COURT OF APPEAL FOR ONTARIO
CARTHY and CHARRON JJ.A. and McCOMBS J. (ad hoc)
BETWEEN:
P. Andras Schreck, for the appellant
HER MAJESTY THE QUEEN Respondent
- and -
David Lepofsky, for the respondent
WILLIAM FREDERICK CUMING Appellant
Heard: August 10, 2001
On appeal from his conviction by Justice David G. Humphrey, sitting with a jury, on October 23, 1998 and from the sentence imposed on October 30, 1998.
1Following his trial by judge and jury, the appellant was convicted of robbery while using a firearm, wearing a disguise, and possession of stolen property in relation to an armed robbery of a jewellery store in Etobicoke on April 10, 1997. He was sentenced to ten years’ imprisonment. He appeals against his convictions and seeks leave to appeal his sentence.
2The sole issue at trial was identification. The conviction appeal raises three issues: (a) the sufficiency of the trial judge’s instructions to the jury respecting the eyewitness identification evidence; (b) the use made of the appellant’s silence to prove joint possession of some of the jewellery stolen in the robbery; and (c) the use of hearsay evidence to prove joint possession of the same items of jewellery.
3In my view, there is merit to each ground of appeal and the verdict cannot stand. In light of my conclusion on the conviction appeal, I do not find it necessary to deal with the sentence appeal.
1. The Evidence at Trial
4On April 10, 1997, two employees of Humbertown Jewellers in Etobicoke unlocked the door to a man they recognized as having been in the store as a customer a week or two previously. Instead of coming in, the man held the door open for a period of time. This concerned one of the employees who went into the back room of the store and pushed a button that sounded a silent alarm. At this point, two masked men entered the store with the first man who pulled the collar of his sweater up over his face. The two employees were instructed to lie face down on the floor while the three men broke a number of display cases and took some jewellery. Within 45 seconds, the three men left with over $400,000 worth of watches, bracelets, and other jewellery.
5It was the Crown’s theory at trial that the man who first came to the door was the appellant. The Crown’s case consisted of three main components: (a) eyewitness identification evidence; (b) evidence of possession of three stolen watches giving rise to the doctrine of recent possession; and (c) other circumstantial evidence linking the appellant to one of the masked robbers and to the jewellery taken in the robbery. In a nutshell, this evidence was as follows:
(a) the eyewitness identification evidence
6Both employees of the store recognized the first assailant as a previous customer. They each provided descriptions of him on the offence date and gave similar descriptions of him at trial. One of the employees made a tentative identification of the appellant in a police photo line-up, recognized him about a year after the offence at the courthouse in connection with another proceeding, and identified him in court at the preliminary hearing and at trial.
7Four still photographs from the store security video camera were enhanced and two witnesses at trial identified the appellant from these enhanced stills: Det. Yarenko, the officer in charge of the investigation; and Maureen Tobin, the ex-girlfriend of Felix Parum, one of the two masked robbers. A second investigating officer could not identify the appellant from the enhanced photographs. The members of the jury were invited to make their own identification of the appellant from these photographs.
(b) joint possession of three stolen watches
8Nine days after the robbery, the appellant was stopped for speeding by a State Trooper in Texas. He was in the company of Felix Parum. The appellant gave the State Trooper permission to search his vehicle. The State Trooper discovered a number of watches secreted in the lining of Parum’s coat. These watches were later discovered to have been stolen in the robbery.
9It was the Crown’s theory that the appellant and Parum were in joint possession of the watches and that the doctrine of recent possession gave rise to the inference that the appellant had committed the robbery. In order to prove that the appellant was in joint possession of the watches found in Parum’s coat, the Crown relied on the following items of evidence:
(i) the fact that the car driven by the appellant in Texas belonged to his mother thereby giving him control over its contents, including the watches in Parum’s coat;
(ii) the appellant’s failure to show surprise together with his alleged utterance “we’re toast”, made to the State Trooper at the time the watches were found and allegedly repeated several times thereafter;
(iii) the appellant’s failure to give an explanation to the State Trooper at the time the watches were found;
(iv) the appellant’s refusal to sign a waiver form provided by the State Trooper in relation to the watches; and
(v) the State Trooper’s testimony that he was later informed by a lawyer that the appellant and Parum intended to claim the watches at a civil proceeding to determine the ownership of the watches.
