)) HER MAJESTY THE QUEEN Plaintiff – v. –, 2013 ONSC 4275

CITATION : R. v. Hunter, 2013 ONSC 4275 COURT FILE NO.: 11-40000-608-0000 DATE: 20130618 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Plaintiff – and – JAFERI HUNTER Defendant )) )) )) )) ) ) ) Patrick Clement, for the Crown T. Sam Boutzouvis, for the Defendant HEARD: June 17, 2013 Michael G. QUIGLEY J. [ 1 ] Jaferi Hunter is charged with robbery and possession of an imitation firearm.

These charges arose out of a robbery committed at the Cellular World cell phone store located at 1479 Eglinton Avenue West in Toronto on July 8, 2009. [ 2 ] This is a simple case, and the evidence is not onerous. The question is whether the Crown has succeeded in proving beyond a reasonable doubt that it is this accused who was one of the two assailants who robbed that store. The core piece of evidence in the case is the fingerprint found on the pullout shelf of one of the display counters at Cellular World, a display counter that had been emptied of its contents of cellular phones.

The question in this circumstantial case is whether that print, and the balance of the Crown’s evidence, limited as it is, proves his guilt of robbery beyond a reasonable doubt. [ 3 ] At the time of the robbery, the owner of the Cellular World store was away and there was only one employee in the store, Khatibibi Asmal. Ms. Asmal had worked at the Cellular World store for only three weeks. After the robbery, she quit her job and never went back. That was four years ago. Her memory reflects some of that passage of time. [ 4 ] Ms. Asmal testified that she was working at the Cellular World store on July 8, 2009.

She opened the store at 11:00 a.m., did some minor tasks and a couple of customers came in and out of the store. The photographic evidence showed that the cellular phones were all kept in display cases before being taken out to be shown to potential purchasers. [ 5 ] Then, about Noon that day, a black male came into the store and asked for the owner. The owner was usually there, but he was away that week. However, he had warned Ms. Asmal, for her own security, to never let anybody know that he was not there, because the neighbourhood was a little bit rough.

So she told the black male that the owner was in the back. The man left the store. [ 6 ] A short while later, that same black male came back into the store with another person, a second black male. She thought that the first person who had previously been in the store was between five and 6 feet tall. He was taller than she was. She was 152 cm, about 5’ 2” tall. The second person was shorter than the first person. The two men came inside the store. The cell phones were all displayed in the display cases that line the store and that were at the end of the store.

The taller male had a gun in his hand [ 7 ] She did not remember if he said anything, but tears came to her eyes as she recalled seeing the gun. It was emotional for her. She was standing behind the counter in the left corner near the cash register. She said they broke the glass of one of the display cases along the side of the store. They took the cell phones from that display case.

She tried to pick up the phone to call for help but the taller black male pointed the gun at her and told her to do what he said. [ 8 ] She said that the cell phone display case directly in front of her, at the end of the store, was locked. He asked her to open it and she did. The shorter black male had a bag with him. He scooped all the phones from the display case using his hands. She testified that he came around to the inside of the display case, on the vendor side, to scoop the cell phones out of the case. [ 9 ] Ms. Asmal did not think that the shorter male was wearing gloves.

She was pretty certain that the taller black male was not wearing gloves. She had no idea how many cell phones were taken.

[ 10 ] The taller black male opened up one of the cell phones and discovered that there was no battery in it. The batteries were still in the boxes for each of the phones, along with other accessories, and those boxes were stored underneath the display case in a cupboard. She told him the batteries were in the cupboard underneath the display case. He asked her to open the drawer. She does not recall if it was locked.

She opened it, and the shorter of the two black men took as many of the boxes as he could grab and stuffed them into the bag that he had, while the taller black male, the one who was carrying the gun, took several more boxes and stuffed them into his shirt. [ 11 ] Then they headed towards the door of the store to leave. They took her to the front door of the store and told her to stand by the door, count to 100, and do nothing. Then they fled down the street. They had also taken all the money from the cash register. Ms.

Asmal did not know how much money had been in the cash register, but she did not think it was very much because the store had not been open for very long. She stood there stunned for some minutes while the assailants fled. [ 12 ] In cross-examination, she acknowledged that she did not know any former employees who had worked at the store before she did, nor did she know whether they had been careless or not on their job. She was asked about the location in the store where you could move from the customer area to the vendor side of the counters and display cases.

