At trial, the issue was the identity of the assailants. Neither of the victims could identify the man on trial as the perpetrator. However, the combination of two crucial pieces of evidence — albeit circumstantial — led to a guilty verdict.
First were two bandanas that seem to have been used in the robbery and were discarded along the escape route. DNA testing connected the accused to both bandanas. Second was a police baton, found months later in the accused’s closet, that could have been used in the assault.
On appeal, all judges agreed that the evidence was circumstantial, since the appellant’s DNA could have been brought in contact with the bandanas at any point before or after the assault.
In addition, counsel for the defence pointed to a description of the baton by the victim that did not match the weapon found in the accused’s possession. (The victim said it was a baton, but more like a whip.)
Nevertheless, the majority at the appeal court found the jury’s inference to be reasonable: “This is a close call,” Ontario Court of Appeal Justice David Doherty wrote on behalf of the majority.
“I am, however, satisfied that the DNA evidence linking the appellant to the two bandanas used in the robbery, combined with evidence permitting the inference that some two months after the robbery the appellant had a police baton like the police baton used in the robbery, is sufficient to render the jury’s finding that the Crown had proved that the appellant was one of the perpetrators a reasonable one.”
Particularly controversial is the finding that the jury was reasonable in doubting the reliability of the victim’s own testimony describing the baton, given the fact he was being assaulted at the time.
“A reasonable jury,” the decision stated, “could conclude that [the victim’s] . . . description of the details of the weapon was not reliable because of the circumstances in which he observed the weapon.”
Justice Sarah Pepall, in dissent, would have quashed the conviction. She stressed the jury could not have, given the evidence, concluded reasonably that the accused’s guilt was the only possibility. (The accused, for instance, could have been framed, with a similar baton used in the assault and DNA planted on the discarded bandanas. Or the bandanas could have been borrowed. Or the weapon could have been stored in a friend’s house.)
“With respect,” she writes, “based on the evidence, I do not believe that a properly instructed jury acting judicially could reasonably render a guilty verdict. The Crown’s evidence in this case amounted to inconclusive DNA evidence coupled with a baton that was identified as being dissimilar to that found in the closet of the appellant’s apartment and as dissimilar from a police baton, and that bore no identifiable connection to the crime scene.
“In my view, the guilty verdict in this case was unreasonable. The evidence could not reasonably permit the conclusion that the appellant was the perpetrator of the crimes for which he was convicted.”
Howard Rubel, a criminal defence lawyer at Heller Rubel, says this case has less to do with what types of circumstantial evidence are reliable — or at what point, when combined, they become reliable — but rather about the authority of the courts to second-guess jury verdicts.
“I think this really demonstrates that, in circumstantial evidence cases, there is a very high test — an extremely high test — before an appellate court can go behind a jury’s verdict and disagree with the process they must have used to get from A to B,” says Rubel.
“Courts are going to be very hesitant to interfere with the right of a jury to think about a case in a certain way, particularly because we don’t know how a jury came to its conclusions. That’s the difference between a jury verdict and a judge’s written decisions.”
Rubel says the reasonableness test, which asks the jury whether it has to stretch its imagination to find alternative explanation for the evidence, was not in question. (The court of appeal notes the trial judge was clear in its instructions.)
What’s interesting, says Rubel — and perhaps troubling, from a criminal defence perspective — is that the jury may have decided not to vigorously apply the test.
And by quietly accepting the appeal court’s dismissal, and by extension the jury’s verdict, the SCC may tacitly reaffirm the authority of juries to render their verdicts independently — even when they’re controversial.
“The Supreme Court is giving the deference that courts have always given to jury verdicts,” says Rubel. “That’s why they refer to them as the gold standard.”