



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Youssef, 2018 ONCA 16

DATE: 20180112

DOCKET: C59334

Laskin, Feldman and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdullah Youssef

Applicant/Appellant

Richard Litkowski, for the appellant

Kevin Rawluk, for the respondent

Heard: October 26, 2017

On appeal from the convictions entered on May 2, 2014 by
    Justice Jonathon George of the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

In early May 2013, a branch of the Bank of Montreal in London, Ontario
    was robbed. Eye-witnesses and a surveillance video indicated that the robber
    was a young man, who wore sunglasses, gloves, a bandana, and a hat. The
    appellant, Abdullah Youssef, was charged with the robbery and several offences arising
    out of the robbery. He was tried by a judge alone. The main issue at trial was
    the identity of the robber. The evidence against Youssef was circumstantial.

[2]

In oral reasons, the trial judge found Youssef guilty. He found that the
    combination of Youssefs DNA on a pocket knife left at in an area of the bank
    accessed only by bank employees and the robber, and his DNA on a t-shirt found
    in the getaway car, was fatal to the defence position. In the trial judges
    view: there is no other reasonable innocent explanation for the presence of
    Mr. Youssefs DNA.

[3]

Youssef appeals his conviction. The sole issue on appeal is the
    reasonableness of the guilty verdicts. Youssef submits that the verdicts are
    unreasonable because the trial judges finding that Youssef was the robber is
    not the only rational inference on the evidence. We disagree with Youssefs
    submission.

[4]

Where the evidence of identity at trial is circumstantial, the test to
    uphold the reasonableness of the verdict on appeal is as follows: an appellate
    court must be satisfied that the trier of fact acting judicially could reasonably
    be satisfied that the accuseds guilt was the only reasonable conclusion
    available on the totality of the evidence: see
R. v. Villaroman
, 2016
    SCC 33, [2016] 1 S.C.R. 1000, per Cromwell J. at para. 55. And, as Cromwell J.
    added at para. 71: it is fundamentally for the trier of fact to draw the line 
    that separates reasonable doubt from speculation. In other words, an appellate
    court can interfere only if the trial judges conclusion that the evidence
    excluded any reasonable alternative to guilt was itself unreasonable.

[5]

In our view the test was met in this case. The following pieces of
    circumstantial evidence taken together support the reasonableness of the
    verdicts:

·

A younger male, acting alone, robbed the bank;

·

The robber left a pocket knife at the scene of the robbery, in an
    area accessed only by the robber and bank employees;

·

Youssefs DNA was one of three DNA profiles on the pocket knife,
    and was the major profile;

·

30 minutes after the robbery, a stolen car was found in flames;

·

The stolen car was used by the robber as the getaway car;

·

Youssefs DNA was on a black t-shirt found in the stolen car; and

·

The DNA on a balaclava found in the stolen car was likely that of
    Youssefs sister.

[6]

Cumulatively, these pieces of circumstantial evidence exclude any
    reasonable alternative to Youssefs guilt. We add that as Youssef did not
    testify, the trial judge was not required to speculate about possible defenses
    Youssef might have offered had he chosen to give evidence: see
R. v. Noble
, [
1997] 1 S.C.R. 874, at para. 77.

[7]

We dismiss the appeal.

John
    Laskin J.A.

R.A.
    Blair J.A.

Feldman J.A. (dissenting):

[8]

I have had the benefit of reading the draft reasons of my colleagues
    upholding the conviction of the appellant. In my view, the evidence in this
    case cannot meet the test in
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000, and consequently, I would allow the appeal and order acquittals.

[9]

The test articulated by Cromwell J. in
Villaroman
is largely a
    restatement of the traditional test from
Hodges Case
(1838), 2 Lewin
    227, 168 E.R. 1136, which required that where the Crowns case is based on
    circumstantial evidence, guilt must be the only rational conclusion from the
    evidence. Cromwell J. stated it this way at para. 55:

Where the Crowns case depends on circumstantial evidence, the
    question becomes whether the trier of fact, acting judicially, could reasonably
    be satisfied that the accuseds guilt was the only reasonable conclusion
    available on the totality of the evidence. [Citations omitted.]

