COURT OF APPEAL FOR ONTARIO
CRONK, GILLESE and ARMSTRONG JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
JERMAINE ST. PATRICK ANDERSON
Applicant/Appellant
Counsel: Graham T. Clark for the applicant/appellant Christopher Webb for the respondent
Heard: February 20, 2003
On appeal from the convictions entered on April 6, 2000 and sentences imposed on May 12, 2000 by Justice Arthur Whealy of the Superior Court of Justice sitting with a jury.
1The appellant appeals his convictions on three counts of robbery, four counts of wearing a disguise, one count of attempted robbery and one count of possession of a weapon dangerous. He was tried by Justice Arthur Whealy of the Superior Court of Justice sitting with a jury. He was found guilty on all charges on April 6, 2000.
2On May 12, 2000, Justice Whealy sentenced the appellant to a total of four years imprisonment. The appellant sought leave to appeal his sentences when he filed his notice of appeal. However, at the time of argument of the appeal, his counsel advised that the appellant was on parole and the sentence appeal would not be pursued.
3On the appeal from the convictions, the appellant alleged that the trial judge erred in his charge to the jury on similar fact evidence and in respect to reasonable doubt and the burden of proof. He also alleged that the trial judge failed to put the theory of the defence fairly to the jury.
BACKGROUND
4The circumstances giving rise to the robbery and wearing a disguise charges involve three robberies of fast food deliverymen at an apartment building located at 65 Dynevor Road in Toronto. The three robberies occurred on November 7, 9 and 16, 1998. The attempted robbery and weapon dangerous charges are alleged to have occurred in the same apartment building on November 19, 1998.
5There was no direct evidence identifying the appellant as a participant in the three robberies. In respect to the attempted robbery, the appellant was arrested in the stairwell of the apartment building on Dynevor Road in circumstances which the police suggested established that he was about to rob a fast food deliveryman.
6At trial, evidence related to the three robberies and attempted robbery was presented to the jury as similar fact evidence on the issue of identity related to the robberies and on the issue of intent related to the attempted robbery. The appellant accepted that the three robberies took place but maintained that he had nothing to do with any of them. In connection with the attempted robbery, the appellant denied that he was in the apartment building for the purpose of carrying out the alleged crime.
The First Robbery, November 7, 1998
7On November 7, 1998, sometime after 6:00 p.m., Iouri Krivochei, a deliveryman for Double Double Pizza, attended at 65 Dynevor Road to deliver a pizza to apartment 301. He was let into the building by a woman who appeared to be exiting the building. Upon arrival at the third floor, as he left the elevator, he was met by two men who were wearing handkerchiefs over their faces. One of the men was taller than the other and was carrying a knife. Each of the two men was brown-skinned. The taller man spoke with a Jamaican accent.
8The two men proceeded to jostle Mr. Krivochei and usher him towards the stairwell. The taller man threatened Mr. Krivochei with the knife. They demanded money and, upon searching his pockets and wallet, they stole $20.00. The two men disappeared in the stairwell.
The Second Robbery, November 9, 1998
9On November 9, 1998, Erdal Yildiz, who was a deliveryman for 2-4-1 Pizza, was directed to attend 65 Dynevor Road to deliver a pizza to apartment 401. Sometime between 11:00 p.m. and 12:00 a.m. he rang the buzzer for the superintendent as he had been advised to do. The superintendent let him into the building. When he left the elevator on the fourth floor, he walked towards apartment 401 when he was met by a man with a handkerchief covering his face. The man was carrying a knife.
10The man held the knife at the throat of Mr. Yildiz and took him to the stairwell where a second man, also wearing a handkerchief over his face, emptied his pockets and stole $400.00. The man with the knife was the taller of the two men. Mr. Yildiz was able to discern from the areas of exposed skin of the two men that they were black.
The Third Robbery, November 16, 1998
11On November 16, 1998, Abdulrozak Ebdulla, a deliveryman for Mr. Submarine, received an order for apartment 301 at 65 Dynevor Road. He arrived at the building at about 9:15 p.m. He was let into the building by a female who was in the lobby. He took the elevator to the third floor. On exiting the elevator, he was met by two men – each wearing a handkerchief mask over his face and each holding a knife. They spoke with Jamaican accents and appeared to be black. One man was taller than the other.
