DATE: 20001205

DOCKET: C32467

COURT OF APPEAL FOR ONTARIO

ROSENBERG and MOLDAVER JJ.A. and SIMMONS J. ad hoc

BETWEEN: )

) Michael Code and

HER MAJESTY THE QUEEN ) Benson Cowan,

) for the appellant

Respondent )

• and - ) Shelley Hallett,

) for the respondent

MICHAEL ANGELO BIANCO )

Applicant/ )

Appellant )

) Heard: September 21, 2000

On appeal from his conviction by Mr. Justice Thomas M. Dunn, sitting alone, on October 1, 1998 and from the sentence imposed on October 13, 1998

ROSENBERG J.A.:

[1] The appellant appeals from the judgment of Dunn J. convicting him of a number of offences relating to two robberies committed in the Hamilton/Burlington area of the province. Because of a number of unique features in which the robberies were committed it is probable that both were committed by the same person. In his able submissions, Mr. Code argues that the decision of the trial judge, that the appellant was the person responsible, is unreasonable. Alternatively, he submits that the trial judge misapprehended critical features of the evidence and misdirected himself with respect to similar fact evidence. In my view, the verdicts were reasonable and the trial judge either did not make the errors attributed to him, or the errors were harmless.

THE FACTS

[2] The two robberies were committed within a five-day period. The robber struck first at a branch of the Bank of Montreal on March 7, 1997 in Hamilton. He struck again on March 11, 1997 in Burlington, a community very close to Hamilton, at a branch of the Canada Trust. The robber’s method was unusual. While demanding money from a teller, the robber held a lighter next to a bottle with a rag stuffed in the top, thus giving the impression that he had a “Molotov cocktail”. In the Burlington robbery, he actually lit the cloth on fire and accidentally set fire to one of his own gloves. In each case, after being handed a quantity of money he demanded more money. In both cases, the robber wore a dark-coloured hooded jacket and sunglasses. The descriptions of the robber in the two robberies were remarkably consistent, given the stressful circumstances. The robber was generally described as around 5’7”, light or slim build, no beard or moustache but a heavy shadow as if he had not shaved for several days. Several of the witnesses described the robber as having a long distinctive jaw line.

[3] There were some discrepancies. The witnesses to the Hamilton robbery tended to describe the robber as somewhat heavier and older than the Burlington witnesses. There was also uncertainty about the robber’s hair. An important Hamilton witness, Theresa Laforme, described the robber as having black, curly, thick hair. An important Burlington witness, Sherry Conohan, described the robber as having dark brown short hair. Finally, Ms. Laforme described the robber’s complexion as “pockmarked”.

[4] The police were led to the appellant through the vigilance of some residents of Burlington. Douglas Arthur, who had been in the Trust Company and saw the robbery, followed the perpetrator out onto the street and chased him for a short time. Sherry Conohan was driving home when she saw two men running from the area of the Trust Company. She slowed her vehicle down to a crawl to watch the man who was running in front. She explained that this was happening in her neighbourhood and she wanted to make sure she saw the person. At one point, the man ran behind a parking structure and when he emerged on the other side, he was walking. He then looked back at her and took off his hat and put it in his pocket. She continued to look at the man for about seven seconds from a distance of about 100 feet after he took off his hat. Ms. Conohan was able to keep track of the man for a short time. She then went home and called the police. She provided a very full description of the man, particularly the distinctive chin, slim build, and dark brown hair short around the sides and longer on the top.

[5] Another motorist, Dennis Young, also saw the robber. He first saw the man when he was still on foot. He seemed to have a bag, like a bank deposit bag, stuffed under his shirt. Mr. Young then saw a second man who told him that the Canada Trust had been robbed. Mr. Young attempted to find the robber when he noticed a car coming from behind at a high rate of speed. Mr. Young followed the car and was able to memorize the licence plate. He had a fleeting opportunity to observe the man in the car and he described him as having long, brownish hair and wearing sunglasses.