10Items (iii) and (iv) form the subject-matter of the second ground of appeal and item (v) relates to the third ground of appeal.
(c) other circumstantial evidence linking the appellant to the robbery
11It was uncontested at trial that Felix Parum was one of the masked robbers. Parum’s ex-girlfriend, Maureen Tobin, testified for the Crown. Tobin had assisted Parum in disposing of guns and stolen jewellery. At the time she gave evidence she was facing a charge of possession of stolen property. Tobin testified that Parum and the appellant were often together around the time of the robbery, and that Parum had given the appellant jewellery in exchange for money on more than one occasion in the days that followed the robbery.
12Cell phone records showed increased contacts between the appellant and Parum on the day of the robbery, no calls at the time of the robbery, and two calls between them after the robbery on that same day. Records for the appellant’s bank account revealed a series of cash transactions in the weeks following the robbery.
13The appellant did not call any evidence. It was the defence theory at trial that the identification evidence was unreliable, that there was insufficient evidence that he was in joint possession of the watches in Texas, and that Tobin was not a credible witness.
2. The instructions to the jury on eyewitness identification evidence
14The trial judge gave the following instructions to the jury in relation to the store employees’ identification evidence:
On the issue of identification normally I would be required to give you a charge on the dangers of eye witness testimony but in this case as I will tell you in a moment the evidence of the 2 employees, although their evidence may be helpful to you in other areas their evidence in law does not amount to identification.
You’ll recall that the gentleman, Mr. Youngson, when he viewed the line up said something to the effect if number 3 had a moustache and a five o’clock shadow he could be one of the robbers. That is, in law, not identification. Although he purports to see this accused about a year later at the East Mall courthouse and identifies him there that identification is flawed by the fact he has seen a picture of the accused and of course you’ll recall that he asked the Officer whether he was correct or not. So I tell you as a matter of law although his evidence may be helpful in other areas that his purported identification of this accused as one of the robbers is not a basis for your consideration.
Similarly, the female employee, Michaela Corrado, made no identification at all. She was somehow attracted to picture number 3 but did not identify picture number 3 and said something to the effect the ears are too big and you’ll recall the Officer that showed her the photo line up noted in his book was unable to make an identification.
15With respect to the identification of the appellant from the enhanced video photographs, the trial judge gave the following brief instruction:
As far as Detective Yarenko’s identification of the accused in Exhibit 20 and the other photos you, the jury, are in as good a position as the Officer is to see how valid that identification is and you may come to the conclusion that his identification of the accused in Exhibit 20 may somehow be the result of the other evidence that he has heard in this courtroom rather than identifying the person solely by the picture.
16The appellant takes the position that the trial judge was correct in instructing the jury that the evidence of Mr. Youngson and Ms. Corrado did not, in law, amount to evidence identification. However, he takes issue with the latter instruction in relation to Detective Yarenko’s identification. He submits that the instruction did not go far enough for three reasons: first, at no time did the trial judge warn the jury to exercise any caution in attempting to identify the appellant from the photograph, as is required by the jurisprudence; second, Detective Yarenko’s purported identification of the appellant in the photograph was non-expert opinion evidence deserving of no weight and the jury should have been so told in clear terms; and third, Maureen Tobin purported to identify the appellant from the photograph, and no warning whatsoever was given respecting her evidence.
