



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ibrahim, 2014 ONCA 157

DATE: 20140228

DOCKET: C54280

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yusuf Ibrahim

Appellant

Jill R. Presser, for the appellant

Tracy Kozlowski, for the respondent

Heard: December 3, 2013

On appeal from the convictions entered by Justice Hugh L.
    Fraser of the Ontario Court of Justice on August 20, 2008.

Cronk J.A.:

A.      Introduction

[1]

Following a trial by judge alone, the appellant, Yusuf Ibrahim, was
    convicted of robbery while using an imitation firearm, disguise with intent and
    possession of a weapon for a purpose dangerous to the public peace.  He was sentenced
    to six and one-half years imprisonment in the penitentiary.

[2]

The appellant appeals from his convictions.
[1]
For the reasons that follow, I would dismiss the appeal.

B.      Background

(1)

The Robbery

[3]

During the late afternoon on March 2, 2007, two men robbed an Ottawa
    branch of the Canadian Imperial Bank of Commerce of approximately $4,500.  Both
    men were wearing black balaclavas.  One of the men was also wearing black
    gloves and brandishing a gun.

[4]

The assailants confronted a bank teller, demanding money.  One of them
    jumped over the counter and grabbed cash from the teller.  The other man stood
    at the wicket, pointing a gun at the teller.  The gun was partially covered by
    a white cloth.  The two men then fled through the Bank to the adjacent parking
    lot, running in the direction of a nearby transit station.  The entire incident
    lasted about 30 seconds.

[5]

The operations manager of the shopping mall where the Bank branch was
    located saw two men run past his office window, towards the transit station. 
    He noticed that one of the men was wearing a black balaclava and both men were
    being pursued by a third man.  Suspecting a robbery, the mall manager also gave
    chase.  He followed the suspects until they entered the transit station, where he
    lost sight of them.

(2)

The DNA Evidence

[6]

Within 45 minutes of the robbery, a police officer discovered a toy gun
    with a white cloth over it and a black balaclava on top of the trash in a
    garbage bin at the nearby transit station.  The officer seized the items and
    put them in his pocket.

[7]

Subsequent testing of the retrieved items revealed DNA deposits on: (1)
    the inside back surface of the balaclava; (2) the front face section of the
    inside of the balaclava, in an area of visible staining; and (3) the grip and edge
    of the trigger of the toy gun.  At trial, the Crown led expert evidence of the
    following DNA test results:



Item

Sample
          Location

Observations
          of Sample Area

Major
          Contributor

Minor
          Contributors



1.
          Balaclava

Inside
          front, about 5 cm. below eye opening

Staining

Appellant

None



2.
          Balaclava

Inside
          back

White
          particles

Appellant

Two
           unknown identities



3.
          Toy gun

Grip
          and trigger

N/A

Appellant

Two
           unknown identities



(3)

The Trial

[8]

The sole issue at trial was identity.  The Crowns case against the appellant
    was entirely circumstantial.  There was no eyewitness identification of the
    appellant.
[2]


[9]

The appellant did not testify.  Nor did he call any evidence in his own
    defence.

(4)

Trial Judges Decision

[10]

Given
    the circumstantial nature of the Crowns case against the appellant, the
    parties agreed, and the trial judge accepted, that the central issue at trial
    was: what reasonable inferences can be drawn from the evidence presented by
    the Crown?

[11]

In
    his reasons, the trial judge reviewed the evidence adduced at trial, the
    respective positions of the defence and the Crown, and the various authorities
    furnished by them.  Having done so, the trial judge concluded that the only
    reasonable inference available on the evidence was that the appellant was the
    masked assailant who robbed the Bank teller while pointing an imitation firearm
    (the toy gun) at her.

[12]

Accordingly,
    the trial judge convicted the appellant of all three charges against him.

C.      Issues

[13]

The
    appellant raises the following five grounds of appeal:

(1)

Are the
    verdicts unreasonable?

(2)

Did the
    trial judge err:

(a) by
    failing to consider the whole of the evidence?

(b) by
    requiring the appellant to testify or otherwise proffer evidence of an innocent
    explanation for the presence of his DNA on the tested items, thereby reversing
    the burden of proof?

(c) by
    failing to consider, in accordance with
R. v. Lifchus
, [1997] 3 S.C.R.
    320, whether the absence of evidence concerning aspects of the DNA deposits
    gave rise to a reasonable doubt regarding the appellants guilt?

(3)

Are the
    trial judges reasons fatally deficient because they fail to permit meaningful
    appellate review?