12The taller man held Mr. Ebdulla’s hands behind his back and placed the knife at his throat. The other man held his knife at Mr. Ebdulla’s side. The men took Mr. Ebdulla into the stairwell where they robbed him of $70.00. The two men left and Mr. Ebdulla went to apartment 301 and was advised by the occupants that they had not ordered any food. The police were then called.
The Attempted Robbery, November 19, 1998
13The police responded to the three robberies by conducting a surveillance of 65 Dynevor Road on the evening of November 19, 1998. The surveillance operation included five police officers.
14At about 8:00 p.m., Mr. Ahmed, a deliveryman for Kentucky Fried Chicken, arrived at 65 Dynevor Road to make a delivery to apartment 301. He was let into the building by a female who was standing at the entrance. As he attempted to push the elevator button for the third floor, Mr. Ahmed was intercepted by a police officer who took him to a vacant apartment on the eighth floor where they met a second officer. He told the police officers that he was intending to deliver Kentucky Fried Chicken to apartment 301. The other three officers, who were conducting surveillance around the building, were advised of the situation by radio.
15Two of the police officers then took the elevator to the third floor of the apartment building. The other officers covered off the two stairwells of the building. When the two police officers exited the elevator on the third floor, they walked towards the west stairwell which was next to apartment 301. One of the officers observed that the stairwell door was open about six to eight inches. He observed a black man wearing a bandana over his face, looking out of the door. The second police officer also observed the man, wearing a bandana over his face, peering out of the stairwell door. He concluded from his exposed skin that he was black. He also observed a larger man standing behind the man looking out of the door.
16As the two officers approached the stairwell door, footsteps were heard in the stairwell and someone was heard to say, “Police, don’t move.” When the door was opened they saw a third policeman, standing in the stairwell between the third and fourth floors, pointing his gun at the appellant who was at that time standing against the wall. The appellant was wearing a bandana over his face and was holding a knife in his right hand. The appellant was approximately 6’3” or 6’4” in height. The appellant was forced to the ground and placed under arrest for attempted robbery and, subsequently, the other charges. The second suspect apparently fled the building before he could be arrested.
17The appellant testified at trial. Just days before November 19th, the appellant had visited his mother in Brampton. While in Brampton, a friend, who lived at 65 Dynevor Road, invited him to visit with him and two females. His mother drove him from Brampton and dropped him off at 65 Dynevor Road on November 19th. While visiting his friend, he decided to go to a local store to purchase cigarettes at about 7:45 p.m. He exited the building through the east stairwell door. When he got outside, it was cold and he decided to return to the building to get his jacket which also had his money in it. He began to walk towards the lobby doors to gain access to the building when he passed the west stairwell door which was open a crack. He therefore entered the west stairwell door and proceeded to walk up the stairs when he was confronted by the police and arrested.
18The appellant testified that he was wearing a hat and a bandana around his forehead. The bandana was not covering his face but came down over his face when he fell to the ground during the encounter with the police.
19The appellant also testified that he had a knife with him. He explained that when he went to Brampton to visit his mother, he took the knife with him as protection in case he got into a confrontation with a certain group in the Malton area who had harassed him in the past. The bus which he took to Brampton stopped at a mall in Malton where “all those guys hang out.” He kept the knife in his sock. It was not in his hand when he was arrested but may have fallen out of his sock during the scuffle with the police.
THE ISSUES IN THE APPEAL FROM THE CONVICTIONS
20The appellant raised the following issues in the appeal from the convictions:
(i) The trial judge erred in his charge to the jury on the similar fact evidence.
(ii) The trial judge erred in failing to charge the jury on reasonable doubt in accordance with the direction in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320.
(iii) The trial judge erred in his charge to the jury by reversing the burden of proof in respect to the defence.
(iv) The trial judge erred in his charge to the jury by taking away the theory of the defence to the effect that there may have been multiple parties involved in the three robberies.
