COURT OF APPEAL FOR ONTARIO

DATE: 20000623

DOCKET: C32695
C32707
C32708

CARTHY, ROSENBERG and FELDMAN JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN
Respondent

-and-

GARY BOUCHER, CLAUDE HARJU AND STEVEN VAILLANCOURT
Appellants

Ted E. Tichinoff,
for the appellant Boucher

David A. Wallbridge,
for the appellant Harju

Nicholas Xynnis,
for the appellant Vaillancourt

Alexander Hrybinsky,
for the respondent

Heard: May 8, 2000

On appeal from the order by Mr. Justice O'Neill dismissing the application to quash the order to stand trial dated July 23, 1999

ROSENBERG J.A.:

[1] Sometime on February 22, 1999, two persons wearing balaclavas robbed a branch of the Bank of Montreal in the City of Timmins of $20,000. Sometime later (the date is uncertain), the appellants and a fourth person, Jeffrey Sabourin, were charged with offences relating to that robbery.

[2] Following a preliminary inquiry, the three appellants and Sabourin were ordered to stand trial by Carr J. on the following charges:

Harju: masked with intent to commit an indictable offence, robbery and breach of probation

Vaillancourt: masked with intent to commit an indictable offence and robbery

Boucher: robbery and three counts of breach of probation

Sabourin: possession on February 22, 1999 of stolen $10 bills

[3] The appellants and Sabourin applied to quash the order to stand trial. O’Neill J. dismissed the application, except for one count of breach of probation for Boucher and the charge against Sabourin. He found that the cumulative effect of the circumstantial evidence provided, at least, a scintilla of evidence on each element of the other offences. The appellants now appeal from that judgment.

[4] All of the charges, including the remaining charges of breach of probation, arise out of the bank robbery. The theory of the Crown appears to be that Harju and Vaillancourt were the two masked men who entered the bank and stole the $20,000 and that Boucher was a party to the offence by providing transportation from the bank.

[5] Having regard to the manner in which the preliminary inquiry was conducted, including the appellants’ failure to object to the admission of evidence relating to certain business records, it would be open to a trier of fact to find the following:

(a) At 9:30 a.m. on February 22, 1999, Harju and two men purchased two balaclavas and a pair of sunglasses from the Timmins Wal-Mart;

(b) The three men left the Wal-Mart store parking lot in a vehicle similar in description to the vehicle owned by Boucher;

(c) The bank robbery occurred at about 2:00 p.m. on February 22nd and was carried out by two men wearing balaclavas;

(d) One of the men was wearing heavy white running shoes and black “tear-away pants”;

(e) The second man was wearing jogging pants;

(f) Ten to fifteen minutes after the robbery was reported to the police, Vaillancourt and another man ran into the G.V. Hotel, located one to two miles from the bank;

(g) Vaillancourt was wearing black tear-away pants with a white stripe and carrying a black bag;

(h) Seconds later, a car similar to Boucher’s car drove towards the hotel in the same direction as the men were running, the driver did not stop at a stop sign;

(i) Five to ten minutes later, a man (not one of the appellants) wearing something black entered the hotel;

(j) About twenty minutes after he entered the hotel, Vaillancourt, together with Boucher and Harju, left the hotel and entered a taxi;

(k) Vaillancourt had changed his clothing and was now wearing jeans. He was still carrying the black bag;

(l) Boucher was wearing black clothing;

(m) In the hotel, the police found clothing similar to that worn by Vaillancourt as he entered the hotel;

(n) A few days later, Vaillancourt and Sabourin were arrested while on a bus going from Barrie to Timmins;

(o) One of the bills stolen from the bank was in a bag near where Sabourin was seated and where Sabourin’s jacket was found;1 and

(p) When Boucher’s car was searched a few days after the robbery, the police found a gas receipt showing Boucher bought gas in Timmins on the morning of the robbery and a rent receipt for Harju’s apartment.

[6] It will be seen that there are a number of gaps in this evidence. As to Boucher, there is no direct evidence that Boucher was in the Wal-Mart with the other men or that his car was the one seen in the parking lot. There is no direct evidence that Boucher was driving the car seen in the vicinity of the hotel after the robbery. While it might be inferred that bank robbers should have a getaway vehicle, there is no direct evidence that Boucher’s car was involved in the robbery.

[7] As to Vaillancourt, the tear-away pants, as described by one of the customers in the bank, differed in a material way (no white stripe) from the tear-away pants Vaillancourt was wearing as he ran into the hotel. The witness who saw Vaillancourt run into the hotel testified that he was shown some clothing taken from the hotel and that it “looked similar” to that worn by Vaillancourt. As the officer who seized the clothing from the hotel was never called at the preliminary inquiry, there is no evidence as to how, and in what circumstances, that clothing was found or indeed in what way it was “similar”. While Vaillancourt was seen to be carrying a bag as he entered the hotel, none of the witnesses to the robbery described either perpetrator carrying a bag.

[8] As to Harju, there is no direct evidence that he was the man with Vaillancourt who ran into the hotel after the robbery.

[9] As to all the appellants, there is no physical evidence to link them to the robbery. The bill linked to the robbery was found near Sabourin, but he was discharged. The fact that he is said to be an associate of Vaillancourt's and was on the same bus going from Barrie to Timmins at some unknown time after the robbery is not, in my view, evidence against Vaillancourt or the other appellants.

[10] The Crown led no evidence as to the distance of the hotel from the bank. It is possible that a court in Timmins could take judicial notice of the distance from the bank to the hotel, but even the counsel who appeared before us who are from Timmins could not agree on the distance. It may be that a getaway car was needed, but on this record, it is hard to tell.