[6] The police traced the licence plate number to a car owned by Shelley Barker. The police put the car and her Hamilton residence under surveillance for a number of days from March 11 to 19, 1997. Only Ms. Barker and the appellant used the vehicle. The appellant was living with Ms. Barker in March 1997.[1] On March 18th, Sherry Conohan was shown a photographic line-up. She identified the appellant from this line-up as the man she had seen running from the Trust Company. The reliability of Ms. Conohan’s identification evidence is an issue in this appeal.

[7] On March 19th, the appellant was arrested. At the same time, the police seized some track pants and a dark coat similar in appearance to the clothing worn by the robber in the Burlington robbery. The police also seized other clothing from the appellant’s residence. Fibres on this clothing were compared to fibres found on clothing that had been discarded by the robber as he fled the Canada Trust robbery. An analyst from the Centre for Forensic Services found some animal hairs on the appellant’s clothing that were similar to hairs found on the perpetrator’s clothing. It was her opinion that the similarities that she observed under the microscope were consistent with the hairs having come from the same source. The probative value of this evidence is an issue in this appeal.

[8] Teresa LaForme, the assistant bank manager at the Bank of Montreal branch in Hamilton, viewed the photographic line-up on March 14, 1997. She initially picked out a few photographs including the appellant. However, after thirty seconds she picked out the appellant as the robber. The teller who was actually robbed was also shown the line-up. She identified another individual as the person who most resembled the man who robbed the bank. Two other persons in the bank were shown the line-up but were unable to make any identification. None of the persons in the Trust Company were apparently asked to view the line-up and they did not purport to identify the appellant in court. The photographs from the surveillance camera in the Trust Company show that the robber’s face is almost entirely hidden by his hat, hood and sunglasses.

The Trial Judge’s Reasons

[9] The trial judge began his reasons for judgment with an analysis of the evidence of the Burlington robbery. He found that Sherry Conohan had the best opportunity to observe the perpetrator. He accepted her evidence that she had a “good opportunity” to make her observations when the perpetrator was some 100 feet from her for a period of about seven seconds. He concluded that her identification of the appellant from the photo line-up “reflects a positive identification of the accused”, notwithstanding she was not 100% positive at the time. He concluded that Ms. Conohan’s subsequent identification of the appellant at the preliminary inquiry and the trial was not helpful since this was dock identification. He concluded as follows:

The degree of certainty or uncertainty, as the case may be of the witness, must be weighed and I have done so, against the other circumstances. Here the witness was very positive in my opinion, even given the limited time she had to observe the obvious great distance over which she observed the individual.

[10] The trial judge then referred to the circumstantial evidence. The most important was the evidence leading to the identification of the car and the appellant’s association with it. The trial judge discounted Mr. Young’s description of the hair of the driver of the car. He considered this a “minor discrepancy, that in view of the short period of time he had to observe does not concern me”. The trial judge also referred to the expert evidence and summarized its effect as follows:

The opinion then was given that the hairs were consistent as originating from the same source.

There is much danger in such evidence, as we have been warned as recently as the Morin Inquiry. However, that evidence does speak for itself, in the sense that it showed some consistency.

[11] The trial judge concluded that the evidence as a whole, including Ms. Conohan’s evidence, the hair evidence and the evidence of the appellant’s association with the car, established beyond a reasonable doubt that the appellant had committed the Burlington robbery. He then turned to the Hamilton robbery.

[12] The trial judge reviewed the evidence of the Hamilton robbery and noted the evidence of Ms. Laforme that the perpetrator had a “few pockmarks and that he had black, thick curly hair”. The trial judge stated that there was a question whether the appellant ever had thick, black, curly hair but certainly he had no pockmarks on his face. The trial judge referred to several statements Ms. Laforme made about her degree of certainty in picking out the appellant from the photo line-up. The trial judge found that her line-up identification was bolstered by her dock identification at the preliminary inquiry. He said the following:

Her evidence though, it should be, in the circumstances, looked at quite carefully, is supported I find, in a degree, by her evidence that at the preliminary inquiry that she attended, she did not expect to see the accused there. It came as a surprise which shocked her when she realized that he was there and it was the same person that robbed the institution that day in question.