17The Crown argues that no further jury instruction was required in the circumstances. Crown counsel submits that the officer’s opinion with respect to the enhanced photos was just a small part of the Crown’s case but that it was nonetheless deserving of consideration by the jury because the officer had seen the appellant on a number of occasions and hence had a better opportunity to make the visual comparison than the jury did. The Crown argues further that there was no risk that the jury would have given Detective Yarenko’s evidence special added value because the trial judge had alerted the jury, elsewhere in his charge, that police officers should be assessed like any other witness. In any event, Crown counsel argues that the obvious force and effect of the judge’s instruction was to take the officer’s evidence on this point away from the jury because they were told that they were in as good a position as the officer to decide if the appellant was the person in the photo. The Crown argues further that the appellant had the undeserved windfall that the trial judge’s charge in effect took away from the jury the identification evidence of both eyewitnesses to the robbery. While the Crown agrees that their evidence did not constitute a positive identification upon which the jury could have acted alone, it is submitted that the witnesses’ identification evidence should have been left for the jury’s consideration together with the rest of the evidence. Finally, the Crown submits that it is noteworthy that no objection was made to the charge by defence counsel at trial.
18It is my view that the instructions to the jury with respect to the identification evidence were inadequate in several respects and, in the circumstances of this case where identification was the sole issue for the jury, the verdict cannot stand.
19First, I agree with the appellant’s submission that it was incumbent upon the trial judge to instruct the jury to exercise caution in attempting to identify the appellant from the videotape and enhanced photographs. Although the videotape and the original enhanced photographs were not available for review on appeal, we were advised by counsel that the evidence was of poor quality. The poor quality was certainly apparent from the photocopies of the evidence that were presented to this court. This made it all the more important to give appropriate instructions to the jury. The Supreme Court of Canada decision in R. v. Nikolovski (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 at 417 (S.C.C.) provides useful guidance on this point. Cory J., in writing for the majority, stated as follows:
Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused. [Emphasis added.]
20This caution is consistent with the long-standing judicial recognition of the inherent frailties of eyewitness identification.
21Second, it is my view that the instruction with respect to Detective Yarenko was also inadequate. Non-expert opinion evidence on such matters as identification is admissible but, as with any opinion evidence, there must be some basis for the opinion before it can be given any weight and the jury should be given some assistance in assessing the basis for the opinion. Crown counsel submits that the officer had a better opportunity to make the visual comparison than the jury did. It is not clear from the record to what extent he would have had a better opportunity. There was no evidence that he knew the appellant other than through his investigation of this robbery and no particulars on the extent of his dealings with the appellant. Further, it was the trial judge’s view that the members of the jury were in as good a position as the officer to make an identification from the photographs. If that was indeed the case, it seems to me that the officer’s opinion on the identity of the person in the photograph was irrelevant and should not have been received. Finally, I cannot agree with Crown counsel’s submission that this item of evidence was of relative unimportance. Crown counsel in her closing address relied on the officer’s testimony and the trial judge also reviewed this evidence in his charge. It is unknown what reliance the jury may have placed on the officer’s identification.
22The identification evidence of Maureen Tobin is subject to essentially the same observations. The jury was given no instruction with respect to her testimony. Her opinion that the photograph depicted the appellant was based on the following observation:
I just recognize his stature, his hair, a little bit of his profile that you can see. It’s him.
23Ms. Tobin’s identification based on the photograph was subject to many of the same frailties as the jury’s own identification of the appellant and the jury should have been warned to proceed with caution, particularly given the poor quality of the photograph.
