



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Searay, 2020 ONCA 726

DATE: 20201112

DOCKET: C65067

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Searay

Appellant

Adam Searay, acting in person

Janani Shanmuganathan, duty counsel

Jessica Smith Joy, for the respondent

Heard by videoconference: November 4, 2020

On appeal from the conviction entered on October 20, 2017
    and the sentence imposed on February 23, 2018 by Justice Wendy L. Harris Bentley
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Mr. Searay was convicted of robbery, with a gun,
    and disguise with intent to commit an indictable offence. He was sentenced to
    six years imprisonment less credit for pre-sentence custody. He appealed
    against conviction and sentence. However, at the oral hearing of the appeal, he
    abandoned his sentence appeal, apart from his request that the victim fine be
    quashed.

[2]

For the reasons that follow, the appeal against
    conviction is dismissed.

BACKGROUND IN BRIEF

[3]

On November 12, 2015, a stolen truck was parked
    outside a Scotiabank in London, Ontario. A man in the truck was seen pulling a
    hoody over his head.  He then entered the bank, with his face covered by
    white fabric except for a space for his eyes. He was wearing blue jeans with a
    rip, light brown running shoes, and black gloves  and carrying a handgun. He
    yelled at everyone to get down as he did not wish to kill anybody that day.
    The bank surveillance video clearly showed that the robber was wearing a dark
    hoody with the hood up and that the robbers face was covered by white fabric,
    with space for his eyes.

[4]

The robber demanded money  hundreds and fifties
     shouting he did not want any dye packs. One teller got up and moved to a
    wicket where he got money and gave it to the robber. After receiving around
    $10,000, the robber ran out of the bank where he was seen climbing into the
    passenger seat. One witness was able to recall most of the license plate number
    of the truck.

[5]

The stolen truck was being driven by Kenneth
    Rowe, Mr. Searays co-accused. Mr. Rowe drove off at a high rate of speed and
    almost ran over a pedestrian as he turned into the driveway of a shopping
    plaza. The pedestrian saw the truck stop. The robber left the truck. Another
    witness saw Mr. Rowe drive further into the parking lot, almost striking
    people, and abandon the truck, taking with him a bag from the truck and walking
    away.

[6]

A police officer later used a dog to track Mr.
    Rowes movements, based on his scent in the truck. The dog tracked from the
    drivers side of the truck to a bus stop with a green garbage bin. Inside the
    bin, the officer found a pair of shoes, a screwdriver, jeans, a black hooded
    sweatshirt, and a white T-shirt (the Items). The dog continued tracking to a
    Kentucky Fried Chicken outlet where other police officers were in the process
    of arresting Mr. Rowe. The police also found a handgun under a dumpster at a
    store next to the Kentucky Fried Chicken outlet.

[7]

The Items were sent for DNA testing. Of the Items,
    only the white T-shirt had a DNA profile suitable for comparison. The DNA from
    the T-shirt showed at least three contributors. Profile 1, that of a female,
    was discovered on the areas inside the front and back neckline. Profile 2, that
    of a male, was located on the inside front-center of the T-shirt, below the
    neckline. The profiles were sent to the DNA databank and there was a hit with
    respect to Profile 2. A warrant was obtained and a blood sample provided by Mr.
    Searay. He could not be ruled out as the source of the DNA in Profile 2: the odds
    were 1 in 800-quadrillion that the DNA profile came from someone else in
    Ontario.

[8]

Mr. Searay was arrested for these offences in
    December 2015. At the time of arrest, Mr. Searay, a Caucasian, was 25 years
    old, 58 in height, weighed 170 pounds, and had a medium build and short dark
    hair. He spoke without an accent.

[9]

At the judge-alone trial, the defence conceded
    that all of the elements of the offences were made out with the exception of identity.
    Thus, the sole issue at trial was the identity of the robber.

[10]

Joseph Cooke, a drug dealer who supplied Mr.
    Searay with drugs, testified that he had a discussion with Mr. Searay before
    the robbery in which they discussed escape routes for a robbery at the bank. He
    also testified that Mr. Searay spoke with him after the robbery and was told that
    he got away with it. Mr. Cooke saw that Mr. Searay had new clothing and about
    $1,500 in crisp new bills. Mr. Cooke had a lengthy criminal record that
    included crimes of dishonesty.

[11]

Mr. Rowe testified that he was the driver during
    the robbery. His evidence matched that of many of the witnesses in terms of
    where he went after the robbery with the truck and the Items found in the
    garbage bin and under the dumpster. He testified that he committed the robbery
    with a black guy whom he had only briefly met and it was not Mr. Searay. He
    said that after being picked up in the stolen truck, he and the robber stopped
    at the trap house (the drug house) and picked up clothes for the robber to
    wear during the robbery. He said that Mr. Searay was in and out of the trap
    house on a regular basis. Mr. Rowe did not describe the person as black in his
    statement to the police. He had a close friendship with Mr. Searay.

[12]

Mr. Searay did not testify or call any evidence
    at trial.

