COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Wolynec, 2015 ONCA 656
DATE: 20150930
DOCKET: C57487
Gillese, Watt and Brown JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Victor Wolynec
Appellant
Erika Chozik, for the appellant
John Patton, for the respondent
Heard: February 19, 2015
On appeal from the conviction entered on October 22, 2012 and the sentence imposed on December 12, 2012 by Justice W. Brian Trafford of the Superior Court of Justice, sitting without a jury.
Watt J.A.:
[1] A lone bandit robbed a bank. He wore a grey hoodie. And sunglasses. He had a dark French goatee. He was soft-spoken when he asked the teller for cash. He made no gestures, nor any express threats.
[2] The next day, a few blocks away, the same thing happened. A lone bandit. A hoodie and sunglasses. A beard and moustache. But this time, the bandit presented a note. It said he wanted money. And that he had a gun.
[3] A short time after the second robbery, police found a grey sweatshirt in a garbage bin. On top of the sweatshirt was a newspaper. And on the newspaper, somebody had printed “have gun give me all money”. And on the top of the newspaper sat an open napkin similar to those supplied by restaurants.
[4] Police seized the sweatshirt. And the newspaper. But not the napkin.
[5] A few months later, a technician found a crusty tissue in a pocket of the sweatshirt. On the pocket and the tissue, a scientist detected evidence of bodily fluids. The chance of somebody other than Victor Wolynec being the source of the bodily fluids was one in 57 billion.
[6] A judge found Victor Wolynec guilty of both robberies and imposed concurrent sentences of imprisonment of 9 years.
[7] Victor Wolynec claims that the trial judge failed to adequately scrutinize weaknesses in the evidence adduced by the Crown and failed to grasp the position of the defence. As a result, he says his convictions are unreasonable and a miscarriage of justice.
[8] Victor Wolynec also challenges the sentence the trial judge imposed. He contends the sentence is too long, crushing any prospect of rehabilitation or reintegration into society.
[9] These reasons explain why I have decided that Victor Wolynec`s convictions are unassailable and his sentence fit. I would dismiss his appeal from conviction and grant leave but dismiss his appeal from sentence.
BACKGROUND FACTS
[10] In large measure, the circumstances in which the robberies occurred are uncontroversial. The trial judge decided that the evidence on each count could be applied in determining the adequacy of the case for the Crown on the other count. Victor Wolynec does not contest the correctness of that ruling in this court.
[11] The controversy at trial focused on the identity of the robber, whom defence counsel acknowledged was the same person in both instances. To be more specific, defence counsel fastened on the provenance of the tissue in the sweatshirt pocket and questioned whether its origins and integrity had been properly established.
The First Robbery
[12] The first robbery occurred around 2:30 p.m. on March 16, 2011, at a Scotiabank branch at 5607 Yonge St. at Finch Ave. The lone bandit was a man, about 5’10” tall, who wore a greyish hoodie and dark sunglasses. The man had a dark coloured goatee. He asked the teller for cash. The teller gave the man some cash including bait money, which looks like a stack of bills but gives off red smoke causing stains when it is taken more than a certain distance from the bank. About two and half hours after the robbery, police were advised that the dye pack wrapper and some dye had been found on the steps leading to the subway, about 100 feet from the bank.
[13] The surveillance cameras in the bank recorded the robbery. The teller who had been robbed identified the robber in the footage captured on the video cameras and in still photographs taken from those videos.
The Second Robbery
[14] The following afternoon, March 17, 2011, a man wearing a hoodie and sunglasses approached a teller at a branch of the HSBC located in the North York City Centre mall at 5160 Yonge St. The man was about 5’9” or 5’10” tall and had a large face with a beard and moustache. He presented a note to the teller indicating that he had a gun and wanted cash. The teller gave the man some money, including bait money, meaning bills whose serial numbers had been recorded by the bank. The man left the bank.
[15] The bank’s surveillance cameras captured the robbery. The teller identified an individual in the footage as the robber, but acknowledged some uncertainty about this identification.
The Clothing Change
[16] Police responded to a call about the robbery at the HSBC branch. While an officer was taking statements from bank employees, a security guard pointed out that security video at the mall showed a man, matching the description of the robber, leaving the mall around 4:08 p.m. and walking south on Yonge St. immediately outside the mall. The video also showed the man removing his jacket.
