Her Majesty the Queen v. Powell [Indexed as: R. v. Powell]
99 O.R. (3d) 671
Court of Appeal for Ontario,
Laskin, Gillese and Juriansz JJ.A.
February 9, 2010
Criminal law -- Appeals -- Crown appeal against acquittal -- Question of law alone -- Accused charged with offences arising from attacks on eight sex-trade workers -- Only evidence connecting accused to offences was identification evidence of three of eight victims -- Trial judge admitting evidence of three identifying witnesses as similar fact evidence capable of proving identity in all other counts -- Trial judge acquitting accused on basis of reasonable doubt due to frailties and unreliability of identification evidence -- Crown appealing arguing that evidence so overwhelming that only reasonable verdict was conviction -- Assessment of reliability and weight to be given to identification evidence for trier of fact to assess -- Weight to be given to similar fact evidence is within fact-finding role of trial judge -- Appeal not raising questions of law alone -- Crown unable to appeal unreasonable acquittal -- Crown appeal dismissed.
The accused was charged with offences arising out of attacks on eight sex-trade workers. Other than the identification evidence of three of the eight victims, there was no evidence connecting the accused to any of the offences. The trial judge granted the Crown's application to have the evidence relating to each of those three victims admitted as similar fact evidence capable of proving the identity of the [page672] assailant in all of the other counts. The trial judge found that the identification evidence was fraught with frailties and concluded that the Crown had failed to prove the accused's guilt beyond a reasonable doubt on each charge. The Crown appealed.
Held, the appeal should be dismissed.
The Crown's right of appeal from an acquittal under s. 676(1) (a) of the Criminal Code, R.S.C. 1985, c. C-46 is limited to grounds that involve a question of law alone. Section 676(1)(a) does not provide the Crown a right of appeal from an unreasonable verdict. The proposition that the total absence of a foundation for a finding of fact is an error of law generally has no application to a trial judge's conclusion that there is reasonable doubt. As the accused does not have to prove the existence of reasonable doubt, no particular evidence to support the finding of reasonable doubt is necessary. In this case, the Crown was attacking the trial judge's assessment of the credibility, reliability and weighing of the evidence, including the circumstantial similar fact evidence. The appeal did not raise questions of law alone. The court was without jurisdiction to entertain an appeal on those grounds.
APPEAL by the Crown from the acquittal entered by Ducharme J., [2007] O.J. No. 4196, 2007 45918 (S.C.J.).
Cases referred to R. v. Schuldt, 1985 20 (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76, 24 D.L.R. (4th) 453, 63 N.R. 241, [1986] 1 W.W.R. 673, 38 Man. R. (2d) 257, 23 C.C.C. (3d) 225, 49 C.R. (3d) 136, 15 W.C.B. 339, revg 1983 3758 (MB CA), [1983] M.J. No. 142, 23 Man. R. (2d) 75, 10 W.C.B. 197 (C.A.); R. v. Sunbeam Corp. (Canada) Ltd., 1968 33 (SCC), [1969] S.C.R. 221, [1968] S.C.J. No. 94, 1 D.L.R. (3d) 161, [1969] 2 C.C.C. 189, 56 C.P.R. 242, apld Other cases referred to R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, J.E. 98-2397, 114 B.C.A.C. 1, 58 B.C.L.R. (3d) 18, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1, 40 W.C.B. (2d) 196; R. v. Lampard, 1969 695 (SCC), [1969] S.C.R. 373, [1969] S.C.J. No. 3, 4 D.L.R. (3d) 98, [1969] 3 C.C.C. 249, 6 C.R.N.S. 157; R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1, 44 D.L.R. (4th) 385, 82 N.R. 1, J.E. 88-220, 26 O.A.C. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1, 31 C.R.R. 1, 3 W.C.B. (2d) 332 Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(h) Criminal Code, R.S.C. 1985, c. C-46, s. 676(1) [as am.], (a) [as am.]
Christopher Webb, for appellant. Ian R. Smith, amicus curiae for respondent.
