R. v. Newell, 2018 NLSC 81

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Newell , 2018 NLSC 81 Date : April 17, 2018 Docket : 201701G5387 Her Majesty The Queen v. Robert Newell Before: Justice Vikas Khaladkar Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 22, 26-29, 2018 Date of Oral Judgment: April 17, 2018

Summary: The accused was charged with one count of break and enter pursuant to sections 348(1(b)-348(1)(

e) of the Criminal Code and one count each of failing to comply with the terms of a recognizance pursuant to s. 145(3)(

a) and breach of probation pursuant to s. 733.1(1) (

a) of the Criminal Code. The case against the accused insofar as the break and enter is concerned, was entirely circumstantial and relied heavily upon DNA evidence gathered from the scene of the crime. The accused was found guilty of breaking, entering and committing an indictable offence in a place other than a dwelling house. Since he was bound by a Recognizance and a Probation Order to keep the peace and be of good behaviour at the time of the commission of the break and entry, he is found guilty of those charges as well.

Appearances: Jude W. Hall Appearing on behalf of the Crown Robert Newell Appearing on his own behalf Authorities Cited: CASES CONSIDERED: R. v. Starr, 2000 SCC 40; R. v. Rollinson, 2018 NLSC 18; R. v. Lifchus, (SCC), [1997] 3S.C.R. 320; R. v. Cooper, (SCC), [1978] 1 S.C.R. 860; R. v. Villaroman, 2016 SCC 33; R. v. Dipnarine, 2014 ABCA328 STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Canada Evidence Act, R.S.C., 1985, c. C-5 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] Mr. Newell is charged that he did, on or about the 18th day of September, 2016 break and enter a place, to wit, St.

Pius Xchurch in the City of St. John’s, in the Province of Newfoundland and Labrador and committed therein an indictable offence. He is alsocharged with a breach of recognizance and a breach of probation pursuant to sections 145(3)(

a) and 733.1(1)(

a) of the Criminal Code ofCanada, R.S.C. 1985, c. C-46, respectively. [2] The evidence against Mr. Newell is completely circumstantial. While there was closed circuit television footage of theperpetrator entering and leaving the church, and an eye witness saw him, there was no direct evidence of identity that could implicateMr.

Newell since the video images are not sufficiently clear to enable identification and since the eye witness to the offence was unableto identify the accused in either a photographic line up or in Court. [3] However, found at the scene was a juice container that was swabbed for residual DNA and analyzed. The resulting analysisproduced a hit in the National DNA Database that matched a DNA sample that had earlier been provided by Mr. Newell. It alsoconfirmed that matching DNA samples had been collected from 8 different crime scenes – one in Barry, Ontario, one in Clarenville,Newfoundland and Labrador and 6 in St.

John’s, Newfoundland and Labrador. [4] As a result the police obtained a search warrant for the purpose of obtaining a DNA sample from Mr. Newell for analysis.Mr. Newell’s DNA sample matched the DNA sample obtained from the juice container. The chance of it being someone other than Mr.Newell was expressed as 1 in 1.5 quintillion.

The Evidence Crown [5] Father Wayne Bolton testified that he attended at the church “a wee bit before” 7:30 in the morning on September 18, 2016.It was a Sunday morning and he had walked a “couple of stone’s throws” from his residence to the church to open the doors to let one ofhis parishioners into the church to prepare for Sunday mass. As he walked into the church he noticed a bag with white lettering sitting onthe floor that ought not to have been there. He also saw a juice container and picked it up and carried it into the church.

The CCTVsystem of the church captured Father Bolton’s activities as he entered the church, and he was able to identify himself as the person in thevideo and confirmed that he picked up the juice container. [6] Father Bolton testified that he heard a noise inside as he got to the sacristy door. There should not have been anyone insidethe building at that time. He turned on the light. The door opened and an intruder came out. Father Bolton asked him what he was doingthere. The person replied that he was using the washroom, picked up the bag Father Bolton had seen earlier and walked out the door.