She could not remember if there was a barrier or door of any kind that separated the two areas, but she recalled that the entryway to the vendor area behind the display cases was at the back right of the store, close to the door to the back room, and visible at the right of the right side display case in Exhibit 1–B. [ 13 ] Defence counsel asked Ms. Asmal to try to remember particulars of the appearance of the two men. She had very little that she could recall – no real distinguishing features at all. She thought that the taller of the two was about 6 feet tall, but she could not say for sure.

She thought that the shorter person was broader in stature, perhaps “chubbier” or “stockier”, than the taller of the two assailants. She had told the police that the second male was shorter and broader, than the first. She thought it was the taller of the two men who was carrying the handgun. [ 14 ] Again, she was asked whether the robbers were wearing gloves. She said she did not think so. Then she could not remember if the shorter of the two assailants was wearing gloves, but she did not think so. She could not say for sure if the taller of the two men might have been wearing gloves.

Perhaps he was and perhaps he was not. She simply did not know. [ 15 ] She looked at a photo line up prepared by police after the robbery, but she was unable to identify either of the two men who robbed the store. That said, she also said she thought that the taller of the two men, the one who had been holding a handgun, had been in the store another time before the day of the robbery. [ 16 ] Ms.

Asmal thought that the display cases were locked, but she also acknowledged that sometimes when she had to have access to more than one display case, she could have left another one of the display cases unlocked, but it was clear that was not the custom. The keys for the display cases were hung on a wall on the side of the display case closest to the wall on the inside counter, near where she was standing. [ 17 ] Again, in concluding her evidence, Ms.

Asmal acknowledged that she knew nothing about any of the people who had worked at the Cellular World store at any time prior to the three weeks that preceded her very brief employment. [ 18 ] P.C. Allister D’Silva was the Crown’s only other witness. He was the forensic officer who came to the scene of the robbery on July 8, 2009 and took the 10 photographs of the site and forensically saved all of the fingerprints that were found and still readable.

In the last four of those exhibits, Exhibits 1-G, H, I and J, there are circles that can be seen drawn on the glass of the display cases, showing the location of many of the fingerprints which were located and checked for identification by P.C. D’Silva. He said that he located a total of about 55 fingerprints. He also acknowledged that if the suspects who committed the robbery had been wearing gloves, there would have been no fingerprints left behind. [ 19 ] The principal fingerprint of interest in this case is shown in Exhibit 1-I. it shows the location of print R-24.

That fingerprint was located on the pullout glass shelf inside the display case located at the end of the store. That was the display case from which Ms. Asmal said that the second of the two robbers, the shorter broader one, had scooped all the cellular phones into a bag that he was carrying after coming around from the customer side to the vendor side of the display case. He scooped them with his hands. [ 20 ] P.C.

D’Silva prepared a forensic identification services fingerprint chart showing the fingerprint taken from that location, which he said was a correct and perfect match as described in his bench notes, and in the comparison that he prepared, of that fingerprint that was found in that display case as compared to the known fingerprint sample. That sample was admitted to be a palm print taken from the left palm of the accused, Mr. Hunter. The comparison of the two prints shows eight distinct comparators. P.C.

D’Silva concluded that the print found at the site of the robbery and the known fingerprint taken from the palm area of the left-hand of this accused, had both been made by the same source. [ 21 ] In spite of those comparisons and points of common identity, there were a total of 55 fingerprints found inside that store. P.C. D’Silva said some could be identified but not all. About half of the fingerprints found remain unidentified.

He acknowledged that some of those prints were also prints that were found on the showcases, although there was no evidence that any of those other prints were located inside the display case as was the case with the print identified as R-24. [ 22 ] P.C. D’Silva also testified relative to the survival time that fingerprints will remain able to be detected and analyzed.

I understood that fingerprints can survive the elements for a very long time if they are on a surface which takes an impression of the print, like a relief, such as might survive if made on a piece of wet clay that then hardened and was preserved with the fingerprint effectively “cast” in relief. That must be compared to the circumstances where the print merely results from a deposit of bodily oil, or a dirty finger or hand, especially where the print is found on a clear and hard surface like glass.

In those circumstances, fingerprints typically will not last very long, and very unusually would they ever last beyond the cleaning of the glass surface. [ 23 ] That said, it is important that there was no evidence presented in this case of when the glass surfaces of these display cases had last been cleaned, so no reasonable inference can be drawn in that regard. Ms. Asmal was not asked if she had ever cleaned those glass surfaces of the display cases in the three weeks that she was employed at Cellular World, and she did not volunteer that she cleaned those surfaces at any time. P.C.