[14]

At
    the conclusion of oral argument, the court found it necessary to hear from the
    Crown only in respect of the appellants first ground of appeal, namely, the
    reasonableness of the verdicts.  I therefore find it convenient to address the
    appellants other grounds of appeal first.

D.      Analysis

(1)

Trial Judges Review of the Evidence

[15]

The
    appellants attack on the sufficiency of the trial judges review of the
    evidence is centred on the trial judges assessment of the DNA evidence.

[16]

The
    appellant argues that the trial judges analysis of the DNA evidence was flawed
    because the trial judge failed to consider that DNA from at least two persons
    other than the appellant was detected on the balaclava and the toy gun.  The
    existence of two other DNA profiles on these items, the appellant says, was
    relevant to the critical question whether it was the appellant, and not someone
    else, who came into contact with these items at the time of the robbery.  The
    trial judges error in failing to consider the exculpatory implications of the
    other DNA profiles, the appellant maintains, was exacerbated by his additional
    failure to consider that it was impossible to know when the DNA was transferred
    to the items in question or how long it had been there.

[17]

In
    a related argument, the appellant also submits that the trial judge erred by
    failing to address the absence of evidence relating to the DNA deposits on the
    tested items: for example, the absence of evidence establishing which parts of
    the balaclava came into contact with the garbage in the bin where the balaclava
    was found; whether the balaclava was found inside-out or right-side-in; and
    whether the evidence allowed for the exclusion of the possibility of secondary
    transfer of the appellants DNA to these objects.

[18]

I
    would not give effect to these arguments.

[19]

The
    trial judges reasons confirm that he was alert to the presence of DNA profiles
    other than that of the appellant and to the suggested limitations of the DNA
    evidence, as advanced by the appellant at trial.  Early in his reasons, when
    describing the results of the DNA testing on the items recovered from the
    garbage bin near the transit station, the trial judge stated:

It was also noted that additional sources of DNA, at least two,
    were detected from item 1-2, being the balaclava, and item 2-3, the toy gun. 
    Those minor DNA profiles were not suitable for comparison due to the uncertainty
    with respect to the total number of contributors and the low amount of DNA that
    was detected.

[20]

The
    trial judge later summarized the defence position at trial concerning the DNA
    evidence in this fashion:

[C]ounsel for the defendant argues that no inferences of guilt
    can be drawn because even if the Court is satisfied that the defendants DNA is
    present on the items recovered from the garbage disposal, the Court does not
    know when that DNA was deposited on the items or for how long it had been
    there.

Furthermore, the defence submits that the Court is missing the
    additional evidence required to create the link between the DNA evidence given
    by the expert witness and the conclusion that those findings place the accused
    in the bank at the relevant time.

[21]

Thus,
    the trial judge was mindful of the evidence of multiple DNA profiles on the
    balaclava and toy gun and of the defence contention that the DNA evidence
    failed to link the appellant to the robbery and the toy gun used during the
    robbery.

[22]

This
    was not a complicated or lengthy trial.  The trial judges reasons are
    relatively brief (18 double-spaced pages).  In the first part of his reasons,
    the trial judge acknowledged the evidence of two minor DNA profiles on the
    balaclava and the toy gun.  He later set out the evidentiary issues raised by
    the defence regarding both those profiles and the timing and means of the
    placement of the appellants DNA on the objects in question.  In my opinion, having
    already identified these issues, it is inconceivable that the trial judge then ignored
    or forgot them when, in the second part of his reasons, he undertook an
    analysis of the evidence bearing on the appellants guilt or innocence.

[23]

It
    is important to emphasize with respect to this ground of appeal that the trial
    judge considered, and accurately described in his reasons, all the pertinent
    DNA test results.  Those results established that the appellant was the major
    or sole contributor of all the DNA detected on the balaclava
and
on
    the toy gun found in the garbage bin.  Importantly, he was the
only
    contributor
to the DNA contained in the visible staining area located in
    the vicinity of the nose and mouth area on the inside of the balaclava.

[24]

In
    my opinion, the appellants attack on the trial judges review of the DNA
    evidence is simply an attempt to reargue his submissions at trial concerning
    the available inferences that ought to have been drawn from that evidence.  The
    trial judge was clearly aware of the scope and limitations of the DNA evidence,
    having thoroughly reviewed the expert DNA evidence and the defence position on that
    evidence in his reasons.  There is no reason, in my view, to conclude that he
    failed to consider the entirety of the relevant evidence or the frailties in
    the DNA evidence posited by the appellant.