[ 7 ] Father Bolton said that he did not know any Robert Newell as a parishioner and had never, before, heard of him. He was asked if he could identify anyone in the Court room as being a parishioner and he stated that he could not. In cross-examination Mr. Newell asked him whether the intruder told Father Bolton his name. Father Bolton said that he did not. Mr.

Newell then asked him whether he can say for certain whether the young man he saw was in Court or not, and Father Bolton stated that he could not say for certain. [ 8 ] Father Bolton testified that there was damage to a number of doors, door frames, cupboards and drawers as a result of the break-in. He also testified that the individual who committed the break and entry stole the pix – a container that holds the eucharis for church services. [ 9 ] There was no positive eye witness identification of Mr. Newell as the intruder in St.

Pius X church in the early morning hours of September 18, 2016. [ 10 ] The Crown entered into evidence several video clips that were taken from the CCTV security system installed in the church. The first of these shows a male person walking across the parking lot to the doors of the church. The person is carrying what appears to be a duffle bag and, as well, something like a box in his left hand. [ 11 ] The second of the video clips shows the same person jimmying open the doors of the church and gaining entry into the vestibule.

Upon close examination of the object that the person is carrying, one can see a white plastic spout consistent with the spout on the juice container that was entered into evidence, and it can be seen that the spout was open because the hole in the spout is visible. [ 12 ] The third video clip shows Father Bolton opening the same door that the person had entered in the second clip, walking into the vestibule, picking up what he identified as a juice container and walking into the building. [ 13 ] The fourth video clip shows the person who had first entered the church leaving.

He is seen with a duffle bag and what might be a crow-bar, but has nothing else in his possession. [ 14 ] In total the person who broke and entered St. Pius X church was inside, from the time that he gained entry, for about 40 minutes until he exited the church. [ 15 ] Constable Andrea Crane of the RNC testified. She is a 12 year veteran of the Royal Newfoundland Constabulary and has been in the Forensic Identification

Section since September, 2016. She was called to the St. Pius X church on September 18, 2016 to assist in the investigation of a break and enter that was alleged to have happened the same morning. She photographed the scene and took possession of a Grave’s 1 liter box of apple juice. Upon seizing the apple juice box she removed it to headquarters, where she swabbed its mouthpiece. She then made a request of the National Crime Laboratory to provide forensic testing of the swab she had taken.

The National Crime Laboratory sent her a laboratory file number and, upon receipt of same, she completed another form C414, entered the laboratory file number and forwarded the swab to the National Crime Laboratory for analysis. [ 16 ] The swab was sent, first, to the National Crime Laboratory in Vancouver, B.C. There the evidence recovery team would have performed a microscopic analysis of the swab and removed from it any material containing DNA.

Having done so, the material containing DNA would have been forwarded to the DNA analysis unit who would isolate, and purify, DNA from the material and would generate a DNA profile. [ 17 ] Finally, the DNA profile would be forwarded to a forensic specialist, along with appropriate notes from the evidence recovery team and the DNA analysis team.

The forensic specialist’s task is to compare the data received from the DNA analysis team to see whether there are any matches to known samples such as those that repose in the National DNA Data Bank – consisting of crime scene DNA samples and samples provided by known offenders by virtue of Court order. Admissibility of Report Prepared by Deceased Author [ 18 ] In this case that specialist was Thomas Suzanski, who was a qualified forensic DNA specialist. Mr. Suzanski compiled a report on November 22, 2016. The report was peer reviewed by one of Mr. Suzanski’s colleagues, Ms. Susan Borys. Ms.

