R. v. Manley, 2011 ONCA 128
CITATION: R. v. Manley, 2011 ONCA 128
DATE: 20110214
DOCKET: C50195
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Sharpe and Karakatsanis JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Michael Manley
Appellant
Brian Snell, for the appellant
Randy Schwartz, for the respondent
Heard: November 26, 2010
On appeal from the convictions imposed on January 15, 2008 by Justice Denis Power of the Superior Court of Justice, sitting with a jury.
Sharpe J.A.:
[1] The appellant appeals his convictions for several offences related to two retail store robberies. The key issue at trial was identity. The appellant argues that the trial judge erred by failing to provide the jury with an adequate instruction about the frailties of the identification evidence. The appellant also submits that the trial judge erred by rejecting the submission that the police breached his s. 8 Charter rights by searching the stored data on a cell phone they seized from him at the time of his arrest and that a photograph found on the phone should have been excluded under s. 24(2) of the Charter. Finally, the appellant submits that the trial judge erred by instructing the jury that robbery was an included offence to armed robbery and that as the jury acquitted him of using “a firearm, to wit: a sawed off shotgun, in robbing [the cashier] of cash monies”, the conviction for robbery with violence should be set aside.
Facts
[2] On October 19, 2006, a man with his face partially covered and holding a gun and a knife robbed a Mr. Sub restaurant in Trenton. The cashier described him as 5-foot-8, medium build, in his twenties, with dark eyes and without an accent. Using a sniffer dog following the trail from the store, the police found in a nearby parking lot a T-shirt with a hole cut out of it that could have been used as a mask. The dog followed the scent to a point where there were fresh tire tracks, suggesting that the robber may have fled in a car. DNA on the T-shirt matched that of the appellant.
[3] On November 11, 2006, a Trenton music store was robbed by a man holding a sawed off shotgun. The owner, a salesperson, and a customer were present. The salesperson described him as 5-foot-8 to 5-foot-9, in his mid to late twenties, with short light brown hair. The owner described him as 5-foot-8 to 5-foot-9 and thin. The salesperson and the customer were unable to identify the appellant in a photo line-up. The owner was not asked to do so.
[4] The police obtained information from a confidential informant identifying the appellant as a suspect in the music store robbery. The appellant was arrested on November 13, 2006 for the music store robbery and on an outstanding arrest warrant for break and enter. The police conducted a frisk search incident to the arrest. They seized a concealed knife and a cell phone, as well as two GM car keys (one apparently modified to break into cars), a hypodermic needle, handcuffs and a handcuff key capable of unlocking standard police handcuffs, binoculars, and local garbage bag tags. The police examined the cell phone, purportedly to identify the lawful owner. They opened it, searched its stored data, and found a photograph of the appellant holding a sawed off shotgun, taken the day after the music store robbery. The photograph was copied and printed. A warrant was subsequently obtained to search the contents of the phone.
[5] A voir dire was held to determine the admissibility of the photograph of the appellant holding a sawed off shotgun. The defence did not challenge the lawfulness of the arrest, and conceded that the frisk subsequent to arrest and the seizure of the items found were both lawful. The defence did, however, submit that the photo should be excluded because it was unlawful to examine the phone’s contents without a warrant, and the subsequent warrant was tainted by the earlier warrantless search. The trial judge ruled that the initial search was reasonable, that the search warrant was valid, and that in any event, the photo would have been admissible under s. 24(2).
The in-dock identification evidence
[6] The Mr. Sub cashier was not shown a photo line-up and could not identify the appellant at the preliminary inquiry. She was not asked in examination-in-chief at trial if she could identify the appellant, but did testify as to the robber’s general features, his approximate height, weight, colouring, and clothing. She testified that the robber had dark eyes. In cross-examination by the appellant’s trial counsel (not Mr. Snell), the following transpired:
Q: You see the accused sitting in the box. Take your time and just look at him, look in his eyes. Can you say for sure that those are the eyes?