(2)

Alleged Reversal of Burden of Proof

[25]

The
    appellant next contends that the trial judge, in effect, required him to
    testify or otherwise proffer evidence of an exculpatory explanation for the
    presence of his DNA on the articles discovered in the garbage bin.  In so
    doing, the appellant submits, the trial judge erred by misapplying the decision
    of the Supreme Court in
R. v. Noble
, [1997] 1 S.C.R. 874, and impermissibly
    reversing the burden of proof.

[26]

On
    this point, the appellant repeats his contention that the trial judge did not consider
    that a lack of evidence about the DNA deposits could be fatal to the Crowns
    case.  He asserts that the trial judge erred by failing to assess whether the
    Crowns evidence itself gave rise to a reasonable doubt, in accordance with the
    principles identified in
Lifchus
.

[27]

I
    would also reject these arguments, for several reasons.

[28]

First,
    as I have already said, the trial judge appreciated and took account of the
    alleged failure of the Crowns evidence to establish the requisite link between
    the presence of the appellants DNA on the items found in the garbage bin and
    his involvement in the robbery as the assailant who brandished the imitation
    firearm.  His reasons leave no uncertainty that he understood the defence reliance
    on the limitations of the DNA evidence, including the evidentiary gaps posited by
    the defence in connection with the DNA deposits, in support of the defence
    claim that the Crown had failed to meet its burden to establish the appellants
    guilt beyond a reasonable doubt.

[29]

That
    the trial judge was alive to the limitations on the probative value of the DNA
    evidence is evident from his review, in some detail, of this courts decision
    in
R. v. Mars
(2006), 205 C.C.C. (3d) 376, 206 O.A.C. 387.  In
Mars
,
    at paras. 19 and 24, this court indicated with respect to the probative value
    of fingerprint evidence:

[T]he ability of the fingerprint evidence to connect an accused
    to the crime charged will depend on
whether there is other evidence capable
    of establishing that the accused touched the object at the relevant time and
    place so as to connect the accused to the crime
.

.

The trial judges finding that the fingerprint evidence could
    bear the full weight of the Crowns burden flowed at least in part from his
    erroneous premise that the fingerprint evidence was highly inculpatory
    evidence.
The trial judge should have started from the premise that the
    probative value of the fingerprint evidence depended upon whether there was
    other evidence capable of permitting a reasonable inference as to when the fingerprint
    was placed on the pizza box
.  [Emphasis added.]

[30]

The
    trial judge quoted these passages from
Mars
.  It follows that he
    understood that an inference of the appellants guilt could not be drawn solely
    from the DNA evidence.  Rather, the probative value of the DNA evidence
    depended on whether there was other evidence capable of permitting a reasonable
    inference as to when the appellants DNA was deposited on the objects retrieved
    from the garbage bin.

[31]

Second,
    I do not agree that the trial judge misapplied
Noble
and effectively
    required the appellant to testify and assert his innocence or otherwise proffer
    exculpatory evidence to explain the presence of his DNA on the retrieved items.

[32]

The
    trial judge referred to
Noble
as an authority concerning the circumstances
    in which inferences of an accuseds guilt may be drawn from his or her failure
    to testify at trial.  The trial judge quoted that part of the Supreme Courts reasons
    in
Noble
, at para. 79, in which the majority described three scenarios
    relevant to when the trier of fact may take account of the testimonial silence
    of an accused:

[T]here are three ways in which the silence of the accused
    might be considered by the trier of fact:

(1)   Once the
    Crown has proffered a case to meet, the silence of the accused can be used in
    determining whether an accused is guilty beyond a reasonable doubt.

(2)   Inferences
    of guilt may be drawn from the accuseds silence only where a case to meet has
    been put forth and the accused is enveloped in a ‛cogent network of
    inculpatory facts.

(3)   The
    silence of the accused means that the evidence of the Crown is uncontradicted
    and therefore must be evaluated on this basis without regard for any
    explanation of those facts that does not arise from the facts themselves.

[33]

Later
    in its reasons, the majority of the Supreme Court held that an inference of
    guilt arising from the accuseds testimonial silence could not be drawn in the
    first two scenarios described above.  In the majoritys view, to draw such an
    inference based on these scenarios would violate both the accuseds right to
    silence and the presumption of innocence.

[34]

The
    appellant submits that by referring to all three scenarios described in
Noble
,
    without qualification or any express recognition that the Supreme Court rejected
    the first two scenarios as affording a permissible basis for an inference of
    guilt, the trial judge failed to appreciate the actual holding in
Noble
and, acting on that misapprehension, improperly relied on the appellants
    testimonial silence as a marker of his guilt.