[10]

In
R. v. Mars
(2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para.
    19, this court explained that where there is fingerprint evidence linking the
    accused with an object connected to the crime or the crime scene, there must
    also be 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. A similar analysis applies to DNA evidence: see, for example,
R. v.
    Wills
, 2014 ONCA 178, 318 O.A.C. 99, affd 2014 SCC 73, [2014] 3 S.C.R.
    612;
R. v. Ahmed
, 2015 ONCA 848; and
R. v. Grayston
, 2016
    ONCA 784.

[11]

In this case, the appellant could not be identified as the perpetrator
    by eyewitnesses or by video surveillance. Video surveillance showed the
    perpetrator to be a younger man wearing sunglasses, a bandana, a hat and
    gloves, and he appeared to be waving a gun. A pocket knife was found behind the
    counter at the bank. That pocket knife contained DNA from the appellant, as the
    major contributor, and from two other people. Because the bank robber was
    wearing gloves, the DNA could not have been deposited on the knife during the
    robbery.

[12]

The robber fled in a vehicle that was found on fire soon after the
    robbery close to the bank. That vehicle had been stolen approximately a month
    and a half before the robbery. Inside the burning vehicle, the police found a
    number of items, but not the hat, gloves or bandana that the robber had been
    wearing. What they did find were jeans, a balaclava, a band for glasses, a
    black t-shirt and shoes. The pattern on a shoe in the car was similar to a
    shoe-print left at the crime scene. The appellants DNA was on the black
    t-shirt. DNA found on the balaclava was likely that of his sister.

[13]

The trial judge reasoned that the combination of the appellants DNA on
    the pocket knife dropped at the crime scene and on a t-shirt in the getaway car
    compelled the conclusion that the appellant was the bank robber. While
    acknowledging that not testifying is ones right and cannot lead to the drawing
    of a negative inference, he also observed that as the appellant did not
    testify, there was no reasonable explanation for the combination of factors
    other than guilt. In my view that reasoning is flawed.

[14]

The pocket knife evidence cannot create a temporal connection between
    the appellant and the robbery, because neither he nor the other two DNA
    contributors to the knife could have deposited their DNA during the robbery, as
    the perpetrator was seen wearing gloves. Therefore the knife was an object
    brought to the robbery by the robber with three peoples DNA already on it.

[15]

Similarly, there is no connection between the t-shirt with the
    appellants DNA found in the getaway car and the robbery, because the robber
    was not seen wearing a black t-shirt. The black t-shirt was just an object
    connected to the appellant but not to the robbery. Had the robber been wearing
    a black t-shirt during the robbery, one could reason that the t-shirt found in
    the getaway car that was driven by the robber belonged to the robber.

[16]

Nor can one create a link between the appellant and the robbery by
    putting together two pieces of evidence linked to the appellant but not to the
    robbery. Put simply, the appellant is linked to objects that were found in the
    bank and in the getaway car, but because there is no evidence that indicates
    when the appellants DNA came to be on those objects, they do not link him to
    the robbery.

[17]

The case of
R. v. Mufuta
, 2015 ONCA 50, 329 O.A.C. 237,
    illustrates how a temporal connection can be established between an object
    linked to an accused and the crime, and provides a useful comparison. In that
    case, the appellant was convicted of voyeurism by peering at a woman from an
    adjacent bathroom stall. The perpetrator had entered the bathroom two minutes
    before the victim. His general description matched the appearance of the
    appellant. A soda bottle was found in the stall adjacent to the victims, where
    the perpetrator had been, containing only the appellants DNA. Evidence was led
    that because the bathrooms were cleaned daily, the soda bottle had to have been
    left the day of the offence. That evidence established a temporal connection
    between the appellant and the crime. Together with the matching description of
    the perpetrator at the scene, the court was satisfied that the guilt of the
    appellant was the only reasonable conclusion.

[18]

Without a similar temporal link in this case, in my view, the test in
Villaroman
is not met and the verdict is unreasonable. My colleagues conclude that
    cumulatively, the circumstantial evidence excludes any reasonable alternative
    other than the appellants guilt. To the contrary, based on the circumstantial
    evidence, it is equally possible that someone working with or socializing with
    the appellant in the stolen car took the pocket knife with him when he robbed
    the bank and returned to the car where the appellant had left his black
    t-shirt. There was no obligation on the appellant to testify in order to raise
    this possibility.

[19]

I would therefore allow the appeal and enter acquittals.

K.
    Feldman J.A


