CITATION: R. v. MacCormack, 2009 ONCA 72
DATE: 20090127
DOCKET: C45161
COURT OF APPEAL FOR ONTARIO
Juriansz, MacFarland and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Craig John MacCormack
Appellant
Louis P. Strezos and Jill R. Presser for the appellant MacCormack
J. K. Stewart for the respondent
Heard: April 18, 2008
On appeal from convictions of robbery and disguise with intent entered by Justice J.M. Fragomeni of the Superior Court of Justice, dated May 24, 2005.
Watt J.A.:
[1] Early in the summer of 2003, a tall, heavy, unkempt man wearing a baseball cap, sunglasses, a golf shirt and shorts approached tellers at four different branches of the CIBC. Three branches were in Burlington, the fourth in Mississauga.
[2] At each teller’s wicket, the man spoke in a low voice. He demanded money, usually large bills. The tellers complied. The man left the bank.
[3] About two and one-half hours after the last incident, police arrested Craig John MacCormack. In connection with each incident, MacCormack was charged with robbery and disguise with intent.
[4] At MacCormack’s trial, the prosecution took the position that the same person committed each offence and that person was MacCormack. The offence committed in each case was robbery because of the threat of violence implicit in the bandit’s demand for money. The prosecutor invited the trial judge to apply the evidence adduced on all counts in reaching a conclusion on an individual count.
[5] For his part, MacCormack denied participation in each offence charged. He was not the bandit. The offences were not sufficiently similar to warrant the application of evidence relating to all counts in the determination of guilt on any individual count. And, at all events, the offence committed was theft, not robbery.
[6] The trial judge concluded that the same person was the bandit in each incident and that person was MacCormack. In each incident, the offences committed were robbery and disguise with intent. The offences were sufficiently similar that the evidence on all counts could be taken into account in determining whether guilt had been proven on any individual count.
[7] Craig John MacCormack (the appellant) appeals his convictions. His principal ground of appeal is that the trial judge erred in applying the evidence adduced on all counts in determining the adequacy of the prosecutor’s proof on each individual count. The appellant also urges that the principal offence committed in each incident was theft, not robbery.
THE FACTS
1. Introduction
[8] The trial judge decided that the circumstances in which each offence was committed were sufficiently similar to warrant consideration of the evidence on all counts in determining the adequacy of the prosecutor’s proof of each individual count. A review of the trial judge’s decision to invoke the principles governing the use of evidence of similar acts requires a brief rehearsal of the circumstances of each incident.
2. The First Incident: June 26, 2003
[9] At about 4:00 p.m. on June 26, 2003, the CIBC branch at 575 Brant Street in Burlington was not very busy. A stocky, middle-aged man wearing a baseball cap with an emblem on the front, sunglasses, a golf shirt, shorts, black shoes and white socks entered the bank. The man, who was carrying a newspaper walked directly to the wicket of teller Cheryl Simpson and, in a low voice, said to Ms. Simpson “give me your hundreds, fifties and twenties”.
[10] Cheryl Simpson didn’t hear what the man said when he first spoke to her. At her request, the man repeated his words and put the newspaper he was carrying on the counter. Ms. Simpson took several bills from her cash drawer and put them on the newspaper. The man folded the newspaper, turned around and walked out of the bank. He walked somewhat more quickly than is the custom, but he was not running. She saw nothing unusual in the way in which he walked.
[11] The man did not display a weapon nor make any threatening gesture towards Ms. Simpson.
[12] Three witnesses provided a description of the bandit whose activities inside the branch were recorded on the bank’s security cameras.
[13] Cheryl Simpson described the bandit as a white male, aged 45 to 50, who was about 5’10” tall and weighed 180 pounds. The man was very unkempt in his overall appearance. He had reddish or dishwater blonde hair that protruded from under the edges of his ball cap and continued about half-way down his neck. The man wore a ball cap with an emblem on the front, silver, wraparound sunglasses and a khaki green, short-sleeved collared golf shirt. Ms. Simpson could not recall whether the man had facial hair or wore shorts.
[14] Lorraine Stainge, another bank employee, saw a man carrying a newspaper go directly to Cheryl Simpson’s wicket. The man, in his late 40s or early 50s, wore a royal blue ball cap, sunglasses, a grey T-shirt and shorts, white socks and shoes. The man was about six feet in height and quite stocky. Ms. Stainge said that the man had a pot belly and weighed over 200 pounds. Ms. Stainge followed the man out of the bank and saw him remove his hat. His head was bald with gray, thinning hair on the back. She did not see any weapon.
