relying on
R. v. Kienapple
, [1975] 1 S.C.R. 729.  The
    appellant received sentences totalling 10 years which after credit for
    pre-trial custody resulted in a net sentence of seven years and four months. 
    He appeals his conviction and sentence.

[2]

The charges arose out of a home invasion.  Two masked men forced their
    way into the Sacchetti residence.  One viciously assaulted Mr. Sacchetti when
    he attempted to prevent their entry into his home.  The other robber forced
    Mrs. Sacchetti to the floor in the kitchen, put a gun to her head, and demanded
    money.  The two men fled the scene with a small amount of cash.

[3]

The appellant was tried alone.  Identity was the central issue at
    trial.  Not surprisingly, neither victim could identify either assailant.  The
    Crowns case rested on DNA evidence linking the appellant to two bandanas used
    by one or both of the robbers, and evidence that a police baton similar to the
    weapon used to beat Mr. Sacchetti was seized from the appellants bedroom
    closet about two months after the robbery.

[4]

The appellant did not testify.

[5]

Counsel advanced several grounds on the conviction appeal.  I would
    dismiss that appeal.  I would, however, allow the sentence appeal by making the
    two-year consecutive sentence imposed on count five for possession of a weapon
    (a baton) for the purpose of committing an offence, concurrent to the sentences
    imposed on the robbery charges.  This variation results in a net sentence of five
    years and four months.


II



the evidence

(a)

The Robbery

[6]

Mr. Sacchetti, aged 78, and his wife, aged 75, live together in
    Woodbridge, Ontario.  At about 7:30 p.m. on a February evening, Mr. Sacchetti
    heard loud banging on the front door followed by shouting.  He opened the door
    and two men rushed forward into the house.  Both men were masked and wearing
    hoods.

[7]

One of the robbers (the first robber) pushed Mr. Sacchetti backward into
    a closet door, shattering the glass on the door.  A struggle ensued.  The first
    robber pulled Mr. Sacchetti outside into the snow and beat him severely with a
    stick-like weapon.  Mr. Sacchetti pulled a white mask from the first robbers
    face during the struggle.

[8]

Inside the house, the second robber confronted Mrs. Sacchetti in the
    kitchen.  He ordered her to the floor and when she had difficulty getting down because
    of her scoliosis, the second robber put his foot on her back and pushed her to
    the floor.

[9]

The second robber left Mrs. Sacchetti lying on the floor for a moment but
    then returned with what appeared to be a handgun.  Pointing the handgun at Mrs.
    Sacchettis neck, and then at her face, the robber said, Mrs., you see this? 
    Where is the money?  Mrs. Sacchetti directed the robber to a drawer in the
    buffet containing cash.

[10]

The
    second robber left Mrs. Sacchetti and joined the first robber, who was
    continuing the assault on Mr. Sacchetti at the front of the home.  The second
    robber pushed snow into Mr. Sacchettis mouth in an effort to keep him quiet. 
    The first robber indicated they should leave and both men fled off through a
    nearby ravine.  The home invasion lasted five to ten minutes.

[11]

The
    Sacchettis were terrorized by the incident.  They thought they were going to
    die.  Mr. Sacchetti was taken to the hospital and treated for a broken nose,
    cuts to his head, and injuries to his torso.

(b)

The Victims Description of the Robbers

[12]

Mr.
    Sacchetti could not identify either robber.  He described the first robber as:

·

A black man, but not an African black, just maybe one step
    down.

·

A little taller than Mr. Sacchetti, perhaps five feet, seven
    inches or five feet, eight inches.

·

A normal build, not a big guy, with a slim face.

·

[I]n the 20s, 21, 22.  You know, something like that.

[13]

Mrs.
    Sacchetti never saw the face of her attacker.  She did not know if he was white
    or black.  She described him as tall, maybe six feet, and as neither fat nor
    skinny.  Her assailant said something to her in Italian.

(c)

The DNA Evidence

[14]

The
    police found the white bandana Mr. Sacchetti had pulled from the face of the
    first robber.  There was blood on that bandana.  The police found a second blue
    bandana in the ravine along the escape route followed by the robbers.  An
    impression of a footprint found very close to that bandana matched an
    impression of a footprint taken from the Sacchettis house.  It was a fair
    inference that both bandanas were worn during the robbery by either or both of
    the robbers.

[15]

A
    Crown expert examined both bandanas for DNA.  Three sections were cut from the
    white bandana.  On one section, the expert detected the DNA of at least one individual. 
    There was insufficient DNA to allow a comparison.  The DNA of at least three unidentified
    people was found on a second cut-out section.  Once again, that DNA was not
    suitable for comparison.  The DNA of at least two individuals was detected on
    the third cut-out section from the white bandana.  One of the DNA samples matched
    the appellants DNA profile.  The expert opined that the chance that two
    different persons could share that DNA was something in the order of one in 48
    billion.