D’Silva acknowledged, however, that he could not say how old the fingerprint might be that was

identified as R-24 and located on the pullout glass shelf in the display case located at the end of the store. He simply could not say. However, he did say that it was a print that was consistent with a person having leaned on the surface, but that it would not take much pressure to leave a fingerprint like that behind on a glass surface like that display case shelf. [ 24 ] The final bit of evidence, an agreed fact between the parties, is that the accused, Mr.

Hunter, was 6'1" tall and weighed 205 pounds when he was arrested for possession of marijuana in January 2010, the point of time at which his fingerprints were taken, and which ultimately led to his fingerprints being associated with this robbery. Analysis [ 25 ] Plainly, this is a case that is entirely circumstantial in nature. There is no photo line up identification of this accused as one of the perpetrators of the robbery by Ms. Asmal and there is no other witness than Ms. Asmal who was working in the Cellular World store that day.

The principal indicator advanced by the Crown as identification of this accused as one of the perpetrators of that robbery, is the fingerprint from the left palm found inside the cellular phone display case. However, Justice Doherty has pointed out the particular evidentiary problems presented by fingerprint evidence such as this. In R. v. Mars at paras. 18-19, he observed: 18 With respect to the trial judge, I think he made two errors.

First, in referring to fingerprint evidence he said: Fingerprint evidence, because each person's prints are unique, found at a crime scene is highly inculpatory evidence. 19 The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object.

However, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is 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. [ 26 ] And at paras. 22-24 (case citations omitted): 22 Crown counsel submits that the trial judge was entitled to draw the inference that the fingerprint was placed on the pizza box in connection with the robbery because there was no other reasonable explanation proffered by the defence. Counsel relies on R. v. McFadden .

The trial judge also placed considerable reliance on this authority. 23 The Crown’s submission would appear to track the reasoning in McFadden , supra. I cannot, however, subscribe to that analysis. The Crown bore the burden of proof throughout the trial. If the Crown's evidence was capable of supporting the conclusion that the print was put on the box in connection with the robbery, the absence of any innocent explanation could well have made it easier for the trial judge to draw the inference of guilt .

If, however, as I would hold, the Crown's case could not reasonably support the conclusion that the print was placed on the pizza box in connection with the robbery, the failure of the appellant to offer any other explanation by way of testimony or through some other evidence is of no consequence.

An appellant's failure to testify or otherwise advance an "innocent" explanation cannot add weight to the Crowns case so as to justify drawing what would otherwise be an unreasonable inference of guilt. 24 The trial judge's finding that the fingerprint evidence could bear the full weight of the Crown's burden flowed at least in part from his erroneous premise that fingerprint evidence was "highly inculpatory evidence." The trial judge should have started from the premise that the probative value of the fingerprint evidence depended upon whether there was other evidence capable of permitting a reasonable inference as to when the fingerprint was placed on the pizza box. [ 27 ] In R. v.

D.D.T. , 2009 ONCA 918 , Justice Epstein picked up on the analysis of Doherty J.A. in Mars . In that case, a young person had been found guilty of breaking, entering and committing theft and of having stolen a substantial amount of property from a Children’s Aid Society office. The point of entry was through windows located at the rear of the building. The windows were situated in a horizontal bank 3 feet from the ground. The panes of the windows had been removed. They were left piled against the wall of the building.

The only evidence connecting the young person to the crime was his fingerprints found on the windowpanes. One year after the break-in, not unlike this case, the young person was fingerprinted in the course of the investigation. His fingerprints were found to match two of the seven prints that the police had recovered from the windowpanes. [ 28 ] Some of the fingerprints were located at the edges of the panes of glass. Police stated that was indicative of the removal of the panes. In contrast some of the fingerprints were in the middle of the panes. Identity of the perpetrator was the sole issue at trial.

As in this case, the Crown relied on the fingerprint evidence to establish that the young person in that case had participated in the break-in. However, the young person in that case had neither testified nor called any evidence to explain the presence of his fingerprints on the windowpanes. [ 29 ] The trial judge in that case accepted the Crown’s evidence and found the young person guilty. However the Court of Appeal reversed that finding and found him not guilty.

It did so based on the limited nature of the evidence presented at trial, and its conclusion that the inference that the young person touched the windows in the course of the break-in was unreasonable. Plainly the fingerprint evidence in that case established that the accused had touched the windows at some point in time, but the investigating officer confirmed that he could not ascertain how long the prints had been on the windows. [ 30 ] Epstein J.A. framed the issue there when she said the following at paragraph 15-16 and 26 in reference to Doherty.