[35]

I
    disagree.  In my view, this submission misinterprets the trial judges reasons
    and his reliance on
Noble
.

[36]

I
    recognize that the trial judge did quote, without express qualification, all
    three scenarios described by the Supreme Court in
Noble
, at para. 79,
    in his reasons.  To repeat, the third scenario is as follows:

(3)   The
    silence of the accused means that the evidence of the Crown is uncontradicted
    and therefore must be evaluated on this basis without regard for any
    explanation of those facts that does not arise from the facts themselves.

[37]

However,
    with respect to this third scenario, the trial judge also referenced the following
    comments of Sopinka J., writing for the majority of the Supreme Court, at para.
    82 of
Noble
:

The third position
, which I have attempted to explain
    in my reasons,
simply recognizes the fact that the evidence of the Crown
    stands alone.  It must be evaluated on this basis.  Contradictions that have
    not been offered cannot be supplied.  No inference of guilt is drawn from the
    silence of the accused
.  Rather, the silence of the accused fails to
    provide any basis for concluding otherwise once the uncontradicted evidence
    points to guilt beyond a reasonable doubt.  [Emphasis added.]

[38]

After
    quoting these comments, the trial judge immediately stated his view that the
    third scenario described in
Noble
most closely reflects the present
    situation.

[39]

The
    trial judge then briefly reviewed what he regarded as the uncontradicted
    evidence pointing to the appellants guilt on the offences charged.  This
    evidence included the following:

·

the Bank teller was robbed by a male wearing a balaclava, who
    brandished a gun with a white cloth around it;

·

the teller observed the two robbers leave the Bank and turn in
    the direction of the transit station;

·

the mall manager saw a man, wearing a balaclava, run by his
    office accompanied by a second man; he chased the two men into the transit
    station;

·

the police arrived at the scene shortly after the robbery;

·

just 45 minutes after the robbery, the police discovered the toy gun,
    with a white cloth, and a balaclava in the garbage disposal at the transit
    station, in close proximity to the Bank; and

·

the items retrieved from the garbage bin bore the appellants
    DNA.

[40]

After
    detailing this evidence, the trial judge explicitly directed himself, in
    accordance with the principles in
Noble
to which he had already
    referred, that: no inference of guilt can be drawn from the silence of the
    accused.

[41]

Read
    in this fashion, the trial judges reasons do not support the claim that he erred
    in his appreciation and application of
Noble
.  To the contrary, the
    trial judge recognized two critical holdings in
Noble
: (1) the testimonial
    silence of an accused cannot ground an inference of guilt; and (2) the
    testimonial silence of an accused simply means that the Crowns case stands
    uncontradicted, and is to be assessed on that basis.

[42]

It
    may have been preferable if the trial judge had confined his references to
Noble
to those parts of that decision that address situations where, due to the
    accuseds failure to testify or to offer evidence contrary to that of the Crown,
    the Crowns case is uncontradicted.  Nonetheless, the trial judges reasons
    confirm that he relied on
Noble
only for the guidance it provides on
    the manner in which the Crowns case is to be evaluated in the face of an
    accuseds testimonial silence and for the important principle that an inference
    of guilt cannot be drawn from an accuseds silence at trial.

[43]

In
    particular, the trial judge, in effect, twice directed himself that no
    inference of guilt could be drawn from the appellants failure to testify (once
    by quoting this principle from
Noble
and, again, by explicitly
    reiterating this principle).  He referred to the undisputed evidence that he
    viewed as connecting the appellant to the robbery at the relevant time and
    place.  Having found that this evidence convinced him of the appellants guilt
    beyond a reasonable doubt, he then noted the absence of any basis for
    concluding otherwise.

[44]

This
    reasoning, in my view, reflects no legal error.  To the contrary, it accords
    with the principles outlined by the
Noble
court.  Nor is this
    reasoning tantamount to a reversal of the burden of proof.  It simply articulates
    and explains the trial judges conclusion that the Crown had met its burden of
    proof and his ensuing observation, to paraphrase Sopinka J. in
Noble
,
    at para. 82, that an accuseds testimonial silence means that the evidence of
    the Crown stands alone and must be evaluated on this basis.

(3)

Sufficiency
    of Reasons

[45]

The
    appellant also submits that the trial judges reasons fail to meet the
    sufficiency of reasons standard set out in
R. v. Sheppard
, 2002 SCC
    26, [2002] 1 S.C.R. 869;
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3;
    and their progeny.  He contends that the reasons do not permit this court to
    determine the basis for the trial judges findings of guilt, apart from the
    presence of the appellants DNA on the tested objects found in the garbage bin.