A: He was fully covered and he looks, yeah.
Q: Those are definitely the eyes you saw when you look again?
A: Yeah
Q: You’re sure?
A: Yeah.
Q: How many seconds did you see the eyes, do you think, all said?
A: I don’t know. I don’t know for sure how long it would have taken for everything to interchange. Less…– you know, a couple of minutes. Like, there was no argument; the money was given.
Q: Is it possible, ma’am, that those could be somebody else’s eyes in the heat of the moment that you’re mistaken as to the eyes?
A: I don’t believe so.
Q: You don’t believe so, or do you know for sure those are the eyes? Is there any possibility those eyes could have been somebody else’s eyes other than this man sitting here?
A: No
[7] Like the Mr. Sub cashier, the music store owner could only give a general description of the robber and she was not asked to identify the robber in a photo line-up. When asked at the preliminary inquiry, she failed to identify the appellant as the perpetrator. At trial, she attempted to explain her failure to identify him at the preliminary inquiry:
Q: After this robbery, did you think that you would be able to identify that person, the robber?
A: I thought I could, yes.
Q: And have you seen him since?
A: Yes.
Q: And can you tell us about that?
A: Yes. Um, when I was at the…the last time I was in court we had, um…–you were asking questions similar to what we are now. Um, but at that time I was asked, “Can you identify him”, and I was the distance away I am now, from behind you. And at that point I was unable to see the features that I had recognized at the robbery. But on going out of that courtroom, I was as close to him as the jurors are to each other, as I walked past him, and then I recognized him.
Q: Okay. And how is it, at that point, you recognize him?
A: Because the profile that I saw at that time, as he turned away from me, as I went past him ... that I recognized the profile.
[8] However, the music store owner was still unable to identify the appellant at trial as the robber.
[9] The other witnesses to the music store robbery could not identify the appellant from a photo line-up, nor could they identify the appellant in-dock at the preliminary inquiry or at trial. The music store customer did testify that the appellant’s features were “similar, very similar” although the appellant appeared to be heavier than the robber whose facial features were “more drawn” and “more muscular”. The music store salesperson testified much to the same effect. She could not say that the appellant was the robber but he did have similar features although the appellant appeared to be fuller in the face.
[10] The Crown relied primarily on the circumstantial evidence tying the appellant to the music store robbery. In addition to the T-shirt and the cell phone photograph, the music store robber was wearing a coat or jacket with a fur-lined hood and he fled the scene on a bicycle. When arrested two days later, the appellant was wearing a coat or jacket with a fur-lined collar and riding a bicycle.
The verdict
[11] The appellant was charged with nine offences: two counts of robbery, one count of pointing a firearm, one count of possession of a prohibited weapon without a licence, one count of possession of a weapon for a purpose dangerous to the public peace, one count of possession of a firearm while under a prohibition, one count of carrying a concealed weapon, one count of obstruction of a police officer, and one count of possession of instruments for breaking into vehicles. He pleaded guilty to obstruction of a police officer, the possession of a prohibited weapon count was dismissed during the trial, and the jury returned guilty verdicts on the other counts. The pointing a weapon count was stayed on the Kienapple principle.
[12] Both robbery counts in the indictment specified the “use [of] a firearm, to wit: a sawed off shotgun ... contrary to s. 344 (a) of the Criminal Code of Canada.” In his charge to the jury, the judge instructed that simple robbery, i.e. stealing with violence or threats of violence, was an included offence to armed robbery. During its deliberation, the jury asked if the weapon had “to be a sawed off shotgun”. While the Crown conceded, and the judge agreed, that the Crown had to prove the charge as particularized, the judge in his response to the jury reminded them that simple robbery was an included offence. On the count for the Mr. Sub robbery, the jury found the appellant “not guilty of robbery as charged, but guilty of robbery accompanied by extorting stolen money with the use of violence or threats of violence.”