The judgment of the court was delivered by
[1] JURIANSZ J.A.: -- This is a Crown appeal. The respondent was acquitted after his trial by judge alone of eight counts of robbery with a handgun, four counts of sexual assault with a weapon, two counts of wearing a disguise with intent to commit an indictable offence and one count of uttering death threats. [page673]
[2] When the Crown filed its notice of appeal, the respondent's whereabouts were unknown. This court made orders dated May 25, 2007 and May 9, 2008 permitting substituted service on him. On September 3, 2008, the court appointed Mr. Ian R. Smith, amicus curiae, to respond to the appeal. On September 24, 2009, the respondent was personally served with a letter from Crown counsel informing him of the Crown's appeal, the appointment of amicus curiae and the time and place of the hearing of the appeal. He has not responded in any way.
[3] The charges against the respondent arose out of a series of attacks on sex-trade workers in Toronto and Mississauga between February 27, 2004 and April 9, 2004. The only live issue at trial was the identity of the assailant. Other than the identification evidence of three of the eight victims, there was no evidence connecting the respondent to any of the offences. The trial judge found that the identification evidence was fraught with frailties and concluded that the Crown had failed to prove the respondent's guilt beyond a reasonable doubt on each charge.
[4] The Crown's appeal under s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 ("Criminal Code") is limited to questions of law alone. I would dismiss this appeal because the Crown, in essence, seeks to have this court consider the reasonableness of the trial judge's verdict.
[5] In his 27 pages of reasons, the trial judge reviewed and analyzed the evidence and stated the principles of law he was applying. None of his findings of fact and credibility can be disturbed absent an error of law alone. It is necessary to review only enough of the factual background to explain why this court is without jurisdiction to entertain the Crown's appeal. In my review of the factual background, I include relevant excerpts of the trial judge's findings and reasoning.
A. Factual Background
(i) The charges against Mr. Gregory Anthony Powell
[6] The charges arose out of six separate incidents involving eight victims. In each incident, the assailant set up an appointment to meet a sex-trade worker in the apartment or hotel where she worked. The assailant either wore a mask or, on entering, acted quickly to wear a mask, giving his victim little time and opportunity to see his face.
[7] The respondent was identified as a suspect after investigators consulted with Corrections Canada. The assailant had told one of the victims that he had recently been released from penitentiary. The victim had smoked crack cocaine with him. [page674] Investigators asked Corrections Canada for the identities of large black men, known to smoke crack cocaine, who had recently been released from penitentiary. Corrections Canada provided the respondent's name. He was charged when three of the eight victims, H.S., M.V. and T.D., picked him out of photo lineups.
[8] The trial judge made two pretrial rulings. First, he granted the Crown's application to have the evidence relating to each of these three victims admitted as similar fact evidence capable of proving the identity of the assailant in all of the other counts. In the second ruling, he refused to allow the Crown to introduce, as post-offence conduct, evidence that Mr. Powell had turned in a gun to the police.
[9] At trial, the Crown had conceded that unless the trial judge found Mr. Powell to be the assailant of at least one of the three victims who testified at trial purporting to identify him, he had to acquit him of all charges. After reciting this concession, the trial judge reviewed and analyzed the evidence of each of the three victims and then indicated he had also considered the evidence cumulatively.
(ii) The offences involving H.S.
[10] On March 19, 2004, H.S. received a call from a man who booked an appointment. When the man arrived, H.S. briefly looked through the peephole to see a black man with his face turned sideways. After opening the door, H.S. again briefly looked at the man. She noted his hair was braided into small braids close to his head.
[11] After walking in, the man bolted for the bathroom. When he came out he was wearing a mask that covered his face from the cheekbones down and he was carrying a gun. He shut off every light in the apartment and kept the mask on until he left the apartment. The assailant then demanded and received money from H.S., explaining he was robbing her because he was a crack cocaine addict. In an apparent attempt to gain his confidence, H.S. smoked crack cocaine with him. The assailant then sexually assaulted her. H.S. recalled the assailant telling her that he had just finished doing "seven years in the pen". After the sexual assault, the assailant put her on the bed and told her to wait half an hour, during which he rummaged through the apartment before leaving.
[12] The trial judge found that H.S. had very limited opportunities to observe the assailant's face. He was troubled by many aspects of H.S.'s evidence: she had given inconsistent descriptions of her assailant; she admitted to exaggerating details; her [page675] ability to observe her assailant was impaired by her use of heroin and crack cocaine before and during the attack. He was further troubled by the fact that H.S. had intentionally downplayed the effects of having been high on drugs during her videotaped police interview in order to enhance her value as a witness.
