



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marini, 2017 ONCA 46

DATE: 20170119

DOCKET: C59342

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Marini

Appellant

Melanie J. Webb, for the appellant

Luke Schwalm, for the respondent

Heard: January 12, 2017

On appeal from the conviction entered on January 16, 2014
    and the sentence imposed on February 14, 2014 by Justice Edward E. Gareau of
    the Superior Court of Justice, sitting without a jury.

By the Court:

A.

Overview

[1]

Three break-ins in three Subway restaurants in Sault St. Marie took
    place in the span of five days on July 11, 12 and 15, 2012. The appellant was
    tried and found guilty in relation to the July 15, 2012 break-in although no
    theft was committed because the perpetrator was unable to access the safe. The
    Crowns similar fact evidence application in relation to the July 11 and 12
    break-ins, in which the safe was broken into and money stolen, was allowed and
    the appellant was also found guilty in relation to these break-ins

[2]

The appellant appeals his conviction on one count of break and enter
    with intent to commit an indictable offence therein (s. 348(1)(a)); two counts
    of break and enter and commit an indictable offence therein (s. 348 (1)(b));
    and three counts of possession of break-in instruments (s. 351(1)), all
    contrary to the
Criminal Code,
R.S.C. 1985, c. C-46.

[3]

Because we are in agreement with the appellants submissions that the
    trial judge erred with respect to the use he made of the appellants criminal
    record and that his evaluation of the evidence is flawed in material respects,
    it follows that the convictions must be set aside and a new trial ordered.

[4]

Having regard to our decision, it is unnecessary for us to consider the
    appellants appeal from his sentence of 3.5 years plus 76 days pre-trial
    custody.

B.

Facts

[5]

The three Subway restaurants broken into were each equipped with video
    surveillance cameras. The trial judge made the following findings of fact:

·

July
    11 break-in  153 Great Northern Road:
The side door window to the
    restaurant was smashed and entry was gained at 1:50 a.m. A person wearing a
    black balaclava over his or her face and a black jacket entered the restaurant.
    The perpetrator stole $1,556 from the safe.

·

July
    12 break-in  216 Second Line, West:
Entry was gained through the back
    door at 4:27 a.m. A person wearing a black balaclava over his or her face and a
    black jacket entered the restaurant. The perpetrator stole $2,107 from the
    safe.

·

July
    15 break-in  421 Bay Street:
A window in the front of the store was
    smashed and entry was gained at 1:59 a.m. A person wearing a black balaclava
    over his or her face and a black jacket entered the restaurant. An attempt was
    made to enter the safe, but was unsuccessful.

[6]

Lacey Dalton was a witness to the events of July 15. She saw the
    perpetrator leave the Subway restaurant after the break and enter had taken
    place. She was driving home from work when she noticed that the window of the
    Subway on 421 Bay Street was smashed. She stopped her car and was attempting to
    call the police when she observed a man run out of the Subway restaurant and
    get into a van. Dalton testified that the man was wearing a black mask that
    covered his entire face to his neck. Dalton followed the van into a dead end
    and then observed a man leaving the drivers side of the van, which she
    believes was left running with the lights on.

[7]

Dalton testified that a short time later (1 to 2 minutes), she observed
    a man without a mask go into the van and turn the van off (or the lights in the
    van off). She described the man as wearing a black t-shirt with grey on the
    sleeves, red shorts, running shoes, and a black hat. She described this man as
    having the same stature as the man she had seen leaving the van earlier. This
    man told her she should not be parking where she was as the lane was a
    passenger walkway. He left the scene after he exited the van.

[8]

Constable Vautour was dispatched in respect of the Subway break-in. He
    observed a male wearing red shorts crossing Gore Street. The male was sweaty
    and out of breath. The man identified himself as Ronald Marini (the appellant).
    The appellant was subsequently arrested. Constable Vautour was responsible for
    seizing the appellants clothing, and he noted that there appeared to be small
    shards of reflective glass on the top of the appellants baseball hat. A black
    bag containing burglary tools was located nearby in the direction from which
    the appellant had come.

[9]

Both Constable Vautour and Constable Kovacs (who was also involved in
    the appellants arrest) testified that on arrest, the appellant had a large
    cast on his right hand, from his fingers up to his elbow.

[10]

The police found an axe and a sledgehammer in the van, and observed
    broken glass inside the van. They also found a black balaclava on the ground
    beside the drivers side door. A swab was taken from outside the mouth area on
    the balaclava which matched the appellants DNA.

[11]

There were no witnesses to the other two incidents.