[13] The appellant was sentenced to a total of eight years’ imprisonment. He appeals his convictions on all counts except obstruction of a police officer and possession of instruments for breaking into vehicles.
Issues
[14] The appellant raises three issues:
Did the trial judge err in his instructions on identification evidence?
Did the trial judge err by admitting the photograph from the cell phone?
Did the trial judge err in his instruction that robbery was an included offence to armed robbery?
Analysis
1. Did the trial judge err in his instructions on identification evidence?
[15] The trial judge gave the jury a standard instruction regarding the need for caution in relation to eyewitness identification evidence. He told the jury that the case depended “to a large extent on eyewitness testimony” and that they had to be “very cautious about relying on eyewitness testimony” to find that the appellant was guilty of the crimes alleged. He instructed the jury that miscarriages of justice had occurred because of mistaken eyewitness identification evidence, that “[i]t is quite possible for an honest witness to make a mistaken identification”, and that honest and apparently convincing witnesses, even ones who are “sure and positive can still be mistaken.”
[16] The trial judge also cautioned the jury with respect to in-dock identification evidence:
Now identification of a witness, I have to tell you, made in court… is evidence that you have to be careful about because Mr. Manley is sitting in the prisoner’s box. So there’s sort of a suggestion, he’s the guy. But he’s there because that’s where he has to sit. He’s accused of it. So if a witness comes into the court and identifies somebody in the prisoner’s box, you have to be careful of that. I'm not saying it's not good; not at all. But you have to be careful of that kind of identification. [Emphasis added.]
[17] Later in the charge when dealing with the evidence pertaining to each count in detail, the trial judge returned to the issue of identification evidence. Dealing first with the Mr. Sub cashier’s evidence, he reminded the jury that she could initially only give a very general description of the robber but that when asked in cross-examination whether the perpetrator’s eyes were the same as the eyes of the accused in the prisoners’ box, she answered “yes”:
So how reliable is that identification, the identification of somebody's eyes? In and of itself, how reliable is it? In connection with all the other evidence does it fit in? Does it come up against other evidence? Is it contradicted by other evidence? Does other evidence confirm it? Does it confirm other evidence? That's the type of process you have to go through. You have to be satisfied beyond a reasonable doubt that the perpetrator was Mr. Manley.
[18] With respect to the music store robbery, the trial judge reminded the jury that the salesperson could not identify the appellant from a photo line-up shortly after the robbery and that she could not identify the appellant in court other than to say he had similar characteristics. Similarly, the customer could not identify the appellant from a photo line-up and could only say that the appellant’s features were similar to those of the robber. The trial judge observed:
That’s not identification beyond a reasonable doubt for sure, but is that, when taken with all of the evidence, sufficient for you to come to a conclusion as to whether the accused was or was not the perpetrator?
[19] Finally, the trial judge dealt with the music store owner’s evidence. He reminded the jury that she had only given a general description of the robber and that she had not been asked to view a photo line-up. As for what transpired at the time of the preliminary inquiry, he simply stated:
[Y]ou heard her explanation about why she didn't identify him during the preliminary inquiry but did later. How reliable is that identification? Even if she's telling the truth, is it reliable? How much does that tip the scales either way in your deliberating as to whether identity has been proven beyond a reasonable doubt?
[20] The appellant argues that the trial judge’s instruction regarding the in-dock identification evidence was even weaker than the “little weight” caution disapproved of by the Supreme Court in R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at para. 49, where the court stated that an in-dock identification had an “almost total absence of value as reliable positive identification”. See also R. v. Tebo (2003), 2003 CanLII 43106 (ON CA), 175 C.C.C. (3d) 116 at para. 19 (Ont. C.A.): “this was a case where the jury should have been forcefully told that they could give virtually no weight to” the in-dock identification evidence.