(i) The Jury Charge on the Similar Fact Evidence
21The appellant made two related submissions concerning the charge to the jury on similar fact evidence. First, the appellant submitted that the general principle developed by Cory, J. in R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339 at para. 70 “that the jury should determine, on a balance of probabilities, whether the similarities between the acts establishes that the [various] counts were committed by the same person” did not apply to the case at bar. Rather, he submitted that the exception to the general principle articulated by Cory J. applied in this case:
[I]t is, of course, conceivable for a single item of circumstantial evidence to be the only evidence of an essential element of the offence in a given case. The criminal standard of proof would have to be applied in those circumstances in order to ensure compliance with the requirement that every essential element in a criminal prosecution must be proved beyond a reasonable doubt. Thus where the Crown’s case on the issue of identity is based entirely on the underlying unity between the similar acts, it follows that the standard of proof beyond a reasonable doubt will govern the jury’s determination of whether one person must have committed both acts.
R. v. Arp, para. 73.
22The appellant submitted that the case at bar clearly falls within the exception in Arp. The trial judge should have instructed the jury that on the threshold question of whether the same person committed the similar acts, they should apply the reasonable doubt standard. The appellant asserted that the exception in Arp applied because proof of an essential element (the identity of the appellant in the robberies) rested entirely on the underlying unity of the similar acts.
23Second, the appellant submitted that the charge diverted the jury from the critical issue of the appellant’s intent on the attempted robbery charge and in effect took that issue away from the jury. The appellant’s position was that the trial judge should have instructed the jury that they had to first decide whether the appellant was engaged in an attempted robbery at the time of the arrest before such evidence could be employed as similar fact evidence on the issue of identity related to the three robberies.
24It is apparent from the record that, at trial, the Crown relied upon the similar fact evidence for two purposes. First and foremost, it relied on the similar fact evidence to prove identity on the first three robberies. It submitted that there were striking similarities between all four incidents sufficient for the jury to find that the same two persons carried out the robberies. Since there was evidence that the appellant was involved in the last incident, the attempted robbery, the Crown argued that he was also one of the two persons involved in the other three robberies.
25Second, the Crown relied upon the evidence of the first three robberies to show that the appellant’s presence on the final occasion was not innocent but rather showed that he and his confederate had the intent to commit a robbery on the last occasion and would have done so but for the intervention of the police.
26The critical portions of the charge to the jury are the following. The first relates to the question of identity. The second relates to the issue of intent.
(i) So this is how you should approach the analysis. The first step is you look at the manner and method – the methodology – what the movies call the modus operandi – by which the offence in each case was carried out. You compare the circumstances so that you can answer this question, is it likely, and I emphasize that word likely, is it likely that the same persons carried out more than one of the robberies, two of them, three of them, all four of them? Where you have concluded that it is more likely than not, again, likely/ probable, that the same persons carried out two or more of the robberies, you are entitled to use all the evidence of those similar robberies to assist you in determining your verdicts on each of them. And because your verdict on counts 4 to 9 turn on the issue of identity, that is what you are looking for.
So if you reach this preliminary conclusion that it is likely or probable that all robberies were committed by the same pair of persons, you go the second step and ask yourself, well, is this accused person connected to any of them? And the answer is, yes, he was arrested on the fourth occasion.
(ii) Now Mr. Anderson testifies he had no intention on November 19, when he was arrested, of committing a criminal offence. The burden is upon the Crown of proving he did, beyond a reasonable doubt. In considering this pivotal issue on Counts 1 to 3, that is his intention, you are permitted, depending on how you have decided the identity issue concerning counts 4 to 9, to employ your reasoning; further to the extent that if Anderson was probably a participant in the earlier offences, then what could have been his purpose on the stairwell at the time of his arrest? Does his explanation accord with what you already decided? [emphasis added].
