



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mufuta, 2015 ONCA 50

DATE: 20150128

DOCKET: C54811

Strathy C.J.O., Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muamba Mufuta

Appellant

Ian Carter, for the appellant

Kevin Rawluk, for the respondent

Heard: October 24, 2014

On appeal from the conviction entered on September 22,
    2011 by Justice Bruce W. Duncan of the Ontario Court of Justice, sitting
    without a jury.

Cronk J.A.:

[1]

Following a trial by judge alone, the appellant was convicted of one
    count of voyeurism arising from an incident in a womens washroom at a restaurant. 
    He appeals from his conviction on the sole ground that the verdict is
    unreasonable.

Background in Brief

[2]

As a female employee of a restaurant was preparing to leave one of two
    stalls in the womens washroom at the restaurant, she noticed a man peering
    down at her from the adjoining stall.  The woman ran from the washroom,
    screaming.

[3]

Identity was the only issue at trial.  The Crowns case against the
    appellant was mainly circumstantial.

[4]

The complainant was unable to identify
    the perpetrator.  She provided a generic description of the suspect, describing
    him as a black man with a shaved head.  Three other restaurant employees also
    furnished only general descriptions of the perpetrator.

[5]

Shortly before the incident, three
    black men entered the restaurant, ordered food and drinks, and sat together to
    eat.  Each of the men fit the general description of the voyeur, as did the appellant.

[6]

A restaurant surveillance tape captured
    the image of a black man entering the washroom area at about 2:45 p.m. on the afternoon
    in question.  The tape showed the complainant entering the area two minutes
    later, and the same black man exiting at 2:48 p.m.  A police officer viewed the
    tape shortly after the incident.  He could not identify or exclude the
    appellant as the black man depicted in the tape.  The contents of the tape were
    recorded over before the police sought to retrieve the tape, some three weeks
    after the incident.  As a result, the tape was unavailable at trial to assist
    in the identification of the perpetrator.

[7]

After the incident, the police seized a
    partially full bottle of pop from the top of the toilet tank in the washroom
    stall where the victim saw the perpetrator.  On subsequent testing, the
    appellants DNA was identified on and around the mouth of the pop bottle.  Apart
    from the DNA evidence, there was no evidence at trial that the appellant had
    ever been in the restaurant or that he was one of the black men dining in the
    restaurant at the time of the offence.  However, a DNA expert testified at
    trial that forensic examination of the pop bottle yielded only a single source
    DNA profile.  She also said that the testing established that the appellant was
    the last person to drink from the pop bottle.

[8]

The restaurant surveillance tape did
    not show anyone entering the washroom area with a pop bottle.  However, as the
    washrooms were cleaned daily, the pop bottle had to have been placed in the
    washroom sometime on the day in question.

[9]

The appellant was arrested
    approximately three months after the incident.  He did not testify at his
    trial.

Trial
    Judges Decision

[10]

The trial judge concluded that, apart
    from the evidence of the appellants DNA on the pop bottle, the remaining
    identification evidence was completely neutral.  In his view, the non-DNA
    evidence merely established that, in addition to the appellant, there were at least
    two black men in the restaurant and possibly one other in the washroom area who
    fit the general description of the perpetrator.

[11]

The trial judge was satisfied that the
    appellants DNA was on the pop bottle, the appellant was the last person to
    drink from the bottle, and the bottle was left in the relevant stall of the
    womens washroom sometime on the day in question.

[12]

In these circumstances, the trial judge
    concluded that only three possible scenarios arose: 1) the appellant was the
    perpetrator; 2) the appellant left the pop bottle in the washroom earlier in
    the day, before the incident occurred; or 3) another man, of similar appearance
    to that of the appellant, carried the pop bottle into the womens washroom and
    committed the offence.

[13]

In the trial judges view, the last two
    scenarios were fanciful or speculative, unlikely and totally lacking in
    evidentiary support.  He therefore rejected them as, in effect, irrational conclusions
    that did not give rise to a reasonable doubt regarding the appellants
    culpability.  He concluded, to the requisite criminal standard of proof, that
    the only rational conclusion on the whole of the evidence was that the
    appellant was guilty of the offence charged.