She noted the differences, in the sense that he was clean shaven at the preliminary inquiry, his hair was short, but he had the same complexion and build. She also went on to describe the particulars of how she saw the accused, with the bar of the dock across his forehead and became more convinced in the sense that it blotted her view as sunglasses might. She, she was not 100 percent certain. She was asked to quantify that and she did at 99 percent.

[13] After reviewing some of the other evidence from the Hamilton robbery, the trial judge held that without the similar fact evidence, he could not find beyond a reasonable doubt that the appellant was the perpetrator. The trial judge then reviewed the similarities in the execution of the two robberies and concluded as follows:

I am, however, content that there are enough striking similarities to conclude that it is likely that the same person committed both of these offences. Having made my decision with respect to the proof beyond a reasonable doubt that the accused committed the robbery on March 11th, it follows then that the same standard or degree of proof beyond a reasonable doubt has been shown by the Crown to show that the accused was the perpetrator of the robbery in Hamilton, as well.

THE GROUNDS OF APPEAL

[14] Mr. Code raises two grounds of appeal on behalf of the appellant. He argues that the verdicts are unreasonable and the convictions should be set aside and acquittals entered. Alternatively, he argues that the trial judge misdirected himself in his approach to the similar fact evidence. If successful only on this latter ground, Mr. Code concedes that a new trial would be the appropriate disposition.

ANALYSIS

Unreasonable verdict

[15] The standard of review of a trial judge’s verdict in a criminal case was most recently explained by Arbour J. in R. v. Binaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.) at 21 where she wrote:

The Yebes R. v. Yebes, [1987] 2 S.C.R. 168] test is expressed in terms of a verdict reached by a jury. It is, however, equally applicable to the judgment of a judge sitting at trial without a jury. The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. [Emphasis added.]

[16] Mr. Code submits that there are several flaws in the trial judge’s reasoning in relation to the Burlington robbery that led him into error in finding that the appellant was the perpetrator. I will deal separately with each element of the Crown’s case on the Burlington robbery, beginning with the eyewitness identification.

[17] The appellant submits that the trial judge failed to appreciate the specific frailties in the identification made by Ms. Conohan, namely that she had a poor opportunity to make her observation (no more than a fleeting glance) and that she initially failed to make a positive identification even though by the time of the trial she no longer harboured any doubts.

[18] I do not agree with this submission. The evidence shows that Ms. Conohan had an adequate opportunity to make her observations and that she specifically made an effort to make an accurate identification because of her concern that something was happening. She provided a detailed description. Finally, it is not accurate to say that she did not make a positive identification and that she only became certain when she saw the appellant in the dock at the preliminary inquiry and the trial. Some of the witness’ evidence, taken out of context, suggests that she merely picked out the photograph that most looked like the perpetrator. However, when all of her evidence is reviewed, I am satisfied that it was open to the trial judge to find that Ms. Conohan did make a positive identification from the photo line-up. In his reasons, the trial judge accurately reviewed her evidence and was careful not to attach weight to the later dock identification.

[19] While conceding the importance of Mr. Young’s evidence identifying the car used by the perpetrator, Mr. Code argues that the trial judge failed to attach appropriate weight to Mr. Young’s description of the driver, which description does not match the appellant. Mr. Young testified that the driver of the car had long (or longish) brown hair down to the collar. When later placed under surveillance by the police the appellant had short hair that did not reach to the collar. However, Mr. Young was concentrating on the licence number and make of the car. He described his own opportunity to see the driver as a fleeting glance—a quick look in which the person appeared to have longish brown hair and wearing sunglasses. It was open to the trial judge to discount this evidence given the witness’ opportunity to observe.