[16]

The
    Crown expert acknowledged that there was DNA on the white bandana from at least
    three persons, stating:

[W]e say at least three because we dont know how many
    individuals are in that mixture.  There could be four, there could be five, we
    dont know, but theres at least three.

[17]

The
    expert cut one section from the blue bandana found in the ravine.  Testing of
    that section revealed DNA from at least two individuals.  The DNA from one of
    the individuals matched the DNA of the appellant.  The chance of a random match
    with another individual was one in 9.2 billion.  The expert could not say how
    many individuals DNA might be on the cut-out section from the blue bandana.

[18]

The
    Crown expert testified that he could not say when the DNA was placed on the
    bandanas and he could not estimate how long the DNA may have been on the
    bandanas.  Nor could the expert say how the DNA had come to be placed on the
    bandanas.  DNA could have been placed on the bandanas by direct or indirect
    contact.  The expert also agreed that the person or persons wearing the bandanas
    during the robbery may not have left his or her DNA on the bandana.  Finally,
    the expert could not comment on the presence or absence of DNA on the parts of
    the bandanas that were not tested.

(d)

The Weapon

[19]

Mr.
    Sacchetti described the weapon used by the first robber in some detail.  He described
    it as having what appeared to be a wooden handle that was about eight inches
    long and a metal end that was about 12 inches long.  Mr. Sacchetti testified
    that the handle was black or brown and the metal end of the weapon was silver. 
    He described the metal end of the weapon as flexible, comparing it to the microphone
    attached to the witness box and to a piece of BX wire.  He also described the
    metal end as like a whip.

[20]

Mr.
    Sacchetti likened the weapon used against him to the wood piece that
    policemen carry on the side of their legs.  He testified:

I never been involved with the police that they gonna use at
    me, but I see the police walk with this thing on their thing, but I dont know
    how far it goes into the pants.  But that was the  but this thing, I dont
    know if policeman Canadian have the same metal piece on the top.  I didnt see
    this.  All I know, I see when they walk and I see this thing on their legs and
    its the same, about the same colour. I figure its wood, but I dont know at
    the end the way it is.

[21]

The
    police seized a metal baton from a gym bag found in the appellants bedroom
    closet about two months after the robbery.  The officer who seized the baton described
    it as an asp, it is just  for the jury, basically an asp is what the majority
    of police officers carry.  It is a metal baton, it is a metal stick.

[22]

The
    officer indicated that uniformed police officers wear the baton on their belt. 
    He explained that these batons extend when swung.  Once extended, the baton is
    rigid.

[23]

The
    police officer who found the baton in the appellants closet agreed that police
    batons can be purchased over the Internet and in certain self-defence
    stores.  The officer was shown a series of pictures of batons taken from the Internet. 
    The batons varied somewhat in shape and size and were different colours.  That
    same officer and others testified that in their experience, police batons are
    seldom found in the possession of persons who are the subject of police searches.

[24]

Mr.
    Sacchetti was shown the baton seized from the appellants bedroom closet and
    asked to compare it to the weapon used against him in the robbery.  He
    described the handles as about the same length although the handle on the
    baton was thinner.  Mr. Sacchetti further testified that the non-handle portion
    or end of the weapon used against him was a little longer than the end of
    the baton.  Mr. Sacchetti also indicated that the weapon used in the robbery
    had a wooden handle, whereas the baton had a metal or rubberized handle.  Mr.
    Sacchetti went on to indicate, however, that he did not actually touch the
    handle of the weapon during the attack.

[25]

Mr.
    Sacchetti pointed out three other differences between the baton seized from the
    appellants bedroom closet and the weapon used in the robbery.

·

The end of the baton seized from the appellants closet was black,
    although specks of the black paint had come off the tip of the end, exposing
    the silver coloured metal underneath.  The end of the weapon used in the attack
    was silver.

·

The end of the baton shown to Mr. Sacchetti was firm.  That end
    of the weapon used against him moved and was like a whip.

·

The tip of the end of the baton seized from the appellants
    bedroom closet had a mushroom-like shape.  The weapon used in the robbery had a
    more pointed tip.


III



were the verdicts unreasonable?

A:  The Test

[26]

Counsel
    for the appellant submits that the evidence could not reasonably support a
    finding that the appellant was one of the perpetrators.  Counsel maintains that,
    without that finding, the appellant could not be convicted on any of the
    charges.

[27]

Jury
    verdicts are regarded as the gold standard in criminal law.  However, as with
    any human institution, juries can make mistakes.  Where the mistake is a
    wrongful conviction, the cost to the accused can be measured in years of his or
    her life.  Appellate review, and, in particular, review under s. 686(1)(a)(i),
    serves to protect against jury error in those cases where the trial is free of
    legal error and is entirely fair, but the evidence cannot justify the
    conviction of the accused: see
R. v. W.H.
,
2013 SCC 22, at para. 39.  Section 686(1)(a)(i) reads:

686(i) On the hearing of an appeal against a conviction  the
    court of appeal

(a)  may allow the appeal where it is
    of the opinion that

(i)  the verdict should be set aside
    on the ground that it is unreasonable or cannot be supported by the evidence.