Grounds
    of Appeal

[14]

The appellant argues that his guilt was
    not the only reasonable inference available on the totality of the evidence and
    that, as a result, the verdict is unreasonable.  In support of this argument,
    he contends that the trial judge erred by examining whether the evidence
    established that someone other than the appellant brought the pop bottle into
    the washroom.  The appellant says that the correct approach was to determine
    whether there was evidence that established beyond a reasonable doubt that the
    appellant was the person who brought the pop bottle into the washroom.

Discussion

(1)

Test for an Unreasonable Verdict

[15]

The test for finding an unreasonable
    verdict is well-settled.  In
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, Arbour J.
    said:

The test for an appellate court
    determining whether the verdict of a jury or the judgment of a trial judge is
    unreasonable or cannot be supported by the evidence has been unequivocally
    expressed in
Yebes
as follows:

[C]urial review is invited whenever a jury goes beyond a
    reasonable standard . [T]he test is whether the verdict is one that a
    properly instructed jury acting judicially, could reasonably have rendered.

[16]

Justice Arbour elaborated, at para. 37:

The
Yebes
test is expressed in terms of a verdict reached by a
    jury.  It is, however, equally applicable to the judgment of a judge sitting at
    trial without a jury.
The review for unreasonableness on appeal is
    different, however, and somewhat easier when the judgment under attack is that
    of a single judge, at least when reasons for judgment of some substance are
    provided.  In those cases, the reviewing appellate court may be able to
    identify a flaw in the evaluation of the evidence, or in the analysis, that
    will serve to explain the unreasonable conclusion reached, and justify the
    reversal.

See also
R. v. Sinclair
, 2011 SCC 40, [2011]
    3 S.C.R. 3;
R. v. D.D.T.
, 2009 ONCA 918, 257 O.A.C. 258.

[17]

In
R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190, Fish J., at para. 98,
    dissenting in the result but not on this point, added this important caveat
    regarding an appeal from a decision of a judge alone based on an unreasonable
    verdict claim:

But where reasons do exist, a verdict
    cannot be reasonable within the meaning of s. 686(1)(a)(i) [of the
Criminal
    Code
] if it is made to rest on findings of fact
    that are demonstrably incompatible, as in this case, with evidence that is
    neither contradicted by other evidence nor rejected by the judge.

See also
R. v. R.P.
, 2012 SCC 22, [2012] 1
    S.C.R. 746, at para. 9
per
Deschamps J.

(2)

Application of the Test in this Case

[18]

I am not persuaded that the appellant
    has met the exacting test for the demonstration of an unreasonable verdict.

[19]

As I have said, the trial judge
    described the non-DNA identification evidence  the eyewitnesses descriptions
    of the perpetrator and the police officers account of what he had seen on the
    surveillance video  as completely neutral on the key issue of
    identification.

[20]

This is a fair characterization of the
    non-DNA identification evidence.  The witnesses generic descriptions of the
    man they saw in the vicinity of the restaurant washroom and the police
    officers observations of the images on the surveillance tape did not
    strengthen the Crowns case on identification.  That said, the footage from the
    restaurant surveillance tape did establish that a black man entered the
    washroom area around the time of the crime, followed immediately thereafter by
    the complainant.

[21]

Relying on this courts decision in
R.
    v. Mars
(2006), 206 O.A.C. 387, 205 C.C.C. (3d)
    376 and
R. v. Wills
, 2014 ONCA 178,
    308 C.C.C. (3d) 109, the appellant argues that the DNA evidence, standing
    alone, was not capable of supporting the inference that he was the man who
    brought the pop bottle into the washroom area and was seen by the complainant. 
    He submits there had to be other evidence that, combined with the DNA evidence,
    would permit a finding that he was the perpetrator because the DNA evidence
    alone failed to establish when his DNA was placed on the pop bottle and when
    the bottle was left in the washroom and by whom.

[22]

The appellant further submits that the
    trial judge erred by presuming that the mere presence of the appellants DNA on
    the pop bottle was highly inculpatory, requiring the appellant to demonstrate
    that there was some other rational explanation  other than his guilt  for the
    presence of his DNA on the pop bottle found in the washroom.

[23]

I would reject these submissions for
    several reasons.