24There is one final point I wish to make with respect to the trial judge’s instructions on identification evidence. Although this matter was not raised by counsel on appeal, it may become of relevance at the new trial. As noted in the excerpt from the charge reproduced above, the trial judge told the jury that he did not have to give them the usual charge on the dangers of identification evidence with respect to the employees’ testimony because their evidence of the photo lineup and the in-dock identification did not constitute an identification at law. It was within the trial judge’s discretion to tell the jury that they should disregard the purported identification made by these witnesses. However, it is my view that it was nonetheless incumbent upon the trial judge to give an appropriate instruction on the frailties of identification evidence. Quite apart from the relevance of such an instruction in relation to the identification by other witnesses based on the enhanced photos, the instruction was also necessary with respect to that part of the employees’ testimony that was left for the jury’s consideration. Both employees gave descriptions of the unmasked robber and the Crown placed much reliance on this evidence in her closing address to the jury. The trial judge also reviewed this evidence in his charge. This evidence was subject to many of the usual frailties of eyewitness identification and the jury should have been cautioned accordingly. For a useful review of the relevant factors to be considered in the assessment of identification evidence, see R. v. Smierciak (1946), 1946 CanLII 331 (ON CA), 87 C.C.C. 175 (Ont. C.A.); see also R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.).
25It is for these reasons that I would give effect to this ground of appeal.
3. The appellant’s silence as evidence of joint possession
26As noted earlier, it was the Crown’s theory at trial that the appellant and Parum were in joint possession of the watches found by the State Trooper in Texas in the lining of Parum’s coat, and that the doctrine of recent possession gave rise to the inference that the appellant had committed the robbery. In order to prove that the appellant was in joint possession of the watches found in Parum’s coat, the Crown relied in part on the appellant’s failure to give an explanation to the State Trooper at the time the watches were found, and on his later refusal to sign a waiver form. The appellant submits that this evidence, which consisted of an exercise by the appellant of his right to silence, was inadmissible for the purpose submitted by the Crown.
27The Crown submits that the appellant’s right to silence was not denied by the admission of this evidence since the evidence was only descriptive of the appellant’s inaction with respect to the watches. The Crown argues further that the appellant’s constitutional right to silence, as guaranteed under s.7 of the Charter, does not extend to transactions occurring outside Canada. In the alternative, if the appellant can invoke the Charter with respect to the admission of this evidence at trial, the Crown submits that it is incumbent upon the appellant to show that the use of this evidence caused an unfair trial. It is submitted that there was no unfairness in the circumstances of this case because this was not a pivotal argument for the Crown, and the appellant did not object to the admissibility of the evidence at trial.
28The use that was made of this evidence at trial is reflected in Crown counsel’s closing address:
I expect His Honour will instruct you on the doctrine of recent possession. Based on this if you find that the accused was in joint possession of watches and it was recent you can infer he participated in the robbery.
On the issue of possession you must consider several pieces of evidence. First of all, the watches were in the car of the accused’s mother. He certainly had control over the car and its contents. Next consider his reaction when the watches were found. He didn’t react at all. If he had no prior knowledge of those watches would you not expect him to show some surprise? What you do in that situation if you were in Texas with a friend, stopped by a State Trooper and much to your surprise your friend had 4 stolen Rolex watches? What would your reaction be? I suggest you would either tell the Trooper I’ve never seen those watches before or turn to your friend and demand an explanation.
Mr. Cuming did neither of those things. Instead, when he is first asked about the watches by the State Trooper, he says, “We’re toast”. And he repeats that phrase several times. That phrase has only one meaning. Mr. Cuming is saying, we’ve been caught with stolen watches and there is no innocent explanation for it.
Perhaps more significantly you have the evidence of the waiver. At the station Mr. Cuming was given an opportunity to say he knew nothing about those watches and had no property interest in them. Again, ladies and gentlemen, put yourself in that position. If you were with a friend who had stolen watches that you knew absolutely nothing about I suggest you would sign that waiver in a second. You would not hesitate to sign it. If the watches were not his what did Mr. Cuming have to lose by signing that waiver? I submit he didn’t want to sign it because the watches were his, his and Felix’s, and they wanted those watches badly enough to commit an armed robbery at the Humbertown Jewellery Store.
On the Texas evidence, particularly the refusal to sign the waiver form, I submit the evidence is very clear the accused was in joint possession of those watches with Felix Parum. [Emphasis added.]