[28]

Section
    686(1)(a)(i) requires the appellate court to test the jurys verdict against a
    reasonableness standard.  That standard asks whether the verdict is one that a
    properly instructed jury, acting judicially, could reasonably have rendered.

[29]

In
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40, Arbour
    J., for a unanimous court, described the appellate courts function in
    assessing the reasonableness of a jury verdict:

When an appellate court arrives at that conclusion [that the
    verdict is unreasonable] it does not act as a thirteenth juror, nor is it usurping
    the function of the jury.  In concluding that no properly instructed jury
    acting judicially could have convicted, the reviewing court inevitably is
    concluding that these particular jurors who convicted must not have been acting
    judicially.  In that context, acting judicially means not only acting
    dispassionately, applying the law and adjudicating on the basis of the record
    and nothing else.  It means, in addition, arriving at a conclusion that does
    not conflict with the bulk of judicial experience.  This, in my view, is the
    assessment that must be made by the reviewing court.
It requires not
    merely asking whether twelve properly instructed jurors, acting judicially, could
    reasonably have come to the same result, but doing so through the lens of
    judicial experience which serves as an additional protection against an
    unwarranted conviction.
[Emphasis added.]

[30]

The
    lens of judicial experience refers to the appellate courts examination of
    the cogency of the evidence as informed by the courts awareness of the risk of
    wrongful convictions associated with certain kinds of cases and certain kinds
    of evidence.  The court, as an institutional participant in the criminal
    justice system, has an appreciation of those risks that a jury in a specific
    case cannot have.

[31]

Section
    686(1)(a)(i) requires the appellate court to independently weigh the totality of
    the evidence.  The court weighs the evidence, however, not with a view to
    making its own assessment as to the appropriate verdict, but for the more
    limited purpose of determining whether the verdict is beyond the reasonableness
    limit.  In making that assessment, the court must give due weight to the
    advantage a jury gains from actually seeing the witnesses and hearing the
    narrative unfold: see
W.H.
,
supra
, at para. 27
.

[32]

In
    this case, the lens of judicial experience must focus both on the nature of
    the crime and the nature of the evidence.  This was a terrible crime committed
    against innocent and particularly vulnerable members of the community. 
    Law-abiding members of the community could easily see themselves as the victims
    of this kind of random violent crime.  A jurys understandable concern that
    criminal activity of this kind does not go unpunished could subconsciously influence
    the jurys assessment of whether the circumstanceswhich no doubt pointed the
    finger of suspicion at the appellantwere sufficiently compelling to justify a
    finding of guilt beyond a reasonable doubt.

[33]

Not
    only is this the kind of case where jury objectivity is tested, but also the
    evidence relied on by the Crown was purely circumstantial.  The reasonableness
    of the verdicts must be assessed with regard both to the inferences reasonably
    available from the totality of the evidence and to the Crowns ultimate burden
    to demonstrate that guilt is the only reasonable inference to be drawn from the
    totality of that evidence:  see
R. v.
Yebes
, [1987] 2 S.C.R. 168,
at pp. 186-90; and
R. v. Barrett
, 2004 NSCA 38, at paras. 15-20.  There is a risk that a
    jury could use the DNA evidence, which provided incontrovertible evidence
    connecting the appellant to the bandanas, to draw the further, but much weaker,
    inference connecting the appellant to the robbery.

B:  Application of the Test to this Case

[34]

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.

[35]

The
    finding of the appellants 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.

[36]

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), 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.

[37]

The
    Crown argues that the evidence that a police baton similar to the weapon used
    in the robbery was found in the appellants bedroom closet less than two months
    after the robbery provides the necessary added evidence, which, when combined
    with the DNA evidence, could establish that the appellant was one of the
    robbers.

[38]

Counsel
    for the appellant takes a very different view of Mr. Sacchettis evidence.  He
    contends that Mr. Sacchettis description of the differences between the weapon
    used against him and the baton seized from the appellants closet compels the
    conclusion that the seized baton was not the weapon used in the robbery.  On
    this view of Mr. Sacchettis evidence, the police baton seized from the
    appellants bedroom closet added nothing to the Crowns case.

[39]

The
    appellants position assumes that a reasonable jury would accept Mr.
    Sacchettis detailed description of the weapon used against him in the attack. 
    Certainly, a reasonable jury could accept the entirety of his evidence.  If the
    jury accepted the detailed description as accurate, it would follow that the
    police baton seized from the appellants apartment was not the weapon used in
    the robbery.

