COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Janeiro, 2022 ONCA 118

DATE: 20220210

DOCKET: C68712

Paciocco, Nordheimer and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Janeiro

Appellant

Colleen McKeown, for the appellant

Kristen Pollock, for the respondent

Heard: January 11, 2022 by video conference

On appeal from the convictions entered
    on February 11, 2020 by Justice Enno J. Meijers of the Ontario Court of Justice.

Paciocco J.A.:

OVERVIEW

[1]

Mr. Janeiro appeals his convictions on charges
    related to the robbery of a donut shop in Bradford, Ontario. For the reasons
    that follow, I am persuaded that his convictions are unreasonable, and that the
    trial judge materially misapprehended the evidence with respect to the identity
    of the robber. I would therefore set aside Mr. Janeiros convictions and
    substitute verdicts of acquittal.

[2]

I would also have allowed the appeal of the
    trial judges rejection of Mr. Janeiros lost evidence
Charter
application.

MATERIAL FACTS

[3]

On November 7, 2011, shortly before 12:42 a.m.
    when officers from the South Simcoe Police Service were dispatched to the
    scene, a Country Style donut shop located at 396 Holland Street West in
    Bradford, was robbed by a person wearing a ski mask or balaclava and who
    brandished what the donut shop clerk believed to be a firearm. The clerk was
    the sole donut shop employee working, and the sole person in the donut shop
    during the robbery. The robbery was captured on video by a security camera
    inside the premises (the security video). Despite the security video and the
    description provided by the clerk, the robber could not be identified.

[4]

During the investigation, forensic evidence that
    may have been linked to the robber was discovered, consisting of: (1) five unknown
    fingerprints suitable for comparison on a white plastic kitchen garbage bag
    the robber left on the counter near the cash register; (2) DNA from saliva
    found over two hours after the robbery approximately 60 metres from the donut
    shop on the sidewalk in front of the China Garden Restaurant, located at 382
    Holland Street West; and (3) DNA from what appeared to be fresh vomit found in a
    black ski mask (the balaclava) that was found in the parking lot of the
    Bradford District High School at 70 Professor Day Drive, located kitty-corner
    from the donut shop some 260 metres away.

[5]

Despite the collection of all of this evidence,
    it did not immediately lead to the identification of a suspect and the case
    went cold, but it was not closed.

[6]

In January 2017, more than five years after the
    robbery, Mr. Janeiro was convicted of a criminal offence, which required him to
    provide a DNA sample for deposit with the National DNA data bank. On April 12,
    2017, a routine computer search conducted by the RCMP Information Centre using Mr.
    Janeiros DNA profile identified a hit relative to the saliva sample that had
    been found in front of the China Garden. The Royal Canadian Mounted Police
    Information Centre notified the Centre of Forensic Sciences (CFS), who
    notified the South Simcoe Police Service on April 13, 2017. Although there was no
    evidence linking the saliva to the robbery other than its general proximity to
    the donut shop and its discovery approximately two hours after the robbery,
    this made Mr. Janeiro a suspect. He would have been 18 years of age at the time
    of the robbery.

[7]

Mr. Janeiros DNA proved not to be consistent
    with the DNA found on the balaclava, but in the opinion of a fingerprint
    examiner, one of the five fingerprints suitable for comparison from the garbage
    bag was made by Mr. Janeiros left thumb.

[8]

Mr. Janeiro was charged with robbery with a
    handgun, contrary to s. 344(1)(a) of the
Criminal Code
, R.S.C.,
    1985, c. C-46, and with having his face masked with intent to commit an
    indictable offence, contrary to s. 351(2) of the
Criminal Code
. He was
    tried before a judge of the Ontario Court of Justice. A blended
Charter voir
    dire
was conducted during the trial relating to the loss (described below)
    by the police of the security video depicting the robbery. At the trial, the only
    live issues were the identity of the robber, and whether the Crown could
    establish that the robber brandished a firearm as defined in s. 2 of the
Criminal
    Code
. I will describe the evidence that was presented.

The Forensic Evidence

[9]

An Agreed Statement of Fact (ASF) describing
    the discovery of the three items of forensic evidence  the fingerprint, the
    saliva and the balaclava  was admitted at the outset of the trial.

[10]

A CFS DNA report that was appended to the ASF stated
    that the probability of a randomly selected individual unrelated to Mr. Janeiro
    coincidentally sharing the DNA profile of the saliva was estimated to be
    greater than one in one trillion.

[11]

The appended CFS report relating to the DNA from
    the balaclava confirmed that the DNA profiles from Mr. Janeiro and the
    balaclava were from two
different
individuals.

[12]

With respect to the fingerprints located on the garbage
    bag, the ASF confirmed that in the opinion of Cst. McCallum, the identification
    officer who examined the bag, there were five distinct areas of friction
    ridge impression detail (unknown fingerprints) that were suitable for
    comparison to known friction ridge impressions (known fingerprints). Paragraph
    9 of the AFS recorded that Cst. McCallum compared one impression found on the
    bag to known impressions (fingerprints) that were taken from Mr. Janeiro on April
    21, 2016. Paragraph 10 stated that on September 1, 2017, Cst. McCallum
    concluded that the impression #R5 was made by the left thumb of [Mr. Janeiro].

The Testimony of the Clerk

[13]

The clerk, the sole eyewitness to the robbery, testified
    on December 2, 2019, slightly more than eight years after the robbery. She
    described being behind the counter at what she estimated to be 2:00 a.m. when
    she observed a person wearing a ski mask enter the store, pull out a gun and
    approach her. In cross‑examination she agreed that for that night it was
    unusual for someone to be wearing a ski mask, adding that, it wasnt cold
    enough to be wearing a ski mask. She based that opinion on her observation
    that she did not have to wear a jacket when stepping outside to smoke a
    cigarette.

[14]

The clerk testified that when she saw the
    robber, she felt panicked and was shaking but walked over to the cash register.
    Although she tried to stay as calm as possible, she had difficulties remembering
    the codes required to operate the cash register. The robber asked her several
    times, do you want to play games and pointed the gun at her head, including
    while holding the gun with two hands.

[15]

The robber had a white plastic bag and a grey plastic
    bag. The robber set the white bag on the counter. While pointing the gun with
    one hand, the robber removed the bills, around sixty dollars, from the cash
    drawer, which the clerk had placed on the counter on top of the white bag. The
    robber put the money in the grey bag and left.

[16]

During her testimony the clerk referred to the
    robber by using male pronouns. When asked why, she said, it sounded like a
    male. She also said he sounded young.

[17]

The clerk described the robber as wearing a
    brown hoodie with some graffiti on it and baggy pants. She said the hood of
    the hoodie was down, but the robber was wearing a black ski mask with two
    openings for the eyes. She could not recall if there was an opening for the
    mouth. The skin that could be seen through the eye holes of the ski mask was
    white, but she could not see hair colour. In her testimony, the clerk described
    the robber as just a little bit taller than her, and said she was 5 feet 2
    inches. No description of the robbers build was offered, and no other
    identifying features were noted.

[18]

When asked if the robber was wearing gloves, the
    clerk testified that she originally  thought he might have been wearing
    gloves but said, I cant really recall. Although she expressed uncertainty on
    this point in the police statement that she provided shortly after the robbery,
    the clerk had told the police that she believed that the robber must have
    been wearing gloves or regular mittens, and that she thought she remembered
    seeing them. She was shown her statement to refresh her memory as to whether
    the robber in fact wore gloves, but it did not assist her. She was not asked to
    adopt the statements she had made to the police.