[11] The appellants submit that there is no evidence from which it can be inferred that they were parties to the robbery. They argue that at most there is speculation and suspicion. The test for quashing an order to stand trial is a strict one. The Superior Court can intervene only if there is an entire absence of proper material as a basis for the formation of a judicial opinion that the evidence was sufficient to put the accused on trial: R. v. Martin, [1978] 2 S.C.R. 511 at 514. This has also been expressed as to whether there is a “scintilla” of evidence on every element of the offence. In this case, the only element at issue is identity.

[12] In my view, there was evidence from which the following non-speculative inferences could be drawn. The car seen in the Wal-Mart parking lot in which Harju and the other men left was Boucher’s. It defies coincidence that Harju would be associated with two different cars having the same somewhat distinctive appearance as Boucher’s. It might also be inferred that Boucher was driving his own car. In this respect, it defies coincidence that Boucher and his car would be seen at the hotel around the same time and Boucher would not be in possession of it. It could therefore also be inferred that Boucher was one of the two men at the Wal-Mart with Harju.

[13] The question then is whether there is a scintilla of evidence that the balaclavas purchased at the Wal-Mart by Boucher, Harju and a third man were the balaclavas used in the robbery a few hours later. It they were, all three appellants can be implicated in the robbery inasmuch as Vaillancourt was seen with the other two within minutes of the robbery.

[14] It seems to me that the Crown’s case depends upon the nexus provided by the tear-away pants worn by one of the robbers and the clothing worn by Vaillancourt as he ran into the hotel. While tear-away pants are hardly distinctive clothing in this day and age, I would, with considerable reluctance, be prepared to find that they provided the requisite link to the robbery if the descriptions matched. Unfortunately for the Crown, the descriptions do not match. The bank customer who saw the robber with the tear-away pants was closely questioned at the preliminary inquiry. She testified as follows:

Q. You said that you were looking at this first

fellow's feet and you saw black tear-away pants

with black snaps and you remember that clearly.

A. Absolutely.

Q. Because you were looking right at his feet.

A. I was . . . That was about the only thing I

could see . . .

Q. Right.

A. . . . from my vantage point.

Q. And if, in fact, there was any white striping

at about the ankle, you would have clearly seen

that but you didn't see that.

A. That's correct.

[15] The witness who saw Vaillancourt enter the hotel was equally clear:

Q. …And what about Mr. Vaillancourt, what was he

wearing when you saw him run by your establishment?

A. Those tear-away pants with the stripe going down.

Q. Okay. If you can slow down on that one, please,

Mr. Simard. Tear-away pants? Okay. And can you

describe a little more about what you mean by tear-aways?

A. They got buttons all the way down the sides.

Q. Snap buttons down the side and they're designed to

be torn away, like warm-ups, basketball warm-ups?

A. Yeah.

Q. And was there anything else that was distinctive

about these tear-away pants?

A. A white stripe.

Q. A white stripe. And where did the stripe run in

the pants?

A. Hip to ankle.

[16] As I said, the pants themselves were not produced in evidence at the preliminary inquiry. It may be that, if there were other evidence linking Mr. Vaillancourt to the robbery, it would be open to a trier of fact to find that the customer was mistaken about the white stripe. However, there is no other evidence and so what remains is no evidence that the perpetrator at the bank was Mr. Vaillancourt.

[17] The reasons for judgment of Pigeon J. speaking for the majority of the Supreme Court of Canada in Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474 are of assistance. This was a civil action brought by the plaintiff against the police and others because of the plaintiff’s wrongful arrest and detention. The plaintiff was detained, arrested and ultimately charged with manslaughter following a coroner’s inquest. (A few days later, the real perpetrator was arrested.) Prior to the inquest, the police held a line-up and one of the witnesses to the killing told the police, “... I recognize him by his posture, build, facial features, stomach, etc., but the only thing that is different is that his hair was grey at the time of the incident.” Pigeon J. dealt with this statement at p. 494 as follows:

In order for this statement to be an identification

it would have been necessary to establish that

appellant had grey hair at the time of the incident,

otherwise the witness Holland was not identifying

appellant but rather exonerating him. Regardless of

the number of similar characteristics, if there is

one dissimilar feature there is no identification.

According to the witness Holland, appellant did not

have the assailant's grey hair. This witness

therefore did not identify him; he merely noted a

resemblance. [Emphasis added.]

[18] Later, Pigeon J. dealt with the legal effect of this finding at p. 499:

For a peace officer to have reasonable and probable

grounds for believing in someone's guilt, his belief

must take into account all the information available

to him. He is entitled to disregard only what he has

good reason for believing not reliable. [Emphasis

added.]

[19] We are not here dealing with a police officer’s civil liability or the question of reasonable and probable grounds. Nevertheless, it seems to me that the principles set out in these passages apply in this case. In view of the dissimilar feature of the pants, there was no identification, merely a resemblance. In the absence of some other inculpatory evidence, a resemblance is no evidence. If there were other inculpatory evidence it may be that a trier of fact would have good reason for finding that the customer’s testimony was unreliable. Since there was no other evidence, the dissimilarity at worst renders the resemblance of no probative value and possibly stands as an exculpatory feature.

[20] On this record, I cannot find that there is a scintilla of evidence to link these appellants to the bank robbery.

[21] Accordingly, I would allow the appeal and quash the orders to stand trial on all charges in relation to all the appellants.

(signed) "M. Rosenberg J.A."

(signed) "I agree J. J. Carthy J.A."

(signed) "I agree K. Feldman J.A."

RELEASED: June 23, 2000

1 The order for Sabourin to stand trial was quashed by O’Neill J. on consent because there was no evidence that Sabourin had possession of the stolen $10 bill on February 22nd, as particularized in the information.