[15] Jody Lynn Rogers worked as a secretary at a nearby business. While outside her place of work at about 4:30 p.m. on June 26, 2003, she saw a man running in different directions along adjacent streets. The man reached into his dark shorts, took out a blue baseball cap and put it on his head. The man, who was white-skinned, was carrying what looked like a rolled-up newspaper. His hair was thinning on the top of his head and “tuffy” on the sides. He wore a baggy beige T-shirt and dark shorts. He was 32 to 35 years old, 5’8” tall and stocky. She did not notice any eyewear or facial hair.
The Second Incident: July 2, 2003
[16] Shortly after 12 noon on July 2, 2003, the CIBC branch at 197 Lakeshore Road East in Oakville was not very busy. A man, who walked with a limp, entered the bank and headed directly towards the wicket served by Connie Messe. In an authoritative and abrupt voice, the man asked for twenties and larger bills. Ms. Messe handed over some tens, twenties and some larger bills. The man put the money in his pocket and left the bank quickly. He had nothing in his hands and neither threatened nor gestured towards her.
[17] Connie Messe described the bandit as a white male, in his mid to late 40s who was over 6 feet tall and weighed 200 pounds or more. The man wore a dark-coloured baseball cap and big dark sunglasses. His hair, visible around the edges of his cap, was reddish-brown with some gray behind the ears. He had a full beard. The man wore a greenish-coloured, short-sleeved, button-down collared shirt with a print or design on it and a pair of shorts darker in colour than the shirt.
[18] Elizabeth Soares, another teller at the bank, described the man at Ms. Messe’s wicket as about 50 years old, 6’7” or 6’8” tall and weighing 250 pounds. He had black and white or grayish hair, curly at the back at the base of his navy-blue ball cap. His hair was not blonde or reddish in colour. The man had a moustache and a full beard. He wore sunglasses, a collared golf shirt, brown shorts and black running shoes with brown socks.
[19] Carolyn Mary Spriggs was a customer in the bank. She noticed a man at Connie Messe’s wicket. He was about 45 to 50 years old, 6’3” tall, and weighed 200 pounds or more. The man had wavy and messy gray or white hair visible around the edges of his ball cap, wore dark sunglasses, khaki shorts and a short-sleeved button-down collared shirt.
The Third Incident: July 14, 2003
[20] Around 11:00 a.m. on July 14, 2003, the CIBC branch at 1745 Lakeshore Road West was not busy. When a man entered the branch and walked over to an area where customers stand to await the next available teller, Anne Anwaya invited him over to her wicket. When he arrived, the man put his hands and a newspaper on the counter. He said: “Give me all your twenties, fifties and hundreds now.” The man did not display a weapon or make any threatening gesture. Ms. Anwaya produced the money. The man took the money, wrapped it in the newspaper and left the bank.
[21] Ms. Anwaya described the bandit as a white man, about 58 or 59 years old, six feet or more in height and heavy. His hair, visible by his ears below the bottom of a black baseball cap, had gray in it. The man had a beard and moustache. He wore dark sunglasses, a short-sleeved, collared golf shirt that was white in colour with black vertical stripes and a pair of blue jeans.
The Fourth Incident: July 28, 2003
[22] Shortly after noon on July 28, 2003, Kimberly Joyce Ciprietti was working as a teller at a small CIBC branch at 3500 Dundas Street West in Burlington. A man appeared at her wicket and spoke to her in a low, scruffy voice. He said: “Give me all your money.” The man’s left hand was visible, but his right hand was below the counter. She gave him some money including $10 bills that were bait money. He took the money in his left hand and walked quickly out of the bank. The serial numbers on the bait money are recorded at the branch.
[23] Ms. Ciprietti recalled that the man was in his late 40s or early 50s. He was a big man, at least six feet tall, weighed about 250 pounds and had a pot belly. He wore dark sunglasses and a baseball cap. His hair around the edges of the cap was light brown or blonde. He was not clean shaven, but did not have a beard. The man wore an emerald green T-shirt without a collar. Ms. Ciprietti did not notice the man’s pants or his footwear.