[19]

In the following exchange, the clerk offered testimony
    relating to the balaclava the robber was wearing, which she called a ski mask:

Q.      Okay. Do you recall a few days after
    this happening an officer showing you a photo of a mask?

A.      I do remember and I remember telling
    him that it was not the mask.

Q.      Okay.

The Court:   Im sorry.

A.      I do remember. I just dont, I
    remember telling him that it wasnt the mask.

Q.      Do you remember what, what the mask
    looked like in the photo?

A.      It was, it was a different type of
    style. Thats all I can really remember right now.

Q.      Okay. So, you dont remember what made
    it different?

A.      I think that it had  No. It just, it
    was a different style altogether.

[20]

Mr. Janeiros trial counsel returned to this
    line of questioning in cross‑examination:

Q.      And Im going to suggest to you that at
    the time what you told the officer was actually that you werent sure if it was
    the same mask. Does that sound right?

A.      More than likely.

Q.      And that, further, that you had
    thought that there was no mouth hole on the mask the person was wearing but
    that you werent sure?

A.      Correct.

[21]

PC Fawcett, who had been assigned as the Officer
    in Charge (OIC) of the investigation, testified that on December 6, 2011, he
    showed the clerk pictures of the ski mask that was seized. He then described
    the photo that he showed her as a photo of the, of the ski mask that our
    scenes of crime officer took. He continued, I believe it was the so, a photo
    from where it was seized from. The photos of the balaclava taken from where
    it was seized show the balaclava laying on the ground, crumpled, as it was
    found. None of those photographs are close up photos of the balaclava that clearly
    depict its features.

[22]

The balaclava that was seized was not shown to
    the clerk but was made an exhibit at the trial through PC Fawcett. With the
    exhibit in hand he described the balaclava as black, with two eyelets and a mouth
    hole lid.

The Security Video

[23]

The security video that captured the robbery on
    DVD was filmed by a ceiling mounted security camera in the donut shop. The
    camera was pointed towards the public doors at the front of the donut shop and provided
    a view of customers as they approached the counter. The security video was
    seized and viewed by four police officers of the Criminal Investigation Bureau (CIB)
    as part of the investigation. By the time of trial, the security video had gone
    missing.

[24]

At the outset of the trial, Mr. Janeiro brought
    a lost evidence
Charter
challenge claiming that the loss of the
    security video violated his ss. 7 and 11(d) rights guaranteed by the
Canadian
    Charter of Rights and Freedoms
. He requested that this breach be remedied
    by a stay of the proceedings. As indicated, the evidence relevant to this
Charter
motion was heard during the trial as part of a blended
voir dire
.

[25]

Evidence presented during the blended
voir
    dire
confirmed that on December 5, 2011, the security video came into the possession
    of the OIC, PC Fawcett, then of the CIB. PC Fawcett never made a copy of
    the security video, although he said that the practice for logging digital
    evidence had since changed and that at the time of his testimony digital
    evidence would be uploaded on a server. PC Fawcett kept the security video in a
    file folder along with photographs in a locked drawer that belonged to him in
    the criminal investigation office. The security video remained there after the donut
    shop robbery investigation was designated as inactive pending further due to the
    absence of new leads in the summer of 2012.

[26]

PC Fawcett testified that when he was
    transferred to the uniform branch three years later, in 2015, he secured
    permission to store multiple videos in his possession in a cabinet in a CIB
    office where case files were placed by officers who transfer from the unit. He
    labelled the security video with the occurrence number for the donut shop
    robbery and then placed it in an unlabelled brown evidence bag, along with multiple
    other unrelated videos. He then placed the unmarked evidence bag containing these
    congregated videos in a cabinet in the CIB office, accessible to CIB personnel.
    The key to the cabinet lock was kept in the lock itself, and the cabinet was
    not otherwise kept locked.

[27]

PC Fawcett testified that although there is a
    locked property room where evidence is logged by identification officers, and
    it was procedure to store evidence there, he had never seen the locked
    property room used to store digital evidence, and that there was no procedure
    with regards to digital evidence. He explained, when I think of a
    property room, I think of, I dont know, stolen items recovered or drugs and
    that sort of thing would go in a property room.

[28]

PC Fawcett also provided evidence that he had
    viewed the security video on one occasion but took no notes of his observations.
    His testimony reflected no meaningful recollection of the details of the security
    video. He explained that it was eight years ago. He said that he did not
    recall observing a firearm, or whether the robber wore gloves, and believed
    that the video was in colour but was unsure of this.

[29]

In 2017, after the donut shop robbery
    investigation was reactivated following the DNA hit relating to Mr. Janeiro,
    DC Johnson was assigned as OIC. He looked unsuccessfully for the security video.
    He testified that he looked in the locked and controlled property room, noting
    that this is where he stores the surveillance videos that come into his
    possession. He also reached out to the records department to locate the security
    video without success. DC Johnson testified that an investigator might hold
    onto a video while working on it, but he would put the whole file in the
    property room if the investigation became inactive, commenting, well, its kind
    of, everybody does it.

[30]

DC Johnson contacted PC Fawcett to assist him in
    his search and upon learning that the security video had been placed in a paper
    bag inside the CIB office, DC Johnson recalled seeing a paper bag that had a
    bunch of videos in it in the CIB office. He said that all police officers, and
    not just CIB officers, would have had access to the CIB office, and that it
    contains multiple filing cabinets, some of which remain unlocked. He testified
    that the CIB office was not kept locked at the time, but it has since become
    practice to do so. He said he searched for the security video on multiple
    occasions but didnt find the bag.

[31]

DC Johnson testified that he was unaware whether
    PC Fawcett had also personally searched the office to find the missing security
    video, but PC Fawcett testified that he did so on more than one occasion,
    without success. He even looked in old storage bins in the CIB office but never
    found the evidence bag of videos.

[32]

DC Johnson also testified that he had viewed the
    security video on November 9, 2011, with a view to determining whether persons
    of interest known to him may have been responsible for the robbery or could
    provide material information. He was particularly interested in checking
    clothing. He did not view the entire video but prepared a supplementary report
    of what he observed. He relied heavily on this supplementary report when
    testifying, stating that he did not remember the content of the video at the
    time of trial. He believed the video had been in colour because he noted
    colours in his report. In his testimony he referred only to a white
    horizontal stripe running down the robbers pant leg, from hip to toe. He
    also testified that the video enabled him to see sufficient detail so that he
    could see that the robbers finger was on the trigger of the gun.

[33]

DC Johnson recorded two additional observations
    relevant to this appeal. First, he inferred that the robber was left-hand
    dominant because the robber used his left hand when holding the gun with only one
    hand. He used his right hand when reaching into the till.

[34]

Second, DC Johnson observed that the robber
    appeared to be the approximate height of the bottom of a poster on a front door
    to the donut shop. After standing next to the poster, DC Johnson estimated that
    the robber was approximately 5 feet 9½ inches, his own height, or little bit
    taller or shorter when allowing for the camera angle. During cross-examination,
    he agreed that he could not be confident in a sort of more precise height measurement
    because the camera was not at eye level. Moreover, the public entrance had two
    sets of doors. DC Johnson testified that he could not recall whether the poster
    was on the inside doors or the outside doors.

[35]

Mr. Todd Ferrier, a retired police officer and a
    Sergeant at the time of the robbery, also testified to viewing the security video
    on a computer monitor at the donut shop the night of the robbery. He was
    interested in identifying areas of investigative interest. Specifically, he was
    looking for areas the robber touched, with a view to identifying fingerprints.