Borys was qualified as a forensic DNA specialist and was allowed to give expert opinion concerning forensic analysis of DNA samples, including evidence

concerning her role as a peer reviewer. [ 19 ] Unfortunately, between the time that Mr. Suzanski compiled his report and the time of trial, Mr. Suzanski passed away. An issue arose with respect to whether or not Mr. Suzanski’s report could be used in the proceedings. Mr. Newell, who was self-represented, argued that the report should not be admissible because Mr. Suzanski was now unavailable to be cross-examined concerning his analysis and, as a result, Mr. Newell would be unable to make full answer and defence. [ 20 ] The Crown argued that Mr.

Suzanski’s report ought to be admissible as an exception to the hearsay rule and, in any event, that it was necessary and reliable and, therefore, admissible as a principled exception to the rule against hearsay evidence. [ 21 ] Court heard from Ms. Florence Céléstien. She, too, was qualified as a forensic DNA specialist and allowed to give opinion evidence concerning the forensic analysis of DNA samples. [ 22 ] Ms. Borys testified that in the process of peer review she reviews the entire working file – which contains notes from the evidence recovery team and the analysis unit.

She would review the DNA profile information and ensure that the appropriate protocols, including operating protocols, were followed. She testified that she was in complete agreement with Mr. Suzanski’s findings. [ 23 ] I find that Mr. Suzanksi’s report is admissible in these proceedings for a number of reasons. Firstly, at common law, a record created in the ordinary course of business was admissible as an exception to the hearsay rule.

Secondly, the Supreme Court of Canada modified the common law by ruling that the principled exception to the hearsay rule may apply in addition to the common law exception so that if the Crown can show necessity (here because Mr. Suzanski is deceased) and reliability (here because Mr. Suzanski’s work was created in the ordinary course of business and reviewed by another, equally qualified, colleague and found to be accurate), then the evidence ought to be admissible. R. v. Starr , 2000 SCC 40 ; and, lastly, because sections 30(1) and 30(6) of the Canada Evidence Act , R.S.C., 1985, c. C-5 state: 30.

(1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this

section in the legal proceeding on production of the record.

(6) For the purpose of determining whether any provision of this

section applies, or for the purposes of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this

section the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record. [ 24 ] Based on the above, I am satisfied that Mr.

Suzanski’s report is admissible and that I am entitled to infer therefrom that the DNA analysis resulted in the creation of a single DNA profile known as “Male 1”, and that a comparison of that DNA profile against the two databases maintained in the National DNA Data Bank, namely, the Crime Scene Index and the Convicted Offender Index resulted in a number of “hits”. In particular, Male 1 was found to have had the same DNA profile as the accused, Robert Newell, in the convicted offender index.

And Male 1 was identical to the DNA recovered from 8 crime scenes – from Barry, Ontario (1 hit), Clarenville, Newfoundland and Labrador (1 hit), and St. John’s, Newfoundland and Labrador (6 hits). [ 25 ] It is important to note that there was no evidence of contamination discovered by Mr. Suzanski. He found the profile of one individual, and one individual only – Male 1. Had there been contamination from another person’s DNA, there would have been two or more DNA profiles and Mr. Suzanski would have asked the investigator to provide samples from any other known person who might have contaminated the exhibit.

This was not done because it was not necessary for it to be done. [ 26 ] Mr. Suzanski’s report was sent to the lead investigator at the RNC who, then, obtained a warrant to obtain samples from Mr. Newell sufficient to allow a DNA analysis to be made. Additional DNA Sampling and Analysis [ 27 ] A swab was taken from Mr. Newell pursuant to a DNA warrant and it was analyzed. Ms. Florence Céléstien testified that she performed the analysis on the sample obtained by warrant. Fifteen regions of a person’s DNA code are analysed, along with the region containing the XY chromosome to determine gender. She found that Mr.

Newell’s known sample exactly matched Male 1 identified by Mr. Suzanski. The probability that it was someone else with the same DNA was expressed as being 1 in 1.5 quintillion, or 1.5 x 10 18 . Continuity of the Exhibit

[28] William David Mallan testified by video link from Florida. He occupies the voluntary position of coordinator for Eucharisticand Hospitality ministries of the church. He has been involved in this volunteer capacity for 17 years, and as a parishioner for 20 years.He is knowledgeable, especially, about parishioners who attend the Sunday morning mass. He does not know a Robert Newell. [29] On September 18, 2016 Mr. Mallan was at the church at 7:15 a.m. He noticed that there was some loose metal on the door ofthe church as he was entering.