[24] Casey Clelland was another teller at the bank whose desk was about three or four feet away from Ms. Ciprietti. She described the man at her colleague’s wicket as about 6’4” tall and very stocky with broad shoulders. She estimated the man’s weight at about 250 pounds. He wore a dark-coloured baseball cap and dark sunglasses. There was stubble on his face and reddish brown or blonde hair visible at the edges of his cap. The man, who was in his 40s, wore an emerald green, collared golf shirt with an emblem on it. She couldn’t see the man’s hands, his pants or his footwear.
The Surveillance Evidence
[25] Each bank was equipped with security cameras. Still photographs taken from the film of each incident were forwarded to investigators and later made exhibits at trial. The trial judge was thus in a position to compare the bandit depicted in each photograph with that shown in the others and with the appearance of the appellant at trial.
[26] Police conducted physical surveillance on the appellant for several days between the third and fourth incidents. The appellant lived in Stoney Creek. On July 22, 2003, the appellant left his home around 12:30 p.m. He was wearing a Toronto Maple Leafs hat, beige golf shirt, brown shorts, white socks and black running shoes. Surveillance photographs of the appellant were also filed as exhibits at trial.
The Appellant’s Movements on July 28, 2003
[27] Kenneth William McLaren, a very good friend of the appellant, said he picked up the appellant at his (the appellant’s) home at around 7:00 a.m. on July 28, 2003. The pair took McLaren’s dog for a walk, went out for breakfast and drove around for a while before they returned to McLaren’s home in Hamilton. The appellant borrowed McLaren’s car to retrieve some money from a relative and to distribute his resumé at various places. He returned with McLaren’s car around noon or 12:30 p.m., then listened to some music McLaren had recorded. The appellant did not seem nervous or anxious. It was a hot day. Claiming that he was “sweating my ass off”, the appellant changed his shorts before leaving McLaren’s place to return home by bus.
[28] Police arrested the appellant around 2:25 p.m. on July 28, 2003 as he walked towards his home in Stoney Creek. He was wearing brown shorts and a dirty white T-shirt. The appellant had a black Wilson sports bag over his shoulder. Police searched the bag incidental to the appellant’s arrest.
[29] Among the items police found in the Wilson sports bag were the following:
- a Labatt’s Blue baseball cap, blue in colour, with a label containing the word “Blue” on it;
- a green, soft-collared golf shirt;
- a pair of black sunglasses;
- a faded Toronto Maple Leafs baseball cap;
- a pair of men’s blue shorts;
- $780 in cash, including ten $10 bills of bait money taken from the CIBC branch about two and one-half hours earlier
The caps, shirt and sunglasses resembled those worn by the bandit in the July 2 and July 28 offences.
Search of the Appellant’s Home
[30] The appellant’s domestic partner consented to a search of their home for golf shirts allegedly worn in the various offences. The appellant’s daughter produced a white golf shirt with vertical stripes similar to that worn by the bandit on July 14, 2003.
THE DECISION OF THE TRIAL JUDGE
[31] The trial judge began his reasons for judgment with a review of the evidence adduced at trial, then turned his attention to the fundamental principles governing the onus and standard of proof. He identified a number of factors that required consideration in assessing the credibility of the various witnesses and the reliability of their evidence. In particular, he cautioned himself about the frailties of eyewitness identification evidence.
[32] The trial judge articulated three issues that required his decision:
i. the identity of the bandit; ii. whether the bandit was disguised; and iii. whether the bandit’s crime was robbery or theft.
[33] In concluding that the appellant was the person responsible for each incident, the trial judge considered:
i. the eyewitness identification evidence of the several bank employees and others who observed some or all of the relevant events; ii. a comparison of the in-court appearance of the appellant with the images depicted on photographs taken from bank security and surveillance film; iii. items found in the appellant’s possession and in his home after his arrest on July 28, 2003, about two and one-half hours after the last offence; and iv. in accordance with similar act principles, evidence relating to other counts in the indictment.
[34] In determining whether similar act principles would permit the application of evidence relating to all counts on each individual count, the trial judge listed several similarities among the offences relied upon by Crown counsel, then added some more based on the evidence of the eyewitness and bank security photos. He noted his conclusion about the application of similar act principles in these terms:
I am satisfied on all of the evidence that the standard of striking similarity has been made, and that the similarities are sufficient to establish that the alleged similar acts were committed by the same person. I am satisfied, therefore, that the evidence relating to each count is admissible to prove the commission of the other counts.