[36]

Retired Sgt. Ferrier testified that he did not
    have an exact memory of the contents of the video but had taken notes. In
    those notes he recorded the chronology of the very brief robbery, which he
    estimated lasted no more than two minutes. That chronology matched very closely
    the sequence of events that the clerk had described.

[37]

He also testified that the security camera captured
    the point of entry and the cash. He noted that the robber had not touched the
    counter but had touched the door handle upon leaving. He had not recorded a
    description of the robber but suggested that the robber would not have been
    wearing gloves. This suggestion was not based on memory or a recorded direct
    observation, but on extrapolation. Retired Sgt. Ferrier inferred that this must
    be the case, otherwise there would have been no point in his own efforts to identify
    locations the robber had touched.

[38]

PC Dietrich testified that he watched the video at
    the donut shop with then Sgt. Ferrier. He testified that the video was in
    colour, but definitely was not high definition. While attempting to get the most
    accurate description of the robber possible, he made notes of the description
    of the robber that he saw on the video. He recorded, male, black handgun,
    black sweater, gloves. He said he described the perpetrator as a man because
    that is how it was described in the dispatch, but he agreed that he did not
    make an independent assessment of the robbers gender based on his observations
    of the video itself. He also testified that he could not offer a description of
    the height of the robber from the video.

Mr. Janeiros Testimony

[39]

Mr. Janeiro testified in his own defence. He
    denied being the robber. He also denied having access to firearms or fake guns.
    In the course of his evidence, he said he was approximately 5 feet 7 inches and
    left-handed.

[40]

Mr. Janeiro testified that at the time of the
    robbery he lived a 30 second walk from the donut shop and worked at a Sobeys
    grocery store, also a 30 second walk from his place of residence. He had no
    specific recollection of where he was the night of the robbery, and when asked
    if he could recall walking by any place that was closed off by police tape he
    said I think I might have. But I guess its a really long time ago. So, I
    dont even remember any place actually to be honest.

[41]

During cross-examination, the Crown explored the
    coincidence that Mr. Janeiros saliva would be on the sidewalk in front
    of the China Garden on the same night the robbery occurred and where his
    fingerprint was identified on the bag left behind by the robber. When asked, and
    were you in the habit back in November of 2011 of going for walks at 12:30 at
    night, Mr. Janeiro said, I could say yes. He continued, Im a teenager.
    Were out at night. He did not know what he would have been doing in front of
    the China Garden at that time, commenting that he could have been walking to
    get a slice of pizza, or meeting friends. He said he did not remember whether
    he was working the night of the robbery but agreed that if he was working that
    night, he would probably not have had to pass by the China Garden to get home.
    He said it would not be a coincidence for him to be walking past the donut
    shop at 12:30 [at night] because it was not uncommon for him to do so. He also
    testified that he smokes and has a habit of spitting.

[42]

In cross-examination, the Crown explored Mr.
    Janeiros familiarity with the donut shop. Mr. Janeiro testified that he was unsure
    of how many times he would have gone to the donut shop during his night shift
    at Sobeys, estimating maybe one or two or three times, although he had no
    specific recollection of it being a regular thing. He said he did not notice
    how many people were working at the donut shop at night but did not disagree
    with the Crowns suggestion that at that time of night there would be a skeleton
    staff working.

[43]

When asked, do you remember hearing about this
    incident at Country Style? He said, I dont remember. In response to follow up
    questions, he said he heard about it but does not remember when he did,
    commenting it was so long ago.

[44]

Mr. Janeiro testified that he did not know how
    his fingerprint ended up on a bag used in the robbery. When pressed for an explanation
    he said that perhaps he brought the bag to work and threw it out or disposed of
    it. He then said he recalled reading a statement from the clerk in an online
    news article, he is pretty sure after he heard about the robbery, in which she
    said that the robber was a bum, and he suggested that the bum may have
    searched through the trash and retrieved the bag.

[45]

When the Crown explored whether Mr. Janeiro
    would have been motivated to commit the robbery to get money for drugs, Mr.
    Janeiro admitted to using marijuana at the time but denied using hard drugs at
    that period in his life.

The Decisions

(1)

The Reasons for Conviction

[46]

The trial judge convicted Mr. Janeiro of the
    included offence of robbery, contrary to s. 344(1)(b) of the
Criminal Code
,
    but not of the charged offence of robbery with a firearm. The trial judge had
    been left in reasonable doubt as to whether the robber had been armed with a
    real or imitation firearm. He also convicted Mr. Janeiro of having his face
    masked, contrary to s. 351(2) of the
Criminal Code.

[47]

The trial judges Reasons for Judgment address
    both his reasons for convicting Mr. Janeiro, and for rejecting his lost
    evidence
Charter
application.

[48]

In finding Mr. Janeiro guilty, the trial judge
    concluded that the clerk was a clear and strong witness who provided a
    clear, consistent and compelling narrative. In contrast, he found Mr. Janeiro
    to be a cagey and unreliable witness who seemed to contrive explanations when
    pressed by the Crown. The trial judge did not believe Mr. Janeiros evidence,
    nor was he left in a reasonable doubt by it, and he was persuaded on the
    balance of the evidence that the Crown had established beyond a reasonable
    doubt that Mr. Janeiro was the robber.

[49]

In summarizing his conclusion as to Mr. Janeiros
    guilt, the trial judge said:

The juxtaposition of all the circumstances, as
    related by the Crown, especially the fresh spit containing DNA that matches Mr.
    Janeiros profile in front of the restaurant, the scene of the robbery, and his
    fingerprint on the bag being placed on the counter by the robber, in my view
    lead inescapably to the conclusion beyond a reasonable doubt that Mr. Janeiro
    was the robber.

[50]

I will describe in more detail the trial judges
    reasons relating to the material evidence in the case.

The Description of the Robber

[51]

Based on the testimony of the clerk, the trial
    judge found that the robber was a white male. The trial judge recounted DC
    Johnsons conclusion that the robber was left hand dominant because he held the
    gun in his left hand, and he said DC Johnson deduced that the robbers height
    was about five-nine. He noted that Mr. Janeiro testified that he was left-handed
    and approximately five-seven. And he recounted the Crowns submission that
    the robber is about [Mr. Janeiros] height and the robber appears to be
    left-handed, as is Mr. Janeiro.

[52]

No mention was made of the clerks estimate that
    the robber was just a little bit taller than her height of 5 feet 2 inches.

The Fingerprint Evidence

[53]

During the course of his reasoning, the trial
    judge referred to the fingerprint evidence. He said that the police were able
    to retrieve an identifiable fingerprint from the plastic bag that was left on
    the counter by the robber. Shortly after, he said:

The police also compared the Friction Ridge
    impression, or the fingerprint impression, detail
from the fingerprint found
    on the bag at the scene
, left by the perpetrator, and compared them with
    the known fingerprint sample from Mr. Janeiro. Constable McCallum concluded that
    the unknown print had been left by the left thumb of Mr. Janeiro. [Emphasis
    added.]

[54]

There was not, in fact, an identifiable
    fingerprint on the plastic bag. There were five of them. No mention was made by
    the trial judge of the four fingerprints that remained unidentified.

[55]

In the course of his Reasons for Judgment, the
    trial judge recounted that the clerk thought the robber had gloves on, but
    she could not be certain about that. He also recounted how then Sgt. Ferrier
    surmised that the suspect was not gloved because he did note what the suspect
    did and did not touch, and he recounted P.C. Dietrichs evidence that based on
    the security video, he described the suspect as having gloves. The trial judge did
    not make any finding relating to whether the robber had been wearing gloves, saying,
    whether or not the robber had gloves would not in my view change the relevance
    of the fingerprint on the bag.

