R. v. Wolfe-Bard, 2011 ONCA 158

CITATION: R. v. Wolfe-Bard, 2011 ONCA 158

DATE: 20110228

DOCKET: C52127

COURT OF APPEAL FOR ONTARIO

MacPherson, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Wolfe-Bard

Appellant

Brian Snell, duty counsel, for the appellant

Jennifer Woollcombe, for the respondent

Heard: February 9, 2011

On appeal from the conviction entered on February 19, 2010 by Justice Jack Nadelle of the Ontario Court of Justice.

MacPherson J.A.:

A. INTRODUCTION

[1] Andre Wolfe-Bard was convicted of robbery following a one-day trial before Justice Nadelle of the Ontario Court of Justice in Ottawa. The conviction related to an attack on Marie Carriere at about 1:30 a.m. on December 13, 2009 at the front door of her apartment building on Montreal Road in Ottawa.

[2] The principal issue at the trial was the identity of the man who attacked Ms. Carriere. The trial judge rejected Ms. Carriere’s in-dock identification of the appellant. However, he nevertheless convicted the appellant because “this is a case in which there are a large number of facts, that show that it was in fact, the accused, who committed the robbery.”

[3] The appellant appeals the conviction. He contends that the trial judge’s treatment of the evidence, especially the identification evidence, resulted in an unreasonable verdict.

B. FACTS

(1) The parties and events

[4] Marie Carriere was unloading her car in the parking lot of her apartment building on Montreal Road in Ottawa at about 1:30 a.m. on December 13, 2009. She noticed a man walking behind her. As she reached the front door of the building, she noticed the same man running towards her. He grabbed her and said “Give me your keys”. He then grabbed her hand in which she was holding the keys. Ms. Carrier fought back, grabbing her assailant’s shirt, hitting him on the head, and kneeing him in the groin area. The assailant backed away and then left empty-handed.

[5] Ms. Carriere went upstairs to her apartment and told her boyfriend about the attack. Together, they looked out the apartment window and Ms. Carriere saw the same man in the parking lot of the church next to the apartment building’s parking lot. The boyfriend called the police.

[6] The police arrived at the apartment shortly after the call. Ms. Carriere provided a description of her assailant. The police officer at the scene, Constable Quintonea, broadcast a description of the assailant, summarized by the trial judge as: “white male, baggy clothes, intoxicated”.

[7] Sergeant Josh Pulfer was in his cruiser on Montreal Road when he heard the broadcast description of a man involved in a robbery and attempted car-jacking. Almost immediately, he saw a man fitting this description walking on the sidewalk on Montreal Road. Sergeant Pulfer pulled over and started to talk to the man, who identified himself as Justin Bard.

[8] As they were talking, Constable Quintonea gave an updated description of the suspect, which Sergeant Pulfer recalled as: “white male in his 20’s, wearing light blue jeans, a baggy dark hoody sweater with some sort of pattern and he had some facial hair.” Sergeant Pulfer was of the view that this description matched the man to whom he was speaking.

[9] Constable Adrian Benjamin arrived in a second police cruiser. The suspect became belligerent. The officers formally arrested him shortly after he was first observed at 2:03 a.m. The officers searched the suspect and discovered that his name was Andre Wolfe-Bard. The scene of the arrest was just under one kilometer from the scene of the attack.

(2) The trial

[10] The appellant was charged with robbery and obstruction of a peace officer. The Crown called three witnesses – Ms. Carriere and Officers Pulfer and Benjamin. The defence called one witness, the accused’s mother, Nicole Bard, who essentially testified that she saw her son on the street about seven hours before the attack at which point he was wearing an orange, not a dark, hoody.

[11] At the conclusion of the evidence, the trial judge, without objection from the Crown, did not call on counsel to make submissions on the obstruction charge because “[t]here’s no evidence of obstruction” and acquitted the accused on that charge.

[12] On the robbery charge, the principal issue was identity. The trial judge rejected the complainant’s in-dock identification of the accused, saying that “it would be very dangerous to convict” on this basis. He also said that the complainant’s in-dock identification “was also quite tainted by her viewing of his picture on Facebook a day or two after the robbery.”

[13] However, the trial judge continued:

However, this is a case in which there are a large number of facts, that show that it was in fact, the accused, who committed the robbery. I have already mentioned a number of them; the clothing description matched that of the accused, as did the facial hair description and the drunkenness and drunken walk. Add to the above, the accused was the only pedestrian in the area at 2:03 a.m., the accused was a short distance from the site of the robbery when arrested, the accused had a fresh cut on the top of his right hand, which could very well have occurred in the struggle with Ms. Carriere over her car keys. It is an inference I think that could very well be made in the particular circumstances of this case. There was only a brief period from the time of the robbery to the time of the arrest.

Based on all the evidence in this case, I find the Crown had proven guilt beyond a reasonable doubt and the accused will be found guilty.

[14] The trial judge imposed a sentence of 302 days imprisonment, with credit for 148 days of pre-trial custody, two years’ probation, a lifetime firearm prohibition and a DNA order.

C. ISSUE

[15] The appellant contends that his conviction for robbery was an unreasonable verdict because the trial judge did not deal properly with the identification evidence.

D. ANALYSIS

[16] The general framework within which a submission of unreasonable verdict must be considered was set out by Arbour J. in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36:

The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows:

[C]urial review is invited whenever a jury goes beyond a reasonable standard. . . . [T]he test is ‘whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered’.

(Yebes, supra, at p. 185 (quoting Corbett v. The Queen, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).)

That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to a subjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test.

[17] In the context of appellate review of a verdict in a judge alone trial, Arbour J. further defined the task for the reviewing court, at para. 37:

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

[I]n trials by judge alone, the court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law, and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.