[35] Immediately after concluding that similar act principles permitted the across counts application of evidence relating to the individual counts, the trial judge recorded his finding that the appellant was the bandit in each incident:
In reviewing the photos, both the security photos and the surveillance photos, and in considering eyewitness description of the person in the bank, I am satisfied that the defendant appearing before me fits the description given and the photos taken.
In considering the totality of the evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that the accused before the Court is responsible for all four incidents.
[36] The trial judge next considered whether the appellant’s offences were robbery, as charged, or theft, for want of proof of threats of violence. He determined that robbery required some act of violence or demonstration from which physical injury to the victim may be reasonably apprehended.
[37] The trial judge concluded that the offence committed in each instance by the appellant was robbery, despite the absence of any overt display or specific mention of a weapon or of any threatening gesture. The trial judge’s conclusion rested on the cumulative effect of several factors, which he listed in these terms:
- The location and type of business. In this case we are dealing with banking institutions.
- A reasonable expectation by the teller to comply with the demand for money for safety reasons.
- The words spoken by the accused, and the manner and tone would leave no doubt to the teller that he wanted her to comply, even if the words ‘or else’ are not said.
- The accused on two occasions was carrying a newspaper, and on one occasion his hands were not visible, and on one occasion his right hand was below the counter.
THE GROUNDS OF APPEAL
[38] The appellant advances two grounds of appeal against conviction.
[39] The first and principal ground impeaches the trial judge’s conclusion that similar act principles permitted the use of evidence relating to all other counts in deciding whether the appellant was the bandit in an individual count. This ground of appeal, if successful, would warrant reversal of all convictions except for the final offence.
[40] The second ground relates only to the robbery counts. The argument is that, in the absence of any evidence of a threat of violence, the appellant’s offence was theft and not robbery.
ANALYSIS
The Similar Act Ground
The Errors Alleged
[41] According to the appellant, the trial judge erred in several respects when he decided that similar act evidence principles permitted consideration of the evidence on all counts in reaching his decision on each individual count.
[42] The first error, Mr. Strezos says, consists of the trial judge’s finding that the similarity among the counts was sufficient to invoke similar act principles. The sole issue was identity. The degree of similarity required among the offences to negate the improbability of coincidence, best captured by the phrase “strikingly similar” or some near equivalent, was not met here. The trial judge overestimated the impact of routine, generic similarities and failed to appreciate the effect of many dissimilarities that negated the degree of similarity required to justify admission.
[43] A second error, which Mr. Strezos designates “the Woodcock error”, is that, in determining whether the required degree of similarity existed, the trial judge took into account evidence that tended to link the appellant to the relevant acts. The relevant issue, whether the conduct was sufficiently similar to invoke similar act principles, is to be decided wholly on the basis of evidence of the manner in which the several crimes were committed. Evidence of an accused’s involvement in the allegedly similar acts is required to satisfy the requirement of relevance, but has no say in the threshold decision about similarity.
[44] For the respondent, Mr. Stewart begs to differ. The cumulative effect of the several similarities pointed out by the trial judge, topped up with some others, was sufficient to satisfy the demanding threshold for evidence of similar acts tendered to prove identity. Mr. Stewart points out that the bank’s security photographs cannot be excluded from the similar act analysis. These photographs imbue acts that may seem generic with the required level of specificity or distinctiveness and are evidence of the manner in which the offences were committed.
[45] As for the assertion that the trial judge misused the evidence linking the appellant to the relevant acts, Mr. Stewart responds that the trial judge did not misappropriate this evidence to the threshold question of act similarity, rather assigned it to its proper place. The line between evidence that relates to the manner in which an offence is committed and evidence that shows the involvement of an accused is not always easy to draw. The rule that requires segregation of the evidence indicative of involvement is a general, but not an absolute rule. Decisions about similar acts are context-specific and, of necessity, involve consideration of some evidence that serves two purposes: to assist in establishing similarity and to aid in providing a link to the actor responsible for the acts.
The Governing Principles
[46] The general principles that control the exceptional admission of evidence of similar acts have been thoroughly chewed over in a long line of previous authorities and are not in desperate need of rumination here. Nor are we concerned with unschooled use of evidence of similar acts by the trier of fact. If the other counts’ evidence was properly admitted as evidence of similar acts, the appellant takes no issue with the manner in which the trial judge used it in finding guilt.