27I agree in part with the appellant’s submissions. I will deal first with the second issue of the similar fact evidence to prove the appellant’s intent on the charge of attempted robbery. In my view, this was a threshold issue before any use could be made of similar fact evidence to prove identity. If the jury was satisfied, on a balance of probabilities, that the appellant’s purpose in being in the stairwell was to commit a robbery, that evidence was available for use as similar fact evidence on the issue of identity in relation to the first three robberies. On the other hand, if his intention was innocent, the evidence was not available to use as similar fact evidence on the issue of identity in relation to the first three robberies. Contrary to the trial judge’s instructions in the second passage set out above, the evidence of the other earlier robberies was not available to prove the appellant’s intent on the attempted robbery “depending on how you have decided the identity issue”. That, with respect, reverses the proper reasoning process. Similar fact evidence is only admissible to prove intent where there is some nexus or connection between the similar acts and the accused. See Sweitzer v. The Queen, 1982 23 (SCC), [1982] 1 S.C.R. 949 at 954:
Before evidence may be admitted as evidence of similar facts, there must be a link between the allegedly similar facts and the accused. In other words there must be some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused for it is clear that if they were not his own but those of another they have no relevance to the matters at issue under the indictment.
28Counsel for the respondent submitted that there was some evidence connecting the appellant to the three earlier robberies. He relies on the fact that the appellant, like the perpetrators, was wearing a bandana and was in possession of a knife, is similar in height to the taller robber, and was present at the same location as the other robberies. As the passage from Sweitzer indicates, there need only be some evidence upon which the trier of fact can make a proper finding that the similar facts were in fact the acts of the accused. This is a relatively low threshold. While, individually, the four factors relied upon by the Crown would not be sufficient to meet the test in Sweitzer, cumulatively, those items, in my view, are sufficient to constitute some evidence from which the jury could find that the similar facts to be relied upon were in fact the acts of the accused. However, that is an issue for the trier of fact. The trial judge never properly directed the jury as to the reasoning process it would have to follow to use that evidence. To the contrary, the jury could easily have taken from the charge that the bare fact that the appellant was arrested at the scene was sufficient to connect him with the earlier robberies.
29If the jury found that there was some evidence to connect the appellant to the earlier robberies, that evidence was available to determine the appellant’s intent on the attempted robbery. However, the jury would have to be very carefully instructed on the limited use of that evidence and the frailties of the evidence connecting the appellant to the earlier robberies, including the lack of distinctiveness of the knife, the bandana and the height of the perpetrator. If the appellant’s presence in the stairwell was innocent and unrelated to any robbery attempt, the evidence had no probative value as proof of identity on the earlier three robberies.
30If the jury did find that the appellant intended to commit robbery on the last occasion, that evidence would be relevant to the question of identity on the earlier three robberies. The jury would then have to be instructed in accordance with the suggested instructions in R. v. Arp at para. 80:
(1) The trial judge should instruct the jury that they may find from the evidence, though they are not required to do so, that the manner of the commission of the offences is so similar that it is likely they were committed by the same person.
(2) The judge should then review the similarities between the offences.
(3) The jury should then be instructed that if they conclude it is likely the same person committed more than one of the offences, then the evidence on each of those counts may assist them in deciding whether the accused committed the other similar count or counts.
(4) The trial judge must instruct the jury that if it accepts the evidence of the similar acts, it is relevant for the limited purpose for which it was admitted.
(5) The jury must be warned that they are not to use the evidence on one count to infer that the accused is a person whose character or disposition is such that he or she is likely to have committed the offence or offences charged in the other count or counts.
(6) If they do not conclude that it is likely the same person committed the similar offences, they must reach their verdict by considering the evidence related to each count separately, and put out of their minds the evidence on any other count or counts.
(7) Finally, the trial judge must of course make it clear that the accused must not be convicted on any count unless the jury are satisfied beyond a reasonable doubt that he or she is guilty of that offence.
31With respect to the appellant’s first submission concerning the failure to apply the exception in Arp, in my view there was no error. This was not a case where the Crown’s case on the issue of identity was based entirely on the underlying unity between the similar acts. There was, as I have indicated above, some other evidence to connect the appellant to the earlier robberies.
32The respondent argued that the curative proviso in s. 686(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 should be applied if the court were to conclude that the trial judge misdirected the jury with respect to the similar fact evidence. I need not decide that issue since this misdirection does not stand alone. The trial judge also misdirected the jury with respect to the definition of proof beyond a reasonable doubt and on one other issue.