[12]

At trial, the appellant was self-represented. The appellant testified in
    his own defence. The trial judge had the assistance of
amicus
. The
    appellant denied being involved in any of the break-ins and denied being the
    person in the surveillance tapes. He testified that on the evening of July 14,
    2012, he went to a bar and stayed until approximately 1:50 a.m. on July 15,
    2012. He left the bar with the intention of walking to his sisters home. At
    about 2:00 a.m. he saw a person running to a side street off of Gore Street.
    The appellant testified that the man was wearing dark clothing and it looked
    like he was carrying something, like a bag. The appellant looked down the alley
    and saw a van and a car parked behind the van. He noticed that the van was rolling
    down the alleyway. The appellant testified that he opened the van and put it in
    park and turned the ignition off. He said he was sweating a lot because it
    was a hot and humid evening. He testified that he was at the wrong place at
    the wrong time.

[13]

The appellant acknowledged that his DNA was on the balaclava, but he
    denied that it was his balaclava and, prompted by some leading questions by
amicus
,
    explained that he must have touched or sat on the balaclava when he got into the
    seat of the van. He testified that he saw the balaclava fall to the ground as
    he was getting out of the van.

C.

the law

[14]

In R
. v. Morrisey,
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at
    p. 221, Doherty J.A. stated:

Where a trial judge is mistaken as to the substance of material
    parts of the evidence and those errors play an essential part in the reasoning
    process resulting in a conviction, then, in my view, the accuseds conviction
    is not based exclusively on the evidence and is not a true verdict.

At a later point in the same paragraph, he stated:

If an appellant can demonstrate that the conviction depends on
    a misapprehension of the evidence, then, in my view, it must follow that the
    appellant has not received a fair trial, and was a victim of a miscarriage of
    justice. This is so, even if the evidence, as actually adduced at trial, was
    capable of supporting a conviction.

[15]

As the Supreme Court of Canada observed after citing
Morrissey
in
R. v. Lohrer,
[2004] 3 S.C.R. 732, at para. 4:

Morrissey,
it should be emphasized, describes a
    stringent standard. The misapprehension of the evidence must go to the
    substance rather than to the detail. It must be material rather than peripheral
    to the reasoning of the trial judge. Once those hurdles are surmounted, there
    is the further hurdle (the test is expressed as conjunctive rather than
    disjunctive) that the errors identified must play an essential part not just in
    the narrative of the judgment but in the reasoning process resulting in
    conviction.

[16]

As we indicate below, that test is met in this case.

D.

applying the law to the trial judges reasoning process

[17]

The trial judge set out the principles in
R. v. W.(D.)
, [1991]
    1 S.C.R. 742 and concluded that several aspects of the appellants testimony
    strain belief. First, it was difficult to accept the appellants explanation
    for his DNA being on the balaclava, given that the swab sample was taken from
    the mouth area of the item. He concluded at para. 34 of his reasons, for the
    DNA sample to be taken from the mouth area, it follows logically that the
    person with his DNA sample on the balaclava must have been wearing the
    balaclava  his mouth must have come into contact with the balaclava. Having
    regard to the evidence that the DNA swab was only taken from the exterior of
    the balaclava and not the interior, and the lack of any evidence respecting
    transferability of the DNA, it could not form the basis for the trial judges
    rejection of the appellants evidence that he must have accidentally come into
    contact with the balaclava when he entered the van and sat on the seat, either
    by sitting on the balaclava or touching it with his hand.

[18]

When addressing the appellants explanation for being apprehended close
    to the van that was followed from the location of the last break-in, the trial
    judge said the following at para. 35 of his reasons:

I also have difficulty accepting Mr. Marini's evidence that he
    was just "being nosey" by being in the alleyway where the van was
    parked or that he was playing the role of good Samaritan by putting the van
    into park. Mr. Marini acknowledged a criminal record which is both lengthy
    and substantial. This record starts in 1980 with the last conviction being June
    21, 2013. The criminal record, entered as Exhibit 31, is replete with property
    offences, break and enters and possession of stolen property. I am cautious
    with respect to the use to be made of the criminal record of Mr. Marini. The
    record is not being considered for the suggestion that Mr. Marini is more
    likely to have committed the Bay Street break and enter because of his criminal
    past. Such an approach would be unacceptable and contrary to the law. I do not
    accept that and that is not why his criminal record is being considered.
The
    record is important to consider Mr. Marini's life experiences and whether given
    this criminal past and life circumstances, it makes sense for him to hang
    around what was obviously a crime scene, to help out and to provide assistance
    by putting the van in park and to speak to the police about the man he saw
    running carrying a bag.
In my view, it does not make sense. The sensible
    and logical thing for a person
with Mr. Marini's past
to do would be
    to get out of the area as fast as he could. I do not accept Mr. Marini's
    explanation that he was at the wrong place at the wrong time or a victim of
    circumstance. It does not make sense for Mr. Marini to be hanging around the
    Manilla Terrace or Gore Street area when he knows there has likely been a crime
    committed,
given his past criminal background and life experiences.
The sensible and logical thing for Mr. Marini to do would be to continue
    on his way, to his sister's on Adelaide Street as expediently as possible. [Emphasis
    added]

[19]

Essentially, the trial judge reasoned that, if the appellant were truly
    innocent and was in fact in the wrong place at the wrong time, his decision to
    remain was undermined by his criminal past and life experiences (
i.e.
,
    his criminal record). In other words, if innocent, someone with the appellants
    criminal record ought to have fled the scene.