[47] Two issues require examination. The first has to do with the degree of similarity required of various acts to qualify for reception as evidence of similar acts to prove identity of the person responsible for a crime. The second issue concerns the use of evidence that links an accused to the acts in the determination of admissibility.
The Admissibility Threshold: The “Similarity” Issue
[48] Evidence of similar acts, whether of other counts charged in an indictment or of extrinsic misconduct, is presumptively inadmissible. The onus falls upon the prosecutor to satisfy the trial judge, on a balance of probabilities, that in the context of the case being tried, the probative value of the evidence on a particular issue outweighs its potential prejudicial effect and thus justifies its reception: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. Arp, [1998] 3 S.C.R. 339, at paras. 42 and 51.
[49] Probative value depends upon the nexus established between the evidence of similar acts and the offence that the evidence is offered to prove. The degree of similarity required to permit the introduction of evidence of similar acts is a function of the issues in the case, the purpose for which the evidence of similar acts is being offered and the other evidence adduced at trial: Handy at paras. 76, 78 and 79; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 48.
[50] Where evidence of similar acts is offered to help prove the identity of the person responsible for a crime, a high degree of similarity between the tendered acts and the offence charged is required to render the likelihood of coincidence objectively improbable and to justify the reception of the evidence: Arp at para. 43.
[51] In some cases in which evidence of similar acts is offered to help establish the identity of the person responsible for a crime, the evidence will reveal a unique trademark or signature common to all incidents. Such a striking similarity sponsors admission. But, a signature is not required in every case. A number of significant similarities in combination may, by their cumulative effect, warrant admission: Arp at para. 45; Handy at para. 81.
[52] The admissibility inquiry begins with a focus on the acts themselves. Do the acts have the high degree of similarity required to justify their reception? As similarity increases, so does probative value: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 21. This phase of the inquiry into admissibility may be characterized as the “similarity” issue.
[53] The similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to:
i. proximity in time and place; ii. similarity in detail and circumstances; iii. number of occurrences; iv. any distinctive feature(s) unifying the various incidents; v. intervening events; and vi. any other factor that tends to support or rebut the underlying unity of the similar acts.
Handy at para. 82; Perrier at para. 22.
[54] For the most part, decisions about the admissibility of evidence do not involve evaluations of the probative value or weight of the evidence. The judge does not embark upon any appraisal of quality, weight or reliability of the evidence in deciding on admissibility: Arp at para. 47. But, in deciding on the admissibility of evidence of similar acts, where the admissibility rule involves balancing probative value and prejudicial effect, the trial judge must, to some extent, venture into territory not usually travelled. This consequence is inevitable where admissibility depends on weight: Arp at para. 47. The credibility of the evidence of similar acts is a relevant factor for the trial judge to consider in deciding on admissibility: Handy at para. 134.
[55] The countervailing consideration, prejudice, includes both “moral prejudice” and “reasoning prejudice.” Moral prejudice is concerned with the potential stigma of “bad personhood,” the prospect that the verdict will be based on prejudice rather than proof: Handy at paras. 42, 100 and 139. Reasoning prejudice has to do with distraction of the trier of fact, especially a jury, from their proper focus on the offence(s) charged, aggravated by undue consumption of time by the introduction of evidence of similar acts: Handy at paras. 100, 144 and 146.
[56] The test for the admissibility of evidence of similar acts offered to prove identity is the same whether the alleged similar acts are extrinsic to the counts in the indictment, or contained in other counts of the same indictment: Arp at para. 51. The same test notwithstanding, some of the factors relevant to an assessment of prejudice may have an attenuated influence in cases in which the similar acts are restricted to other counts in a multi-count indictment. It may be all the more so where the case is tried by a judge sitting without a jury.
The Relevance of “Linkage” Evidence to the Admissibility Decision
[57] The “similarity” issue that lies at the threshold of the decision about the admissibility of evidence of similar acts is to be based on an examination of the acts themselves. After all, it is the high degree of similarity between or among the acts that overcomes the improbability of coincidence: Perrier at para. 21; Arp at para. 48. In general, the “similarity” issue is to be decided without reference to evidence linking the accused to each alleged similar act (“linkage evidence”): Perrier at para. 21; Arp at para. 49.