[13] H.S. picked Mr. Powell out of a photo lineup on two occasions: July 11 and July 13, 2004. The trial judge found [at para. 26] H.S.'s identification of Mr. Powell was "tainted by a seriously flawed pretrial identification process". He found that in both photo arrays, Mr. Powell was the only one who had his hair braided in the way H.S. had described to the police. For these and additional reasons, including his finding that H.S. was a "less than honest" witness, the trial judge rejected [at para. 27] H.S.'s identification evidence as "completely and utterly unreliable".
(iii) The offences involving M.V.
[14] On February 27, 2004, a man came to the apartment of M.V., who was working there with another woman, both sex-trade workers. M.V. briefly saw the man's face through the peephole, noting he was a "black person" and "kind of chubby". After the other woman let the man in, M.V. greeted the man "really fast", directing him to the bedroom. He was wearing a hat that was rolled up on his head. The assailant followed her into the bedroom, and M.V. briefly saw the man's face before he pulled down a balaclava helmet and took out a gun. The assailant then threatened to kill M.V. if she did not give him money. After she had handed him some hidden cash, he instructed her to kneel down as he was leaving the apartment. M.V. testified that she saw the assailant "better" as he took off his mask at one point. By the time he left, M.V. estimated he was in the apartment for about 15-20 minutes.
[15] M.V. picked Mr. Powell out of a photo lineup. The trial judge rejected her testimony. He noted her limited opportunity to view her assailant's face. He found there were serious inconsistencies in her evidence about the assailant's physical characteristics and what he was wearing. He found [at para. 36] these inconsistencies were not the "result of honest confusion". After reviewing in detail the inconsistencies in M.V.'s testimony that the assailant had rolled up his mask, he found it was a lie. She also admitted she had lied at the preliminary inquiry. While the pretrial identification process in which M.V. participated was not itself biased, the trial judge found that she could not explain why she chose Mr. Powell out of the photo lineup. He further observed that her very generic description of the assailant could implicate a very large class of people. [page676]
[16] He concluded that M.V.'s evidence that Mr. Powell was the man who attacked her was "far from satisfactory" and did not even meet the standard of a balance of probabilities.
(iv) The offences involving T.D.
The events of March 12, 2004
[17] On March 12, 2004, T.D. received calls from a man posing as a client. When T.D. opened the door to let the man in upon his arrival, she briefly saw the man's face and noticed he was wearing a black toque. The man walked in and T.D. followed behind him. When he turned around he was wearing a black ski mask and holding a gun. T.D. recalled his hand was big around the gun. She described his hands as thick with long fingers and a longer thumb. When he demanded money, T.D. gave him some money and again looked at him. The man repeatedly asked T.D. to undress, which she refused to do. He left after about 15-20 minutes.
The events of April 9, 2004
[18] On April 9, 2004, T.D. was in a motel room with R.B., another sex-trade worker. R.B. received a call on her cellphone from a man posing as a client. Later T.D. opened the door for a man she believed to be R.B.'s client. T.D. was looking at the man's chest and told him that it was not her that he was looking for, but R.B. The man said, "You know who I am; you know why I'm here." When T.D. heard his voice and looked up, she realized it was the same man who had robbed her in March. The assailant was not wearing anything on his head and T.D. could see his face. Pointing a gun at her chest, the assailant pushed his way in, with T.D. walking backwards. Once inside, the assailant covered his face from just below his eyes with a scarf or mask. He demanded money from the women, and T.D. gave him some cash. Before leaving the motel room, he hit T.D., causing her to fall on the floor. T.D. said she knew it was the same person who had robbed her in March because "he was silly enough to show [her] his face twice" .
[19] T.D. identified Mr. Powell from a photo lineup. The trial judge rejected her evidence. He "flatly rejected" her testimony about the extent of her opportunity to see the assailant's face as exaggeration. He set out several additional reasons for regarding her evidence with caution. Her testimony was inconsistent and her story had changed over time. She was not reliable as a witness. Her description of the assailant conflicted with that given by R.B., who was also in the room at the time. Significantly, the [page677] trial judge found that a lawyer working with the Crown had told her that other witnesses had also picked Mr. Powell out of the lineup. This had irreversibly tainted her identification and his confidence in it. The trial judge made an adverse finding about T.D.'s credibility. He found that her evidence fell "far short of proving" that Mr. Powell was the assailant.
