





CITATION:
R. v. Wong, 2011 ONCA 815



DATE: 20111221



DOCKET: C53488 & C52533



COURT OF APPEAL FOR ONTARIO



MacPherson, Juriansz and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Thomas Wong



Appellant



AND BETWEEN



Her
          Majesty the Queen



Respondent



and



Paulo
          Stein



Appellant



Paul J.I. Alexander, for the appellant, Thomas Wong



Douglas Gosbee, for the appellant, Paulo Stein



Alison Wheeler, for the respondent



Heard and released orally:
December 15, 2011



On appeal from the convictions entered
          on May 25, 2010 by Justice Simon C. Armstrong of the Ontario Court of
          Justice.



ENDORSEMENT



[1]

The appellants appeal their convictions of forcible confinement arising
    out of a home invasion.  The only issue at trial was identity.  They contest
    the trial judges conclusion that they were the perpetrators.  They submit that
    their guilt is not the only reasonable inference from the fact that Wongs DNA
    and Steins fingerprint were found at the scene.  Wongs DNA was found on the
    inside of a construction mask matching the description of the one worn by the
    intruder who was Chinese.  Steins fingerprint was found on the inside of a
    duct tape roll used to bind the victims.

[2]

In advancing their argument, the appellants rely on this courts
    decisions in
R. v. Mars
(2006), 205 C.C.C. (3d) 376 and
R. v. D.D.T.
,
    2009 ONCA 918.   In
Mars
, this court stressed that each case must be
    assessed on its own particular facts.  At para. 5, Doherty J.A. said of
    applying the reasonableness standard to fingerprint cases:

As reasonableness is ultimately a fact-based
    determination, prior decisions, even those made in similar cases, cannot have
    binding authority.

[3]

The trial judge in this case did not base his conclusion on the DNA and
    fingerprint evidence alone.  His inference linking the DNA and fingerprint to
    the crime was based on other evidence.  He stated he was satisfied that the
    other evidence in the case establishes that Wongs DNA came in contact with the
    mask and Stein touched the duct tape roll at the relevant time and place so as
    to connect them with the crime.

[4]

The other evidence, which he reviewed carefully, included the fact that
    the descriptions of the perpetrators generally conformed to the appearance of
    the appellants; the mask containing Wongs DNA matched the description of the
    mask worn by the Chinese perpetrator; and considered the pristine condition of
    the mask and where it was found in relation to the position of the back door
    and yard gate.   He also considered where the duct tape was found and where the
    fingerprint was located in the context of all the evidence about the duct tape
    and strands of duct tape.

[5]

The facts of this case are quite different to those in
Mars
. 
    There is a great difference between a construction mask and the inside
    cardboard of a roll of duct on one hand and a pizza box on the other.  Several
    people sharing a pizza may leave their prints on the pizza box, before two of
    them use it in a home invasion.  The circumstances in which Wongs DNA could
    come to be innocently deposited on the inside of the pristine construction mask
    or Steins fingerprint could be impressed on the inside of a roll of duct tape
    used in the crime, in our view, are in the realm of speculation rather than
    reasonable inference.

[6]

In addition, it is significant in
Mars
that the force of the
    fingerprint evidence was diminished by exculpatory identification evidence. 
    Here, we do not accept that the descriptions of the perpetrators were
    exculpatory.  In our view, the trial judges finding of fact that the victims
    descriptions of the perpetrators generally conformed with the appearance of the
    appellants was supported by the evidence
.

[7]

We are satisfied that a reasonable trier of fact could conclude on the
    totality of the evidence that the appellants were guilty of the forcible
    confinement of the victims during the home invasion.

[8]

Both appeals are dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J.
    Epstein J.A.