[58] The general rule that linkage evidence is not to be taken into account in determining the “similarity” issue is not unyielding: R. v. Woodcock (2003), 177 C.C.C. (3d) 346, at paras. 80-81 (Ont. C.A.). There may be cases where examination of the linkage evidence should form part of the “similarity” decision: Woodcock at para. 81. Further, in many cases, the fact that a trial judge first considers whether there was any evidence linking the accused to the alleged similar acts will not amount to reversible error: Woodcock at para. 82. It is not often easy to draw a bright line that distinguishes between evidence that demonstrates similarity among the acts and evidence that shows an accused’s involvement in them.
[59] Like the “similarity” requirement, which indicates a common perpetrator of the similar acts, a demonstrated link between the accused and the similar acts is also a precondition to admissibility: Arp at para. 54; R. v. Sweitzer, [1982] 1 S.C.R. 949, at p. 954. In a trial on a multi-count indictment, the link between an accused and an individual count will be relevant to the issue of identity on the other counts that disclose the required degree of similarity in the manner in which those offences were committed: Arp at para. 53. The requirement that there be a link between the allegedly similar acts and the accused demands that there be some evidence upon the basis of which the trier of fact can make a finding that the similar acts were those of the accused. Evidence of mere opportunity to commit the similar acts is not sufficient: Arp at paras. 54 and 57; Harris v. Director of Public Prosecutions, [1952] A.C. 694, at 708 (H.L.).
The Principles Applied
[60] What remains is the application of the principles that govern the admissibility of evidence of similar acts to the circumstances of this case to determine whether the trial judge went astray in concluding that the admissibility requirements had been satisfied.
[61] As we have already seen, evidence of similar acts is received on the basis of an objective improbability of coincidence. The evidence derives its probative value from the degree of similarity among the acts under consideration. Where the evidence is offered to prove identity, we require a high degree of similarity among the acts for the evidence to be admitted. In some cases, the acts display a unique trademark or signature that renders them “strikingly similar” and satisfies the strict standard for admissibility. In other instances, the cumulative effect of a number of significant similarities in the manner in which the acts were committed will satisfy the admission requirements.
[62] To gain entry as evidence of similar acts, whether involving extrinsic misconduct or conduct that is subject of other counts on the same indictment, the evidence of similar acts must be appropriately connected to the facts alleged in an individual count. Similarities in character, proximity in time and frequency of occurrence are important factors: Handy at para. 81.
[63] In this case, the acts took place over an interval of one month. There were four occurrences. Each of the premises was a branch of the same bank, CIBC. Each was located in a strip mall, easily accessible from a controlled access highway. The bandit directly approached the teller without hesitation and demanded money. In three instances, the demand was for larger denomination bills. The bandit made no gestures, spoke in a low voice and said nothing but the words of demand he uttered. In every instance, the bank had few, if any, other customers, a circumstance apparently visible from outside the branch by a casual glance through the glass entrance doors and adjacent windows of the bank. The four branches are located in reasonable proximity to each other, three in Burlington, the fourth in Mississauga.
[64] As a general rule, preliminary findings of fact that are preconditions to the admissibility of evidence eschew consideration of the quality or reliability of the proposed evidence. After all, weight properly lies within the province of the trier of fact not the arbiter of the law. Yet where the touchstone of admissibility is probative value, more particularly, its predominance over prejudicial effect, some invasion of the province of the trier of fact is ineluctable: Arp at para. 47. In some instances, perhaps more in cases where the evidence of similar acts involves extrinsic misconduct rather than other counts, there is a controversy about whether the allegedly similar acts occurred. Such controversies seem apt to dilute the probative value of the evidence and enhance the prejudicial effect of its admission. Not so, here. The acts occurred, witness their recording on the banks’ security systems. To the extent that the strength of the evidence that the similar acts occurred, and in a particular manner, is a factor of influence in the assessment of probative value (Handy at paras. 133-134), the inalienable record here favours reception.
[65] It is worth remembering that the search for similarities in the manner in which allegedly similar acts were committed is a question of degree. Like some other crimes, bank robbery may not show much diversity or distinctiveness, at least in the sense of a trademark or signature. Yet, the authorities allow the accumulation of significant similarities to satisfy the threshold for admissibility. Often, the probative force of an accumulation of circumstances exceeds the sum of its individual parts.