[20] The third piece of evidence relied upon by the trial judge on the Burlington charges was the testimony from the hair and fibre expert. The trial judge appeared to attach weight to the expert’s opinion that the animal hairs from the appellant’s clothing and from the clothing abandoned by the perpetrator were “consistent as originating from the same source”. The analyst from the Centre of Forensic Sciences gave this evidence and relied particularly on the facts that the animal hairs had been dyed in a similar fashion and had similar insect damage. She also testified that she could not say that the hairs definitely originated from the same source or that they matched.

[21] Mr. Code referred the court to excerpts from the Report of the Commission of Proceedings Involving Guy Paul Morin (1998) (the Kaufman Report) in which it was suggested that the Centre no longer uses the term “consistent with” in reference to hair and fibre analysis. The Commissioner supported what he considered to be this “commendable development”. He was also of the view that it was better to use exclusionary rather than inclusionary language. In other words, instead of saying that the hairs found on the two sets of clothing were consistent with having originated from the same source, it would be more accurate to say that the same source could not be excluded as the origin of the hairs found on both sets of clothing.

[22] These recommendations of the Commissioner are designed to enhance the understanding of the expert’s testimony and more clearly reflect the limitations of those findings. The issue on this appeal, however, is whether the language used by the expert witness misled the trial judge. As indicated in the Centre’s written submissions, quoted in the Kaufman Report at vol. I, p. 343, the danger with using the term “consistent with” is that, “repeated use … of the term among non-scientists may create a mistaken impression if the meaning of the terms is not adequately emphasized”. In my view, the expert’s use of the term in her testimony did not mislead the trial judge. The frailties of the evidence and the limits of its probative value were fully explored during the testimony of the witness and the trial judge recognized that there is “much danger in such evidence”. There was no suggestion that the evidence was so lacking in probative value that it should not have been admitted. See R. v. Campbell (1999), 1999 2688 (ON CA), 139 C.C.C. (3d) 258 (Ont. C.A.).

[23] In my view, little turned on the hair and fibre evidence in this case. The appellant had access to the car. Hairs from his clothing could have been left in the car and transferred to the clothing of the robber when he used the car. The expert conceded as much.

[24] The force of the Crown’s case on the Burlington robbery was the identification by Ms. Conohan and the appellant’s association with the car used by the perpetrator. In the end, the appellant’s argument has to be that through a remarkable coincidence, the appellant lent his companion’s car to a person who looked so similar to him as to be mistaken for him by Ms. Conohan. There was no evidence that the appellant had lent the car to any such person and the police observed no such person using the car when it was under surveillance.

[25] Finally, there was one other piece of circumstantial evidence. When he was arrested for robbery, the appellant gave the officer a false name. Aside from the possibility that the appellant panicked despite being innocent, there was no obvious innocent explanation for this conduct. This after-the-fact conduct had some, albeit limited, probative value of guilt.

[26] Subject to consideration of the similar fact evidence, I have not been persuaded that the verdict on the Burlington robbery was unreasonable.

Similar Fact Evidence

[27] The appellant submits that the trial judge misdirected himself in his approach to the similar fact evidence. The trial judge used the so-called “anchoring approach” rather than the “pooling approach” approved by the Supreme Court of Canada in R. v. Arp (1999), 1998 769 (SCC), 129 C.C.C. (3d) 321. The trial judge first determined beyond a reasonable doubt, using only the evidence relevant to the Burlington robbery, that the appellant committed that offence. He then went on to use that evidence as similar fact evidence on the Hamilton robbery. Often such an approach will inure to the benefit of the accused since it sets a very high threshold for the admission and use of similar fact evidence. Under the pooling approach, “Two separate allegations can support each other to the point of constituting proof beyond a reasonable doubt, even where a reasonable doubt may have existed in relation to each in isolation”: R. v. Arp at 350.

