An Aurora man should never have been convicted of robbing a Bradford doughnut shop based on “the scant evidence presented at his trial,” says his lawyer.
The Ontario Court of Appeal has reversed the February 2020 guilty finding of Kevin Janeiro, who is now 29 years old.
“Convicting him on this evidence was unreasonable and Mr. Janeiro deserved to be acquitted instead,” his lawyer, Colleen McKeown, said in an email. “Mr. Janeiro is finally able to put this matter behind him after years of enduring the stress and cost of defending his case at trial and then bringing an appeal to restore his innocence.”
The case goes back to just after midnight on Nov. 7, 2011, when someone wearing a ski mask or balaclava, and carrying what appeared to be a firearm, robbed a Country Style restaurant.
South Simcoe police investigators found fingerprints on a white plastic garbage bag the robber left on the counter, DNA from saliva found on the sidewalk nearby as well as DNA from vomit found in a black ski mask in the high school parking lot near the shop, according to the appeal court’s decision released earlier this year.
The robbery was also captured by a security camera.
According to the appeal decision, the robber couldn’t be identified and the case went cold.
More than five years later, Janeiro was arrested on an unrelated crime when his DNA sample was a match on the saliva sample from the Bradford case in the national DNA data bank.
Janeiro, who had been living near the doughnut shop at the time, was subsequently charged with robbery with a handgun and with having his face masked with intent to commit an indictable offence.
“Although there was no evidence linking the saliva to the robbery, other than its general proximity to the doughnut shop and its discovery approximately two hours after the robbery, this made Mr. Janeiro a suspect,” wrote Justice David M. Paciocco on behalf of the three-member appeal panel.
The DNA was not consistent with the DNA found on the balaclava, but one of the five fingerprints from the garbage bag was made by Janeiro’s left thumb.
Janeiro testified in his own defence and denied being the robber.
By the time of the trial, the video had gone missing.
“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,” Paciocco wrote in the unanimous opinion, substituting verdicts of acquittal.
“Simply put, I am persuaded that it would not be reasonable for a trier of fact to be satisfied that the accused’s guilt is the only reasonable conclusion that arises in this case… 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," the judge added.
Janeiro’s conviction and subsequent acquittal in appeal should be an example of how evidence should be scrutinized, said his lawyer.
“This case offers an important reminder to judges that they must carefully consider whether DNA and fingerprint evidence connects the defendant to the crime or whether there is another innocent explanation for that evidence, as there was in Mr. Janeiro’s case,” said McKeown.