[66] Setting to one side the potential impact of considering the “linkage” evidence in determining the similarity issue, the accumulation of significant similarities among the several incidents here is sufficient to establish the objective improbability of coincidence. Such dissimilarities as existed among the acts were neither so numerous nor substantial to dilute the probative value of the acts alleged to be similar.
[67] The potential prejudicial effect of evidence of similar acts includes both moral and reasoning prejudice. Moral prejudice, the potential stigma of “bad personhood”, refers to the risk of an unfocussed trial and a wrongful conviction, a verdict based on prejudice as a surrogate for proof: Handy at paras. 100 and 139. Reasoning prejudice has to do with the distraction of the trier of fact from properly focussing on the charge(s), aggravated by the consumption of time in dealing with a multiplicity of incidents: Handy at para. 144.
[68] This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to each count is relevant to and admissible in proof of the allegation contained in that count. Each incident is of equivalent gravity and of minimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment is enlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity.
[69] In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial. The conduct relied upon as evidence of similar acts was not contested, although the appellant’s participation and the legal characterization of the crimes committed were controversial.
[70] In this case, the other counts evidence was capable of crossing the threshold required for evidence of similar acts offered to establish the identity of the perpetrator of the several offences charged. The offences contained a number of significant similarities which, taken together, warrant admission. The dissimilarities among the four incidents were neither so many nor so substantial to diminish the probative value of the evidence to the point of its domination by prejudice. Such dissimilarities as there may have been did not compound confusion and distraction, thus aggravate prejudice.
[71] The preliminary finding that the incidents displayed sufficient similarity to warrant invocation of similar act evidence principles is a decision that was reasonably open to the trial judge in the circumstances of this case. I would not interfere with it.
The “Linkage” Error
[72] The appellant’s chief complaint about the trial judge’s use of the other counts’ evidence to find guilt on individual counts is that the trial judge used evidence that linked the appellant to the various acts rather than restricting himself, as the authorities require, to the manner in which the various acts were committed.
[73] The “linkage” evidence that represents the core of the appellant’s complaint consists of the bank security and surveillance photographs, and several items of clothing and the bait money found in the appellant’s possession within hours of the last offence on July 28, 2003.
[74] The focal point of the appellant’s complaint resides in a brief passage in the trial judge’s reasons:
Further, in addition to the photos and the descriptions given by the bank employees, the results of the search of Mr. MacCormack and his residence on July the 28th, 2003, are significant to my analysis. The list of items seized from the duffle bag are similar to the items worn by the person in the bank. Exhibit 17 is a list of items seized from the duffle bag. For example, it contains a Labatt’s Blue blue baseball cap similar to the one seen in the bank photos. It contains a faded blue Toronto Maple Leafs baseball cap similar to the one in the photos. It also contained the teal green golf shirt, sunglasses, and white socks. Also found on Mr. MacCormack in his shorts pocket is the bait money. I am satisfied on the evidence as a whole that this cash was taken by Mr. MacCormack in the July 28th, 2003 incident.
[75] The trial judge’s first reference to the bank security video tapes and surveillance photos preceded any mention of evidence of similar acts. The trial judge pointed out that unlike R. v. Nikolovski, [1996] 3 S.C.R. 1197, where the videotape of the robbery bore the entire burden of the prosecution’s case, the case against the appellant included several items of circumstantial evidence, among them video tapes and surveillance photographs.
[76] After listing and briefly describing the similarities relied upon by the prosecution in support of its submission that evidence on other counts should be applied on similar act principles to each individual count, the trial judge referred to Arp and Woodcock as the authorities that controlled his decision about admissibility. Neither passage excerpted contains any reference to the general prohibition against using “linkage” evidence in determining the threshold issue of “similarity”.
[77] The appellant does not dispute that “linkage” evidence was relevant, material and admissible to establish that the appellant was a participant in the various incidents with which he was charged. The bait money, some articles of clothing and other items of wearing apparel found in the appellant’s possession within hours of the last incident were items of circumstantial evidence that tended to show the appellant’s participation in at least some of the incidents.
[78] The trial judge approached this case in two steps:
i. Was the appellant the man who demanded and received money from the bank employees on each occasion alleged (the “identity” issue); and ii. If so, what offence did the appellant commit (the “characterization” issue).