The Saliva

[56]

The trial judge recounted the DNA evidence that
    demonstrated that Mr. Janeiro deposited the saliva that was found on the
    sidewalk in front of the China Garden. He also recounted the defence position
    that there is no evidence that the saliva was left before the robbery, or that
    it is connected to the robbery.

[57]

The trial judge expressed two reasons for
    rejecting the theory that the saliva may have been left after the robbery.
    First, he said that, had this occurred, one would expect Mr. Janeiro to have
    remembered walking by the police tape or the large police presence, even after
    the years that had passed, as the robbery was a major occurrence. He then said:

Photos 16 and 22, of the agreed statement of
    fact, show the view inside the restaurant from the outside entrance facing
    Melrose Street. Photo 20 shows the view inside the Country Style restaurant
    from the sidewalk on Holland Street where the spit was found. A pretty
    compelling argument could be made that the robber was taking in the broader
    view available through the front window of the restaurant from Holland Street
    to be sure that the clerk was alone before going inside. In other words, casing
    the target.

[58]

In fact, as the Crown conceded during oral
    argument on appeal, photo 20 does not show the view inside the donut shop from
    where the spit was found. It shows the view into the donut shop from the
    sidewalk directly across from the donut shop. None of the photos show the view into
    the donut shop that one would have from where the saliva was found, but, as can
    be seen on the Google map image that was included in the ASF, the perspective
    from where the saliva was located to the front of the donut shop engages a much
    sharper angle and involves a greater viewing distance. Put simply, it is
    materially misleading to assess how opportune the view into the donut shop was
    from where the saliva was left, by looking at the view depicted in photo 20.

The Balaclava

[59]

The trial judge recounted the discovery of the
    balaclava in the parking lot of a high school, located kitty-corner of the donut
    shop, approximately 260 metres away, and he noted that the DNA profile
    generated from a swab from the balaclava did not match the profile from the
    sidewalk.

[60]

He recounted that the clerk described the ski
    mask as having two eye holes. On three occasions, he stated that the police
    showed her the balaclava that was seized by the police from the high school,
    and that she said, that it was not the same one as the robber wore. In fact,
    that was not the evidence. As described above, PC Fawcett showed the clerk a
    photograph of the balaclava as it lay on the ground. The trial judge made no
    mention of the clerks testimony in cross‑examination in which she agreed
    with defence counsel that what she likely told the officer was that she could
    not say whether it was the balaclava the robber wore.

[61]

With respect to the balaclava that was put into
    evidence, the trial judge held that he was, satisfied that that was the mask
    that [the clerk] testified about when she said it did not match the one that
    the robber wore.

(2)

The Reasons for Rejecting the Lost Evidence
Charter
Motion

[62]

The trial judge recognized that the security
    video was disclosable evidence but denied Mr. Janeiros
Charter
application,
    finding that although better steps could have been taken, the process [for
    storing the security video] described by PC Fawcett was reasonable in all of
    the circumstances. He also found that the loss of the security video was not so
    prejudicial to Mr. Janeiros right to full answer and defence that its loss
    impaired his right to receive a fair trial.

[63]

In describing the steps that PC Fawcett took in
    storing the video in January 2015 as he was leaving the CIB, the trial judge
    said, he took the video, as well as other evidence from other cases, put it in
    an evidence bag, labelled the occurrence number, and stored it in an evidence
    filing cabinet in the CIB office. He repeated later in his reasons that he
    kept the video in a labelled bag, in a filing cabinet where other such
    evidence was kept, in a detective office, in a police station. In fact, when
    asked if the brown paper bag was labelled, PC Fawcett said, No. It wasnt. Nor
    did PC Fawcett describe the cabinet he put the bag into as an evidence filing
    cabinet. He said that case files were kept by officers who transfer from the CIB
    in the cabinet in the Criminal Investigations Unit, where the key was left in
    the lock.

[64]

The trial judge understood that in assessing the
    reasonableness of the steps taken, he should consider the relevance of the
    evidence. He concluded that the security video was of little help on the
    issue of identity and said, the videos usefulness to what would have been at
    the crux of the case is in my view largely peripheral. He explained:

[The] sum total of what [the police] could glean
    with respect to identity from the video was not much at all. A male with a
    black sweater, an opinion he might be left hand dominant, and his approximate
    height. Specifically, they could not tell from the video weight, skin colour,
    or eye colour, or hair colour, or appearance of the face.

[65]

The trial judge recognized that the security
    video may have shed light on the details of the balaclava, enabling the clerks
    evidence to be challenged, but concluded that we do not know, and given the
    forensic evidence that is before the court, the balaclava is in my view a bit
    of a side issue. As for the suggestion that the video might clarify whether
    the robber was wearing gloves, whether or not the robber had gloves would not
    in my view change the relevance of the fingerprint on the bag.

[66]

He also found that in any case, the video has
    been viewed by police officers who took notes and were available for
    cross-examination.

THE ISSUES

[67]

Mr. Janeiro appeals his convictions on three
    grounds. It is convenient to consider the first two grounds together. The
    issues on appeal can therefore be described as follows:

A.

Did the trial judge err by arriving at an
    unreasonable verdict and/or misapprehending evidence?

B.

Did the trial judge err in denying Mr. Janeiros
    lost evidence
Charter
application?

[68]

I would allow both grounds of appeal.

A.

Did the trial judge err by arriving at an
    unreasonable verdict and/Or misapprehending evidence?

[69]

I am persuaded that the verdicts arrived at by
    the trial judge are unreasonable, and that the trial judge materially
    misapprehended the evidence.

The Legal Principles

(1)

Unreasonable Verdicts

[70]

A verdict will be unreasonable if it is one that
    a properly instructed trier of fact could not reasonably have rendered on the
    totality of the evidence:
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R.
    180, at para. 26;
R. v. Yebes
, [1987] 2 S.C.R. 168, at para. 23; and
    see
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381. In assessing
    whether this is so, appellate courts must afford great deference to the trier
    of fact, including by paying due regard to the advantages the trier of fact had
    at trial:
R. v. W.H.
, at paras. 2, 27;
Biniaris
, at paras.
    36-37. As Doherty J.A. explained in
R. v. Mars
, (2006) 205 C.C.C. (3d)
    376 (Ont. C.A.) at para. 3:

Where the reasonableness of the verdict is raised,
    the appellate court must review the entirety of the evidence using its
    accumulated training and experience to determine not whether the appellate
    court would have convicted the appellant, but whether a reasonable trier‑of-fact
    properly instructed and acting judicially could have convicted.

[71]

Guidance has been given on the application of
    this standard in cases that depend wholly or substantially on circumstantial
    evidence:
R. v. Lights
, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 36.
    In
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, Cromwell
    J. instructed:

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.

[72]

The inquiry identified in
Villaroman
is
    helpful because it tests the reasonableness of the verdict bearing in mind the standard
    that is required to prove guilt beyond a reasonable doubt based on
    circumstantial evidence. As Doherty J.A. affirmed in
Mars
, at
    para. 4, [w]hen assessing the reasonableness of a verdict, the appellate court
    must have regard to the burden of proof applicable in a criminal case. A
    verdict will not be unreasonable on this standard if a trier of fact, acting
    judicially, could reasonably have been satisfied that the accuseds guilt is
    the only reasonable conclusion:
R. v. Youssef
, 2018 ONCA 16, 428
    D.L.R. (4th) 612, at para. 4, affd 2018 SCC 49, [2018] 3 S.C.R. 259.