[13]

The trial judge gave lengthy reasons explaining
    why she did not accept the evidence of Mr. Cooke and parts of Mr. Rowes
    evidence, including his unbelievable story about whom he had committed the
    robbery with and his description of that person.

[14]

Based on the descriptions of the robber given by
    the various witnesses, the trial judge found that the robber was male,
    Caucasian, between 58 and 510 in height, between 160 and 195 pounds, in his
    mid-20s, and had short dark hair and spoke without an accent. She found that description
    generally matched Mr. Searay and that it did not rule him out as the robber.

[15]

The trial judge described the DNA evidence and its
    limitations, as identified by the forensic expert. Those limitations included
    that it was not possible to determine: the mechanism or how the DNA was
    deposited on the T-shirt; whether it was deposited directly or by secondary
    transfer; or when the DNA was deposited on it.

[16]

The trial judge carefully and thoroughly explained
    how she reviewed the video surveillance of the robbery, made findings about the
    white fabric over the robbers face, its location above and below the robbers
    eyes, that it was hemmed, how it matched the white T-shirt found at the garbage
    bin at the bus stop, and why she found that the T-shirt had been positioned
    with the front part of the neck below the robbers eyes. The trial judge found
    that the white T-shirt was worn by the robber during the robbery and that Mr.
    Searays DNA was located on it in the area where the robbers nose and mouth
    were located. As the robber was a male, she excluded the female DNA, being
    Profile 1, as belonging to the robber.

[17]

The trial judge concluded that, on the whole of
    the evidence, the only rational inference that could be drawn was that Mr.
    Searay was guilty of the offences, having committed the armed robbery while
    wearing the white T-shirt around his head.

THE ISSUE

[18]

With the able assistance of duty counsel, Mr.
    Searay submits that the conviction is unreasonable. He maintains that the trial
    judge had only two pieces of evidence on which to base the conviction: the DNA
    evidence and a generic description of the bank robber. These, he contends, were
    insufficient to support the inference of guilt.

[19]

In terms of the DNA evidence, he points out that
    multiple people had access to the T-shirt and other peoples DNA was on it. Therefore,
    he says, other inferences were available and the trial judge erred in finding that
    he wore the T-shirt during the robbery. As for the description of the robber
    relied on by the trial judge, he contends it was so generic that it could not
    be afforded much weight.

ANALYSIS

[20]

We do not accept the appellants submission.

[21]

The trial judge did not base the conviction solely
    on the DNA evidence and the description of the bank robber. The other evidence
    on which she relied included:

-

the bank video surveillance;

-

the testimony of the bank teller who interacted
    with the robber and gave him the money;

-

the testimony of the witnesses who saw the
    robber outside the bank;

-

the tracking of the stolen truck from the bank
    to the point where it was abandoned;

-

the canine tracking of Mr. Rowe that led to the
    discovery of the Items and then to him;

-

the location of the stolen truck at its point of
    abandonment and of the recovered Items and handgun;

-

the close personal connection between Mr. Rowe
    and Mr. Searay;

-

those parts of Mr. Rowes testimony that she
    accepted and were confirmed by other evidence; and

-

her finding that the white T-shirt discovered in
    the garbage can was used during the robbery.

[22]

In terms of the DNA evidence, the trial judge
    fully understood and addressed the concerns that the appellant raises on this
    appeal. She was alert to the presence of DNA profiles other than that of the
    appellant and to the limitations of that evidence. However, based on her
    findings about the nature of the fabric of the white cloth covering the
    robbers face and its location on the robbers face, she concluded that the
    only rational inference was that Mr. Searay had committed the offences while
    wearing the white T-shirt around his head.

[23]

In terms of the description of the robber, as
    found by the trial judge, we do not share the appellants view that it was so
    generic it warranted little weight. The trial judge arrived at that description
    after careful consideration of the descriptions given by the various witness
    and review of the bank video surveillance. She concluded that it could not rule
    out Mr. Searay.  We agree.

[24]

The Crown relies on
R. v. Ibrahim
, 2014 ONCA 157, 318 O.A.C. 1, in which this court upheld
    convictions in a bank robbery, based on the DNA evidence in conjunction with
    the trial judges findings. We agree that the present case is similar to
Ibrahim

and that the reasoning in
Ibrahim

supports the dismissal of this appeal.

[25]

The trial judge articulated the correct legal
    principles for a circumstantial Crown case. In careful, thorough reasons, she
    explained why, on the whole of the evidence, the only rational inference that
    could be drawn was that Mr. Searay was guilty of the offences. In our view, the
    constellation of facts, as found by the trial judge, support the inescapable
    inference of guilt.

DISPOSITION

[26]

For these reasons, the conviction appeal is
    dismissed.

[27]

The sentence appeal is dismissed as abandoned. With the consent of
    the Crown, the victim fine is quashed.

E.E. Gillese
    J.A.

P. Lauwers
    J.A.

M.L. Benotto
    J.A.