29The trial judge also highlighted this evidence when he reviewed the Crown’s theory during his charge:
After the accused knew that the watches were not recorded on any database they had access to he refused to sign the waiver form. This and other surrounding circumstances she argues proves this accused had joint possession of those watches with Felix and that gives rise to the doctrine of recent possession as I have explained it to you. She argues that the Texas evidence alone makes out the case against the accused. [Emphasis added.]
30The appellant does not contend that the evidence of his apparent lack of surprise and his alleged utterance (“we’re toast”) when the watches were found was inadmissible. He submits, however, that the Crown made an improper use of his failure to provide an explanation to the State Trooper about the watches and his refusal to sign the waiver. He submits these two items of evidence were instances when he exercised his right to silence and that the use of this evidence to prove his guilt was improper. The appellant relies more particularly on the decision in R. v. Chambers (1990), 1990 CanLII 47 (SCC), 59 C.C.C. (3d) 321 (S.C.C.) where the Supreme Court of Canada held that it was “now well recognized that there is a right to silence which can properly be exercised by an accused person in the investigative stages of the proceedings” (at 340). Counsel for the appellant submits that the determinative question is the same whether the issue is considered according to common law principles or under s.7 of the Charter. In either case, the question is whether the use of this evidence rendered the trial unfair.
31First, I will deal with the issue raised by the Crown about the territorial application of the Charter. In my view, no jurisdictional issue arises here. The appellant is not alleging that the conduct of State Trooper McFarland violated his rights. He takes the position, rather, that evidence of his silence was inadmissible to prove his guilt at his trial and that the impermissible use of this evidence resulted in an unfair trial. There is no doubt that the trial judge, at common law, has the power to exclude evidence that would result in an unfair trial: see R. v. Harrer (1995), 1995 CanLII 70 (SCC), 101 C.C.C. (3d) 193 at 205 (S.C.C.). The right to a fair trial, of course, is now constitutionalized by its enshrinement in the Charter. Hence a Charter application could have been brought on the basis that the admission of the impugned evidence would violate the appellant’s rights under s.7 or s.11(d) of the Charter. No jurisdictional issue would have arisen on such an application where the alleged violation is the admission of the evidence at the appellant’s trial here in Canada. I agree with counsel for the appellant that, in the circumstances of this case, the issue is the same whether the matter is considered according to common-law principles or under s.7 of the Charter – it is a question of fairness. In this case, since no Charter application was brought by the appellant, the issue should be determined in accordance with common-law principles.
32The first item of evidence in question here concerns the appellant’s failure to provide an explanation to the State Trooper on the side of the road at the time the watches were found. In my view, the appellant is correct in his submission that he had no obligation to provide an explanation to the authorities and, to the extent that the Crown’s address to the jury may have suggested otherwise, it was improper and the jury should have been instructed accordingly.
33A further difficulty arises from the use that Crown counsel sought to make of the fact that there was no explanation provided in relation to the watches. The absence of an explanation was relevant in the application of what is commonly referred to as the doctrine of recent possession. A succinct statement of this principle can be found in R. v. Kowlyk (1988), 1988 CanLII 50 (SCC), 43 C.C.C. (3d) 1 at 12-13 (S.C.C.):
In summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called the doctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recently stolen property, the trier of fact may – but not must – draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.
34The Crown in her closing address misapplied these principles when she sought to use the absence of an explanation to prove that the appellant was in joint possession of the watches. The appellant’s silence does not give rise to any inference that he is in possession of the goods in question and the jury should have been instructed to disregard any suggestion to the contrary. As noted in Kowlyk, the doctrine of recent possession simply describes a permissible inference that may be drawn from certain facts. Before any inference may be drawn, however, those facts have to be proven. The trier of fact must be satisfied that (a) the person is in possession of the goods; (b) the goods were stolen; and (c) the theft was recent. In addition, if an explanation is provided, the jury must be satisfied that it could not reasonably be true before it may draw an inference that the person is the thief or that he knew the goods were stolen. A proper application of these principles does not give rise to any issue with respect to an offender’s right to silence.