[20] In his assessment of the evidence of all three witnesses, H.S., M.V. and T.D., the trial judge indicated that he had considered the other factors that according to the Crown corroborated the accuracy of their identification. He found that these other factors did not offset the frailties of the three witnesses' identification evidence.
(v) Background of Mr. Gregory Anthony Powell
[21] Mr. Powell was born on February 7, 1976, and was 28 years old at the time of the offences. In his police interviews, he stated he was 5'10" and weighed about 230 pounds. The police file recorded a "jagged scar" on the back of his right wrist. Mr. Powell had a criminal record, including five previous convictions for various narcotics-related offences. A few months before the incidents in question, Mr. Powell was released from federal penitentiary where he had served a three year and seven month sentence. On August 5, 2004, Mr. Powell was arrested and charged with these offences. On April 6, 2005, he was placed on judicial interim release. On May 7, 2005, Mr. Powell was arrested and charged with, among other things, a count of possession of cocaine for trafficking. In exchange for a favourable bail consideration on that charge, Mr. Powell indicated to the police he could have access to a gun, and later turned one in to the police.
Issues
[22] Instead of relying on the issues in its factum, the Crown in oral argument submitted that the appeal raised the following six issues: (1) the trial judge erred in finding that the reliability of the identification evidence of the witness T.D. was irreversibly tainted; (2) the trial judge erred in considering the extraordinary improbability that three separate complainants would identify the respondent in error; (3) the trial judge failed to provide sufficient reasons in regard to how he directed himself as to how probative value is derived from similar act evidence; [page678] (4) the trial judge erred in describing the evidence of T.D. as generic, and his discounting it on the basis that it was generic reflects a misapprehension of the evidence that rises to the level of a clear and palpable overriding error; (5) the trial judge erred in finding that the assailant's declarations regarding his release from the penitentiary and that he was a crackhead were completely incapable of offsetting the frailties of the identification evidence; and (6) if a new trial is ordered, that the trial judge erred in excluding evidence of the respondent's access to handguns on the basis that its prejudicial effect outweighed its probative value.
[23] At the outset of the Crown's argument, the court raised the question whether the above grounds involve questions of law alone. As the argument unfolded, the Crown reframed the second issue as whether the trial judge erred by using the "anchor" approach to the similar fact evidence, which the Supreme Court has disapproved. I find it necessary to address only whether the grounds of appeal advanced involve questions of law alone, and whether the trial judge erred in his approach to the similar fact evidence.
B. Analysis
(i) The Crown's limited right of appeal
[24] Section 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 ("Criminal Code") provides:
676(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal (a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone; (Emphasis added)
[25] In providing the Crown with a right to appeal from an acquittal, s. 676(1) does not offend the Canadian Charter of Rights and Freedoms guarantee against double jeopardy, [See Note 1 below] but its [page679] limited nature must be recognized. Its limited nature compared to the broader right of appeal the Criminal Code provides for appeals from conviction was emphasized by Ritchie J. in R. v. Sunbeam Corp. (Canada) Ltd., 1968 33 (SCC), [1969] S.C.R. 221, [1968] S.C.J. No. 94. Writing for the majority, he observed, at para. 31:
Parliament has thus conferred jurisdiction on the Court of Appeal to allow an appeal against a conviction on three separate grounds, one of which is the very ground upon which the Court of Appeal allowed the present appeal, i.e., that "the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence". The fact that s. 592(1)(a) recognizes this ground as being separate and distinct from "the ground of a wrong decision on a question of law" appears to me to be the best kind of evidence of the fact that Parliament did not intend the phrase "a question of law" as it is used in the Code to include the question of whether the verdict at trial was unreasonable or could not be supported by the evidence. It is noteworthy that having accorded the Court of Appeal jurisdiction to hear appeals against conviction on the ground that the verdict was unreasonable, Parliament did not confer the same jurisdiction on that Court in appeals by the Crown. (Emphasis added)
[26] It is clear, then, that s. 676(1)(a) does not provide the Crown a right of appeal from an unreasonable acquittal. Richie J. went on to hold that the Court of Appeal in Sunbeam had "exceeded its jurisdiction by allowing this appeal on a ground reserved for appeals against conviction which does not extend to appeals by the Attorney General".
