



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grayston, 2016 ONCA 784

DATE: 20161026

DOCKET: C62179

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Joseph Grayston

Appellant

Frank Joseph Grayston, acting in person

Philip Norton, appearing as duty counsel

Jocelyn Speyer, for the respondent

Heard: October 3, 2016

On appeal from the convictions entered on March 16, 2016
    and the sentence imposed on April 29, 2016 by Justice Jane A. Milanetti of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals from convictions for theft under $5,000 and
    possession of property obtained by crime. The property that was stolen is a
    1988 Pontiac Sunbird.  Identity was the sole issue at trial.

[2]

Through duty counsel, the appellants primary argument was that the
    verdict is unreasonable or cannot be supported by the evidence, pursuant to s.
    686(1)(a)(i) of the
Criminal Code,
R.S.C. 1985, c. C-46.

[3]

In our view, the evidence does not support the verdict. We would
    therefore allow the appeal.

The Facts

[4]

Between midnight and 5:00 a.m. on February 18, 2015, the Sunbird was
    taken from the premises of the Barton Truck company. Around the same time and
    in the same vicinity, an attempted break and enter of a jewellery store and a robbery
    of a large quantity of drugs from a pharmacy took place.

[5]

On February 20, 2015 the Sunbird was located abandoned in a parking lot.
    Police found a black skeletal balaclava in the car. Investigation led the
    police to the appellants apartment where they discovered drugs.

[6]

The balaclava was sent for forensic testing. DNA from inside the garment
    around the mouth area showed a mixture of DNA from at least three individuals.
    One DNA profile was determined for comparison. It matched the appellants DNA
    to a degree of statistical certainty.

[7]

The appellant was charged with various offences arising out of the theft
    of the Sunbird, the robbery of the pharmacy and the attempted break and enter
    of the jewellery store.

[8]

To establish that the appellant participated in the theft of the Sunbird,
    the prosecution relied on the DNA evidence and the fact that the attempted
    break and enter of the jewellery store and the robbery of the pharmacy took
    place close to where the car was stolen.

[9]

The appellant neither testified nor called any evidence.

The Trial Judgment

[10]

The trial judge convicted the appellant of the two counts relating to
    the theft of the Sunbird.  The trial judge acquitted the appellant of all other
    counts on the basis of insufficient evidence connecting him to those offences.

[11]

The entirety of the trial judges analysis leading to her conclusion
    that the Crown had proven beyond a reasonable doubt that the appellant stole
    the car is as follows:

[W]hen the vehicle was found on the 20
th
of February
    2015, police discovered a black skeletal balaclava, which was sent to CFS and a
    DNA match with Mr. Grayston was quite convincingly determined.  The numbers
    were in the quadrillions.  Moreover, Mr. Morrow [the owner of the car] (who was
    an excellent witness) said it was not his, did not know what it was, until a
    balaclava was explained to him.  He didnt even know what it meant.  [T]he
    vehicle was found abandoned in a parking-lot behind a Bank of Montreal at 386
    Barton Street East.  I note that all of these offences occur in the Barton
    Street East vicinity; the pharmacy, the truck stop and the truck shop, and the
    third one is the Centre Mall, where the jewelers is. I, thus, conclude that it
    has been established that the Crown has proven both count one and two beyond a
    reasonable doubt that Mr. Grayston broke into the Barton Truck facilities stole
    the Morrow Sunbird vehicle and had it in his possession.

Analysis

[12]

In circumstances where the appellant challenges the reasonableness of
    the verdict, this court must review and evaluate all the evidence to determine
    whether a reasonable trier-of-fact properly instructed and acting judicially
    could have convicted:
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381,
    at paras. 36-37 and 42.

[13]


Here,
    since the evidence linking the appellant to the crime is entirely
    circumstantial, the question is whether the trier-of-fact, acting judicially,
    could be satisfied that the appellant's guilt was the only reasonable
    conclusion available on the totality of the evidence:
R. v. Charemski,

[1998] 1 S.C.R. 679, at para. 13.

[14]

We start with the evidence that the appellants DNA was found on the
    balaclava. While DNA evidence is powerful evidence that the person whose DNA is
    on the object was in contact with that object, the connection of the accused with
    the crime will depend on the existence of other evidence capable of
    establishing that the accused was in contact with the object at the relevant
    time and place:
R. v. Mars
, [2006]
    O.J. No. 472
(C.A.), at para. 19.


[15]

In
R. v. D.D.T.
, 2009 ONCA 918, [2009] O.J. No. 5486, at para.
    15, this court suggested a two-stage approach for appellate review of the
    reasonableness of a verdict in cases where evidence of this nature provides the
    sole evidence capable of identifying the perpetrator:

The first stage involves an examination of the reasonableness
    of the inference that the [DNA was] placed on the object with connection to the
    crime, at the relevant time and place. The second stage involves an examination
    of the soundness of the conclusion that the totality of the evidence and
    reasonable inferences available to the trial judge were sufficient to prove the
    appellant's guilt beyond a reasonable doubt.

[16]

In this case, the Crown must have demonstrated first that, based on the
    evidence, the inference that the appellant was wearing or had the balaclava
    with him in connection with the theft of the Sunbird is a more likely inference
    than the inference that he was in contact with the balaclava on an unrelated
    occasion. Second, the appellants guilt must have been the only rational
    conclusion available on the totality of the evidence.

[17]

Based on the limited nature of the evidence presented at trial, we are
    not satisfied that the inference that the appellant was in contact with the
    balaclava in the course of the theft of the car was a reasonable one. The Crown
    cannot point to any evidence that makes the inference that the appellant was in
    contact with the garment in connection with the theft more likely than the inference
    that he was in contact with the balaclava at some other time. Evidence of his
    DNA on the balaclava only demonstrates that he likely wore the garment at some
    point in time and falls short of connecting him to the theft of the car on
    February 15, 2015. The discovery of the balaclava with the appellants DNA on
    it in the abandoned stolen car, by itself, did not permit any such inference.

[18]

Crown counsel attempts to bolster the force of the trial judges
    reliance on the DNA evidence by pointing to the proximity of the locations of
    what she referred to as a crime spree on the night in question.

[19]

In our view, the proximity between the Barton Truck company premises,
    where the Sunbird was stolen, and the jewellery store and pharmacy is of no
    relevance given the trial judge was not satisfied that the evidence supported a
    finding that the appellant was at all connected with the other thefts.

[20]

In our view, there was an insufficient evidentiary footing for the trial
    judge to conclude that the appellant's guilt was the only reasonable conclusion
    available on the totality of the evidence. While the evidence supported the
    inference that the appellant had worn the balaclava at some point, there was
    insufficient evidence to support an inference that he was wearing it or
    otherwise was in possession of it at the time the car was stolen. His
    conviction is therefore unreasonable within the meaning of s. 686(1
)(
a)(i).

Disposition

[21]

The appeal is therefore allowed. The conviction is quashed and an
    acquittal entered.

J.C. MacPherson J.A.

Gloria Epstein J.A.

P. Lauwers J.A.


