CITATION: R. v. Boucher, 2007 ONCA 131
DATE: 20070228
DOCKET: C44681
COURT OF APPEAL FOR ONTARIO
LABROSSE, SHARPE and BLAIR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Eliott Behar for the respondent
Respondent
- and -
DEREK BOUCHER
Peter Lindsay for the appellant
Appellant
Heard: February 22, 2007
On appeal from the convictions entered on October 26, 2005 by Justice Lauren E. Marshall of the Ontario Court of Justice.
BY THE COURT:
[1] The appellant appeals his convictions on two counts of robbery and two counts of use of an imitation firearm.
[2] At the end of its case, the Crown invited the judge to dismiss counts 1-3, pertaining to a third robbery. Those charges were dismissed. The defence did not call any evidence and the accused was convicted on counts 4 and 5, the 7-11 store robbery, and counts 6 and 7, the Country Blenz Donut Shop robbery.
[3] The appellant submits that the verdicts are unreasonable, that the trial judge failed to follow the principles in R. v. Vetrovec (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.) and that the trial judge failed to give adequate reasons.
The 7-11 store robbery
[4] On March 12, 2004, a man robbed the 7-11 store at the corner of Jane and Wilson. Eighty to ninety dollars in cash and eleven or twelve calling cards were stolen.
[5] The clerk at the store testified that the robber was five feet, six inches tall. There was no evidence at trial of the appellant’s height. On three occasions, the clerk testified that the robber had green eyes (the appellant has blue eyes). He insisted that the robber had a small moustache (there was clear evidence that the appellant never had a moustache). The clerk did not identify the appellant as the robber either prior to trial or in court.
[6] The Crown’s case depended, essentially, on two witnesses: Linda Hughes and Diana Evely.
[7] Linda Hughes was a crack cocaine addict. She testified that she remembered an occasion in 2004 in the early evening after 6:00 p.m. when she went by car to buy crack cocaine with Diana Evely, the accused and another man. The time did not match the time of the robbery, which was around midnight. They all drove to the back of a Ramada Hotel at Jane and Wilson. Hughes testified that the men exited from the car and when they returned later, the appellant had money and phone cards. She then said that she did not see the appellant in possession of any phone cards that night. They all went to buy drugs and smoked. Later that night, the police stopped their car and the accused was arrested for being out after curfew. A week later, Hughes gave phone cards to her boyfriend. She stated that she had no idea where the cards came from. She did not recall seeing the appellant in possession of phone cards at any time.
[8] Ms. Hughes had been a crack cocaine user for four or five years and was still a user at the time of her testimony. She agreed that her memory of the events may have been affected by her use of crack cocaine and that, at times, she hallucinated when under the influence of crack cocaine. She had been a crack dealer and had a disagreement with the appellant.
[9] On December 1, 2004, she gave a statement to the police. At trial, she agreed that what she told the police may not have been accurate. Her memory of the day was spotty because she was high on cocaine. She acknowledged that she had no recollection of being at Jane and Wilson in the winter of 2004 until the police told her that they were interested in that time period and location. She could not independently tell counsel the day or year of the incident about which she was testifying. The police had suggested the date to her. Having reviewed her statement to the police, she said that the incident had happened on March 12, 2003.
[10] Ms. Hughes testified that she did not know anything specific about the 7-11 store robbery. The appellant never told her what he did after he left the car. She admitted she had no idea whether the night she described was the same night as the robbery.
[11] When she spoke to the police, her boyfriend was a suspect in the robbery. Ms. Hughes falsely implicated the appellant in another incident involving theft of phone cards. She also said that he was present during another incident and later admitted he was not there.
[12] Ms. Hughes agreed that the appellant never had a moustache.
[13] Ms. Hughes had a criminal record consisting of a weapon charge, three counts of possession of crack cocaine, breach of probation and failure to appear.
[14] In summary, this witness could not recall the time, date or year of the alleged incident. Her memory was spotty because she had been high on crack cocaine. When she gave a statement to the police, she had again been high on drugs. The police suggested the date to her. She did not know where the men went when they left the car and she never saw the appellant with phone cards. She falsely implicated the appellant in two other incidents. She had a criminal record.
[15] This witness was totally unreliable.
[16] The second witness, Diana Evely, was also a crack cocaine user. She testified that she had been driving with Hughes, the appellant and another man. They had parked at the back of the Ramada Hotel and the two men had gone out of the car. They came back running and she did not see the men carrying anything. She remembered having been stopped by the police when she was with Hughes, the appellant and another man. The appellant was not supposed to be out at night and had been arrested. She was unsure of whether it was March 2004 or 2005. She guessed that she was high that day, although she did not know.