[73]

This is a case that turns wholly on
    circumstantial evidence. Apart from whether the Crown proved that the object
    observed by the clerk was a firearm, the sole contested issue at trial was
    whether the Crown had proved beyond a reasonable doubt that Mr. Janeiro was the
    robber, and there was no direct evidence on this key question.

[74]

Although the reasonableness of any conviction
    turns on the specific facts of the case, the decision in
Mars
is
    useful in considering the application of the unreasonable verdict test in a
    case that turns wholly or mainly on fingerprint evidence. In
Mars
, a
    conviction that depended on a fingerprint on a pizza box that had been used by
    robbers to entice the victims to open the door to their home was found to be unreasonable
    because the presence of the fingerprint alone was not evidence that the accuseds
    fingerprint came to be on the box in connection with the robbery. As Doherty J.A.
    explained, at para. 20:

In this case, the fingerprint evidence clearly
    established that the appellant had touched the pizza box at some point in time.
    However, the probative value of the fingerprint evidence on the charges depended
    upon whether the entirety of the evidence reasonably permitted the inference
    that the appellant touched the pizza box in connection with the robbery and not
    at some other time and place. The fingerprint evidence standing alone did not
    permit any inference as to when the appellants fingerprint was placed on the
    pizza box. The reasonableness of the verdicts, therefore, turns on whether the
    inference that the appellant touched the pizza box in connection with the
    robbery could reasonably be drawn from the evidence other than the fingerprint
    evidence itself.

[75]

In
R. v. D.D.T.
, 2009 ONCA 918, [2009]
    O.J. No. 5486, at para. 15, Epstein J.A. suggested a two-stage approach
    in reviewing the reasonableness of verdicts that depend on fingerprint evidence
    in 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 appellants guilt beyond a reasonable doubt.

(2)

Misapprehensions of Evidence

[76]

A trial judge may misapprehend evidence by a
    failure to consider evidence relevant to a material issue in the case, a
    mistake as to the substance of the evidence, or a failure to give proper effect
    to evidence:
R. v. Morrissey
, (1995) 22 O.R. (3d) 514 (Ont. C.A.), at
    p. 538. If such errors do not constitute errors of law, which they generally do
    not, a misapprehension of evidence will not alone ground a successful appeal
    unless those errors play an essential part in the reasoning process resulting
    in a conviction:
Morrissey
at p. 541 quoted in
R. v. Lohrer
,
    2004 SCC 90, [2004] 3 S.C.R. 732 at paras. 1, 2. If misapprehensions of
    evidence were essential to the verdict, the verdict is not true, the trial has
    been unfair, and a miscarriage of justice will have occurred:
Morrissey
,
    at p. 541. This is a stringent standard that does not apply to peripheral
    reasoning, but to material errors that go beyond the narrative of the judgment:
Lohrer
, at para. 4.

[77]

In
Morrissey
, at p. 540-41, Doherty J.A.
    described the relationship between misapprehensions of evidence and an
    unreasonable verdict. Simply put, a verdict can be unreasonable without a
    misapprehension of evidence, and misapprehensions of evidence will not, on their
    own, render a verdict unreasonable. That said, a finding that the trial judge
    did misapprehend the evidence can  figure prominently in an argument that the
    resulting verdict was unreasonable:
Morrissey
, at p. 540-41.

[78]

Although an unreasonableness decision can be
    informed by misapprehensions of evidence, an appeal court should resolve
    whether the verdict is unreasonable before considering whether a
    misapprehension of justice has, on its own, constituted a miscarriage of
    justice:
Morrissey
, at p. 540.

The Convictions Were Unreasonable

[79]

No issue can be taken with the trial judges
    decision to reject Mr. Janeiros testimony. He was entitled to do so. The issue
    in this case is whether a trial judge could reasonably convict based on the remaining
    evidence.

[80]

I will begin with the eyewitness testimony. The
    clerks testimony supported a reasonable inference that the robber was a young male,
    based on her testimony that the robbers voice sounded young and male. It also
    supported the inference that the robber was white, from her observation into
    the balaclavas eye holes. She also estimated the robbers height as slightly
    over 5 feet 2 inches. Beyond this, her testimony did not contribute any further
    evidence identifying the robber.

[81]

The only other direct testimony capable of
    providing evidence relevant to the robbers identity was offered by DC Johnson,
    consisting of what the trial judge called DC Johnsons opinion that the
    robber might be left hand dominant, arising from the hand he held the gun
    with, and DC Johnsons height estimate of approximately 5 feet 9 ½ inches, which
    was derived from an imperfect experiment using a poster in the donut shop.

[82]

Assuming that a trier of fact might reasonably
    disregard the clerks height estimate, which was materially inconsistent with
    Mr. Janeiro being the perpetrator, and accept DC Johnsons height estimate, the
    most that could be said from the eyewitness evidence is that both Mr. Janeiro
    and the robber are white, young, males, possibly around the same height, and that
    the robber may have been left handed, as Mr. Janeiro is.

[83]

Those similarities, of course, remain generic. Mr.
    Janeiro cannot be ruled out as the perpetrator if the clerks height estimate
    is disregarded, but the eyewitness description evidence contributes little in
    identifying him as the robber. As the trial judge observed in his decision, the
    essential issue of identity is largely informed by the scientific evidence,
    namely the fingerprint evidence and the DNA evidence. Because the DNA evidence obtained
    from the balaclava was not inculpatory, the reasonableness of the conviction
    comes down to the fingerprint evidence and the DNA evidence obtained from the
    saliva located on the sidewalk. I will address each item of forensic evidence,
    in turn.

[84]

The
Mars
case illustrates the challenges
    the fingerprint evidence poses. The fingerprint on the plastic bag used by the
    robber proved that Mr. Janeiro touched the bag, but it is incapable, on its
    own, of proving that he touched the bag in connection with the robbery. This is
    not a case where there is circumstantial evidence showing that this forensic
    evidence was deposited during the event, such as in
R. v. Samuels
, 2009
    ONCA 719, where a fingerprint on a motor vehicle was in the same location the
    perpetrator was seen to touch it, and bore indications of direction and
    movement consistent with the manner in which the perpetrator was seen to touch the
    vehicle. To the contrary, there is evidence creating doubt about whether the
    print was deposited on the bag during the robbery.

[85]

First, although the trial judge only referred to
    the one matching fingerprint in his Reasons for Judgment, there were in fact five
    fingerprints on the bag that were suitable for comparison. Only one fingerprint
    was linked by evidence to Mr. Janeiro. As the Crown fairly conceded during
    oral argument on appeal, the evidence does not eliminate the possibility that
    those other prints on the bag could belong to one or more other individuals who
    also touched the bag.

[86]

Second, there was evidence from Cst. Dietrich
    that the robber was wearing gloves, a conflicting inference from retired Sgt.
    Ferrier derived from his own conduct that the robber must not have had gloves
    on, and testimony from the clerk that she believed he had gloves on but could
    not remember for certain. This conflict in the evidence is material because if
    the robber was wearing gloves, the prospect that the robbers fingerprints were
    placed on the bag during the robbery is reduced, if not eliminated. I therefore
    disagree with the trial judges conclusion that whether or not the robber had
    gloves would not in my view change the relevance of the fingerprint on the bag.
    But I leave my disagreement with the trial judges reasoning aside in
    evaluating the reasonableness of the verdicts. The instant point is that the
    prospect that the robber may have been wearing gloves reinforces the possibility
    that the fingerprint attributable to Mr. Janeiro is not linked to the robbery.