[40]

However,
    there is another reasonable view of Mr. Sacchettis evidence.  A reasonable jury
    could conclude that Mr. Sacchettis general description of the weapon used
    against him as like the wood piece that police carry on the side of their
    legs was accurate and reliable but that his description of the details of the weapon
    was not reliable because of the circumstances in which he observed the weapon. 
    For example, a reasonable jury might well take Mr. Sacchettis reference to the
    weapon as being like a whip as explained by the manner in which his assailant
    swung the weapon in a downward motion at Mr. Sacchetti who was lying on the
    ground.  Similarly, Mr. Sacchettis description of the end of the weapon used
    to strike him as silver could be explained by the exposure of the metal surface
    of the weapon where the paint had been scratched off.  The lighting conditions where
    Mr. Sacchetti was attacked could well have affected his perception of the colour
    of the object being used to bludgeon him.

[41]

Allowing
    for the clearly advantageous position of the jury who saw and heard Mr.
    Sacchetti testify and who had an opportunity to examine the baton seized from
    the appellants closet, I think a reasonable jury could conclude that Mr.
    Sacchetti was struck with a police baton that was similar in appearance to the
    police baton seized from the appellants bedroom closet.

[42]

The
    reasonableness of the finding that the appellant was one of the perpetrators
    ultimately depends on the probative value of evidence that the appellant had in
    his bedroom closet some two months after the robbery a police baton that was
    similar to the weapon used in the robbery.  In considering the probative value
    of the evidence, one must bear in mind that a police baton is not the kind of
    object that is commonly found in a household or in the possession of persons
    other than police officers.  The somewhat uncommon nature of the weapon adds
    some probative force to the evidence from the Crowns perspective.

[43]

I
    do not think that Mr. Sacchettis very general description of one of the
    robbers, at para. 12, adds any force to the Crowns case.  It is relevant to the
    reasonableness inquiry only in the sense that it is not inconsistent with the
    appellants appearance and does not, therefore, as in
Mars
, at para.
    26, diminish the potential force of the circumstantial evidence.  Mrs.
    Sacchettis description has no evidentiary value.

[44]

This
    is a close call.  I am, however, satisfied that the DNA evidence linking the
    appellant to the two bandanas used in the robbery, combined with evidence
    permitting the inference that some two months after the robbery the appellant had
    a police baton like the police baton used in the robbery, is sufficient to render
    the jurys finding that the Crown had proved that the appellant was one of the
    perpetrators a reasonable one.  In holding that the verdicts survive the
    reasonableness analysis I have taken into account the appellants failure to
    testify: see
R. v. Corbett
,
[1975] 2 S.C.R. 275, at pp. 280-81.


IV



the convictions on the armed robbery charges

[45]

Counts
    one and two in the indictment alleged that the appellant did use a firearm to
    rob the victims.  At trial, counsel for the appellant moved for a directed
    verdict at the end of the Crowns case.  He argued that, as the alleged firearm
    had not been fired during the robbery and as the police had not recovered the
    alleged firearm, the Crown could not prove beyond a reasonable doubt that the
    alleged firearm was, in fact, a firearm, as defined in s. 2 of the
Criminal
    Code
, R.S.C. 1985, c. C-46
. 
    Counsel submitted that the evidence was at least equally consistent with the
    use of an imitation handgun during the robbery.  An imitation handgun is not a
    firearm, as defined in s. 2.

[46]

The
    trial judge rejected this argument and charged the jury that, to convict on the
    robbery with a firearm counts, the jury must be satisfied beyond a reasonable
    doubt that a firearm was used in the robbery.  He gave the jury the definitions
    of both weapon and firearm.  An imitation handgun does fall within the
    definition of weapon, although, as indicated above, it is not a firearm. 
    The jury convicted on both counts.

[47]

Counsel
    renews this submission on appeal, arguing that there was no evidence that the
    weapon used by the second robber was a firearm, as defined in the
Criminal
    Code
.

[48]

I
    agree with Crown counsels contention that the appellants submission and the
    trial judges instructions mischaracterize the offences alleged in counts one
    and two of the indictment.  To convict on those counts, the Crown was required to
    prove that the appellant committed robbery, as defined in s. 343 of the
Criminal
    Code
.  Use of a firearm is not an essential element of robbery, as defined
    in s. 343.  The Crown was not required to convince the jury beyond a reasonable
    doubt that the appellant used a firearm.  If the jury was satisfied that the
    Crown had proved robbery, as defined in s. 343, the jury was obliged to convict
    the appellant on counts one and two.  It was for the trial judge on sentencing
    to determine whether the Crown had proved beyond a reasonable doubt that the
    appellant used a firearm in the commission of the robbery, thereby triggering
    the mandatory minimum penalty under s. 344(1):  see
R. v. Moore
, 2012 ONCA
    770; and
R. v. A.D.
, 2003 BCCA
    106,
(2003), 173 C.C.C. (3d) 177.  Any deficiency in the Crowns
    proof that a firearm was used in the robbery is appropriately considered on the
    sentence appeal.

