2019 QCCA 1855, 2019 QCCA 1855

Steinberg c. R. 2019 QCCA 1855 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No : 500-10-006722-183 ( 700-01-137288-158 ) MINUTES OF HEARING DATE: November 1, 2019 CORAM: THE HONOURABLE MANON SAVARD, J.A. STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A. APPELLANT COUNSEL RENÉE STEINBERG Mtre KHALID M'SEFFAR ( Centre communautaire jur.

Laurentides- Lanaudière ) (Absent) RESPONDENT COUNSEL SA MAJESTÉ LA REINE Mtre SÉDRIK VALIQUETTE ( Directeur des poursuites criminelles et pénales ) (Absent) On appeal from a judgment rendered on March 27 th , 2018 by the Honourable Maria Albanese of the Court of Québec , District of Terrebonne . NATURE OF THE APPEAL: Appeal against the conviction ( Section 348(1) b)

d) C.cr . Clerk at the hearing : Amanda Kaneza Courtroom: Pierre-Basile-Mignault HEARING

9:34 Commencement of the hearing. Continuation of the hearing held on the 29 th of October, 2019. The parties were excused from appearing in Court. BY THE COURT : Judgement – see page 3. Conclusion of the hearing. Amanda Kaneza, Clerk at the hearing JUDGMENT [ 1 ] The Appellant appeals from a judgment rendered on March 27, 2018 by the Court of Quebec, District of Terrebonne (the Honourable Maria Albanese), that found her guilty of breaking and entering into a dwelling-house and committing theft inside, contrary to paragraphs 348(1) (

b) and (

d) of the Criminal Code . [1] [ 2 ] The offence was committed on November 2, 2012. The complainant left her residence for a period of four hours and, upon her return, discovered that someone had broken in and that some items had been stolen. [ 3 ] The evidence linking the Appellant to the offence was circumstantial: • The complainant discovered that the window on the front door of her residence was open, even though it had been closed when she left the house.

She noticed a fingerprint on the outside of the window which matched the Appellant’s; • The complainant also noticed a crowbar on the floor and a glove on the sofa in her living room, both of which do not belong to her and were not present when she left the house.

DNA matching the Appellant (as well as a very small quantity of unidentified male DNA) was found in the glove; • The Appellant admitted that the glove was hers and she admitted the expert reports on the fingerprint and the DNA analysis. [ 4 ] The Appellant testified at her trial and proposed an alternative explanation for the presence of her glove and her fingerprint. She testified that she and her husband went to the complainant’s residence around the end of October 2012 and bought seven stained glass windows from her.

She testified that on that occasion, she lost a glove outside the house and she had cupped her hands against the window on the front door in order to peer inside when she was looking for her husband. [ 5 ] The Appellant’s husband also testified about the purchase of the windows.

The Appellant produced photographs of the windows and her husband as well as a bank statement to show a withdrawal of funds at the end of October 2012 that she testified was for the purchase of the windows. [ 6 ] The complainant was shown the photographs of the windows and she testified that she remembered selling them at a garage sale in 1998 or 1999 to a man with white hair. She was also shown the photographs of the husband, but she was not able to determine if he was in fact the man to whom she had sold the windows.

She testified that she had never seen the Appellant. [ 7 ] As a result, the two issues in dispute at the trial were the sufficiency of the circumstantial evidence of the glove and the fingerprint and the credibility of the Appellant’s testimony. [ 8 ] In her judgment, the trial judge analyzed the Appellant’s testimony in accordance with the judgment of the Supreme Court in R. v.

W.(D.) : first she concluded that she does not believe the Appellant’s testimony, then she concluded that the Appellant’s testimony does not create a reasonable doubt, and finally she concluded that on a review of the evidence as a whole, she does not have a reasonable doubt as to the Appellant’s guilt. [2] In her analysis of reasonable doubt, the trial judge applied the test set out by the Supreme Court in R. v.