[87]

The Crown seeks to overcome the
Mars
problem
     the absence of evidence that the fingerprint is linked to the robbery  by
    arguing that there is an additional piece of evidence linking Mr. Janeiro to
    the offence  namely, the DNA evidence obtained from the saliva.

[88]

I do not dispute that additional evidence can
    overcome the
Mars
problem. In
Youssef
, for example, Mr.
    Youssefs DNA found on a knife left behind by the perpetrator could not alone link
    Mr. Youssef to the crime, but that deficit was overcome when additional DNA from
    Mr. Youssef was found on a t-shirt in the getaway car. Similarly, in
R. v.
    Wills
, 2014 ONCA 178, 308 C.C.C. (3d) 109, affd 2014 SCC 73, [2014] 3
    S.C.R. 612, Mr. Wills DNA was found on a bandana left at the scene, another
    bandana on the ground on the flight path the perpetrators took, and he was
    later found in possession of a weapon similar in appearance to the description
    of the weapon used in the crime  a police baton.

[89]

The problem with the Crowns attempt to use the
    DNA saliva evidence to accomplish a similar outcome in this case is that,
    unlike in
Youssef
and
Wills
, there is no evidence linking the
    additional evidence  the saliva on the sidewalk  to the robbery. This is not
    a case where the DNA was extracted from the crime scene or a known flight path,
    nor was it on an object or vehicle linked to the crime scene. The saliva was
    found approximately two hours after the robbery approximately 60 metres away
    from the donut shop on a public sidewalk where Mr. Janeiro could reasonably be
    expected to have been. Nobody observed the robber in that location either
    before or after the robbery. Put simply, the DNA put Mr. Janeiro on a public
    sidewalk in front of a business within metres of his home and his place of
    employment at some point in time on the evening or night of the robbery. It did
    not put him at the robbery or otherwise connect him to the robbery.

[90]

There are problems with the trial judges
    decision that inform the reasonableness inquiry as they explain why the
    reasoning that he relied upon cannot overcome the unreasonable verdict
    challenge.

[91]

First, the trial judge appears to have rejected
    defence counsels submission that Mr. Janeiro could have deposited the saliva
    while innocently on the sidewalk after the robbery, primarily on the basis that
    Mr. Janeiro did not recall seeing police tape or police activity at the donut
    shop, something he would have remembered four years later had he been there. Even
    if the reasonableness of this arguably questionable inference is left
    unchallenged, it does not address whether Mr. Janeiro innocently deposited
    the saliva prior to the robbery or while it was occurring, possibilities that
    cannot be ruled out or diminished on the evidence.

[92]

Second, the trial judge attempted to draw the
    link between the saliva and the robbery based on the pretty compelling
    argument  that the robber was taking in the broader view available through the
    front window of the restaurant from Holland Street to be sure that the clerk
    was alone before going inside. In other words, casing the target. As I have described,
    the trial judge based this inference on the view inside the donut shop depicted
    in photo 20. In fact, photo 20 did not show the view from where the saliva was located.
    Photo 20 was taken from outside the donut shop itself, with a vantage point
    that was directly across from donut shop. In contrast, the view into the window
    from where the saliva was deposited was on a materially sharper angle. Although
    the distance between the location where photo 20 was taken and the location
    where the saliva was found was not measured, it is evident from the Google map
    image that was included in the ASF that the photographer was much closer to the
    donut shop when photo 20 was taken than they would have been if photo 20 had
    been taken from where the saliva was found. Put simply, the angle and distance between
    where the saliva was deposited and the donut shop materially weaken any
    suggestion that the robber would have chosen that location to case the donut
    shop.

[93]

In any event, even leaving aside the distorting
    impression that using the wrong photo would have produced for the trial judge,
    the inference that the robber stood on the sidewalk before the robbery to case
    the target was entirely speculative in the absence of supporting evidence,
    such as evidence that prior to the robbery someone was seen or filmed standing
    there, or evidence indicating that this was an unusual location to be and provides
    a hidden, opportune vantage point.

[94]

The Crown seeks to overcome the absence of a
    connection between the DNA from the saliva and the robbery by emphasizing the
    unlikelihood of coincidence that Mr. Janeiros DNA would be found in saliva approximately
    60 metres from the scene of a robbery in which Mr. Janeiros fingerprint was
    located on a plastic bag used by the robber. The flaw in this reasoning is
    significant. As indicated, there is absolutely no evidence that this saliva is
    linked to the robber, or the robbery, and no evidence that diminishes the
    realistic prospect that Mr. Janeiro, an 18-year old who lived and worked
    in close proximity to where the saliva was located, could have innocently been in
    that location when he spit. If the saliva cannot be linked to the robbery, it
    cannot stand as evidence that Mr. Janeiro was the robber. Moreover, it is
    entirely circular to rely on Mr. Janeiros fingerprint to infer that the saliva
    must have been connected to the robbery, only to then infer from the saliva
    that the fingerprint must itself have been connected to the robbery, as opposed
    to having been placed on the bag on a prior occasion unconnected to the robbery.

[95]

Finally, the eyewitness description evidence is
    not discriminating enough to support a reasonable inference that Mr. Janeiros
    fingerprint came to be on the plastic bag in connection with the robbery. As I
    have pointed out in paras. 82-83 above, the eyewitness description evidence
    lacks the kind of detail that could meaningfully link Mr. Janeiro to the
    robbery.

[96]

In my view, the verdicts, both of which depended
    on the presentation of sufficient identification evidence to establish Mr.
    Janeiros identity as the robber beyond a reasonable doubt, were therefore
    unreasonable. Having laid out the details and having pointed out the
    limitations of the evidence, I can explain in summary form why the verdict is
    unreasonable. Simply put, I am persuaded that it would not be reasonable for a trier
    of fact to be satisfied that the accuseds guilt is the only reasonable
    conclusion that arises in this case, where the accuseds fingerprint is
    identified along with four unidentified fingerprints as having been placed at
    some unknown time on a plastic bag used in the robbery; where the description
    of the robber is limited, indistinct and generic; where there is absolutely no other
    evidence linking the accused to the robbery; and where it is not suspicious for
    the accused to have possibly been present in the neighbourhood of the robbery
    around the time it occurred.

[97]

I would set aside the convictions as
    unreasonable and substitute verdicts of acquittal.

There Were Material Misapprehensions of the
    Evidence

[98]

In explaining that the verdict is unreasonable,
    I have already described instances where the trial judge materially misapprehended
    the evidence. I will review them here.

[99]

With respect to the fingerprint evidence, the
    trial judge said that the police were able to retrieve an identifiable
    fingerprint from the bag. That is incorrect. There were five identifiable
    fingerprints on the bag, only one of which had been identified as belonging to
    Mr. Janeiro. I have explained the materiality of the fact that there were five
    identifiable fingerprints, not one.

[100]

The trial judge also failed, in my view, to give proper consideration
    to the evidence that the robber may have been wearing gloves, believing that it
    was not relevant. The
Mars
decision makes clear that a fingerprint linked
    to a crime scene is not incriminating unless there is a basis for concluding
    that the fingerprint was placed on the object in connection to the crime, at
    the relevant time and place. These errors materially and mistakenly increased
    the probative value of the fingerprint evidence in the mind of the trial judge.

[101]

With respect to the DNA from the saliva, the trial judge mistakenly
    believed that photo 20 showed the view from the location of the saliva into the
    donut shop. This mistake materially supported his conclusion that the DNA evidence
    obtained from the saliva was linked to the crime.

