COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clouthier, 2012 ONCA 636

DATE: 20120926

DOCKET: C52749

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Paul Clouthier

Appellant

Michael Crystal, for the appellant

Peter Scrutton, for the respondent

Heard: August 23, 2012

On appeal from the conviction entered on March 23, 2010 by Justice Martin S. James of the Superior Court of Justice, sitting without a jury, with reasons reported at 2010 ONSC 1694.

Sharpe J.A.:

[1] The appellant was convicted of robbery and disguise with intent to commit an indictable offence following a judge alone trial in the Superior Court. The offences arose from the robbery of a Mac’s Milk store in Arnprior by a man wearing a balaclava. The sole issue at trial was identity. The appellant’s principal ground of appeal is that in his reasons for conviction, the trial judge failed to give any consideration to evidence that the appellant’s DNA did not match that detected on a balaclava that was found near the scene of the robbery.

FACTS

[2] The Mac’s Milk store clerk testified that a man wearing a balaclava, black gloves and a dark sweatshirt entered the store and asked her to hand over the money in the cash register. The balaclava had only one opening and one eye and half of the robber’s mouth was covered. He exposed the blade of a knife through a hole in the right pocket of his sweater. The clerk thought she recognized the voice of the robber. He had an Ottawa Valley accent and his voice was similar to that of one of her friends. She gave him the money and he left. At that point, another witness was entering the store and saw a gray-clad man wheeling away on a red and black mountain bike.

[3] The appellant admitted that on that night, he was riding a red and black mountain bike that belonged to his mother’s tenant. The appellant testified that he rode the bike to a friend’s apartment and then left the apartment on foot to go buy some cocaine. He encountered the police near the Mac’s Milk and, when asked as to his whereabouts during the evening, he told the police that he had been at his friend’s apartment. The police attended the apartment and saw the bike outside. The appellant later returned to the apartment, rode the bike home and then went back to the apartment. The police also returned to the apartment and asked the appellant if he would accompany them to the police station to make a statement. He agreed to do so.

[4] While the appellant was making his statement, the police brought the store clerk to the station. They placed her in a room with a live audio-visual feed of the room where the appellant was being interviewed. The clerk could hear the audio feed but the police turned the video screen away from the clerk to ensure that she could not and did not see the video feed. They did not tell her why she was there. The clerk heard the appellant’s voice, listened to it for some time and told the officer sitting with her that the voice she could hear was that of the robber. She was then presented with a photo line-up but failed to identify the appellant.

[5] The police seized a gray hoodie with a hole in the right pocket from the friend’s apartment. It was the appellant’s size. The police did not find the knife, the gloves or any of the proceeds of the theft. In the street near the scene of the robbery, a citizen found a purse containing a black balaclava of the same type as that worn by the robber. The police had the balaclava tested for DNA, and the appellant agreed to provide DNA sample. A DNA sample was recovered from the balaclava and tested, but the sample found on the balaclava did not match the appellant’s DNA.

[6] The robbery was recorded on a surveillance tape which showed a man with the appellant’s body type robbing the store. However, the grainy quality of the video and the fact that the robber was wearing a balaclava made it impossible to identify the appellant as the robber.

[7] The appellant testified and denied any involvement in the robbery.

REASONS OF THE TRIAL JUDGE

[8] The trial judge reviewed the evidence at some length in his oral reasons for conviction. He explained why he rejected the appellant’s evidence. He found the appellant’s explanation for his whereabouts on the evening of the robbery to be contradictory and unconvincing.

[9] The trial judge properly instructed himself that even if he rejected the evidence of the appellant, he still had to consider whether it left him with a reasonable doubt and further whether the Crown had proved its case beyond a reasonable doubt on the basis of the evidence that he did accept.

[10] The trial judge found that there was sufficient evidence to establish the appellant’s guilt beyond a reasonable doubt. He referred to the following evidence:

• the body shape and proportions of the robber matched that of the appellant;

• the voice identification evidence, about which he observed “I have not attributed great weight to the voice identification evidence, but it is one of several pieces of evidence that I have considered”;

• the bicycle ridden that evening by the appellant matched the description of the bicycle used by the robber; and

• the sweatshirt found at the appellant’s friend’s apartment matched the sweatshirt worn by the robber.

[11] The trial judge made no reference to the evidence that a balaclava of the same type and description as that worn by the robber was found near the scene and that a DNA sample found on the balaclava did not correspond to that of the appellant.

ISSUES

(1) Did the trial judge err by failing to address certain aspects of the evidence?

[12] In the circumstances of this case, the failure of the trial judge to address the significance of the DNA evidence is highly problematic. The Crown offered some evidence pointing to the appellant as the robber, but the Crown’s evidence was far from compelling. While the evidence of the DNA on the balaclava did not conclusively demonstrate the appellant’s innocence, it was a significant piece of evidence that potentially exculpated the appellant and it therefore deserved some consideration by the trial judge.