[27] The grounds raised by the Crown in this case relate principally to the trial judge's treatment of the evidence before him. In fact, the fourth ground, that the trial judge's misapprehension of the evidence rises to the level of palpable and overriding error, is phrased as an attack on unreasonable factual findings. Indeed, the Crown expressly conceded it took no issue with the principles of law that the trial judge set out in his reasons and said he was applying. Clearly then, the Crown's appeal must be examined to ensure that it raises grounds that may be properly characterized as questions of law alone.
[28] What is "a question of law alone" has been considered by the Supreme Court of Canada on several occasions. Especially helpful is the Supreme Court's decision R. v. Schuldt, 1985 20 (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76. It is helpful not only because it reviews earlier decisions including Sunbeam, cited above, but also because it deals with the argument that there must be a factual foundation for a trial judge's finding that reasonable doubt exists. That argument that there must be some factual foundation for a trial judge's finding that reasonable doubt exists relies on the established proposition that it is an error of [page680] law to make a finding of fact in the face of a complete absence of evidence to support it.
[29] In Schuldt, a trial judge, sitting without a jury, acquitted the accused of attempting to break and enter with intent to commit an indictable offence despite what the Manitoba Court of Appeal later considered to be unquestionable evidence of his guilt. A divided Manitoba Court of Appeal allowed the Crown's appeal: R. v. Schuldt, 1983 3758 (MB CA), [1983] M.J. No. 142, 23 Man. R. (2d) 75 (C.A.). The majority's decision was based on the view that the evidence was not capable of creating any doubt as to the accused's guilt and so it was an error of law to acquit. Hall J.A., writing for the majority, remarked, at para. 5: "In the present case, I do not think the evidence is capable of creating any doubt as to the guilt of the accused." He also stated [at para. 3]:
To entertain any doubt on the issue of intent is, in my opinion, not reasonable but fanciful and quite out of touch with the reality of the case. There must be a factual foundation upon which to have reasonable doubt, and it simply does not exist in the present case. (Emphasis added). Even Huband J.A., in dissent, unequivocally stated he would have convicted had he been the trial judge.
[30] The Supreme Court of Canada reversed the Manitoba Court of Appeal and restored the acquittal. Lamer J. (as he then was) wrote for the unanimous court. He began by expressing his concerns about the principle of double jeopardy embodied in s. 11(h) of the Charter, noting the carefully circumscribed parameters for allowing a Crown appeal from an acquittal. He stressed that Canadian jurisprudence restricts the scope of appeal from a verdict of acquittal to a question of law.
[31] Lamer J. then turned to the argument that there was no factual foundation on which the trial judge could have properly based a finding of reasonable doubt. He recognized the general proposition that the total absence of a foundation for a finding of fact is an error of law, but pointed out there remained the question as to the circumstances under which a finding could properly be made that there is a total absence of evidence. It is unnecessary to review his careful exposition of the earlier cases upon which the Crown relied. Suffice it to say that he concluded that the proposition that the total absence of a foundation for a finding of fact is an error of law generally has no application to a trial judge's conclusion that there is reasonable doubt. As the accused does not have to prove the existence of reasonable doubt, no particular evidence to support the finding of reasonable doubt is necessary and the proposition does not apply. [page681]
[32] Lamer J. explained there is but one exceptional circumstance where an evidentiary basis is required to acquit. That is where the law provides for a presumption and places a burden on the accused to displace it. In such a case, it is an error of law to acquit in the face of the presumption. The trial judge commits an error of law by finding reasonable doubt in the absence of any evidence to support the displacement of the presumption. His conclusion, at para. 39, is clear and succinct:
In other words, absent a shifting of the burden of proof upon the accused there is always some evidence upon which to make a finding of fact favourable to the accused, and such a finding, if in error, is an error of fact.