[21] In my view, it would have been preferable had the trial judge given a stronger warning about the nature and weakness of the in-dock identification evidence. In particular, the trial judge should not have said in relation to that evidence “I’m not saying it’s not good; not at all” and should instead have instructed the jury that an in-dock identification had almost no value as reliable positive identification. However, I am not able to say that, in the circumstances of this case and reading the charge as a whole, the manner in which the trial judge instructed the jury on this issue amounted to an error of law.
[22] The danger posed by the in-dock identification evidence at issue in this case is different from that faced in Hibbert where two eyewitness testified that the prisoner in the dock was the perpetrator of the crime alleged. There is a significant risk that the jury will accord far more weight to a confident positive identification of that nature than it deserves and hence the need for a strong warning about the very limited probative value the evidence has.
[23] Here, the in-dock identifications – if indeed they amounted to in-dock identifications – were qualified. While the music store owner explained how she was able to identify the appellant after testifying at the preliminary inquiry, she still could not identify him at trial. The Mr. Sub cashier’s evidence about the appellant’s eyes was elicited by the appellant’s trial counsel in cross-examination. The trial Crown did not place undue reliance on this evidence in his closing and rested his case primarily on the circumstantial evidence of the dog-tracking evidence, the T-shirt and the matching DNA, and the cell phone photograph of the appellant. There was no objection by defence trial counsel and no request for a stronger caution.
[24] The trial judge did warn the jury in general terms about the dangers of eyewitness and in-dock identification evidence, and I am not persuaded that the shortcoming in his instruction that I have identified amounted to a reversible error of law in the circumstances of this case.
[25] I am satisfied that the jury would have appreciated from the manner in which the case was presented by the Crown and from what they were told by the trial judge that, standing on its own, the identification evidence was weak, and that it had to be assessed on the basis that it amounted to no more than one small piece of a much larger puzzle.
[26] Accordingly, I would not give effect to this ground of appeal.
2. Did the trial judge err by admitting the photograph from the cell phone?
[27] The trial judge found that the search and seizure conducted at the time of the appellant’s arrest was carried out for three reasons:
For the safety of the police and the public as the appellant was suspected of committing crimes with weapons;
To check the ownership of items in the appellant’s possession; and
To check for evidence and to protect it from destruction.
[28] The trial judge made several findings of fact on the appellant’s Charter motion to exclude the cell phone photograph that are not challenged on appeal. The police had information from a confidential informant making the appellant a prime suspect in the music store robbery and a CPIC check revealed an outstanding warrant for the appellant for a break and enter. The police also had information that the appellant had stolen cell phones and used them with stolen access cards.
[29] The trial judge found that at the detachment, the cell phone had been opened by the first constable “with the intention of finding something in it that would identify the cell phone’s owner” as there was nothing on the exterior of the phone to identify its owner. “In the process of doing this the officer … pushed various scroll and other buttons in order to observe the saved data in the phone” and in that process, observed the images of the appellant holding a gun. The officer noted that the phone was losing power and gave the phone to another officer with more technical knowledge. That officer feared that the images could be lost if the phone shut down. He downloaded the images to his own phone and then to a computer to preserve them.
[30] The trial judge found that the search of the cell phone did not violate the appellant’s s. 8 Charter right, but focussed most of his attention on the validity of the search warrant. He found that even if there was a problem with the initial search, if the tainted information from that search was removed, there was still an adequate basis to support the search warrant. Finally, he found that in any event, the evidence of the cell phone images should not be excluded under s. 24(2). He found that the police had acted in good faith, that any breach of the appellant’s Charter rights was not serious, and that the exclusion of the challenged evidence would adversely affect the administration of justice.
[31] In R. v. Grant, [1993] 3 S.C.R. 22 at pp. 251-52, the Supreme Court set out the proper procedure to be followed where the information to obtain a search warrant contained facts obtained through a Charter violation:
[W]here the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant.... [T]he warrant and search conducted thereunder ... will be considered constitutionally sound if the warrant would have issued had the observations gleaned through the unconstitutional ... searches been excised from the information.