[49]

I
    will, however, address the appellants submission that, absent proof that a
    firearm was discharged or the recovery of a firearm, the Crown could not prove
    that the weapon used in the robbery was a firearm, as defined in s. 2.  As I
    understand this argument, counsel relies on Parliaments creation of the
    discrete offence of using an imitation firearm in the commission of an
    indictable offence in s. 85(2) and asserts that the Crown cannot prove that a
    firearm, as opposed to an imitation firearm, was used, unless the alleged
    firearm is discharged during the offence or recovered after the offence and
    tested to demonstrate that it meets the definition of firearm in s. 2.  There
    is some support for this proposition: see
R. v. Lemoine
,
[1998] O.J. No. 601 (C.A.); and
R.
    v. Taing
, 1998 ABCA 108
.

[50]

I
    do not conclude from Parliaments decision to criminalize the use of imitation
    firearms, an obviously dangerous activity, that the normal rules of proof do
    not apply to an allegation that an accused used a firearm, as defined in s. 2
    of the
Criminal Code
.  The Crown may prove that the alleged firearm
    fell within the definition by inference from the totality of the circumstances,
    even if the alleged firearm was not fired or recovered.  This court has upheld
    trial decisions that have drawn that inference even though the firearm was not
    discharged or recovered: see
R. v. Richards
,
[2001] O.J. No. 2286 (C.A.);
R. v. Carlson
, [2002] O.J. No. 1884 (C.A.); and
R.
    v. Charbonneau
, [2004] O.J. No. 1503
    (C.A.)
.

[51]

I
    do, however, accept that, where the Crown alleges the use of a firearm and the
    firearm was not recovered or discharged, it is incumbent on the trial judge to
    clearly explain to the jury the essential elements of the definition of firearm
    in s. 2 and to make it clear to the jury that the use of something resembling a
    firearm does not constitute proof of the use of a firearm.  Assuming the jury
    is properly instructed, and assuming that the inference that the alleged
    firearm was, in fact, a firearm is reasonably available, it is for the jury to
    decide whether that inference should be drawn.


V



THE
    ADMISSIBILITY OF THE BATON SEIZED FROM THE APPELLANTS APARTMENT

[52]

Two
    arguments are advanced in support of the appellants position that the baton
    was inadmissible.  The first presumes, based on Mr. Sacchettis evidence, that
    the baton was not the weapon used in the robbery.  For reasons outlined above,
    I am satisfied that a jury could reasonably conclude that the police baton
    seized from the appellants bedroom closet was similar to the police baton used
    in the robbery.  That similarity, particularly in light of the relatively
    uncommon nature of the weapon involved, was sufficient to render the baton admissible
    as a piece of circumstantial evidence going ultimately to the question of
    identity, a material fact in issue.

[53]

The
    appellant also argues that the baton was inadmissible because there was no
    evidence that he was in possession of the baton.  The baton was found in the
    closet of the appellants bedroom.  He lived there with his girlfriend and a
    young child.  The baton was in a gym bag containing what appeared to be adult
    male clothing.  There was no evidence that any other adult male lived in the
    apartment, although there was some evidence that at least one other male
    visited the apartment.  These circumstances provided an ample basis upon which
    a jury could conclude that the appellant was in possession of the baton when it
    was found by the police.  I think the jury could also infer, particularly in
    the absence of any evidence to the contrary, that the appellant was in
    possession of the baton some two months earlier.


VI



the instruction on circumstantial evidence

[54]

The appellant submits that the trial judge erred in law in failing to
    instruct the jury that, as the case was purely circumstantial, it could convict
    only if guilt was the only rational inference:  see
R. v. Griffin
,
    2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.  The trial judge could have
    instructed the jury in the words urged by the appellant.  However, as long as
    the trial judge adequately explained to the jury how to use circumstantial
    evidence to draw inferences and explained the burden on the Crown to prove
    guilt beyond a reasonable doubt based on those inferences, no particular
    semantic formulation was necessary:
R. v. Mayuran
, 2012 SCC 31, [2012]
    2 S.C.R. 162, at para. 38.  The trial judges instructions adequately conveyed
    the required message.


VII



the sentence appeal

[55]

The
    trial judge imposed sentences of five years and four months concurrent on the
    two robbery counts.  He did so on the basis that the jury had found that the
    appellant was liable as a party to the use of a firearm during the commission
    of the robbery, thereby triggering the four-year minimum sentence in s.
    344(1)(a.1).

[56]

As
    explained above, at paras. 45 to 48, it was not for the jury to determine
    whether a firearm was used in the robbery.  The trial judge should have made
    that determination on sentence.