[33] This is a long-standing proposition. Lamer J. pointed out that Cartwright C.J.C. had said essentially the same thing earlier in R. v. Lampard, 1969 695 (SCC), [1969] S.C.R. 373, [1969] S.C.J. No. 3, at p. 381 S.C.R.:
In a criminal case (except in the rare cases in which a statutory provision places an onus upon the accused) it can sometimes be said as a matter of law that there is no evidence upon which the Court can convict but never that there is no evidence on which it can acquit; there is always the rebuttable presumption of innocence.
[34] Lamer J. also reiterated observations that Ritchie J. had made in Sunbeam. Ritchie J., on his review of the jurisprudence, had found there was no authority "for the proposition that in an appeal against a judgment of acquittal under . . . the Criminal Code 'a question of law alone' is involved whenever a reviewing court is of opinion that the finding of the trial judge was unreasonable and improper having regard to the evidence". In Sunbeam, Ritchie J. had gone on to express his concern that if the phrase "a question of law alone" were construed in that way, it would enlarge the meaning of the phrase "a question of law" as it occurs in other sections of the Criminal Code and that such an interpretation would "[broaden] the scope of appellate jurisdiction under the Criminal Code beyond the limitations which are stipulated in the express language of the Code itself".
The jurisprudence applied to this case
[35] Counsel for the Crown explained that the Crown's case at trial rested on three pillars. The first pillar was the evidence of the witness T.D., who was robbed twice by the assailant and saw his face on both occasions. Counsel for the Crown submitted that standing by itself, this evidence was capable of proving identity, particularly in the context of all the other evidence. He argued that the trial judge lacked the evidentiary foundation to find that it was irreversibly tainted. [page682]
[36] The second pillar was the accumulation of characteristics of the assailant described by the various witnesses that the respondent also possessed. These included the facts that the assailant had claimed to have been recently released from prison, that he used crack cocaine, that he could speak with both a Jamaican and a "white" accent, that he had bulging eyes and that he had large hands and long thumbs. The third pillar of the Crown's case was the high degree of improbability of coincidence in three different victims each identifying Mr. Powell as the assailant.
[37] The thrust of the Crown's argument was that its case based on these three pillars was so overwhelming that the only conclusion that could have been reached on the evidence was that Mr. Powell was the assailant. Crown counsel argued that there was no evidence, or at least insufficient evidence, for the trial judge to find there was reasonable doubt. This is precisely the argument that the Supreme Court rejected in Schuldt and Sunbeam. The Crown's corollary argument that the evidence was so probative that it had to result in conviction is simply a different phrasing of the argument that there was no evidence to support a finding of reasonable doubt.
[38] Much of the Crown's development of the issues it identified amounts to little more than an attempt to persuade this court to take a different view of the evidentiary record than the trial judge. Crown counsel went so far as to invite this court to make its own assessment of the evidence, submitting that this court's visual examination of the photographic and video exhibits would persuade it that Mr. Powell's large hands and long thumbs uniquely matched the description of the assailant's hands and thumbs.
[39] The assessment of the reliability of identification evidence and weighing it against evidence that might undermine it is within the fact-finding province of the trial judge. Moreover, similar fact evidence is circumstantial evidence and the weight to be attributed to it is also a question for the trier of fact. As Cory J.A. said in R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, at para. 72:
Similar fact evidence, on the other hand, as circumstantial evidence, must be characterized differently, since, by its nature, it does not carry the potential to be conclusive of guilt. It is just one item of evidence to be considered as part of the Crown's overall case. Its probative value lies in its ability to support, through the improbability of coincidence, other inculpatory evidence. As with all circumstantial evidence, the jury will decide what weight to attribute to it. The mere fact that in a particular case, similar fact evidence might be assigned a high degree of weight by the trier is entirely different from the concept that, by its nature, the evidence has the potential to be decisive of guilt. (Emphasis added) [page683]
[40] It follows that an error in assessing the improbability of coincidence that arises from similar fact evidence is an error of fact. No amount of gerrymandering can elevate the weight the trier of fact attributes to similar fact evidence to a question of law alone. I conclude that the trial judge's finding of reasonable doubt on the whole of the evidence does not involve a question of law alone.
[41] Counsel for the Crown, as his oral argument evolved, advanced an additional issue that went beyond the trial judge's weighing of the similar fact evidence. He argued that the trial judge used an incorrect analytical framework to assess the similar fact evidence and the extraordinary improbability of coincidence that arose from it.