However, even if the warrant would have issued, s. 24(2) must still be considered because of “the possibility that the entire search process was tainted” by the prior warrantless search (p. 254). Accordingly, it is necessary to consider the validity of the initial search of the cell phone as well as the search conducted after the search warrant was obtained.
[32] The appellant does not question the validity of the arrest or the initial frisk search or the validity of the seizure of the cell phone but argues that the trial judge erred in concluding that:
the police were entitled to search the saved data in the phone without a warrant as an incident to arrest;
even without the information obtained as a result of that search, namely the photograph, the police had sufficient information to obtain a warrant; and
even if the appellant’s Charter rights were breached, the evidence of the photograph should be admitted under s. 24(2).
[33] It is common ground that incident to a lawful arrest, the police have the power to search the person arrested without a warrant for the purpose of ensuring officer safety, and, if there is “some reasonable prospect of securing evidence of the offence for which the accused is being arrested”, to secure and preserve that evidence: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para. 22 (emphasis omitted).
[34] The appellant submits that as the only thing taken in the relevant robbery had been cash there was no reasonable prospect that searching the cell phone would provide evidence of the robbery. However, the appellant was also arrested for a break and enter and the police had information that he had used stolen cell phones in the past. The Crown argues that determining whether the cell phone was stolen was a valid purpose connected to the arrest. If the phone did not belong to the appellant, it could serve as evidence of a break and enter and the rightful owner could be informed that the phone had been recovered.
[35] The appellant submits that even if the police had grounds to believe that the cell phone had been stolen, they had no power to search the saved data in the cell phone without a warrant. In the leading Ontario case, R. v. Polius (2009), 196 C.R.R. (2d) 288 (Ont. S.C.), Trafford J. rejected the Crown’s argument that the power to lawfully seize a cell phone incidental to arrest includes a warrantless power to examine its contents. He held that one has a reasonable expectation of privacy in the often deeply personal contents of one’s cell phone and, at para. 57, that to protect the privacy interests implicated in a manner consistent with s. 8 jurisprudence, a search incident to arrest should be limited to “a power to seize it, where there is a reasonable basis to believe it may contain evidence of the crime, for the purpose of preserving its evidentiary value, pending a search of its content under a search warrant.” Polius was followed in R. v. Finnikin, [2009] O.J. No. 6016 (S.C.); R. v. O. (T.), 2010 ONCJ 334; and R. v. McBean, 2011 ONSC 8. Compare R. v. Giles, 2007 BCSC 1147; R. v. Otchere-Badu, 2010 ONSC 1059.
[36] The Crown responds with two submissions, the first narrow and confined to the facts of this case and the second broad and general. The Crown’s first submission is that in the circumstances of this case, the police were entitled to conduct a cursory warrantless inspection of the cell phone including its stored data to ascertain ownership of the phone. Second, the Crown submits that Polius was wrongly decided and that the police are entitled to conduct warrantless searches of cell phones seized as an incident to a lawful arrest.
[37] I agree with the Crown’s first submission. The appellant was arrested for break and enter and, when arrested, he was in possession of a number of unusual and suspicious items. The police had information from a confidential informant that in the past the appellant had stolen cell phones. Ownership of the cell phone was relevant to the offences for which the appellant had been arrested. In my view, this combination of circumstances provided the police with a lawful basis for conducting a cursory search of the cell phone to determine whether it had been stolen. As I can see no basis to interfere with trial judge’s factual finding that the first officer came upon the photograph while conducting a search of the cell phone to determine its ownership, I would uphold the trial judge’s determination that the cursory search of the cell phone was lawful.