[24]

First, in my opinion, the appellant
    understates the significance of the DNA evidence.  The appellants DNA on the
    pop bottle found in the washroom stall occupied by the perpetrator was a
    powerful piece of evidence linking the appellant to the scene of the crime. 
    Before this court, the appellant accepts that the presence of his DNA on the
    pop bottle, coupled with the expert evidence regarding the single DNA profile
    on the bottle, supported the inferences that he drank from the pop bottle and
    that he was the last person to do so.

[25]

Second, as the Crown points out, while
    the DNA evidence was the centrepiece of the Crowns case on identification, it
    did not stand alone.  The totality of the evidentiary record establishes that:

·

a black man who was physically
    similar to the appellant was caught on the restaurant surveillance footage
    entering the washroom area two minutes before the complainant.  The same black
    male exited the washroom approximately one minute after the complainant entered
    the washroom;

·

the police secured the womens washroom so that nobody entered
    after the incident;

·

the partially consumed pop bottle was found on the toilet tank in
    the same washroom stall where the complainant observed the perpetrator;

·

the washrooms were cleaned every night.  It followed that the pop
    bottle had to have been left in the womens washroom on the day of the
    incident;

·

only the appellants DNA was found on the pop bottle, even though
    the entire mouth area of the bottle was swabbed for testing.  There were also
    no identifiable fingerprints found on the pop bottle.

·

three black men, each of whom matched the general description of
    the perpetrator, were dining together in the restaurant on the day of the
    incident;

·

the three black men fled the restaurant after the complainant
    emerged from the washroom;

·

there was no evidence that anyone other than the appellant had
    actually handled the pop bottle or drank from it;

·

the appellant was the last person to drink from the pop bottle;

·

there was no evidence linking anyone other than the appellant to
    the washroom stall in which the perpetrator was observed; and

·

the appellant fit the generic description of the perpetrator
    provided by eyewitnesses.

[26]

In my view, based on these undisputed
    facts, a reasonable trier of fact could have concluded that the appellant was
    the voyeur.  There was no evidence at trial to support any other explanation
    for the presence of a pop bottle, bearing only the appellants DNA, in the
    stall of the womens washroom occupied by the perpetrator.  In these
    circumstances, in my opinion, it would stretch coincidence beyond the realm of
    reasonableness to speculate that the appellant innocently deposited the pop
    bottle earlier the same day into the same stall in the womens washroom or that
    someone other than the appellant deposited the pop bottle used by the appellant
    in the washroom stall while committing the offence.

[27]

Third, in my view, the appellants
    reliance on the decisions of this court in
Mars
and
Wills
is
    misplaced.  Both
Mars
and
Wills
are distinguishable from this case.

[28]

Mars
and
Wills
both involved accuseds charged with criminal offences
    arising from home invasions.  In
Mars
,
    the victim heard a knock at his door and observed an unmasked man holding a
    pizza box.  When the victim opened the door to inform the man that he had not
    ordered any pizza, three men swarmed into the house.

[29]

As in this case, identity was the sole
    issue at trial.  The victim was unable to identify the man carrying the pizza
    box.  However, a neighbour observed three men running away from the victims
    house.  He described the men as three black youths.

[30]

In addition, the pizza box contained
    three fingerprints, one of which matched the appellants fingerprints.  At
    trial, expert evidence established that it was not possible to date the
    appellants fingerprint or determine when it was placed on the pizza box. 
    Indeed, the Crowns expert acknowledged that fingerprints could remain on a
    pizza box for several years.

[31]

On appeal by the accused from his
    conviction, this court set aside the conviction because the circumstantial
    evidence did not reasonably support the inference that the appellants fingerprint
    was left on the pizza box at the time of the robbery.  To the contrary, it was
    just as reasonable to infer that his fingerprint was left on the pizza box at
    some time before the robbery.  In addition, several other factors worked against
    a finding of guilt: 1) although the accuseds appearance was consistent with
    the victims description of one of the three robbers, the victims description
    of that robber was so general that it could not inculpate the accused; and 2) because
    the accused was a white man, the neighbours evidence of his sighting of three
    black youths effectively excluded the accused as one of the robbers.