35While the trial judge did explain the doctrine of recent possession for the jury in terms consistent with Kowlyk, he did not relate the law to the evidence. On the facts of this case, it is my view that it was important to provide this assistance for the jury. In particular, I am not sure that it would have been clear to the jury what evidence they could consider to determine such matters as possession by this appellant, recency of the theft, and which of the two inferences, if any, could be drawn from the evidence. Since the appellant was charged with both robbery and possession of stolen goods, it was particularly incumbent upon the trial judge to assist the jury in distinguishing between the two different inferences that may be drawn from a person’s unexplained possession of recently stolen goods. Whether the inference may be drawn that the person actually stole the goods or that he simply knew that they were stolen depends on all the circumstances. In this case, given the nature of the goods in question, it was at least questionable whether the fact of possession some nine days later could reasonably give rise to the inference that the person in possession actually stole the goods. This distinction was never explained to the jury.
36Next, I will deal with the appellant’s refusal to sign a “Voluntary Disclaimer of Interest and Ownership” form. State Trooper McFarland, during his testimony in-chief, explained how this form was presented to the appellant:
Q. What did you say to him about the form?
A. We explained it to him and told him that it gives him the opportunity to make claim to the property or deny ownership or interest in the property and that it wasn’t a criminal matter, it was a civil matter. It wouldn’t have any effect on any criminal charges. That it was primarily just so that he could claim the ownership. By refusing to sign it he will be claiming ownership to the property and by signing it he would be disclaiming any ownership or interest in the property.
Q. Did you ask if he wanted to sign the form?
A. Yes.
Q. What was his response?
A. Said he didn’t want to sign it. He said we wanted to see a lawyer. Said “we’re toast”.
37In my view, it is clear from the evidence that the authorities were investigating into the ownership of the watches when they presented the appellant with the waiver form and that the appellant was exercising his right to remain silent when he chose not to sign it. In these circumstances, it was improper to use the appellant’s refusal to sign the waiver as evidence that he was claiming ownership. I disagree with Crown counsel’s submission that this evidence was not pivotal. As the trial judge noted to the jury in reviewing the Crown’s position at trial, “[Crown counsel] argues that the Texas evidence alone makes the case against the accused.” Hence, it is my view that the use of this evidence to prove guilt was inconsistent with the appellant’s right to silence and that it compromised the fairness of the trial.
38I am not unmindful of the fact that the admissibility of this evidence was not objected to at trial. The failure to object at trial is a relevant factor on appeal and at times can be determinative of the result. However, the appellant is not precluded from raising the issue for the first time on appeal. And in the circumstances of this case, where the evidentiary record is complete, no tactical reason can explain the failure to object, and a question of fairness arises, I would give effect to this ground of appeal despite the failure to object at trial.
4. The use of hearsay evidence to prove possession
39The third ground of appeal concerns the testimony given by State Trooper McFarland in answer to questions put to him in cross-examination by defence counsel. The gist of the impugned testimony was that some unnamed lawyer had told McFarland that Parum and the appellant intended to claim the watches at a court hearing to determine the ownership of the watches but then failed to show up.
40This evidence was clearly inadmissible hearsay. In and of itself, the evidence was rather vague and might not have attracted much attention by the jury. However, Crown counsel, in her closing address, relied on this testimony in order to have the jury draw an inference that Parum and the appellant had in fact given such instructions to a lawyer, hence providing further proof that the appellant was connected to the watches found in Parum’s coat. This was improper and should have been corrected by the trial judge.
41In light of my conclusion on the first two grounds of appeal, it is not necessary to determine what effect this error may have had on the verdict.
Disposition
42For these reasons, I would allow the appeal, set aside the conviction, and order a new trial.
(signed) “Louise Charron J.A.”
(signed) “I agree J. J. Carthy J.A.”
(signed) “I agree David McCombs J. (ad hoc)
RELEASED: September 11, 2001 “JJC”