Villaroman for circumstantial evidence. [3] She found that the only reasonable inference from the evidence was that the Appellant did in fact commit the offence and she convicted her. [ 9 ] On appeal, the Appellant’s principal argument is that the trial judge rendered an unreasonable verdict. She further argues that the trial judge gave insufficient reasons to allow for meaningful appellate review. *** [ 10 ] The Appellant invokes both types of unreasonable verdict within the meaning of Section 686(1) (

a) of the Criminal Code ,

namely “le verdict qui ne peut pas s’appuyer sur la preuve au sens des arrêts Yebes et Biniaris ” and “le verdict rendu par un juge dont le raisonnement est basé sur des inférences illogiques ou irrationnelles au sens de l’arrêt Beaudry ”. [4] The Supreme Court summarized the steps that the appeal court must follow in analyzing the two types of unreasonable verdict as follows: [84] In my view, the s. 686(1) ( a )(

i) inquiry in judge-alone trials should proceed as follows: (

a) The reviewing court should first apply the test in Yebes / Biniaris . The question is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered on the evidence as a whole. If not, then the test is met, the inquiry is over, and an acquittal is entered. (

b) If the verdict is available on the evidence, the reviewing court may go on to assess the reasonableness of the verdict under the Beaudry test by scrutinizing the actual findings of fact and inferences made by the trial judge. As stated earlier, an unreasonable verdict of the kind identified in Beaudry will be exceedingly rare. It is therefore not necessary to conduct this assessment in every case. Unless the issue is specifically raised, or the circumstances clearly call for this further inquiry, the impact of errors in the reasoning process that led to the verdict falls to be assessed under either s. 686(1) ( a )(ii) (errors of law) or s. 686(1) ( a )(iii) (miscarriage of justice). (

c) The Beaudry test may apply in exceptional cases where the reasoning process of the trial judge is so irrational, or so at odds with the evidence, that it vitiates the verdict — even though that verdict is available on the evidence as a whole. In these rare cases, an appellate court will be justified in concluding that the verdict itself is unreasonable. What precise kinds of errors would justify this conclusion is a question better left to be decided in cases where the issue will arise.

If the reviewing court so concludes, a new trial is ordered, as the court will have already determined under the Yebes / Biniaris test that the verdict is otherwise available on the evidence. [5] [ 11 ] The first step in the analysis is the assessment of whether a properly instructed jury, acting judicially, could reasonably have convicted the Appellant on the evidence as a whole.

Given that the evidence is circumstantial, and in light of the Supreme Court’s judgment in Villaroman , the test can be restated as whether a properly instructed jury, acting judicially, could reasonably have concluded that the only reasonable inference “given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” [6] was that the Appellant committed the offence. [ 12 ] As set out above, the prosecution’s evidence was circumstantial: her fingerprint was found on a window that was opened during the break-in and her glove was found in the living room. [ 13 ] In the recent case of Ben Hariz c.

R. , [7] the Court adopted the two-stage approach to fingerprint evidence set out in R. v. D.D.T. : [15] The above principles suggest a two-stage approach for appellate review of the reasonableness of a verdict in cases where fingerprints provide the sole evidence capable of identifying the perpetrator. The first stage involves an examination of the reasonableness of the inference that the fingerprints were placed on the object with connection to the crime, at the relevant time and place.

The second stage involves an examination of the soundness of the conclusion that the totality of the evidence and reasonable inferences available to the trial judge were sufficient to prove the appellant's guilt beyond a reasonable doubt. [8] [ 14 ] For the first stage, it is reasonable to infer that the fingerprints were placed on the window and the glove was left in the living- room in connection with the offence: • The fingerprint was found on the window which was closed when the complainant left her residence and was open when she returned, and that window gives access to the living room, where many items were stolen, such that it is reasonable to infer that the window was opened by the person who committed the office.

The fingerprint is the only useable fingerprint on the window and it is reasonable to infer that the fingerprint was left by the person who committed the offence; • The glove was found in the living-room, near a crowbar. Neither the glove nor the crowbar belong to the complainant and neither was in the residence when the complainant left.

It is reasonable to infer that both the glove and the crowbar were brought into the residence and were left by the person who committed the offence. [ 15 ] For the second stage, the Court must be satisfied that the totality of the evidence and reasonable inferences available to the trial judge were sufficient to prove the Appellant's guilt beyond a reasonable doubt. [ 16 ] There are many examples of cases where courts of appeal have upheld convictions based on fingerprint or DNA evidence found at the scene of the offence.