[46]

In
    my view, this submission must fail.  When the trial judges reasons are read as
    a whole, as they must be, they readily reveal the basis for the verdicts
    against the appellant.  As I read the reasons, the presence of the appellants
    DNA on the tested items was but one factor, albeit a powerful one, that drove
    the trial judges conclusion that the Crown had established the appellants
    culpability for the crimes charged.  I will return to this issue in the
    discussion that follows concerning the reasonableness of the verdicts.

(4)

Reasonableness of the
    Verdicts

[47]

During
    his oral submissions before this court, the appellants argument focused on the
    reasonableness of the verdicts.  He argued that the inference that he
    participated in the robbery and that he was the person who was wearing the
    balaclava and wielding a gun at the time of the robbery is not the only
    rational inference available from the circumstantial evidence as a whole. 
    Accordingly, on the authority of
R. v. Yebes
, [1987] 2 S.C.R. 168, 43
    D.L.R. (4th) 424;
R. v. Charemski
, [1998] 1 S.C.R. 679, 157 D.L.R. (4th)
    603;
R. v. Bouzied
, 2013 ONCA 276; and similar cases, the appellant
    maintains the verdicts are unreasonable.  In particular, he contends that to
    draw an inference, based on the mere presence of his DNA on the tested objects,
    that his DNA was transferred
during the course of the robbery
is
    improper on this record and, consequently, that such an inference would be
    insufficient to reasonably found verdicts of guilty.

[48]

In
    my opinion, this argument must also fail.

[49]

The
    trial judges reasons reveal that the verdicts of guilty were not based solely
    on the presence of the appellants DNA on the items retrieved from the garbage
    bin.  Rather, a constellation of facts, including the presence of the
    appellants DNA, supported the inescapable inference of his guilt.  These
    included the following:

(1)

two men
    robbed the Bank;

(2)

both
    robbers wore balaclavas during the robbery;

(3)

one of the
    masked robbers brandished what appeared to be a gun, wrapped in a white cloth;

(4)

the two
    assailants were observed by the teller to flee the Bank, in the direction of
    the transit station;

(5)

the mall
    manager observed two robbers fleeing towards the transit station, one of whom was
    wearing a balaclava;

(6)

within 45
    minutes from the time of the robbery, the police discovered a balaclava, white
    cloth and toy gun sitting at the top of a garbage bin located at the transit
    station where the two robbers had been seen to flee;

(7)

the
    transit station was situated about 90 metres from the Bank;

(8)

the
    balaclava retrieved from the garbage can appeared to be new;

(9)

the
    appellants DNA profile was the
only
profile detected in the area of
    visible staining around the nose and mouth area of the recovered balaclava;

(10)

the
major
DNA
    profiles on both the recovered balaclava and the toy gun were those of the
    appellant; and

(11)

the additional sources of
    DNA on the balaclava and the toy gun were not suitable for comparison due in
    part to the low amount of DNA that was detected.

[50]

These
    findings were amply grounded in the evidentiary record.  Indeed, they were essentially
    uncontradicted.  Contrary to the appellants submission, these facts connected
    the appellant to the Bank robbery at the relevant time and place.  They fully
    supported the trial judges conclusion that the only reasonable inference in
    all the circumstances was that the appellant was the masked robber who
    brandished an imitation firearm during the Bank robbery.

[51]

Moreover,
    there were no reasonable inferences available on the evidence that were
    inconsistent with the appellants guilt.  For example, the suggestion that the
    appellant may have worn the recovered balaclava and handled the toy gun at some
    other time and on another occasion is entirely speculative.  As the trial judge
    pointed out, unlike the facts in
Mars
and other authorities cited by
    the appellant, there was no exculpatory evidence at trial that could anchor a
    conclusion other than that of the appellants guilt.

[52]

In
    these circumstances and on this evidentiary record, I conclude that the
    verdicts are not unreasonable.

E.      Disposition

[53]

For
    the reasons given, I would dismiss the appeal.

Released: February 28, 2014

E.A.C.                                                                           
    E.A. Cronk J.A.

I
    agree David Watt J.A.

I
    agree K. van Rensburg J.A.





[1]
The appellant abandoned his appeal against sentence.



[2]
The man who pursued the assailants, as observed by the mall manager, was not
    called as a witness or identified by name at trial.