[17] Ms. Evely alternatively claimed that she never discussed the case with Hughes and that Hughes could have “jogged” her memory. She later admitted that she did not remember going to the hotel until Linda told her about it. When she first spoke to the police, it was possible that she did not remember going to the Ramada Hotel that day, that the police had jogged her memory about the two men in the car and later that the police had suggested to her that the appellant was in the car. The police told her that she had been pulled over in March. She was confused as to the identity of the two men in the car.
[18] As in the case of the first witness, her evidence was, essentially, unreliable.
[19] A video of the robbery was led into evidence. The trial judge not only made no finding that it was of assistance to her, she never referred to it in her reasons.
[20] The police never located any of the phone cards stolen at the store.
[21] In our view, the verdict convicting the appellant in this court was unreasonable. The trial judge improperly downplayed distinctive characteristics of the robber in the identification of the store clerk that tended to exclude the appellant, namely, that the robber had green eyes (the appellant has blue eyes) and that he had a moustache (appellant had no moustache). The trial judge failed to deal with the frailties and danger posed by the evidence of Hughes and Evely. She did not deal with the serious inconsistencies in the evidence with respect to the phone cards, the relationship between Hughes and the appellant and Hughes false occupation against the appellant in another robbery. She referred to unspecified corroboration of the evidence of Hughes and Evely that is not apparent. Moreover, even if accepted, the evidence of Hughes and Evely went no farther than putting the appellant on the scene of the robbery.
[22] In our view, the evidence relating to the 7-11 store robbery was so unreliable that it could not support the conviction. At its highest, it amounted to nothing more than suspicion and the verdict is not one that a properly instructed jury acting judicially, could reasonably have rendered. The convictions on counts 4 and 5 are quashed.
The Country Blenz Donut Shop Robbery
[23] The robbery occurred on April 27, 2004, at approximately 2:15 a.m., at the donut shop located at l011 Finch Avenue West. The store clerk described the robber as male, white, five feet, six inches (there was no evidence at trial of the appellant’s height), 135 pounds and about 25 years old. He was wearing a black toque, a black t-shirt and black pants. He grabbed the cash register and left the store with it. There was approximately $250 in the cash register.
[24] The store clerk was shown photo line-ups which included the appellant and was unable to identify him.
[25] Ronald Gohn testified that he and the appellant were “normal type friends” and they smoked crack together. He was driving with the appellant and with his pregnant girlfriend in the early morning of April 27, 2004. He admitted having been somewhat confused about the date. The detectives had suggested the cash register incident to him and that the date was in April. Mr. Gohn said that the appellant asked him to pull over, got out of the car and came back a few minutes later carrying a cash register. They drove away and later, the appellant got out of the car, threw the cash register on the ground, got it open and took out about $200-$300 and they went to buy drugs.
[26] A surveillance camera recorded the robbery.
[27] Mr. Gohn was not forthright about his criminal record. It was more extensive than he first led the court to believe. After initially claiming that he never had any problems with the appellant, he acknowledged having a fight with the appellant who had “hit” on his then girlfriend.
[28] Two days later, on April 29, the appellant was arrested in a car. Clothing was found in the car that did not clearly match the robber’s clothing in the robbery, except for a black t-shirt and pants that were a possible match.
[29] The reasons of the trial judge are sketchy. However, she recognized that Mr. Gohn was an unsavoury witness and she stated that she directed her mind to “Vetrovec considerations”. Without a jury, she is presumed to know the law. She rejected any animus between the appellant and Mr. Gohn. As there was the evidence that they smoked crack cocaine together, this conclusion is not unreasonable. She also found some support for the evidence of Mr. Gohn in the video from the surveillance camera.
[30] If believed by the trier of fact, the evidence of the robber walking away with the cash register and the evidence of Mr. Gohn that the appellant came back to the car carrying it in his arms, two rather unusual occurrences, and the evidence that the appellant later took the money out of the cash register, clearly supported conviction. We are not persuaded that the verdict is one that a properly instructed jury acting judicially, could not have rendered.
[31] While the reasons failed to deal with many of the issues raised in the case, they are sufficient to indicate to the appellant the reasons why he was convicted.
Disposition
[32] In the result, the convictions on counts 4 and 5 are quashed and the sentence on those counts is set aside. The appeal on counts 6 and 7 is dismissed.
“J-M. Labrosse J.A.”
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”
RELEASED: February 28, 2007