J.A.’s analysis in Mars : 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.

16 In this case, the Crown must have demonstrated first that, based on the evidence, the inference that the appellant touched thewindows in connection with this crime is a more likely inference than the inference that he touched the windows as part of an innocentencounter with the window or as part of a different criminal event. Second, the appellant's guilt must have been the only rationalconclusion available on the totality of the evidence. [31] Finally, relative to applicable legal principles, I would make reference to the decision of Justice Peter Daley of this court in R.v. Styles-Lyon, [2012] O.J. No. 5469.

Since the evidence proffered by the Crown there was entirely circumstantial, Justice Daleyobserved at paragraphs 104 and 105 that it must be examined to determine what inferences might reasonably be drawn based on thewhole of the evidentiary record. He referred to paragraphs 72 and 73 of Justice Hill's decision in R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J.

No. 377 for the key principles (other case citations omitted). [32] Those paragraphs explain that the essential component of self-instruction on circumstantial evidence that I must give tomyself as the trier of fact requires: 1 that I be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty; 2 that I view the circumstantial evidence as a whole and not each piece individually; 3 that he mere existence of any rational “not guilty” inference will be sufficient to raise a reasonable doubt. [33] Continuing with those principles, in a circumstantial case like this, the Crown may seek to establish the existence of a fact inissue by submitting that an inference may reasonably and circumstantially be drawn from the primary facts.

That may occur where aninferential gap exists between the primary fact and the fact to be proved. However, whether the inference sought to close such a gap is areasonable one to draw usually involves an application of human experience and common sense. A reasonable circumstantial inference isone that can be reasonably and logically drawn from a fact or group of facts established by the evidence. [34] However, I cannot be invited as the trier of facts to draw speculative or unreasonable inferences.

Most cases will involvehiatuses in the evidence, which can be filled only by inference but the process of drawing inferences from evidence cannot involvespeculating, even where the circumstances might permit an educated guess. [35] Plainly, in light of the inability of Ms. Asmay to identify the accused in the course of the photo line up as one of the twoperpetrators who robbed the Cellular World cell phone store on July 8, 2009, the case is principally circumstantial. [36] The key to the Crown's position here, applying the methodology in D.D.T, is that it is a reasonable inference to draw from theevidence of Ms.

Asmay that the fingerprint associated with this accused came to be located on the glass shelf inside the display caselocated at the end of the store because he was one of the two perpetrators, and because he was the person who used his hands to scoopthe cell phones off of that glass display shelf, thus leaving behind the fingerprint from the bottom of his left palm. [37] I agree with the Crown here, to paraphrase from para. 16 of Justice Epstein's decision in D.D.T., that based on the evidence,the inference that the accused touched the glass display shelf in connection with this crime is not only the more likely inference than theinference that he touched that display shelf as part of an innocent encounter with that display shelf or as part of a different criminal event– it is the only reasonable inference.

The reason is an absence of evidence that permits any other reasonable inference to be drawn abouthow that fingerprint came to be located inside that display case. [38] Plainly, there was no evidence presented at this brief trial that that fingerprint came from any other person.

While there were anumber of fingerprints that were left behind, and while many of those fingerprints could not be identified, the eight connectors betweenthe partial palm print found on the display case and the known palm print provided by this accused satisfies me beyond a reasonabledoubt that that fingerprint was indeed placed there by this accused person. There was no evidence presented that would permit acompeting inference to be drawn that that fingerprint could somehow have been placed on that glass shelf in the course of anothercircumstance. [39] There was no evidence that Mr.

Hunter was ever an employee of that store, and thus would have had access to that displaycase in that capacity. There is no evidence of Mr. Hunter standing in the customer area on the other side of the display case and reachingover its 2 foot width and down its height approximately 1 foot below the countertop to touch the display shelf where it emerged at theback of the display case. There is no evidence of Mr.

Hunter having ever been present in the Cellular World cellular phone store at anyother time in any other capacity, such as being a supplier of cellular phones, or being cleaning staff responsible for cleaning the premises,or as a result of having been permitted behind the counter into the secure vendor area behind the display cases for any purpose. There issimply no evidence of any kind that would permit any of these alternate inferences to be drawn. They are entirely speculative. [40] Thus, there was no evidence presented that provided any other explanation for the presence of that fingerprint.