[32]

These facts set this case apart from
Mars
.  Unlike the fingerprint evidence in
Mars
, in this case, the only DNA found on the pop bottle was
    that of the appellant and other evidence at trial established that the pop bottle
    must have been left in the washroom on the same day as the day of the offence. 
    Further, unlike this case, the expert evidence in
Mars
established that the accuseds fingerprint could have been
    deposited on the pizza box on another occasion.  For example, the robbers could
    have found the pizza box in the trash and used it to commit the offence.  Finally,
    in contrast to the neighbours testimony in
Mars
, there was no affirmative evidence at the appellants
    trial excluding him as the perpetrator.

[33]

For similar reasons,
Wills
does not assist the appellant.  In
Wills
, two men, both wearing bandannas to mask their faces,
    forcibly entered a home occupied by two individuals.  One of the invaders
    viciously attacked one of the occupants with a baton.  During the attack, the
    victim pulled a white bandanna from the assailants face.  The police later
    found the white bandanna.  They also discovered a second, blue bandanna in a
    ravine used as the escape route by the assailants.  A footprint discovered near
    the second bandanna matched a footprint found at the victims home.

[34]

On testing of the white bandanna, the
    DNA of at least three people was detected.  One of the DNA samples matched the accuseds
    DNA.  The blue bandanna was also subjected to DNA testing, revealing the DNA of
    at least two individuals.  Again, one of the DNA samples matched the accuseds DNA.

[35]

However, at trial, a DNA expert was
    unable to estimate how long the DNA may have been on the bandannas.  He also
    noted that the robbers may not have left any DNA on the bandannas.

[36]

Further, neither homeowner could
    identify the assailant who wielded the baton.  The victim of the assault simply
    described his assailant as a black man, 5 feet 7 inches or 5 feet 8 inches
    tall, with a slim face and small frame.  The second homeowner was held at
    gunpoint by the other intruder.  She provided only a general description of the
    man with the gun, describing him as a tall man of average build who spoke
    Italian.

[37]

After the incident, the police seized a
    metal baton from the accuseds home.  The victim of the assault described the
    baton as similar to the one used in the attack but also said that he believed
    the attacker had used a weapon with a wooden handle.  He also identified three
    other slight differences between the weapons.

[38]

The trial judge convicted the accused of
    a series of offences arising out of the home invasion.  On appeal, the
Wills
court was not satisfied that the DNA evidence alone could
    support the inference that the accused was one of the perpetrators or that
    either bandanna belonged to the accused.  Because the Crowns expert evidence
    did not establish when the accuseds DNA was deposited on the bandannas, the
    Crowns own evidence precluded those inferences based exclusively on the DNA
    evidence.  As a result, as with the fingerprint evidence in
Mars
, there had to be other evidence which, combined with the
    DNA evidence, would permit a finding that the accused was the perpetrator:
Wills
at para. 36.

[39]

The
Wills
court went on to conclude that the inference of the
    accuseds guilt was otherwise supportable on the facts.  In particular, there
    was evidence that the accused had a baton at his house  an uncommon household
    item  that resembled the baton used in the attack.  Further, unlike
Mars
, where the neighbours exculpatory description of the
    assailants diminished the potential force of the circumstantial evidence
    linking the accused to the home invasion, the non-DNA identification evidence
    in
Wills
was neutral.  Finally, the
    accuseds DNA was found on both of the bandannas, further supporting the
    finding that he was involved in the attack.

[40]

In this case, as I have emphasized, only
    the appellants DNA was found on the pop bottle discovered in the restaurant
    washroom.  This fact increases the probative force of the DNA evidence,
    connects the appellant to the scene of the crime, and supports the inference
    that he left the pop bottle in the washroom.  It also renders less reasonable
    any inference that someone other than the appellant used the pop bottle.

[41]

In addition, in contrast to
Mars
and
Wills
, there
    was evidence in this case supporting the inference that the appellants DNA was
    deposited on the pop bottle at or around the time of the offence: 1) the
    appellant was the last person to drink from the bottle; 2) the bottle was part-full,
    suggesting that the appellants DNA had been recently deposited on the bottle;
    3) given the washroom cleaning schedule, the pop bottle had to have been left
    in the washroom on the day of the incident; 4) the pop bottle was found in the
    womens washroom at the restaurant  a place the appellant had no right to be;
    and 5) the pop bottle was discovered in the exact stall used by the voyeur.