(ii) The trial judge's approach to similar fact evidence
[42] The Crown submitted that in evaluating the similar fact evidence relating to identity, the trial judge improperly used the "anchor" approach that was rejected by the Supreme Court of Canada in Arp in favour of the "pooling" or "cumulative" approach. Cory J. explained the "anchor" approach, at para. 60 of Arp. The "anchor" analysis requires that the trier of fact first find beyond a reasonable doubt that the accused committed one of the allegedly similar offences using only the evidence relevant to that offence before considering the circumstances of that offence as similar fact evidence with regard to the remaining counts.
[43] By contrast, in the "pooling" approach the trier of fact must first conclude on a balance of probabilities that the allegedly similar acts were committed by the same person. This preliminary determination is made without considering evidence of the accused's involvement in each act. Once it is concluded the allegedly similar acts were committed by the same person and there is evidence linking the accused to the acts, the trier of fact may consider all the evidence related to the alleged similar acts in determining the accused's guilt for any one act.
[44] The point of departure of the Crown's argument that the trial judge used the "anchor" approach is his remark near the outset of his reasons that the Crown concedes "that if I am unable to find that the Crown has proven that Mr. Powell was the assailant of at least one of the three victims who purport to identify him, T.D., M.V., or H.S., then I must acquit Mr. Powell of all the charges". The Crown on appeal argues that this comment shows that the trial judge proceeded on the basis that it was necessary that he find the respondent guilty of one of the counts beyond a reasonable doubt before considering the similar fact evidence. However, reading this comment in context, it is clear [page684] that the trial judge dealt with the similar fact evidence precisely in accordance with the approach set out in the Supreme Court's decision in Arp. Further, despite the Crown's attempt on appeal to explain away the position it took at trial, the concession indicated by the trial judge was made unequivocally and without reservations.
[45] In his decision admitting the similar fact evidence, the trial judge indicated that in assessing the similarity of the acts, he should first only consider the manner in which the acts were committed and not the evidence as to the accused's involvement in each act. His analysis makes it evident that he did so.
[46] He recognized that similar fact evidence drew its force from the objective improbability of coincidence. He said:
In assessing the probative value of the similar fact evidence with respect to identity one must keep in mind that similar fact evidence is admitted "on the basis of an objective improbability of coincidence". In other words, are the similarities so marked that the possibility of their being the product of coincidence is objectively improbable?
[47] In support of its application, the Crown had submitted a Chart of Similarities. The chart indicated that in all six attacks the assailant was a "black man" with a "large build". The other 22 similarities set out in the chart related to the manner in which the offences were committed. The defence countered with dissimilarities in how the offences were committed and in the descriptions the victims provided of the assailant. The defence pointed out that:
The assailant's height was described variously as being 5 feet 4 inches, somewhere from 5 feet 10 inches to 6 feet, to 6 feet 4 inches. Similarly, estimates of the assailant's weight varied from 175 pounds, 200 pounds, to between 200 and 250 pounds, to 280 to 285 pounds, to 300 to 350 pounds. Similarly, descriptions of the assailant's skin tone varied in terms of how dark he was.
[48] The trial judge did not view these discrepancies surprising and did not consider them fatal to the Crown's application. He observed that:
The reliability of the victims' observations is understandably undermined by the fact that they are attempting to describe what they saw at a highly stressful time when they were being threatened with a gun. Indeed, the conflicting descriptions given by [the two pairs of witnesses who observed the assailant at the same time] demonstrate that some or all of them are mistaken about what they claim to see.
[49] Therefore, he did not attach "great significance to the differences with respect to the descriptions of the assailant, his clothing, footwear and the mask involved". On the other hand, he recognized that "the description of the assailant as a right-handed, large, black [page685] man is so generic that it could apply to many men in the Greater Toronto Area". The trial judge emphasized as pivotal the similarity that calls from the same cellphone connected the assailant to each of the incidents. He concluded that it was likely that all the acts were committed by the same person.