There was noevidence presented that could support any inference other than the inference that the reason the accused's palm print was found on theglass shelf in the Cellular World cell phone store is because he was the second of the two black males who robbed the store that day.There was no evidence presented that provided any other explanation than that the person that scooped the cell phones into the bag hewas carrying using his hands as Ms.

Asmay explained, while his colleague pointed a handgun at her and as she stood by watching andterrified, left a print behind as an identifier that he was in that display case. [41] So, I agree with the Crown that there is no evidence here that the print was put there by anyone else. Neither, as I have noted,was there any evidence that was presented here that the print was put there by this accused at some other time. Any conjecture that thisaccused person did put that print there at another time is purely in the realm of speculation.

It is also important to the reasonability of theinference that the area behind the counter, behind the display cases that is on the vendor side of the cabinets, is essentially a secure area.Ms. Asmay’s testimony was that the cabinet was locked, and even if she did allow that she might have left it unlocked at some point intime, the mere fact that she might have left a cabinet unlocked does not provide an explanation of how Mr. Hunter’s palm print could befound in that cabinet.

Moreover, her evidence was that the shorter assailant came behind the counter to scoop the cell phones off of theshelf of the display case. That evidence explains how the print could have been found there. There is no evidence that supports another

explanation. [ 42 ] That leaves the second question, or stage of the analysis as described in D.D.T.

Even if there is no evidence that can reasonably support any reasonable inference that the fingerprint was placed on the glass shelf of the cell phone display cabinet at another time and in connection with some other event or some other crime, for the Crown to prove its case beyond a reasonable doubt, the guilt of the accused must be the only rational conclusion available on the totality of the evidence . [ 43 ] In D.D.T. , as Justice Epstein noted as follows at paragraph 26: 26 The existence and reliability of other evidence capable of establishing that the appellant touched the window panes at the relevant time forms the crux of this case.

As I have said, the fingerprint evidence clearly establishes that the appellant, at some point in time, had touched the windows. However, the probative value of this evidence depended on whether the entirety of the evidence reasonably permitted the inference that the appellant touched the windows in connection with the August 2006 break-in and not at some other time. The fingerprint evidence by itself did not permit any such inference.

The reasonableness of the inference that the appellant touched the windows in connection with the break-in depends, therefore, on whether it could reasonably be drawn from the evidence other than the fingerprints themselves. [ 44 ] In this case, however, defence counsel says that there were too many uncertainties in the remainder of the evidence to permit me to conclude that the Crown has met its onus to prove the elements of the offence beyond a reasonable doubt. He points to a number of evidentiary aspects of Ms. Asmay’s testimony that he described as troubling.

He said she was able to provide no real description of the second of the perpetrators, and she acknowledged that one of the perpetrators may or may not have been wearing gloves. [ 45 ] In cross-examination, she was asked whether the robbers were wearing gloves. She said she did not think so. She could not remember with certainty if the shorter of the two assailants was wearing gloves, but she did not think so. It was the taller of the two who she said had been carrying the gun for whom she could not say for sure if he might have been wearing gloves. Perhaps he was and perhaps he was not. She simply did not know.

However, that was not the person who she said scooped up the loot. The person who scooped the cell phones out of the display case with his hands was the shorter of the two, and while she was not certain, she did not think he was wearing gloves. [ 46 ] Counsel for the defence also challenged the witness’ description of the second robber as shorter and broader as compared to Mr.

Hunter who is 6'1" tall and weighs 205 pounds, and who appears tall and not shorter and broader. [ 47 ] Defence counsel went on to refer to the self-instruction test noted above and observed that there was only one fingerprint found and that there has been no age placed on that fingerprint.

He also suggested that it is in what he described as an accessible place, that the Crown has not proven how the fingerprint got there, and that there was no evidence or information about when those glass shelves had last been cleaned, a point emphasized by the number of other fingerprints that were present which could have been of past employees, or of past customers. Most importantly, defence counsel again emphasized the difficulty with the witness’ identification of this accused.

He observed that the description that she gave of the second assailant, as generic as it was, does not match the description of this accused. Thus, on the totality of the evidence, defence counsel insists that there ought to be reasonable doubt because of the presence of these items. [ 48 ] In D.D.T. , there was an explanation which raised doubt on the whole of the evidence about the reasonability of the inference that it was the accused who touched the windows in that case and only during the commission of the offence in question, rather than at some other time.

