Judge orders new trial in string of Subway burglaries

Ontario's top court has ordered a new trial for a Sault Ste. Marie man convicted of burglarizing three sandwich shops in the summer of 2012.

Ronald Marini was convicted of six charges, stemming from break-ins that occurred during a five-day period in July 2012, on Jan. 16, 2014.

In a decision released Thursday, the Ontario Court of Appeal agreed with Marini's argument that Superior Court Justice Edward Gareau had erred in the use he made of the accused's criminal record.

The judge's evaluation of the evidence also was flawed and it follows that the conviction must be set aside, the court ruled.

As a result of this ruling, the appeal court decided it wasn't necessary to consider Marini's appeal of the 3.5 year, plus 76 day pre-trial custody, sentence he received for the offences.

Marini was tried and found guilty in a July 15, 2012 break-in, although no theft occurred because the perpetrator couldn't get into the Subway restaurant's safe.

During the trial, the judge allowed the Crown's application to provide similar fact evidence from two burglaries that occurred a few days earlier where the safes were broken into and money taken.

Marini was found guilty of charges in connection with these incidents as well.

He was convicted of a single count of break and enter with the intent to commit an indictable offence, two counts of break and enter to commit an indictable offence and three counts of possession of break-in instruments.

His appeal of the convictions was heard Jan. 12 and decision was released Jan.19.

Three Subway locations, equipped with video surveillance cameras, were the target of the burglaries.

The first occurred July 11 at the 153 Great Northern Rd. location where a side door was smashed in at 1:50 a.m.

A person wearing a black balaclava and a black jacket entered the restaurant and stole $1,556 from the safe.

On July 12, an individual, clad again in a black balaclava and jacket, gained entry to the 216 Second Line West shop at 4:27 a.m.and made off with $2,107 from the safe.

Three days later, a front window at the 421 Bay St. location was smashed at 1:59 a.m., and someone in a black balaclava and black jacket unsuccessfully tried to open the safe.

At the trial, the court heard from a woman who was driving home from work on July 15, when she spotted the smashed window at the downtown Subway.

She testified that she stopped, and while calling police, saw a man, wearing a black mask covering his entire face, run out and get into a van.

The witness followed the van into a dead end alley, where she saw a man get out of the driver's side of the vehicle, which she said been left running with the lights on.

A couple of minutes later, she observed a man of the "same stature," get into the van and turn it off.

The witness provided police with a description of what he was wearing, which included red shorts and a black T-shirt.

A city police officer spotted a man wearing red shorts crossing Gore Street.

Marini was subsequently arrested and his clothing seized.

A black bag, containing burglary tools was discovered nearby. An axe and sledgehammer were found in the vehicle, where police also noted broken glass.

Police located a black balaclava on the ground beside the driver's door.

A swab taken on the outside of the mouth area matched Marini's DNA.

Marini represented himself at the trial, where he also took the witness stand in his own defence.

When he testified, Marini denied any involvement in the three burglaries and insisted he wasn't the person in the surveillance tapes.

He said he was walking to his sister's home, after leaving a bar at 1:50 a.m., when he saw someone running to a side street off Gore Street.

The man, clad in dark clothing, was carrying something like a bag, Marini told the judge at his trial.

Marini also testified that when he walked down the alley, he noticed a rolling van, opened the vehicle's door and turned off the ignition.

He explained that he "was at the wrong place at the wrong time." 

While acknowledging his DNA was on the balaclava, he denied that the mask belonged to him, and suggested that he must have touched or sat on it when he entered the van.

In his reasons for his decision, Gareau questioned the accused's explanation about why police located him near the van which had been followed from the break-in site.

He noted the man's lengthy and substantial criminal record, replete with property offences, break and enters and possession of stolen property counts.

In regards to Marini's suggestion he was in the wrong place at the wrong time or a victim of circumstances the judge said: "It does not make sense for Mr. Marini to be hanging around the Manilla Terrace or Gore Street area when he knows there has likely been a crime committed, given his past criminal background and life experiences."

The appeal court said the judge reasoned that if Marini was truly innocent someone with his criminal record should have fled the scene.

It concluded that "the trial judge's use of the appellant's criminal record went well beyond the limited use permitted by the CEA (Canada Evidence Act)."