[28] The appellant argues, however, that the trial judge’s approach prejudiced the appellant in the circumstances of this case since it led him to ignore relevant evidence. He submits that the similarities in the manner in which the robberies were committed establish that the same person probably committed the two robberies. Thus, evidence from the Hamilton robbery tending to exculpate the appellant as the perpetrator of that robbery also would tend to exculpate him on the Burlington robbery.[^2]

[29] The force of this argument depends upon whether there is such exculpatory evidence in the Hamilton robbery. The appellant relies upon the testimony of Ms. LaForme and Ms. Melo, two of the Hamilton bank employees. Ms. LaForme, the assistant manager, actually dealt with the perpetrator. She talked to him and handed over money that she obtained from the teller, Anna Melo. Ms. Melo appears to have been standing close to Ms. LaForme. Part of the description Ms. LaForme gave to the police and at trial was that the robber had a pockmarked face and thick, black, curly hair. The appellant has neither and the appellant submits that this evidence should have been considered by the trial judge in relation to the Burlington robbery.

[30] It is, however, necessary to examine this evidence carefully to determine whether it has the exculpatory impact attributed to it by the appellant. In my view, it does not. Ms. LaForme’s testimony concerning the pockmarked face was very tentative. She testified that he had about two days’ growth of beard and that “it looked like there could have been a few pockmarks there”. In the circumstances, the testimony about pockmarks did not exclude the appellant as the perpetrator.

[31] As to the hair, it must be remembered that a hat and a hood covered the robber’s head. Ms. LaForme testified that she saw one or two inches of thick, black, curly hair protruding from under the hat and hood. While the appellant had short hair when he was placed under surveillance, there was no evidence as to what his hair looked like a week earlier when the Hamilton robbery occurred. Further, a black, curly wig could have been another element of the disguise.

[32] On the other hand, Ms. LaForme also noted the distinctive jaw line of the perpetrator and picked the appellant out of the photo line-up as the perpetrator. While she referred to two other persons in the line-up who had similar features to the appellant, she identified the appellant as the robber.

[33] The appellant placed particular reliance upon this court’s decision in R. v. Quercia (1990), 1990 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.) where the description of the perpetrator was inconsistent with certain immutable characteristics of the accused. In Quercia, the complainant noted that the perpetrator’s left eye was noticeably different from the right eye and might even have been a glass eye. There was nothing wrong with the accused’s eyes. She also drew a picture of her attacker, the dominant feature of which were pronounced marks or blemishes on both cheeks which she described to the police as pockmarks or acne scars. The accused’s skin did not have any such marks. Ms. LaForme’s evidence about the hair and complexion is not of that character.

[34] In my view, Ms. LaForme’s evidence does not detract from the reasonableness of the verdict. Further, the trial judge’s failure to consider these aspects of Ms. LaForme’s evidence in relation to the Burlington count did not taint his findings on that robbery. See R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 202-3 and R. v. G. (G.) (1995), 1995 8922 (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.) at 380-1.

[35] Anna Melo, the teller, did not testify at trial. By the time of the trial, she had left Canada and thus her testimony from the preliminary inquiry was used at the trial. She gave only a limited description to the police, but she also noticed slightly curly hair protruding from underneath the hood. The appellant also relies upon the fact that she did not pick out the appellant from the photo line-up and picked out another person. Ms. Melo did not purport to identify this other person as the robber. She was very clear on that in her testimony and stated only that she felt he was “the one that fit the description the best”. In my view, Ms. Melo’s preliminary inquiry testimony does not affect the reasonableness of the verdict and the trial judge’s failure to refer to that evidence in reference to the Burlington robbery did not constitute reversible error.

DISPOSITION

[36] Accordingly, I would dismiss the appeal.

(signed) “M. Rosenberg J.A.”

(signed) “I agree M. J. Moldaver J.A.”

(signed) “I agree J. Simmons J.A.”

RELEASED: December 5, 2000

[^1]: The police officer conducting the surveillance noticed that the appellant had a cut on his chin. On this appeal, it was not suggested that the failure of the witnesses to notice that the perpetrator had a similar cut was significant given his disguise.

[^2]: Similarly, exculpatory evidence from the Burlington robbery should have been pooled with the same class of evidence from the Hamilton robbery. There is, however, little such evidence other than Mr. Young’s testimony about the hair, which did not, for the reasons outlined, have the exculpatory impact argued by the appellant.