[38] I wish to emphasize, however that my decision rests on two points. First, that the police had a legitimate interest in determining whether the cell phone had been stolen and second, that the police did not search the stored data in the cell phone for any other purpose. According to the testimony on the voir dire that was accepted by the trial judge, the cell phone’s telephone number was identified after the discovery of the photograph. A telephone number is sufficient information from which the ownership of a phone may be determined. Had the examination of the phone continued after the telephone number had been found, this would be a different case. If the telephone number had been written or inscribed on the exterior of the cell phone or visible or easily found when the phone was opened, any further search obviously could not be justified as a cursory inspection to determine ownership. Likewise, in a case where there was no reason to doubt the arrested party’s ownership of the phone and no link between ownership and the offence for which the person was arrested, a search of the stored data in the phone could not be justified on the basis that the police were simply trying to determine who owned the phone.
[39] In the light of my conclusion with respect to the Crown’s first submission, it is not necessary for me to deal with the second. Accordingly, it is neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest. However, I would observe it is apparent that the traditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of modern technology. While I would not apply Polius in the particular circumstances of this case, I am far from persuaded that Polius was wrongly decided or that it ought to be overruled. Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.
[40] Finally, I turn to the warrant that the police did obtain. I do not accept the appellant’s submission that the trial judge’s finding that even without the information obtained from the initial search of the cell phone, a search warrant would have issued was unreasonable. In my view, there was sufficient evidence to support the trial judge’s finding that the Information to Obtain Search Warrant recited facts sufficient to support the issuance of a search warrant to permit the police to search the stored data on the cell phone seized from the appellant upon his arrest to obtain evidence linking the appellant to the robbery of the music store. Those facts included:
• the details of the music store robbery;
• a confidential informant had identified the appellant as the perpetrator;
• the informer’s description of the appellant matched the description of the robber;
• the appellant had a lengthy criminal record for property and other offences;
• the informant indicated that the appellant steals cell phones and uses them with stolen access cards;
• the items found on the appellant upon his arrest, including the cell phone;
• “The records of incoming, outgoing and missed calls will help afford evidence to [sic] person(s) who may have been contacted prior to, or immediately after the robbery ... as these person(s) may be witnesses”.
[41] Accordingly, as I would uphold the trial judge’s overall conclusion that there was no breach of the appellant’s s. 8 Charter right, I find it unnecessary to consider the issue of exclusion of the evidence under s. 24(2).
3. Did the trial judge err in his instruction that robbery was an included offence to armed robbery?
[42] The appellant argues that this court should set aside the conviction on the robbery charge related to the Mr. Sub robbery, because the jury should not have been instructed that “robbery” was an included offence to “armed robbery”.
[43] Robbery is defined by s. 343 of the Criminal Code:
- Every one commits robbery who
(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon or imitation thereof.
[44] Section 344(a) (now s. 344(1)(a.1)) provides that where a firearm is used in the commission of the offence of robbery, the minimum punishment is imprisonment for a term of four years.
[45] The indictment charged the appellant in the following language: that Michael Manley “did, on or about the 19th day of October, 2006, at the City of Quinte West ... use a firearm, to wit: a sawed off shotgun, in robbing Colleen Tracey of cash monies contrary to Section 344 (a) of the Criminal Code”. The count on the second robbery was framed in the same terms.
[46] The trial judge instructed the jury that the essential elements that the Crown had to prove to make out a conviction were that:
the appellant stole money from Colleen Tracey; and
he was armed with a sawed off shotgun at the time of the stealing.
[47] Colleen Tracey, the cashier in the Mr. Sub robbery, was unable to identify the kind of gun the robber was carrying and testified that the gun could have been a pellet gun. The trial judge explicitly instructed the jury that if they were “not satisfied beyond a reasonable doubt that the accused was armed with a firearm, i.e. a sawed off shotgun, you must find him not guilty of robbery.”
[48] The trial judge instructed the jury that if they were satisfied that the appellant had stolen money but were not convinced beyond a reasonable doubt that the appellant had used a sawed off shotgun in carrying out the robbery, they were to go on to consider whether or not he was guilty of “a possible included offence, the offence of robbery with violence”.