Upon entering the building he noticed a number things were amiss: the door going into the sacristy wasopen. Upon entering the chapel he saw Father Bolton standing next to the table and they talked about what had taken place. [30] It is a part of the duty of the hospitality ministry to keep the church tidy and clean, and to make it as presentable as possible forthe parishioners. Mr. Mallan testified that it was not normal for the sacristy desk’s doors to be left open or for empty juice boxes to beleft on the desk.

He said it would be unusual, as well, for something of that nature to be left on the floor of the church. [31] Mr. Mallan testified that he saw the juice container in the library as well. [32] No evidence was led with respect to how the apple juice container got to either the library or the desk in the sacristy. However,we do know that Father Bolton transported the juice container from the vestibule to the inside of the church. Analysis (

a) The Burden and Standard of Proof [33] The accused is presumed to be innocent until his guilt is proved beyond a reasonable doubt by the Crown. The Crown bears, atall times, the onus of proving the accused’s guilt, and that onus never shifts. [34] Proof beyond a reasonable doubt is not, as Adams, J. said in R. v. Rollinson, 2018 NLSC 18 at paragraph 52, … a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. Itmust arise logically from the evidence or the lack of evidence. See, also, R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320. [35] It is not enough to prove that Mr. Newell probably broke and entered St. Pius X church. Proof beyond a reasonable doubt isnearer to certainty than it is to proof on a balance of probabilities. However, the Crown is not required to prove Mr. Newell’s guilt to anabsolute certainty. Such a burden would be unattainable. In order to convict Mr. Newell of the crimes with which he is charged, I must besure beyond a reasonable doubt that he committed them. (

b) Circumstantial Evidence [36] The Crown’s case is almost entirely circumstantial. There is no direct evidence that Mr. Newell broke and entered St. Pius Xchurch in St. John’s on September 18, 2016. If Mr. Newell is to be convicted, it must be based on inferences drawn from the evidencethat was led by the Crown. And those inferences must lead me to the conclusion that it was Mr. Newell who broke and entered St. PiusX church on September 18, 2016 and no other person. [37] So, what does the evidence allow the Court to infer: 1. A male person was recorded by video entering and leaving St.

Pius X church in the early morning hours of September 18, 2016. 2. The male person broke into the church and was seen carrying a duffle bag over his shoulder and an object the size of a one literjuice container in his left hand. The plastic mouthpiece and opening of the mouthpiece are clearly visible in one of the videos recovered.It is exactly the same as the mouthpiece and opening of the juice container that was retrieved by Cst. Crane and entered into evidence. 3.

The church was cleaned the day before and there were no objects like duffle bags or empty cartons of apple juice left on the floorwhen people left the church on September 17, 2016. 4. Father Bolton picked up a juice container from the vestibule of the church and carried it inside. He is seen on video doing this and

testified that he did do so. 5. A juice container was located by Cst. Andrea Crane in the sacristy area of the church. There were varying reports as to where thejuice container might have been seen inside the church, namely the library or the sacristy area, but it is clear that only Father Boltonhandled it until Cst. Crane seized it. 6. A swab was obtained from the mouthpiece of the juice container and was analyzed by the National Crime Lab. 7. The National Crime Lab analysis revealed that the DNA it found on the mouthpiece belonged to Robert Newell, the accused inthis proceeding. 8.

A further, known, sample was obtained pursuant to a warrant, from Robert Newell and analysis proved that the known samplematched the sample of DNA recovered from the mouthpiece of the apple juice container. 9. There is no indication that the sample obtained from the mouthpiece of the apple juice container was contaminated in any fashionsince there was one, and only one, DNA profile obtained from the analysis. 10. The male person was seen on video carrying a bag and a rectangular object with a plastic mouthpiece into the church. He was seenby Father Bolton taking the bag when he left the church.