(ii) The Jury Charge on Reasonable Doubt
33The trial judge charged the jury in respect of the meaning of the presumption of innocence and proof beyond a reasonable doubt in the following terms:
I tell you as a matter of fundamental law that an accused person commences his trial presumed to be innocent. And that presumption remains unless and until the prosecution proves beyond a reasonable doubt each and every element of the charges. Now this is not some charity handed to this particular accused person. This is a very basic principle of law that applies in all criminal cases in Canada.
A reasonable doubt is a doubt based upon reason and common sense which is derived from the evidence that you have heard in this trial. A reasonable doubt is not some imaginary or frivolous doubt conjured up in the mind of the timid juror to avoid doing an unpleasant duty.
The standard of proof does not reach absolute certainty. Human beings are not capable of that kind of precision. If your reasoning leads you to a logical doubt that is, by definition, a reasonable doubt.
If you are sure of the guilt of the accused on a particular count, then you do not have a reasonable doubt about that count.
You should not test each bit or morsel of evidence against that standard. You should consider all of the evidence, the totality of the evidence that you accept and on that basis decide if the charge or charges have been proven.
In a criminal trial, there is no obligation on an accused person to prove anything. In order for you to decide upon a verdict of guilt to any count, the prosecution must persuade you beyond a reasonable doubt.
As in the case of Lifchus, there are other references to reasonable doubt in the charge but the above excerpt is where the trial judge provides his basic explanation of its meaning.
34The Supreme Court of Canada has made it clear in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 237 that strict compliance with the direction in Lifchus is not required. This is particularly so concerning pre Lifchus jury charges, where an appellate court should be satisfied that there is substantial compliance with the principles articulated by Cory J. in Lifchus. The case at bar is nearly three years post Lifchus. It is my view that the charge to the jury on the meaning of reasonable doubt was deficient.
35In respect to the meaning of proof beyond a reasonable doubt, the trial judge explained that such standard of proof does not reach absolute certainty. However, he failed to tell the jury that the standard is higher than the balance of probabilities which governs everyday decision making. As Iacoboucci J. recommended in Starr at para. 242, “an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities.” Although the trial judge made some reference, later in his charge, to beyond a reasonable doubt distinguished from mere likelihood, I am not satisfied it cured the original defect.
36The trial judge also directed the jury that, “A reasonable doubt is a doubt based upon reason and common sense which is derived from the evidence that you have heard in this trial.” He failed to instruct the jury that a reasonable doubt may also be derived from a lack of evidence. This, in my view, is a particularly serious omission when all of the evidence in relation to the three robberies and related charges was circumstantial.
37The trial judge further told the jury that if they were “sure of the guilt of the accused on a particular count, then you do not have a reasonable doubt about that count”. Justice Cory in Lifchus at para. 33 said that such an “instruction standing alone is both insufficient and potentially misleading”. A judge can only instruct a jury that they may convict if they are sure of the accused’s guilt after they have received proper instructions on the meaning of “beyond a reasonable doubt”. Although it cannot be said that the particular instruction in this case stood alone, it was not preceded by a proper charge on the meaning of reasonable doubt.
38Finally, the trial judge told the jury that, “A reasonable doubt is not some imaginary or frivolous doubt conjured up in the mind of the timid juror to avoid doing an unpleasant duty.” This court in R. v. Karthiresu (K) (2000), 2000 6008 (ON CA), 129 O.A.C. 291 at para. 8 commented adversely on a charge which contained “the timid juror” reference:
While we leave for a future case the question whether, standing on its own, reference to the timid juror would constitute reversible error, there is no doubt that this practice is fraught with risk and ought to be avoided. It appears nowhere in the model language set out in R. v. Lifchus, supra. Moreover, it can be argued that it may carry the implication that jurors who acquit are timid and may be avoiding their responsibilities, while courageous jurors convict.
39In my view, the combined effect of these errors in the charge to the jury on the meaning of reasonable doubt gives rise to the reasonable likelihood that the jury was misled as to the content of the criminal standard of proof. Accordingly, on this ground, the convictions against the appellant cannot stand.