[49] During their deliberations, the jury asked the following question: “For Count 1, does the weapon have to be a sawed off shotgun?” The trial judge invited submissions and Crown counsel raised the possibility of an amendment to the indictment. The trial judge indicated that he would be reluctant to grant an amendment at that point out of concern for fairness to the accused. The Crown conceded that it would not be fair at that point to “no longer have it particularized”.
[50] The jury was instructed that the answer to their question was that “on the count as charged, the answer is yes, the Crown must prove to you beyond a reasonable doubt that the firearm in question here was a sawed off shotgun.” However, the trial judge went on to remind the jury that it would still be open to them to return a verdict for “simple robbery - … robbery with violence or threats of violence.”
[51] As I have previously noted, the jury found the appellant “not guilty of robbery as charged, but guilty of robbery accompanied by extorting stolen money with the use of violence or threats of violence.”
[52] The appellant submits that the trial judge erred in law by instructing the jury that “simple robbery” was an included offence to “armed robbery”. See R. v. Johnson (1974), 1977 CanLII 303 (BC CA), 35 C.C.C. (2d) 439 at pp. 460-461 (B.C.C.A.): “Robbery cannot be an offence included in the offence described in the indictment because the latter is by definition ‘robbery’ and there is but one offence of robbery created by s. [343]. Different ways of committing that offence are described in paras. (a), (b), (c) and (d) of s. [343].” Having particularized the mode by which the appellant was alleged to have committed robbery, the appellant submits that Crown was required to prove that the offence had been committed in that manner. As the jury acquitted the appellant of the offence as charged, the conviction for the “included offence” of robbery with violence or threats of violence should be set aside.
[53] The respondent Crown does not dispute the proposition that the trial judge erred in his included offence instruction and accepts the general principle that the Crown must prove the case as it is alleged and particularized in the indictment.
[54] However, the Crown submits that the conviction should be maintained as, properly read, this indictment did not allege a particular mode of robbery or limit the Crown to proving a particular mode of robbery. The Crown submits that the trial judge’s instruction regarding the need to prove the case exactly as pleaded was wrong in law and unduly favourable to the appellant. Any error in relation to the trial judge’s included offence theory was inconsequential as it was open to the jury on the wording of this count to convict the appellant of robbery even if the Crown failed to prove that he had used a sawed off shotgun. If necessary, the curative proviso should be applied to sustain the conviction for robbery on the first count.
[55] The issue to be determined is whether, on the wording of the indictment, to sustain a conviction for robbery the Crown was required to prove that the appellant did “use a firearm, to wit: a sawed off shotgun” in carrying out the robbery.
[56] In R. v. Saunders, 1990 CanLII 1131 (SCC), [1990] 1 S.C.R. 1020 at p. 1023, the Supreme Court of Canada stated: “It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved.” Saunders involved a charge alleging conspiracy to import heroin but the evidence established a conspiracy to import cocaine. The Supreme Court affirmed the decision of the British Columbia Court of Appeal setting aside the conviction for conspiracy to import and ordering a new trial. Writing for the Court, McLachlin J. stated at p. 1023:
To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars, which is to permit "the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial": R. v. Côté, 1977 CanLII 1 (SCC), [1978] 1 S.C.R. 8, at p. 13.
[57] The appellant relies on R. v. Sloan (1974), 1974 CanLII 1501 (BC CA), 19 C.C.C. (2d) 190 (B.C.C.A.), where the accused was charged that he “did UNLAWFULLY attempt to steal from the Golden Arms Motor Hotel money while armed with an imitation of an offensive weapon, to wit: a gun.” The evidence established that the accused had covered himself with a sheet and demanded money from a hotel attendant. It was common ground that the accused had pointed his finger under the sheet and that he was not armed with a gun. McIntrye J.A. held, at p. 191, that as the information was framed in the terms of s. 302(d) (now 343(d)), the Crown was bound to prove that the robbery had been carried out in that manner: “The Crown having alleged that the appellant had attempted to steal while armed with an imitation of a gun was bound to prove just that.” See also Johnson, at pp. 460-461.