[57]

The
    Crown argues that the appellant was not prejudiced by this misallocation of the
    responsibility for determining whether a firearm was used in the robbery. 
    Counsel observes that the trial judge was not asked to revisit the issue on
    sentencing and that no objection was taken to the trial judges acceptance of
    the jurys finding that a firearm was used for the purposes of sentencing.

[58]

I
    have difficulty with the Crowns argument on two fronts.  First, I cannot agree
    that, where the law requires a trial judge to make a particular determination,
    there is no prejudice when the jury makes that determination and the trial
    judge merely accepts the jurys finding.  There is no way of knowing what
    finding the trial judge would have made in respect of the claim that a firearm
    was used in the robbery.  Second, any reliance on the jurys verdicts is
    tainted by the trial judges misdirection as to the meaning of the word firearm. 
    During his instructions on the robbery charges, the trial judge confused the
    definitions of weapon and firearm.  No clarification was provided to the
    jury despite an objection by counsel for the appellant.

[59]

This
    court is left with two options.  The court could make its own finding as to
    whether the Crown had proved beyond a reasonable doubt that a firearm was used
    in the robbery, or it could assume in the appellants favour that the Crown had
    failed to prove that the firearm was used in the robbery and, on that
    assumption, determine the appropriate sentence.  I will follow the latter
    course.

[60]

All
    home invasion robberies are very serious crimes and will usually merit significant
    penitentiary sentences:
R. v. Wright
, [2006] 83 O.R. (3d) 427 (C.A.). 
    This home invasion was a particularly egregious example of the crime.  The
    gratuitous violence and threats made against the elderly victims are shocking
    and despicable.  Even if the weapon pointed into the face of Ms. Sacchetti as
    she lay helpless on the ground believing she was about to die was not a
    firearm, it nonetheless terrorized Ms. Sacchetti.  I am sure the vision of that
    gun and the terror it generated will never leave her mind even if one cannot
    say for certain that it was a real gun:  see
R. v. Steele
, 2007 SCC
    36, [2007] 3 S.C.R. 3, at paras. 20-23.

[61]

Taking
    into account the pre-trial custody, the trial judge imposed an effective
    sentence of eight years on the robbery.  Regardless of whether the weapon used
    to terrorize Ms. Sacchetti was a real firearm, the totality of the circumstances
    justifies a sentence of eight years.  I would not interfere with the sentences
    imposed on the robbery charges.

[62]

There
    is, however, merit to the appellants argument that the trial judge should not
    have imposed a consecutive two-year sentence on the charge of possession of a
    weapon (the baton) for the purposes of committing the offence of robbery.  This
    count was part and parcel of the robbery charges.  In my view, the vicious and
    senseless beating administered with the baton is one of the aggravating factors
    taken into account in fixing eight years as an appropriate sentence on the
    robbery charges.  To impose a further consecutive sentence is to double count
    that conduct in calculating the appropriate sentence.  The sentence on the
    charge of possession of a weapon (the baton) for the purpose of committing the
    offence of robbery should have been made concurrent to the sentences on the
    robbery charges.


VIII



conclusion

[63]

I
    would dismiss the conviction appeal.  I would allow the sentence appeal and
    make the two-year sentence on the charge of possession of the baton for the
    purpose of committing the offence of robbery concurrent to the sentences on the
    robbery charges.  This variation results in an effective sentence of eight
    years, which taking into account pre-trial custody, results in a sentence of
    five years and four months.

Doherty J.A.

I agree M.L. Benotto
    J.A.




Pepall J.A. (Dissenting):

[64]

With
    respect, I disagree with my colleague that the conviction appeal should be
    dismissed.  In my view, the evidence could not reasonably support a finding
    that the appellant was one of the perpetrators of the crimes for which he was
    convicted and, as such, the verdict was unreasonable.

The Test

[65]

In
    making this determination, I appreciate that, to use my colleagues
    terminology, jury verdicts are regarded as the gold standard in criminal law. 
    An appellate court is not to act as a thirteenth juror:
R. v. Biniaris,
2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40.  That said, in my opinion, the
    verdict in this case is beyond the limits of reasonableness.  It is not one
    that a properly instructed jury, acting judicially, could reasonably have
    rendered.

Application of the Test

[66]

Neither
    of the victims identified the appellant as one of the robbers.  The case
    against the appellant was based solely on circumstantial evidence.  As such, in
    order to convict, the jury had to be satisfied beyond a reasonable doubt that
    the only rational inference that could be drawn from the circumstantial
    evidence was that the appellant was guilty: see
R. v. Griffin
, 2009
    SCC 28, [2009] 2 S.C.R. 42, at para. 33.

The Evidence

[67]

As
    my colleague indicates at paragraph 3 of his reasons, the Crowns case rested
    on DNA evidence connecting the appellant to two bandanas used in the robbery
    and evidence of a baton seized from the appellants apartment.