[50] The trial judge also indicated that in order to make the similar act evidence admissible, there had to be some evidence linking the respondent to the set of similar acts. Quoting Cory J., at para. 54 of Arp, he stated that the link did not have to be proved and it was necessary only that there be "some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused". The trial judge found that the requirement of the link was met in this case "by the fact that T.D., M.V., and H.S. all purport to identify Mr. Powell as their assailant". This satisfied him that there was "'some evidence' linking Mr. Powell to the counts on the indictment that the Crown [sought] to use as similar fact evidence". After concluding that the probative value of the similar act evidence outweighed its prejudicial effect, the trial judge admitted it.
[51] Then, at the outset of his reasons for judgment, the trial judge included a reminder that he had ruled that the Crown could rely on the evidence of the offences involving three of the eight victims who purported to identify the respondent as similar fact evidence capable of proving the identity of the assailant in all of the other counts. In his reasons for judgment, the trial judge again stated that he considered all of the offences to be strikingly similar and that he was satisfied they were likely committed by the same person. The trial judge's summary of the case for the Crown makes clear that he recognized the Crown relied on the coupling of the evidence of H.S. with that of M.V. and T.D. to prove that that Mr. Powell was the assailant in all the offences charged. Following his careful review of the evidence of H.S., M.V. and T.D., the trial judge stated that while he had discussed their evidence in turn, he had also assessed their evidence as part of his cumulative assessment of the evidence as a whole.
[52] The Crown advanced its attack on the trial judge's approach to similar fact evidence focusing on his treatment of the testimony of T.D., M.V. and H.S. The testimony of these eyewitnesses purporting to identify the accused in this case had not been admitted as circumstantial similar fact evidence. Their testimony was direct evidence of identity. No doubt the similar fact evidence was important to the Crown's overall case. However, this particular Crown argument does not rely on the similarity [page686] in the manner in which the different offences were committed to prove the respondent's identity as the assailant based on the improbability of coincidence. Rather, the Crown relies on the improbability that three of the eight victims would all be mistaken in offering direct testimony identifying the same person as the assailant. This is a different kind of improbability of coincidence than considered in Arp.
[53] As noted, the trial judge was amply satisfied by the improbability of coincidence that the identity of the assailant was the same in all six attacks. It was still necessary to link Mr. Powell to the set of attacks beyond a reasonable doubt. The trial judge concluded that the direct evidence of H.S., M.V. and T.D., even considered cumulatively, did not establish that link beyond a reasonable doubt. He said: "While the evidence of T.D., M.V., and H.S. was sufficient to satisfy a link to Mr. Powell for the purposes of the similar fact application, it is not remotely adequate to prove that Mr. Powell committed any of these offences." There was no other evidence linking Mr. Powell to the offences.
[54] The coincidental identification of Mr. Powell by three of the eight victims is potentially highly probative evidence. However, there is no principle of law that direct identification evidence, including the coincidental identification evidence of three witnesses, must be found to be credible and reliable enough to warrant conviction. It was for the trial judge to assess the credibility, reliability and weight to be attached to the direct evidence of the three eyewitnesses who each identified Mr. Powell as the assailant. If he made an error in that regard and mistakenly concluded there was a reasonable doubt in the face of such evidence, it is an error of fact. This court has no jurisdiction to consider whether the trial judge in fact so erred.
D. Conclusion
[55] The presumption of innocence means there is no burden on an accused to place a factual foundation before the trial judge to establish the existence of reasonable doubt. The Crown's appeal, insofar as it attacks the trial judge's assessment of the credibility, reliability and weighing of the evidence, including the circumstantial similar fact evidence, does not raise questions of law alone. This court is without jurisdiction to entertain an appeal on these grounds.
[56] The jurisprudence makes clear that the Crown's appeal, insofar as it attacks the trial judge's finding that there was a reasonable doubt about the identification of the respondent as the assailant, does not raise a question of law alone. [page687]
[57] The trial judge's analysis of the similar fact evidence was entirely consistent with the framework set out in Arp. He explained his analysis clearly and there is no merit to the Crown's argument he failed to provide sufficient reasons about his use of the similar fact evidence.
[58] I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: In R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, [1998] S.C.J. No. 1, the Supreme Court of Canada held that [at para. 206] that the right of the Crown to appeal against an acquittal does not offend the guarantee against double jepopardy in s. 11(h) of the Canadian Charter of Rights and Freedoms. The words "if finally acquitted" and "if finally found guilty" in s. 11(h) of the Charter must be construed to mean "after the appellate procedures have been completed".