(iii) The Reversal in the Jury Charge of the Burden of Proof in Respect to the Defence
40After the trial judge charged the jury as to the approach they should take in assessing the similar fact evidence, he discussed the case for the defence and the case for the Crown. Although there is more than one reference to the burden of proof resting upon the Crown, the trial judge, in reference to the contrasting positions of the Crown and defence, said:
Whether that [the Crown’s case] is, in fact, the case or whether Anderson’s evidence is true and explains his presence, is why you are here. Approach the case this way: consider the whole, the totality of the evidence that you find credible having gone through all the processes that I have just outlined and then ask yourself if the defence might reasonably be true? If the answer is yes, or if you have a reasonable doubt about it, you will acquit the accused by the process I have outlined. Even if you are unsure whether to believe the accused or the defence submissions it may still leave you in a state of reasonable doubt. If so, the accused is entitled to be acquitted.
If, however, you reject the defence testimony that is not an end of the matter. You must still scrutinize the remaining evidence that you accept to determine whether the prosecution has proven its case in each count beyond a reasonable doubt.
41Although the above excerpt incorporates, in part, the test in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 at 757, it leaves the jury with the impression that there is some burden resting on the appellant to establish a defence. This court expressly disavowed the “might reasonably be true test” in R. v. Phillips and Baker (2001), 2001 24121 (ON CA), 154 C.C.C. (3d) 345 (C.A.) in paras. 34 and 35:
On appeal, both appellants submit that the trial judge erred in instructing the jury to apply the “might reasonably be true test” to Ms. Alam’s evidence. They maintain that the instruction was prejudicial because it tended to shift the onus to the appellants to persuade the jury that Ms. Alam’s evidence might reasonably be true, or risk conviction. As they point out correctly in my view, the law recognizes no such onus. (See R. v. K. (V.) (1991), 1991 5761 (BC CA), 68 C.C.C. (3d) 18 (B.C.C.A.); R. v. Tyhurst (1992), 1992 12825 (BC CA), 79 C.C.C. (3d) 238 (B.C.C.A.); R. v. Mathieu (1994), 1994 5561 (QC CA), 90 C.C.C. (3d) 415 (Que. C.A.), affirmed at (1995), 1995 79 (SCC), 101 C.C.C. (3d) 575 (S.C.C.).)
The foregoing authorities make it clear that the “might reasonably be true test” should be avoided when dealing with contradictory evidence in cases where the presumption of innocence, and no other, applies. In this respect, I agree with the views expressed by Fish J.A. at p. 429 of R. v. Mathieu, supra:
In short, the “might reasonably be true” test should not be transplanted from its natural habitat of adverse presumptions on to the entirely difference terrain [sic] of contradictory evidence in cases where the presumption of innocence, and no other, avails.
(iv) The Jury Charge Concerning the Defence Theory of Multiple Parties to the Three Robberies
42In his charge, the trial judge said:
So don’t put too much emphasis upon the notion that there was one or two or six people, as has been suggested to you in argument. The only person on trial here is Jermaine Anderson and that is the only person you are deciding the question, is he guilty and has the Crown proven it.
43Counsel for the appellant at trial objected to the above instruction. The trial judge refused to give effect to the objection and stated:
I have to say that the defence argument struck me as being a red herring on the possibility of some ringleader roping in rotating heavies to do the actual robberies. There is no sug-gestion, not a scintilla of evidence, that would support such a suggestion. I was not going to originally charge on the issue of parties but on hearing the defence argument, I felt that was a necessary piece of law to tell them about. For those reasons, then, I don’t propose to revisit it. I am certainly not going to visit it on the basis of giving any sense of reality to the arguments offered, and I think that [the] Section 21 correction is neutral enough in and of itself that it disposes of that issue.
44In my view, the trial judge is entitled to the deference of this court in determining whether the particular defence had any air of reality to it. I would not give effect to this ground of appeal.
DISPOSITION
45In the result, I would allow the appeal from the convictions, set aside the convictions and order a new trial. I would dismiss the application for leave to appeal the sentences as abandoned.
RELEASED:
“OCT –9 2003” “Robert P. Armstrong J.A.”
“EAC” “I agree E.A. Cronk J.A.”
“I agree E.E. Gillese J.A.”