And an apple juice box with a plastic mouthpiece was left in the church thatFather Bolton testified was not there before. [38] Where the Crown’s case is entirely circumstantial, I must be satisfied beyond a reasonable doubt that the guilt of the accused isthe only reasonable inference to be drawn from the proven facts. R. v. Cooper, (SCC), [1978] 1 S.C.R. 860. (

c) Assessment of Credibility [39] All of the Crown’s witnesses gave their testimony in a fair and forthright manner. None of them gave evidence that wascontradictory to earlier statements that they had given, or that was contradictory to notes that they had recorded (in the case of policeofficers and forensic DNA specialists). Their testimony was not shaken on cross-examination. I accept the testimony of each of thewitnesses. Accused Argues [40] Mr.

Newell has invited me to surmise that the sample that was analyzed was contaminated, or that his DNA was depositedthere as a result of transference by some other person. [41] Mr. Newell has also invited me to consider that continuity of the exhibit, namely the juice container, was lost from the time thatFather Bolton picked it up in the vestibule to the time that it was seized by Cst. Andrea Crane. He argued that there is no evidence thatthe juice container entered into evidence is one and the same as the juice container carried by the person in the video. I cannot agree withMr. Newell’s contention.

I accept the evidence of Father Bolton that the church was cleaned on the evening before the break-in and that,after such cleaning, no juice container was left on the floor of the vestibule. [42] The intruder is seen walking into the church with a container. He is seen walking out of the church without a container. A juicecontainer is discovered by Father Bolton immediately upon entering the church, and he is seen picking it up.

Father Bolton says that thejuice container was in close proximity to a duffle bag – the same bag carried in by the intruder and carried out by the intruder. [43] It is true that Father Bolton told Cst. Crane that the juice container might have come from a small fridge in the kitchenette inthe church. However, one has to be mindful of the fact that Father Bolton did not have the luxury of watching the video footage of theintruder walking into the church with a juice container.

Father Bolton was simply engaging in conjecture as to where the juice containermight have come from. [44] It is true that a juice container made its way onto the desk in the sacristy area. The evidence is clear that Father Bolton took itthere because we know that no one else handled the juice container until Cst. Crane seized it as evidence. [45] We know, as well, that Father Bolton wasn’t wearing rubber gloves and did not take any precautions with respect to thepotential exhibit.

It is fair to state that Father Bolton would not have known, at the time he picked up the juice container, that it was anexhibit. [46] Had there been any contamination (meaning a secondary source of DNA was discovered) the laboratory would have reportedsuch. And, having done so, would have requested the police to obtain DNA samples from the person(

s) who may have contaminated theexhibit so as to exclude them as potential suspects. There is no basis for concluding that a lack of continuity created a problem for tworeasons: firstly, there is only one juice container – the juice container carried in by the intruder is the same juice container moved byFather Bolton and seized by Cst. Crane and, secondly, because no secondary DNA source was discovered on the juice container by the

laboratory. [ 47 ] Unfortunately for Mr. Newell, the circumstantial evidence in this case is so overwhelming that I cannot entertain any reasonable doubt about his complicity in the break and enter. Crown Argues [ 48 ] There is no eye witness identification in this case. Nor are the video tapes of sufficient clarity to identify the intruder. This is a case of DNA identification. [ 49 ] The videos show that the juice container was brought into the church by the intruder.

Any ambiguity with respect to the continuity of the exhibit is immaterial and, at worst, would go only to weight and not admissibility. [ 50 ] Only three people handled the juice box container – the accused, Father Bolton and Cst. Andrea Crane and only one DNA profile was recovered from the exhibit – that of the accused. [ 51 ] There was no evidence that the accused had ever been anywhere near St. Piux X church prior to the break-in. He was not a parishioner and neither Father Bolton nor Mr. Mallan even knew his name.