[102]

Mr. Janeiro argues that the trial judge also misapprehended the clerks
    evidence when he said that she testified that the balaclava was not the same ski
    mask that the robber wore. He argues that given the clerks agreement during
    cross-examination that she likely told the officers that she was not sure if it
    was the same mask, this does not accurately represent her testimony. I would
    not give effect to this argument, given that a trier of fact is entitled to
    accept all, some, or none of the evidence a witness gives. The clerk did
    testify at one point that the balaclava was not the same ski mask the robber
    wore. It was open to the trial judge to act upon that testimony in preference
    to the balance of her evidence, and the trial judge may have been doing so as
    opposed to misapprehending her evidence.

[103]

Having said this, the trial judge did misapprehend the evidence when
    finding that the police showed the clerk the balaclava itself when she told
    them it was not the mask that the robber wore. That is not what happened. The
    police showed her a photo of the balaclava as it lay on the ground. The photos
    of the balaclava laying on the ground that were placed in evidence do not
    depict the features of the balaclava with the clarity that seeing the actual item
    would. In my view, this was a material error. There were already significant
    challenges in accepting the clerks testimony that the balaclava the police
    located was not the ski mask worn by the robber, including: (1) the answer
    she gave on cross-examination that I describe immediately above in para. 102;
    (2) her inability to identify any features that were different; (3) her
    inability to recall whether the ski mask had a mouth hole; (4) the fact that
    both the balaclava found by the police and the ski mask worn by the robber
    shared the two characteristics she could describe  they were both black and
    both had two eye holes; (5) her testimony that it was not cold enough to be
    wearing a balaclava, thereby reducing the prospect that a balaclava unconnected
    to the robbery would happen to be laying nearby in the parking lot of the high
    school; and (6) evidence that the officers had information that the robber fled
    in the direction of the high school where the balaclava was found. In this
    context, had the trial judge appreciated that the clerk had never been shown
    the actual balaclava or a clear photo of its characteristics when eliminating
    it as the mask she saw, he may not have accepted her testimony that it was not
    the same ski mask that she observed.

[104]

I have borne in mind the admonition that misapprehensions of
    evidence on peripheral points do not lead to reversible error; only errors
    [that] play an essential part in the reasoning process resulting in a
    conviction will lead to reversible error:
Morrissey
at p. 541; quoted
    in
Lohrer
, at paras 1, 2. I have already explained why I would find that
    each of these errors was material. The misapprehensions relating to the fingerprint
    evidence and the saliva DNA evidence had the effect of materially inflating
    their probative value in a problematic Crown case that depended on the
    probative value of this evidence. Meanwhile, the misapprehension related to the
    potentially exculpatory balaclava DNA evidence had the effect of deflating its
    probative value. Beyond any doubt, together, these errors played an essential
    part in the reasoning process that resulted in Mr. Janeiros conviction. The
    convictions were not, therefore, true verdicts and the misapprehensions of
    evidence caused a miscarriage of justice. I would allow this ground of appeal.
    Had I not found the verdicts to be unreasonable, I would have ordered a new
    trial.

B.

Did the trial judge err in denying the lost
    evidence
Charter
application?

[105]

In my view, the trial judge erred in denying the lost evidence
Charter
application. Although this issue may appear moot in light of the decision that
    I have already arrived at, it is not. As I will explain, I would remedy the lost
    evidence
Charter
breach I identify by drawing an inference contrary
    to the Crown that had the lost security video been available, it would not have
    assisted the Crown. This inference reinforces the unreasonableness of the
    verdicts that I have identified.

[106]

I have considered the issues in the order that I have because of the
    well settled admonition that unless the appropriateness of a stay of
    proceedings is manifest at the outset of trial, applications for stays of
    proceeding should not be adjudicated until after the evidence in the case has
    been heard so that issues of prejudice can be more meaningfully assessed:
R.
    v. Bero,

137 O.A.C. 336, 151 C.C.C. (3d) 545 (Ont.
    C.A.), at para. 18. That same admonition applies, for similar reasons, to the
    order in which a denial of a stay of proceedings should be considered on appeal.

The Legal Principles

[107]

Where a
Charter
applicant has shown that disclosable evidence
    has been lost, a
Charter
breach contrary to s. 7 will be found unless
    the Crown has provided a satisfactory explanation for that loss, thereby demonstrating
    that an abuse of process has not occurred. The Crown may do so by establishing that
    the evidence has not been destroyed or lost by unacceptable negligence, that is,
    negligence that goes beyond mere negligence. This can be accomplished by
    showing that reasonable steps were taken in the circumstances to preserve the
    evidence, bearing in mind the relevance that the evidence was perceived to have
    at the time it was lost or destroyed:
R. v. La
, [1997] 2 S.C.R. 680,
    at paras. 20-22;
R. v. Hersi
, 2019 ONCA 94, 373 C.C.C. (3d) 229, at
    para. 30.

[108]

Indeed, the relevance or importance of the evidence is an important
    consideration in setting the degree of care expected. As the relevance of the
    evidence increases, so too does the degree of care required in preserving the
    evidence:
La
, at para. 21;
Hersi
, at para. 30. Similarly, as
    the relevance decreases, the required degree of care is reduced. In
R. v.
    Sheng
, 2010 ONCA 296, 254 C.C.C. (3d) 153, for example, before audiotapes
    of police interviews were destroyed, a decision had been made not to charge the
    accused. The investigation was reopened only years later. This reduced the
    reasonable perception of the importance of the evidence at the time it was
    destroyed, lowering the standard of care required.

[109]

Alternatively, a
Charter
applicant will succeed even in the
    face of a satisfactory explanation for the loss or destruction of evidence if they
    establish that the lost evidence is so important that its loss undermines the
    fairness of the trial:
La
, at para. 24. This is a difficult hurdle. In
Bero
, at paras. 49, 52, Doherty J.A. made it clear that showing a
    reasonable possibility that the lost evidence could have assisted the defence
    is not enough to establish that the right to full answer and defence has been
    undermined. This is so even though the inability to determine whether the lost
    evidence was harmful, neutral, or helpful to the defence may arise because of
    the loss of the evidence by the police. In order to demonstrate irremediable
    prejudice when seeking a remedy, a
Charter
applicant must establish
    that the evidence would have played an important role in their defence. I see
    no reason why the same standard would not apply in determining whether a
Charter
breach occurred on the basis that the loss of evidence undermined the
    fairness of the trial.

[110]

Since it is entirely unknown in this case whether the lost security
    video would have aided or harmed Mr. Janeiros position, I will say no more
    about this branch of the lost evidence test and I will examine whether a breach
    occurred by considering solely whether the lost security video was destroyed or
    lost by unacceptable negligence.

[111]

If a breach is identified on either of the alternative bases I have
    just described, the second question  the appropriate remedy  arises. In this
    case, Mr. Janeiro sought a stay of proceedings. As I will reinforce below, that
    remedy is provided only in extraordinary circumstances, where real irremediable
    prejudice to the right to full answer and defence has occurred:
La
, at
    paras. 23, 24;
Hersi
, at para. 25;
Bero
, at para. 42.

The Trial Judge Erred in Finding There Was No
Charter
Breach

[112]

In my view, the trial judge made three errors in determining that the
    Crown had shown that the police had taken reasonable steps to preserve this evidence
    and had not lost the evidence as the result of unacceptable negligence.

[113]

First, he once again misapprehended the evidence. He found that before
    he placed the exhibit bag containing the security video into a cabinet in the
    CIB office, PC Fawcett labelled it. That was not the evidence. PC Fawcett said
    he did not label the brown paper exhibit bag. This was therefore a case where
    the security video was stored in an unmarked bag, not a case where the contents
    of the bag could be readily identified.