In this case, as in that case, defence counsel insists there is nothing more than that evidence. He says there is no evidence of how the fingerprint came to be placed there. He says that absence of evidence must itself at least raise a reasonable doubt. [ 49 ] Respectfully, I disagree. There is evidence how that fingerprint got there. It is a reasonable inference to draw from Ms. Asmay’s evidence that the second of the robbers left that partial palm print behind in the course of scooping out the cellular phones that were contained in that display case.

That is a strong inference because she said he used his hands. Even if he had not been leaning against a display cabinet, P.C. D’Silva testified that the partial print found inside the display case at the end of the store on the pull-out shelf could have been left behind with even only a slight modicum of pressure. [ 50 ] Further, even though the description of the second assailant differs from the witness’ description, it should be borne in mind that this event took place four years ago, and plainly traumatized Ms. Asmay.

She had only worked at the store for three weeks and she quit her job right after the robbery and never went back to the store again. Moreover, the robbery itself would have taken place in a matter of minutes. Indeed, the speed of the incident, the trauma she was experiencing, and the fact that she has said that she stood there stunned, all go to explain why it could be that she was unsuccessful in identifying this accused in the course of a photo line up.

Just as she was unable to do that successfully, so to it is not surprising to my mind the she might have been mistaken about the general appearance of the two individuals. This does not take away from her evidence that the second of the two assailants scooped the cell phones out of that display case, even if she was unsure about other descriptors that applied to him. [ 51 ] But this does not undermine the fact that the evidence shows, as I have found, that it was Mr. Hunter's palm print that was identified by the police as present on the interior glass shelf of the display case at the end of the store.

The only evidence heard at this trial that could explain how that print got there is the evidence of Ms. Asmay. That is why this case is so different from D.D.T. [ 52 ] In that case, there were fingerprints on the windowpanes that raised an inculpatory inference but equally, there were fingerprints that raised an exculpatory

interpretation. In contrast, there is no evidence in this case that raises any inference other than the inculpatory inference that the person who is the owner of that partial palm print was behind the display cases with his hands in the display cabinets, adequate to leave a partial palm print, when the only evidence present is that no person had ever been authorized to do that, and there was no evidence presented that could have cloaked Mr. Hunter with authority to do so. [ 53 ] Counsel for the defence relied extensively on the inadequacy of Ms.

Asmay’s identification of the two accused as being elements that remain in the totality of the evidence that ought to cause me to doubt that the partial palm print was left behind in that display case by this accused, Jaferi Hunter. But in fact Ms. Asmay’s identification evidence is entirely discounted and irrelevant to the

analysis. She was unable to identify the accused in the course of a photo line up. She may have confused the size or breadth or width or height of either or both of the two assailants. Relative to her height of 5'2", plainly Mr. Hunter would seem a lot taller than her, but there is no evidence of absolute heights that provides a basis to discount her evidence that the second assailant, the person with whom this fingerprint is associated, was shorter and broader than the first person who came into the store and who later came back accompanied by the second assailant. [ 54 ] Mr.

Hunter may not in totality resemble the person described by Ms. Asmay as the shorter and broader second perpetrator who scooped the cellular phones out of the display case at the end of the store after she unlocked it while she stood by and watched. But, the evidence establishes that he is the only person who could have left that fingerprint, and that fingerprint is his very unique signature, located in a place that was meant to be secure and not accessible to unauthorized persons. [ 55 ] The question, applying the analytical methodology prescribed by the Court of Appeal in Mars and in D.D.T. is whether: (

i) the reasonability of that inference, and (ii) the availability of no other reasonable inference that some other person could have left that fingerprint, or (iii) that he could have left that fingerprint at some other time in the course of some other legitimate activity or exculpatory activity that is anything other than speculation, necessarily requires that the only reasonable conclusion that can be drawn from all of the circumstantial evidence as a whole is that he was the second perpetrator and that it was indeed his fingerprint left after he scooped out those cell phones on July 8, 2009. [ 56 ] In my view, that is the only reasonable conclusion that can be reached in this case on the evidence as a whole.

I find that the Crown has met its burden and proven the charge against this accused beyond a reasonable doubt. On the second charge on the indictment of possession of an imitation firearm by this accused person, no evidence was led so an acquittal will be entered on that charge, but I find the accused guilty and he will be convicted of the simple robbery charge reflected in count one, as amended. Michael G. Quigley J. Released: June 18, 2013 CITATION : R. v. Hunter, 2013 ONSC 4275 COURT FILE NO.: 11-40000-608-0000 DATE: 20130618 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Plaintiff – and – JAFERI HUNTER Defendant REASONS FOR JUDGMENT Michael G. Quigley J. Released: June 18, 2013