[20]

As acknowledged by the trial judge in his reasons, the appellants
    criminal record could not be used as evidence of the appellants propensity to
    commit the offences with which he was charged. The trial judge could simply
    have used the appellants extensive criminal record, which included many
    entries for breaking and entering, in assessing his credibility and relied on
    it to reject his evidence. This use is permissible under s. 12(1) of the
Canada
    Evidence Act
, R.S.C., 1985, C-5 (
CEA
). In our opinion, however,
    the trial judges use of the appellants criminal record went well beyond the
    limited use permitted by the
CEA.
We are not persuaded that references
    made by the appellant in his evidence about his criminal past and having been
    to prison mitigated this error.

[21]

The trial judge also considered the fact that the appellant had a cast
    on his right arm from his fingers to his elbow at the time of the break-ins.
    But he rejected the appellants submission that as a result of his injury, he
    could not swing an axe or use any of the tools used in the break-ins. The trial
    judge referred to the still images taken from the video surveillance and noted
    that there was no picture showing the perpetrator holding a heavy object in his
    right hand. Rather, the photos showed that the heavier objects (such as the
    axe) were held in the perpetrators left hand, and the right hand held a
    crowbar.

[22]

The surveillance videos from both the July 11 and July 15, 2012
    incidents show the perpetrator holding a heavy object with his right hand
    higher on the shaft and using his right hand to pull the head back and to
    propel it forward with significant force. Thus, the trial judge ignored
    relevant evidence that he was required to consider before rejecting the
    appellants evidence.

[23]

The trial judge stated he accepted the evidence of Constables Vautour
    and Taylor that there were fine glass particles on the appellants hat and
    shirt. He rejected the appellants assertion that the hat had a metallic
    flair, and noted that this was contradicted by the actual hat, which was
    entered into evidence as an exhibit.

[24]

The respondent acknowledges that the trial judge misapprehended the
    evidence in saying that there were glass particles on the appellants shirt and
    running shoes. The constables made no observations of glass particles on his
    shirt or running shoes.

[25]

Crown counsel did state during the course of her remarks during the
    examination-in-chief of Detective Taylor that small white packets enclosed with
    the clothing exhibits contained glass particles found on the clothing. However,
    what Crown counsel says is not evidence. Detective Taylor did not have any
    personal knowledge of glass particles having been found on the clothing the
    appellant was wearing at the time of his arrest. No glass particles were found
    on the clothing or shoes seized when the appellant was arrested.

[26]

The only evidence regarding shards or flecks of glass on the appellants
    baseball cap came from Const. Vautour and he acknowledged that they were no
    longer on the hat. In response to the suggestion of
amicus
that he
    could not have known that what was on the appellants hat were glass particles,
    Const. Vautour stated, They were a reflective material, something that would
    make the light glint off them The trial judge used the absence of any
    reflective material on the hat in court against the appellant in assessing his
    credibility but not in assessing Const. Vautours.

[27]

More importantly, the surveillance evidence indicated that in all three
    break-ins, it was a balaclava, not a hat that was worn. No evidence was
    adduced, or theory advanced by the Crown as to how glass debris could have been
    transferred to the hat worn by the appellant at the time of his arrest. Even if
    it was open to the trial judge to accept that there was evidence of glass
    particles on the appellants baseball hat at the time of his arrest, the hat
    was not linked to the commission of the crimes and the evidence of the glass
    particles could not be used by the trial judge without connecting the hat to
    the crimes alleged.

[28]

The trial judges misuse of the appellants criminal record,
    standing alone, would warrant appellate intervention in this case. In addition,
    the cumulative effect of the trial judges mistakes in assessing the evidence
meet the stringent standard of being material to his
    reasoning and of going to the substance rather than the detail of his reasons.
Even
    although the evidence adduced at trial may have been capable of supporting the
    appellants conviction, the errors the trial judge made in assessing the
    evidence played an essential part in his reasoning process with the result that
    the convictions are not true verdicts in the sense of having been arrived at
    in accordance with the rule of law.

[29]

Accordingly, the appeal is allowed, the appellants convictions
    are set aside and a new trial is ordered on all counts.

Released: K.M.W. January 19, 2017

Karen M. Weiler
    J.A.

S.E. Pepall J.A.

G.T.
    Trotter J.A.