[58] The respondent does not dispute the basic proposition that the Crown must prove the particulars alleged in the charge, but submits that the wording of the count here did not limit the Crown to proving a particular mode of robbery. The wording of the indictment did not specify one of the modes of committing robbery under s. 343 and the words “use a firearm, to wit: a sawed off shotgun” refer to the minimum penalty provision, s. 344(a). The Crown’s position is supported by a later decision of the British Columbia Court of Appeal, R. v. A.D. (2003), 2003 BCCA 106, 173 C.C.C. (3d) 177, where the accused were charged with the following offence:
S.L.I., E.E.H., J.P., V.M.R. and A.D., on or about the 16th day of January, 2001, at or near Richmond, Province of British Columbia, did, using a firearm, commit robbery of Faustino Esteban, contrary to Section 344(a) of the Criminal Code.
[59] This wording, while not identical, is very close to the wording of the count at issue here. The trial judge found that the item used by the accused was bent and damaged and not capable of operating as a “firearm” as that term is defined in s. 2 of the Criminal Code. Accordingly, he held that the Crown had failed to prove that the accused had used a “firearm” as alleged in the information, but convicted the accused of robbery under s. 343(d) – stealing “while armed with an offensive weapon or imitation thereof”. I find the reasons of Finch C.J.B.C., at paras. 29-31, persuasive:
In my respectful view, the trial judge was correct in concluding that the charge did not specify a particular mode of robbery described in ss. 343(a) to (d). The reference to robbery in the charge must be read together with the words of the enactment that describes the offence, namely, s. 343. The appellant could therefore be convicted of the offence described in s. 343(d), which encompasses “stealing from any person while armed with an offensive weapon or imitation thereof”.
The reference to s. 344(a) in the charge was unnecessary, in the sense that proof of the use of a firearm, as defined by s. 2, is not an essential element of the offence of robbery. Proof that a firearm was used is relevant to the question of sentence only. It is well established that non-essential averments in charges need not be strictly proved if there is no prejudice to the accused ....
In this case, the appellant does not allege that she was misled or prejudiced in her defence by the reference to a firearm in count one. In my view, on the whole of the evidence, it is clear that the appellant had sufficient knowledge of the circumstances of the offence alleged in the charge, and there was no prejudice to her. The reference to s. 344(a) in the charge gave the appellant notice of the minimum mandatory sentence for robbery where a firearm is used, if tried as an adult. [Citations omitted.]
[60] I see no meaningful distinction between this case and A.D. I note as well that in R. v. Watson (2008), 2008 ONCA 614, 240 O.A.C. 370 (C.A.), this court cited A.D. with approval and held that use of a firearm goes only to sentence and is not an essential element of robbery.
[61] I therefore conclude that the appellant was charged simply with robbing Colleen Tracy and the words “use a firearm, to wit: a sawed off shotgun … contrary to Section 344 (a) of the Criminal Code” did not particularize an element of the offence but rather put the appellant on notice that he faced the minimum sentence for robbery where a firearm is used.
[62] Accordingly, I conclude that while the trial judge erred in leaving robbery with violence with the jury on the basis that it was an included offence, that error did not result in any substantial wrong or miscarriage of justice as it was open to the jury on the indictment as framed to return a verdict for robbery with violence.
Conclusion
[63] For these reasons, and despite the very capable argument advanced by Mr. Snell, I would dismiss the appeal.
“Robert J. Sharpe J.A.”
“I agree W. Winkler C.J.O.”
“I agree A. Karakatsanis J.A.”
RELEASED: February 14, 2011