[42]

I would therefore reject the
    appellants contention that, on the authority of
Mars
and
Wills
, the
    verdict in this case is unreasonable.

[43]

Fourth, I regard this case as analogous
    to the decisions in
R. v. Dewar
, 2003
    CanLII 48229 (Ont. C.A.) and
R. v. Gauthier
, 2009 BCCA 24, 264 B.C.A.C. 298.  In
Dewar
, a restaurant was burglarized during a series of break-ins
    at a shopping mall.  The police discovered a pop bottle in the restaurant
    managers office that, on testing, was found to contain the accuseds DNA,
    together with that of a co-accused, on the mouth of the bottle.  The co-accused
    pled guilty to the offence with which he was charged arising out of the
    break-ins, and his admission was an agreed fact at the accuseds trial.  The
    employees of the restaurant were not permitted to drink canned pop in the
    restaurant, and there was no innocent explanation for the presence of the pop
    bottle, bearing the accuseds DNA, in the managers office.

[44]

The trial judge found that it was
    illogical that someone other than the accused would bring the pop bottle into
    the shopping mall and carry it from establishment to establishment when several
    of the burglarized shops had pop readily available.  Further, in the trial
    judges view, since little of the pop had been consumed, the pop bottle was not
    brought into the mall to be consumed while the perpetrators hid.  The trial
    judge therefore concluded that the pop was consumed by the accused and his
    co-accused during the break-in.  In other words, the accused was present at the
    break-in as one of the perpetrators.  On appeal, this court concluded that the
    trial judges reasoning was not speculative and the verdict was not
    unreasonable.

[45]

A similar result obtained in
Gauthier
.  In that case, a residence was broken into and a beer
    bottle bearing the accuseds fingerprint was found on the victims bed,
    together with various other assorted items that had been strewn about.  The
    accused argued that the beer bottle could have been brought into the residence
    by a friend of the victim with whom the accused associated.  Alternatively, an
    intruder could have brought the bottle into the residence after the accused had
    handled it.

[46]

The British Columbia Court of Appeal
    rejected the accuseds claim that his conviction was unreasonable, holding, at
    paras. 11-12, that his exculpatory hypotheses were speculative.  The court
    noted that there was no evidence that the accused might have innocently handled
    the beer bottle at some other time and place.  Nor was there any
    non-speculative explanation on the evidence for the presence of the beer bottle
    bearing the accuseds fingerprint.  The only reasonable explanation was that
    the accused was the intruder who broke into the residence and relocated many
    items in it, including the beer bottle.

[47]

This reasoning is apt here.  On the
    totality of the evidence in this case, there is no evidentiary foundation for
    any explanation of the presence of a partially-consumed pop bottle, bearing the
    appellants DNA, in the exact washroom stall used by the perpetrator, other
    than that the appellant was the voyeur.  In particular, there is simply no
    evidence that anyone other than the appellant ever handled the pop bottle or
    drank from it.  Nor is there any evidence linking anyone other than the
    appellant to the washroom stall occupied by the perpetrator.

[48]

Finally, I am mindful of the
    appellants argument that the trial judge erred, in effect, by placing the onus
    on the appellant to demonstrate that there was some other rational conclusion,
    apart from the appellants guilt, for the presence of the pop bottle bearing
    the appellants DNA found in the washroom.

[49]

I would reject this argument.  The
    reasons confirm that the trial judge was alert to the applicable test for
    assessing guilt or innocence in a circumstantial case.  He expressly
    considered, as he was obliged to do, whether the appellants guilt was the only
    reasonable inference to be drawn from the facts established on the whole of the
    evidence: see
R. v. Cooper
, [1978] 1
    S.C.R. 860.  In so doing, in my view, he did not reverse the burden of proof. 
    To the contrary, he expressly instructed himself that, The Crown must prove
    guilt beyond a reasonable doubt, which burden carries with it, in a
    circumstantial case, the duty of excluding all rational conclusions alternative
    to guilt.  I see no basis for appellate interference with the trial judges
    conclusion that the Crown met this burden in this case.

Disposition

[50]

For these reasons, I would dismiss the
    appeal.

Released:

GRS                                                E.A.
    Cronk J.A.

JAN 28 2015                                     I
    agree G.R. Strathy C.J.O.

I
    agree C.W. Hourigan J.A.