[79] In his determination of the “identity” issue, the trial judge relied on the cumulative force of several items of evidence:
i. The testimony of the bank employees and others who gave evidence about preliminary or subsequent conduct; ii. Evidence of bank security camera photographs and comparison of the person depicted there with the appellant’s appearance on surveillance photographs taken in the days preceding the final offence; iii. Evidence of items found in the appellant’s possession, including clothing, other wearing apparel and bait money that offered a general or specific link to one or more offences; and iv. Evidence of similar acts.
[80] To commingle evidence concerning the involvement of an accused in similar acts with evidence of the manner in which the acts were committed in deciding whether the similarity threshold has been met is not always error: Woodcock at para. 81. Further, even if commingling constitutes error, reversal is not always required: Woodcock at para. 82.
[81] The rule against considering both evidence of the manner in which allegedly similar acts were committed and evidence of an accused’s involvement in the acts and determining whether the similarity requirement has been met is a general prohibition, not an unyielding or invariable rule that brooks no exception: Arp at para. 49; Woodcock at paras. 79-80. Sometimes, it is difficult to draw a bright line between similarities in the manner in which an act is committed and an accused’s involvement in that act. To apply a test of whether the objective improbability that an accused’s involvement in the alleged acts is the product of coincidence without any regard to the evidence connecting the accused and the acts seems unduly antiseptic.
[82] In this case, it is not entirely clear that the trial judge used the evidence of the appellant’s involvement in the alleged similar acts in deciding that the acts were sufficiently similar to warrant admission. His discussion of the evidence of the appellant’s involvement occurred in the context of his general review of the evidence implicating the appellant, including the testimony of the bank employees and photographic evidence. In his conclusion on the similar act issue, the trial judge made discrete references to the degree of similarity among the acts and their authorship by the same person. He then turned to the photographic evidence before he concluded:
In reviewing the photos, both the security photos and the surveillance photos, and in considering eyewitness description of the person in the bank, I am satisfied that the defendant appearing before me fits the description given and the photos taken.
In considering the totality of the evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that the accused before the Court is responsible for all four incidents.
[83] This ground of appeal fails.
The “Offence Committed” Ground
The Alleged Error
[84] In his factum, but not in oral argument, the appellant advanced a second ground of appeal.
[85] The appellant contends that the principal offence committed was not robbery, of which he was convicted, but rather theft. The “threats of violence” to which s. 343(a) of the Criminal Code refers may be expressly made, by words or gesture, or appear by a necessary implication from the circumstances in which the offences occurred. No express threatening words were uttered nor gestures made in this case. For a threat of violence to be implied requires evidence to support a finding that an ordinary reasonable person would have felt a threat of violence conveyed in all the circumstances. The appellant says that the evidence is simply incapable of sustaining any such finding.
[86] The respondent agrees that the evidence does not reveal any express threat, by words or gesture, but parts company with the appellant on the availability of an evidentiary foundation to support a finding that a threat of violence could be implied from all the circumstances. In combination, the context in which the appellant confronted each teller with a demand for money, in a bank with no significant customer traffic, coupled with the employee’s reaction is sufficient to support a finding that a threat of violence accompanied the theft.
The Governing Principles
[87] Under s. 343(a) anyone who steals, and in order to extort what is stolen or to prevent or overcome resistance to the theft, uses threats of violence to a person or property commits robbery. A threat of violence may be express, or implied from words or conduct, or from both words and conduct. All the circumstances require consideration: R. v. Sayers and McCoy (1983), 8 C.C.C. (3d) 572, at p. 575 (Ont. C.A.); R. v. Pelletier (1992), 71 C.C.C. (3d) 438, at p. 442 (Que. C.A.).
The Principles Applied
[88] This ground resonates with the sound of a claim that the finding of “threats of violence” was unreasonable. In my view, it was not. A bank. A direct approach to a teller. A demand for money, not a withdrawal slip or any other typical banking document. Conduct designed to intimidate and to instil a sense of fear in its recipient and to ensure compliance with its demand. Such a crime is robbery, not theft.
[89] I would not accede to this ground of appeal.
DISPOSITION
[90] For these reasons, I would dismiss the appeal.
RELEASED: January 27, 2009 “RGJ”
“David Watt J.A.”
“I agree R.G. Juriansz J.A.”
“I agree J. MacFarland J.A.”