There is no likelihood that the accused deposited the empty juice box container in the vestibule of the church some time before the break-in. Findings of Fact [ 52 ] A person is seen on video breaking into the church. The evidence satisfies me that the perpetrator left his duffle bag and the juice container he was carrying in the vestibule of the church – where Father Bolton noticed the duffle bag and picked up the juice container. Later the perpetrator collected his duffle bag before exiting the church.

He is seen on video leaving the church with his duffle bag and what appears to be a crow-bar. [ 53 ] I am satisfied that neither the church’s cleaning staff, nor their volunteers, would have left a juice container lying around from the day before. As Father Bolton did when he saw it lying on the floor, any other person associated with the church upon seeing the item would have picked it up and properly disposed of it.

I am satisfied that it was not there before the break-in, and was deposited in the vestibule by the person who broke into the church. [ 54 ] I am satisfied that there was no contamination of the DNA sample. Had there been, the National Crime Laboratory would have reported multiple DNA profiles. They did not do so.

They reported only one and it belonged to the accused, Robert Newell. [ 55 ] I am satisfied that Robert Newell deposited his DNA on the mouthpiece of the apple juice container, that he brought the apple juice container into the church with him and deposited it on the floor of the vestibule, along with his duffle bag. To suggest that Mr. Newell’s DNA was transferred onto the apple juice container’s mouthpiece by some other person is not reasonable. To suggest that the thief transported an empty carton of apple juice to the church with Mr. Newell’s DNA on it, and left it there with the result that Mr.

Newell would be wrongfully charged and convicted is illogical. [ 56 ] Mr. Newell argued that the Caucasian database against which his DNA sample was compared had only 100 randomly selected individuals represented. I am uncertain of the evidentiary underpinnings for that assertion. However, Ms. Florence Céléstien testified that population geneticists have studied populations all over the world and have developed the calculations that the National Forensic Laboratory uses to determine probabilities. She said that there is an infinitesimally small chance that another person would have the same profile.

Only identical twins share exactly the same genetic profile in her estimation. [ 57 ] The Supreme Court of Canada, in R. v. Villaroman , 2016 SCC 33 at para. 42 , cited with approval the following dicta from R. v. Dipnarine , 2014 ABCA 328 at paras. 22 and 24-25 . : The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. Conclusion [ 58 ] I am satisfied beyond a reasonable doubt that Robert Newell was one and the same person as the person who broke and entered

St. Pius X church in the early morning hours of September 18, 2016 and committed, therein, indictable offences including theft and mischief. No other

interpretation is reasonable in my opinion. [ 59 ] Even if the evidence of theft and mischief were insufficient, which is not the case, once the Court finds that an accused broke and entered a place, pursuant to s. 348(2) of the Criminal Code , in the absence of evidence to the contrary there is a statutory presumption that he did so with the intention of committing an indictable offence therein. Mr. Newell did not take the stand in his own defence, which is his right, and chose not to call any evidence.

Accordingly, there is no evidence to counter the statutory presumption that would apply in this matter. [ 60 ] Therefore, I convict Robert Newell of Count 1 in the Indictment, namely breaking, entering and committing an indictable offence. Count 2 [ 61 ] Mr. Newell was at large on a Recognizance entered into before a justice on May 5, 2016. One of the conditions was that Mr. Newell keep the peace and remain of good behavior. Inasmuch as I have found Mr. Newell guilty of the predicate offence, I find him guilty to the breach of his Recognizance. Count 3 [ 62 ] Mr.

Newell was placed on probation on November 6, 2014. The probation order was in full force and effect on September 18, 2016. A finding of guilt in respect of Count1automatically places Mr. Newell in breach of the terms of his probation order. I find him guilty on Count 3. [ 63 ] I will hear submissions from the parties with respect to a sentencing date. _____________________________ Vikas Khaladkar Justice