[13] The robbery took place on an October evening when one would not expect to see or find a balaclava. This made it more probable that the balaclava found near the scene was the same one worn by the robber. The balaclava covered part of the robber’s mouth making it possible that the robber would have deposited DNA on the balaclava.

[14] In my view, the trial judge erred in law by failing to explain why the DNA and balaclava evidence did not raise a reasonable doubt as to the appellant’s guilt.

[15] Another element in the evidence not dealt with by the trial judge was the store clerk’s evidence as to the height of the robber. She testified that she is five feet five inches tall and that she was standing on a six inch platform behind the counter. From that perspective, she was face to face with the robber and she estimated that he would have appeared an inch or less than an inch taller than her while she stood on the six-inch platform. This suggests that the robber could have been approximately six feet tall. The appellant is five feet seven or eight inches tall. The point was not emphasized by defence counsel in his closing submissions but it was mentioned and was clearly raised in the evidence.

[16] While trial judges are not required to make reference to every piece of evidence, there is a duty to consider the evidence in its entirety, not simply the evidence that inculpates the accused. In my view, the failure to deal with two items that tended to exculpate the appellant - the balaclava and the evidence as to the height of the robber - amounts to an error of law sufficient to justify setting aside these convictions.

(2) Voice identification evidence

[17] While my conclusion as to the first issue is sufficient to warrant setting aside the convictions and ordering a new trial, I will briefly mention the argument advanced on behalf of the appellant relating to the voice identification evidence. The merit of this argument fortifies my conclusion that these convictions cannot stand.

[18] While the trial judge recognized certain frailties in the voice identification evidence, he did consider it to be evidence deserving “some consideration” and he clearly gave it some weight in reaching the conclusion that the Crown had proved its case beyond a reasonable doubt.

[19] This court has held on several occasions that voice identification evidence, like any identification evidence, ought to be treated with extreme caution: see R. v. Quidley, 2008 ONCA 501, 232 C.C.C. (3d) 255, at para. 36; and R. v. Portillo (2003), 2003 CanLII 5709 (ON CA), 176 C.C.C. (3d) 467, at paras. 41-43 (Ont. C.A.). See also HMTQ v. Savoy, 2000 BCSC 296, 46 W.C.B. (2d) 67.

[20] The voice identification evidence in this case had very little, if any, value. The robber said only a few words to the store clerk and she did not have an extended opportunity to hear the robber’s voice. She thought she might have served him before but she had no significant history of conversing with the robber on other occasions. She gave the fact that the robber had an Ottawa Valley accent as an identifying feature, yet this robbery occurred in a place where such an accent is commonplace.

[21] In R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419, at p. 453, Charron J.A. stated that “it is crucial that procedures which tend to minimize the inherent dangers of eyewitness identification evidence be followed as much as possible in any given case.”

[22] The procedure used to obtain the voice identification in this case was seriously flawed. The store clerk was presented with only one voice to identify, instead of a selection of voices in the form of a “voice line-up”. The identification took place at the police station, immediately after the robbery, when the clerk listened to the appellant being questioned by the police for about forty minutes. Despite that she was given no instructions about the interview on the audio feed, one of the officers admitted: “I think she knew what he was talking about”. These circumstances give rise to a serious risk that that the store clerk might have surmised that she was listening to a suspect in the robbery being questioned, although I acknowledge that she testified that she did not know why the suspect was being questioned.

[23] As the appellant does not submit that the voice identification evidence should have been excluded, I offer no opinion as to its admissibility. The trial judge was aware of some of the frailties I have mentioned. However, on a fair reading of his reasons I am concerned that the weight he afforded to the voice identification evidence could have tipped the balance in favour of conviction. When considered together with the other grounds of appeal, this is another factor that raises questions as to the soundness of the conviction.

(3) Were the convictions unreasonable?

[24] While I have concluded that the convictions must be set aside because of the trial judge’s error in failing to deal with aspects of the evidence, I do not accept the submission that the convictions should be set aside as unreasonable and acquittals entered. The Crown’s evidence was far from overwhelming, but there was sufficient evidence pointing to the appellant to permit a properly instructed trier of fact to convict. I refer here to the following elements in the evidence:

• the appellant was in the vicinity of the robbery riding a bicycle of the same description as that used by the robber;

• the sweatshirt found at the appellant’s friend’s apartment matched the description of that worn by the robber; and

• the appellant’s portly physique matched that of the robber.

[25] Accordingly, I do not accept the appellant’s submission that the convictions were unreasonable and that he is entitled to an acquittal.

DISPOSITION

[26] For these reasons, I would allow the appeal, set aside the convictions and order a new trial. As the appellant has served his sentence, this may well be a case where the Crown will elect not to proceed with a new trial.

“Robert J. Sharpe J.A.”

“I agree K. Feldman J.A.”

“I agree E. Ducharme J.A.”

Released: September 26, 2012