[18] There is no doubt that there were several important similarities between the complainant’s description of her assailant and the suspect detained by the two police officers a half-hour after the attack. Three examples come immediately to mind – some facial hair, light-coloured blue jeans, and intoxicated condition.

[19] However, in spite of these similarities, there were several discrepancies between the complainant’s description of her assailant and the appellant which, I say with respect, the trial judge dealt with improperly. In addition, the trial judge erred in his treatment of significant contextual factors, namely, time and place.

[20] First, and by far most importantly, there was a striking contrast between the size attributed to her assailant by the complainant and the appellant’s size.

[21] In her statement to the police immediately after the attack, the complainant, who was 5'6'' in height, described her assailant as 5'6'', maybe 5'8''. In her evidence at the trial, she said that she had reconsidered this description and that the assailant was “more than that” and “more than” 5'8'', although she did not specify a new height figure. The complainant also testified that “I don’t have the impression that he was a very big muscular guy…I didn’t get the impression that he was too big, no.”

[22] In contrast, Sergeant Pulfer, who is 6' or 6'1'', recorded in his note book that the suspect was approximately 5'11''. In his trial testimony, in examination-in-chief, he said that the suspect was 5'11'' or 6'. In cross-examination, he testified that “I’m about 6'1''” and “I do recall him being kind of, either the same height as myself or a bit taller.” Sergeant Pulfer also testified: “Thinking back now I recall getting out of my car and looking at him and thinking, he’s a big kid.”

[23] Constable Benjamin testified in examination-in-chief with respect to the suspect’s height: “Based on memory it was probably six foot, 6'1'' about.” In cross-examination his testimony was:

Q. Okay. And how tall are you, sir?

A. About 6'3'', 6'4''.

Q. Okay. And do you recall the height of Mr. Wolfe- Bard?

A. Yeah. He was a little bit shorter than me.

Q. So was he close to your height?

A. Yeah, I said about 6'1'', 6'2''.

Q. Okay. If I’m going to suggest to you that he was 6'3'', is that a fair assumption? Does that….

A. I would assume, yeah.

Q. Okay.

A. He was a fairly tall gentleman.

[24] Finally, Nicole Bard, the appellant’s mother, testified that her son was 6'2'' tall.

[25] In his reasons for judgment, the trial judge referred to the complainant’s description in her police statement of the assailant as being 5'6'', maybe 5'8'' and to her testimony “that on further consideration, she felt he was taller than five foot eight”. Later he said:

With respect to the discrepancy in her initial height estimate and the accused actual height, again, she was under great stress and was in the midst of fighting off her attacker.

[26] The trial judge’s explanation that the complainant’s ability to observe may have been compromised by the circumstances of the attack was entirely reasonable. However, in my view, the discrepancies in evidence with respect to the assailant’s and appellant’s height and size are simply too pronounced to be set aside on this laconic basis. The simple fact is that the complainant never put her assailant’s height at anything approximating 6' whereas both police officers described the appellant as about, and even well above, 6'. This is a large difference. Further, the complainant did not regard her assailant as a big guy, whereas that is precisely how Sergeant Pulfer described him.

[27] Second, there are two important discrepancies in the testimony relating to the clothing worn by the assailant and the appellant on the night in question.

[28] The complainant testified that her assailant was wearing a dark coloured hoody or a hooded sweater. Sergeant Pulfer testified that the suspect was wearing a dark coloured hoody. However, Constable Benjamin testified that the suspect was wearing a hoody and an outer jacket. The trial judge inaccurately described the complainant’s testimony as “the hood seemed to be the same colour as the outer sweater or coat”; in fact, the complainant said that the assailant wore only a hoody, with no additional outerwear.

[29] In addition, although perhaps more minor in nature, the complainant said that the assailant wore a baseball cap and the suspect was wearing a baseball cap. However, the complainant described the cap as dark, while Sergeant Pulfer testified that the suspect’s cap was “a light kind of brown/white” and Constable Benjamin described it as a “beige multi colour” cap.

[30] The trial judge said this about the clothing: “The description Ms. Carriere did give of the clothing, did pretty well match the clothing of the accused when arrested.” With respect, in light of the above discrepancies, I do not think this is an accurate conclusion.

[31] Turning to context, the trial judge included in his recitation of the facts that supported a conviction “the accused was the only pedestrian in the area at 2:03 a.m.” and “the accused was a short distance from the site of the robbery when arrested”. In my view, the fact that the suspect was detained about a half-hour after the attack, that he was almost a kilometer away from the site of the attack, and that the suspect was on Montreal Road in the City of Ottawa (albeit, admittedly, at 2:03 a.m. on a December night) suggest a need for caution in linking the assailant at the apartment building at 1:30 a.m. and the appellant almost a kilometer away on a major street a half-hour later.

[32] Taken together, these problems amount to, in the language of Biniaris, “a flaw in the evaluation of the evidence”. I do not reach this conclusion lightly in a case where the trial judge provided full reasons for his decision and where the evidence established important similarities between the complainant’s description of her assailant and the appellant when he came in contact with the police a half-hour later. However, in the end, the discrepancies between the assailant and the appellant, especially the substantial one relating to height, and the shift in time (about 30 minutes) and place (almost a kilometer) in a large city lead me to the reluctant conclusion that the conviction in this case was unreasonable.

E. DISPOSITION

[33] I would allow the appeal and enter a verdict of acquittal on the charge of robbery.

RELEASED: FEB 28 2011 (“J.C.M.”)

“J. C. MacPherson J.A.”

“I agree. R. A. Blair J.A.”

“I agree. Paul S. Rouleau J.A.”