In those cases, the trial judge dismisses the other possible explanations for the presence of the fingerprint or the DNA evidence as speculative and not rising to the level of a reasonable inference. [9] [ 17 ] What is particular in this case is that the Appellant testified in support of an alternative explanation for the presence of the fingerprint and the glove.

In accordance with W.(D.) , before convicting the Appellant, the judge must not only reject that explanation but be satisfied that the explanation does not give rise to a reasonable doubt and that the evidence as a whole does not give rise to a reasonable doubt. [ 18 ] Here, the trial judge rejected the Appellant’s explanation and there was evidence that allowed her to do so. The complainant confirmed that she sold the windows, but she says that the sale took place in 1998 or 1999, not October 2012. The complainant did not recognize either the Appellant or her husband.

There were inconsistencies in the husband’s testimony and his medical condition affected his reliability as a witness. There were also inconsistencies between the Appellant’s testimony and her husband’s. When a question of credibility is at the heart of a case, as it is here, the power to overturn a trial court’s verdict must be exercised with circumspection, given the advantageous position of the trial judge in seeing the witnesses and having heard them. [10] The trial judge made no palpable or overriding error in rejecting the Appellant’s version.

[19] As to whether the Appellant’s testimony or the evidence as a whole raised a reasonable doubt, the issue is essentially whetherthe alternative explanation proposed by the Appellant provides a reasonable explanation for the presence of both the fingerprint and theglove. [20] With respect to the fingerprint, the Appellant testified that while her husband was buying the windows from the complainant, hecalled her and she thought he was in the complainant’s residence so she knocked on the door and cupped her hands to the window on thedoor to look inside.

The trial judge rejected this explanation as an “adaptation à la preuve.” She concluded that “[s]elon la logique et lebon sens, une personne dans la situation décrite par l’accusée sonne à la porte du domicile au lieu de regarder à l’intérieure.” [21] The Appellant may be right that cupping one’s hands to look through a window in the circumstances she described is a normal and commonplace action. This could provide a reasonable explanation for the presence of a fingerprint on the window.[11] [22] However, the fingerprint is not the only evidence. [23] The glove was found in the living-room.

The Appellant testified that she lost the glove outside the complainant’s residence. It ispossible, as the Appellant suggests, that someone found her glove outside the house and brought it into the house during the commissionof the offence. The Appellant points to the presence of a small amount of unknown male DNA on the gloves as confirming evidence.This is mere speculation and cannot be qualified as a reasonable theory, and thus does not meet the standard set out in Villaroman.

Asstated in Villaroman, “it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation.”[12] *** [24] The Appellant alternatively argues that the trial judge rendered a decision with insufficient reasons to allow review on appeal. [25] As the Supreme Court set out in Sheppard[13] and subsequent cases, the appellate court must adopt a functional approach whenreviewing the sufficiency of reasons and an appeal based on insufficiency of reasons will only be allowed when the trial judge’s reasons “foreclose meaningful appellate review”.[14] [26] In this case, even though the trial judge made an expeditious analysis of the third step of W.(D.), she did in fact explainthroughout her judgment why she found the Appellant to be guilty beyond a reasonable doubt.

It bears reminding that W.(D.) “is not a straightjacket for trial courts, or, for that matter, for appeal courts”.[15] The trial judge did in fact “seiz[e] the substance of the critical issues on the trial”[16] by identifying credibility and circumstantial evidence as forming the crux of the case. FOR THESE REASONS, THE COURT: [27] DISMISSES the appeal. MANON SAVARD, J.A. STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A. [10] R v Burke, (SCC), [1996] 1 SCR 474 at paras 5-6. See also R v W.H., 2013 SCC 22 at paras 30-34; R v Gagnon,

2006 SCC 17 at paras 20-21 ; Régimbald c R , 2018 QCCA 431 at para 5 ; Richard c R , 2015 QCCA 1523 at para 25 .