(a)

DNA Evidence

[68]

As
    noted in paragraph 34 of my colleagues reasons, the DNA evidence does
    establish that the appellant, among others, had direct or indirect contact with
    both bandanas at some point in time before the police found them.  However, the
    timing of when the appellants DNA was placed on the bandanas cannot be
    determined.  As the Crowns DNA expert testified: Theres no way to determine
    how long any of those DNA profiles have been on that bandanna.  Furthermore,
    both bandanas contained the DNA of multiple individuals and had DNA

from
    more individuals than there were perpetrators to the offences.


[69]

As
    my colleague states at paragraph 36 of his reasons, the DNA evidence alone
    could not support the inference that the appellant was one of the perpetrators
    or that either bandana belonged to him.

(b)

The Baton

[70]

Turning to the evidence of the baton, about two months after the crime,
    a baton was found in a closet in the appellants apartment (the apartment
    baton).  At trial, it was marked as an exhibit and described as a black
    baton.  It consisted of three sections: the handle, the middle, and the end
    section.  The detectives described the apartment baton as being steel with a
    rubber handle and that, while the end section of a police baton usually
    extended out, the apartment baton was jammed.

[71]

Four
    points are of note.  First, the victim, Mr. Sacchetti, did not identify the
    apartment baton as the baton used during the crime. No one else did either.

[72]

Second,
    in his testimony, the victim identified how it was dissimilar to the baton used
    in the crime. The victim repeatedly testified that the bottom of the baton used
    in the crime was wood and the metal top swivelled.  Neither of these features
    is found on the apartment baton.

[73]

Third,
    there is no evidence connecting the apartment baton to the crime.

[74]

Fourth,
    while it may be true, as my colleague notes, that batons are not common
    possessions, it is also true that they are not complete rarities.  They can be
    bought on-line and in self-defence stores.  They come in various colours,
    composite materials and designs.  Exhibits consisting of photographs of various
    batons included a silver baton with a black handle, a grey baton with a black
    handle, a solid silver baton with grooves and a silver and white baton with a
    black handle.  While the seizure of batons was not common in the experience of
    the police officers who testified, two officers  Detective Abreu and Detective
    Walsh  acknowledged having seized a baton from a residence at least once or
    twice over the course of their careers.

(c)

Mr. Sacchettis Evidence

[75]

The
    victim, Mr. Sacchetti, provided various descriptions of the baton used against
    him.

[76]

He
    first discussed the baton in his examination-in-chief (at p. 161 of the
    transcript):

A.      Hes on the top of me and not really on the top of me
    like a real position, and he was whacking me and beating me with this piece of
    metal.  Well, the bottom I guess was wood

Q.      Im going to ask you to slow down a little, okay?

A.      and the top was a piece of metal that swivels.  Its
    not straight.  Like when you hit, it moves around.

[77]

His
    second description of the baton was also given in his examination-in-chief (at
    p. 166-167 of the transcript):

A.

He was, yeah, whacking me with this piece of  the bottom was wood and
    it was about eight inch, about like this, and then the top was something that
    you move it around, you know?  Like, for example, like this, you know.  You
    whack em around and it moves.

[78]

His
    third description was also given in his examination-in-chief, at pp. 169 of the
    transcript.  It was at this juncture that he referred to a police baton.

[79]

With
    respect, the comparison Mr. Sacchetti drew to a police baton was not a general
    description of the weapon used against him.  He was addressing the bottom. 
    The comparison he drew to a police baton began as a way to describe the bottom
    of the baton.  He then proceeded to contrast the two weapons and commented on
    their differences just as he had commented on the differences between the
    weapon used against him and the apartment baton. The relevant exchange is set
    out below:

Q.     Now, I want to ask you, Im going to ask you some
    questions about the item that you were being hit with that this person had, okay? 
    So I want you to describe  youve told us a little bit about it already. 
    Youve used the word bottom and top, okay?

A.      Yeah.

Q.      Can you tell us in terms of what you mean by
the
    bottom
?  [Emphasis added.]

A.      Like, you know like the policeman has that wood piece
    that they use to carry on the side of their legs, the Canadian policeman?  But
    then this thing, he had a piece of metal on the top of that

Q.      Okay. Just youre going to have to slow down.  Just a
    second. He had a piece of metal on the top of what?

A.      On the top of the wood handle.

Q.      Okay.

A.      And this piece of metal is like whip that swivels, you
    know, moves around when you  like, you know, its not like a piece of wood
    that it doesnt move.  He had me and he moves this piece of metal.  Its
    something like that, swivels.

Q.      Okay.  So youre just waving your hand and your arm and
    your finger back and forth?

A.      Like, you know the whip, like when they had the horse? 
    The whip, except this thing was like  for example, like BX wire.  You know,
    like wire that the electrician used to use, is a metal that moves, you twist it
    the way you want it.