[114]

Second, the trial judge erred in principle in concluding that the security
    video was of little help and largely peripheral with respect to the issue
    of identity, a determination that reinforced his conclusion that PC Fawcetts
    storage plan was adequate. In fact, the video was not peripheral. It was a
    silent witness to the entire robbery, providing many, if not all, of the observations
    that the clerk testified to. Indeed, had the clerk become unavailable to
    testify, the security video could have been used by the Crown in her stead in
    prosecuting the case. On this ground alone, a reasonable police officer,
    properly informed of the prosecutions disclosure obligations, would have
    understood the need to take significant care in preserving this evidence.

[115]

The trial judge formed the view that the video was of little help
    and largely peripheral because he incorrectly evaluated its relevance based
    solely on whether the video showed identifying detail of the robber. I make no
    quibble with the apparent shortcomings of the security video in disclosing
    identifiable features of the robber. However, the security video may have
    informed the degree of confidence that could be put in DC Johnsons height
    estimate. More importantly, as the trial judge recognized, the security video
    may have clarified whether the robber was wearing gloves or provided
    information relevant to whether the balaclava that was found was the one worn
    by the robber.

[116]

The trial judge considered the role that the video would play in
    clarifying whether the robber was wearing gloves to be irrelevant to the
    probative value of the fingerprint. I have already expressed my disagreement
    with that suggestion; given that the probative value of the fingerprint
    evidence turned on a determination of whether there was evidence that could
    link the fingerprint to the robber, this detail was important.

[117]

The trial judge also concluded that the unavailability of the video depicting
    the balaclava was unimportant because the balaclava is in my view a bit of a side
    issue. With respect, the question of whether the balaclava that was found was
    the same one worn by the robber was not a side issue. It was a central issue. If
    there was a reasonable doubt about whether the balaclava found with fresh vomit
    inside from a third party was the balaclava that the robber wore, the balaclava
    evidence would have been powerful exculpatory evidence. There is no question
    that the security video would have provided the trier of fact with observations
    that could have assisted them in determining whether the balaclava DNA evidence
    could be disregarded, or whether it raised a reasonable doubt about Mr.
    Janeiros identity as the robber.

[118]

Third, the trial judge erred in concluding that the notes that the
    police officers took when watching the security video diminished the importance
    of preserving the security video itself. That conclusion is not reasonably
    available given that the police notes gave rise to disagreement between the officers
    on the important question of whether the robber was wearing gloves at the time
    of the robbery.

[119]

Moreover, I take issue with the trial judges conclusion that
    several police officers viewed the video and took notes with an eye to
    gleaning from it any information it could yield as to the identity of the
    robber. PC Fawcett took no notes. DC Johnson watched only part of the security
    video to look for persons of interest known to him. Apart from describing the
    pants worn by the robber, DC Johnson gave no evidence from his notes about the
    description of the robber. Retired Sgt. Ferrier took no notes of the robbers
    appearance either, given that his interest was in finding areas where
    fingerprints may have been left. PC Dietrich alone testified that he attempted
    to record his observations of the robber, but he did not even mention the
    balaclava that was worn or describe the pants depicted in the video, as DC
    Johnson did. The notes of the officers observations of the security video,
    such as they were, do not materially diminish the importance of preserving the
    security video itself. It was contrary to the evidence for the trial judge to
    find so.

[120]

Given the material factual and legal errors made by the trial judge,
    it is not appropriate to defer to his conclusion that PC Fawcett took
    reasonable steps to preserve the security video. Based on the evidence, even in
    light of the factual findings made by the trial judge, I would find that Mr.
    Janeiro established a s. 7
Charter
breach on the basis that the loss
    of the evidence was not satisfactorily explained.

[121]

I begin with the fact that the security video was important evidence
    that required care in its preservation. As I say, it depicted the entire
    robbery, and although it was not in high definition, the coloured security
    video had sufficient resolution to enable DC Johnson to determine that the
    robbers finger was on the trigger of the gun. The fact that the
    investigation was inactive does not diminish the importance of this evidence
    since the investigation remained open in the expectation that new evidence
    could emerge.

[122]

I agree with the trial judge that no issue can be taken with PC
    Fawcetts decision to keep the security video in a locked drawer in his office
    prior to his transfer. Problems emerged when PC Fawcett left the unit and
    decided to preserve important evidence relating to the serious charge of
    robbery with a firearm by putting it into an unmarked brown paper bag along
    with unrelated videos from other investigations and then placing that unmarked brown
    paper bag into a cabinet in the CIB office, accessible to all police officers. This
    was far removed from secure or responsible storage. There is no evidence that
    the bag was filed in an orderly way. It was placed in a communal filing
    cabinet ordinarily used for case files. Moreover, the contents of the bag were
    not catalogued, and the bag was not labelled to assist in the ready identification
    of its contents. And those contents were mixed randomly instead of being
    segregated according to case.
Given that the bag was
    unmarked and filled with videos from unrelated cases,
there was every
    possibility that, if they could find it, numerous officers connected to various
    investigations would have reason to disturb, or even take or move the bag in
    connection with their own matters.

[123]

PC Fawcett chose this method of storage for important evidence notwithstanding
    the availability of a controlled property room where evidence is logged, and in
    the face of his knowledge that it was procedure to store evidence there. For
    some unexplained reason, he believed that digital evidence was somehow different,
    contrary to DC Thomsons testimony that everybody stored their video evidence
    in the property room. Although I believe it to be a difficult finding to make
    on the evidence I have just described, I do accept that it was open to the
    trial judge to find, as he did, that there was no specific policy that video
    evidence was to be stored in the property room and that it was left to each
    officer to determine how to store video evidence. However, that does not alter
    my view that the choice that PC Fawcett made was not reasonable in all the
    circumstances. Much more should readily be expected of police officers, who
    control important evidence on which individual liberty will be determined.

[124]

In my view, given the importance of this evidence, the steps that PC
    Fawcett took to preserve that evidence were more than merely negligent, and
    resulted in the loss of evidence that may well have assisted Mr. Janeiro in his
    defence. In all the circumstances, I would find that the loss of the evidence
    breached s. 7 of the
Charter
.

[125]

I would not, however, stay the proceedings based on this breach. A
    stay is a remedy of last resort, reserved for the clearest of cases where important
    evidence has been deliberately destroyed, where the unacceptable negligence is
    extreme enough to cause irreparable harm to the integrity of the justice
    system, or where the accused establishes that the loss of the evidence has irreparably
    deprived them of evidence without which they cannot effectively present a
    defence:
Bero
, at paras. 42-44.

[126]

An alternative remedy is to invite the trier of fact to infer that
    the lost evidence would not have assisted the Crown:
Hersi
, at paras. 35-36.
    I would apply that remedy in this case. I would infer that the security video
    would not have assisted the Crown in showing that the robber was not wearing
    gloves, or in demonstrating that the balaclava differed from the balaclava that
    was put into evidence, or in providing verification for the legitimacy of DC
    Thomsons height estimate. These inferences reinforce the finding I have
    already made that Mr. Janeiros convictions are unreasonable.

CONCLUSION

[127]

I would allow the appeal, set aside Mr. Janeiros convictions, and
    substitute verdicts of acquittal.

Released: February 10, 2022 David M.
    Paciocco J.A.

David
    M. Paciocco J.A.

I
    agree. I.V.B. Nordheimer J.A.

I
    agree. Sossin J.A.