Q.      No, I have no idea.  I have no idea what that is.

A.      Well, this thing, you could twist it the way you want,
    this piece that they had on the top of this wood.  Its like a piece of metal
    that its not stiff.  You know, its not one piece, it moves around.

[80]

Later
    in his examination-in-chief, he was asked whether he was able to tell how many
    parts there were to the baton.  He responded as follows (at p. 171 of the
    transcript):

A.

Well, the only part there were of this item was the two, was the handle,
    the wood handle at the bottom and this flexible tube on the top.

[81]

At
    p. 172 of the transcript of his examination-in-chief, Crown counsel asked:

Q.      Mr. Sacchetti, one of the things you said when I asked
    you to describe this item, you said it was like the policeman has, that wood

A.      Well

Q.      Let me finish.  You said it was like what the policeman
    has, that wood piece they carry at the side of their legs.  I want you to tell
    us, what was the same or what was different about this item than what the
    police carry?  What are you thinking about in terms of what the police carry?

A.      Now, what I know, I never been involved with the police
    that they gonna use at me, but I see the police walk with this thing on their
    thing, but I dont know how far it goes into the pants.  But that was the  but
    this thing, I dont know if policeman Canadian have the same metal piece on the
    top.  I didnt see this.  All I know, I see when they walk and I see this thing
    on their legs and its the same, about the same colour.  I figure its wood,
    but I dont know at the end the way it is.

Q.      Youve been referring to the handle or the end as wood.

A.      Yes.

Q.      Why are you calling it wood?  What is it about the
    object that makes you think its wood?

A.      Well, as far as I understood, as far as my knowledge, I
    think its made out of wood.  I dont know.

Q.      Did you ever actually touch this item yourself?

A.      No.

Q.      Other than it being hit on your body, did you touch it
    at all?  The handle or

A.      No.

[82]

It
    is unclear from this last exchange whether Mr. Sacchetti is talking about the
    baton that Canadian policemen carry or the baton used by the perpetrator or
    both.

[83]

Later,
    Mr. Sacchetti was questioned on the apartment baton.  Crown counsel showed him
    the apartment baton and the following exchange ensued:

Q.      I want you to look at that object and you can see if it
    moves at all, but I want to ask you, how does that object Ive given you
    compare to what you saw that night when you were being whacked?

A.      Well, the handle was about the same length, the bottom
    was about the same length, but top, its long, about this long.

Q.      The item that was used?

A.      Yeah, the thing was on the top of his hand, but was
    flexible, you know.  See, this thing, its straight.  It doesnt move, doesnt
    flex.

.

A.  Well, that thing was as little longer than this thing, but
    the difference is that this thing is solid, it doesnt move, and that thing,
    you could move it.

Q.      And how does the colour compare to the item that was
    used?

A.      Well, this is black.  That was a silver colour.

Q.      And what part was the silver colour that you saw?

A.      This is the  the top part was the silver colour.

Q.      So just for the record, youre showing the part that is
     the top part that is not the handle, the thinner part.

A.      The metal, the thin part, yeah.

Q.      Okay.

A.      This about the size, the five/eight or a finger, but.

Q.      Okay.  Now I want to ask you about the size around. 
    How does the size around of the item you are holding which is Exhibit A, how
    does the handle size around compare to what you saw that night?

A.      The bottom was thicker than this.

Q.      And how about the top portion?

A.      The top was about.

Q.      How does  let me finish my question.  How does it compare
    around to what you recall of that night?

A.      About the same as this and go into a point.

Q.      What do you mean it went into a point?

A.      It doesnt have, like, this had, like this one has. 
    For example, the finger goes from here to a point.

Q.      Okay.  So lets make sure were talking about the same
    thing.  Youve said that the item youre holding which is Exhibit A has a point
    at the end.

A.      This one has a little head like a mushroom, that one
    wasnt.

Q.      And so that night it did not have like the mushroom
    shape?

A.     No.

[84]

The
    lighting in the area of the assault was good as confirmed by both Mr.
    Sacchetti, and by one of the investigating officers who had immediately
    attended at the crime scene.  The former said it was fully bright and the
    latter recalled that the exterior of the house was very well lit.

[85]

With
    respect, based on the evidence, I do not believe that a properly instructed
    jury acting judicially could reasonably render a guilty verdict.  The Crowns
    evidence in this case amounted to inconclusive DNA evidence coupled with a
    baton that was identified as being dissimilar to that found in the closet of
    the appellants apartment and as dissimilar from a police baton, and that bore
    no identifiable connection to the crime scene.  In my view, the guilty verdict
    in this case was unreasonable.  The evidence could not reasonably permit the
    conclusion that the appellant was the perpetrator of the crimes for which he
    was convicted.

[86]

I
    would allow the appeal, set aside the conviction and enter acquittals on all
    charges.

RELEASED:  DD  MAR 07 2014

S.E. Pepall J.A.