The Trash Bins
[17] Police walked around the outside of the mall looking at garbage cans and recycling bins. Within minutes, at about 5:35 p.m., they found a grey zipped-up sweatshirt in a garbage bin. On top of the sweatshirt was a newspaper on which the words “have gun” in black marker were visible. And on top of the newspaper was a disposable restaurant napkin. The material was coarser than facial tissue. The napkin was open, not crumpled up, and appeared to be two or three inches by five or six inches.
[18] The bin was one of a group of three a few feet west of a coffee shop at the southeast corner of the mall. About a dozen feet away was a staircase leading to the subway. Pedestrian traffic was heavy in the area of the stairs to the subway.
[19] Police maintained security in the area around the garbage bin. It was a very windy day. The bins moved back and forth in the wind, but their contents did not.
[20] About an hour after the discovery of the sweatshirt and newspaper, a police officer took a photo of the items in the garbage bin. The napkin was missing, but the newspaper and sweatshirt remained. No police officer removed anything from the bin before the seizure of the shirt and paper.
The Sweatshirt
[21] An officer from the Forensic Identification Service (“FIS”) removed the newspaper and sweatshirt from the bin. Each was placed in a separate paper bag. Relying on her usual practice rather than a specific recollection, the FIS officer said she would have done a pat search for weapons, papers or anything else in the sweatshirt. She had no note of anything in the pockets.
[22] At the police station, the FIS officer removed the sweatshirt and newspaper from the bags and photographed them. She had no note of actually searching the pockets, but acknowledged that she would usually have done so and noted any contents. She had no note of finding any napkin, tissue, or papers.
The Video Reviews
[23] A member of the Holdup Squad, Det. Russell Fairey, reviewed photographs of the robberies taken from the security systems in both banks. He concluded that the same person had robbed both banks – Victor Wolynec, with whom the officer had had dealings about a decade earlier.
The Brian Bush Connection
[24] Det. Fairey conducted a background check on Victor Wolynec. He learned that Wolynec lived in Sudbury and had a parole officer, Derek Pottier. Fairey contacted Pottier, said he was with the Toronto Police Service and asked Pottier to look at some photographs that Fairey would email to him. Pottier agreed. Fairey emailed several individual photographs from each bank as well as from outside the mall.
[25] Pottier, who was not called as a witness at trial, responded. Pottier told Fairey that he believed the person shown in the photographs was Brian Bush. Fairey looked at a photo of Bush and concluded that he was not the robber. He did not further investigate Brian Bush.
The Second Parole Officer
[26] Det. Fairey contacted a second parole officer, Judy Kelly, who had previously supervised Victor Wolynec. He asked her to view a poster that showed photographs of both robberies. She expressed one hundred percent certainty that Wolynec was the robber based on his facial features, hairstyle and size. She admitted that she testified at the preliminary inquiry that she had called several colleagues to look at the poster before calling police to report her identification.
The Forensic Examination
[27] The sweatshirt was sent to the Centre for Forensic Sciences about a week after the robberies. Scientists took cuttings from inside the cuff and the inner side of the neck to determine whether they could find substances for forensic DNA analysis. Nothing suitable for analysis was found.
[28] About two months after the robberies, a third technician was directed to take cuttings from the pocket of the sweatshirt. Inside the right pocket, the technician found a crumpled up crusty tissue. Samples were taken from the tissue and pocket. The lead scientist described the tissue as an “industrial strength tissue or paper towel”.
[29] Analysis of the tissue and pocket located bodily substances, likely nasal fluid or saliva, and yielded results consistent with the DNA of Victor Wolynec with a one in 57 billion chance that an unrelated individual would share the same DNA profile. The material identified on the pocket could have been transferred from the tissue.
The Defence Case
[30] Victor Wolynec did not testify at trial. No witnesses gave evidence on his behalf.
The Positions of the Parties at Trial
[31] The critical issue at trial was the identity of the robber.
[32] The case for the Crown at trial was that the same person committed both robberies and that person was Victor Wolynec. In support of his case, Crown counsel relied on:
i. the video surveillance evidence and still photographs taken from the videos;
ii. the identification evidence of Judy Kelly;
iii. the evidence of the DNA analysis of the substances found on the tissue in the pocket and on the pocket of the sweatshirt recovered from the trash bin; and
iv. the evidence of similar acts tending to show the same person committed both robberies.
[33] The defence advanced at trial was a denial of participation in either robbery or, more accurately, the failure of the Crown to prove guilt beyond a reasonable doubt. A reasonable doubt about Victor Wolynec’s guilt emerged from several factors:
i. the absence of evidence linking the person who committed the HSBC robbery to the person who abandoned the sweatshirt in the trash bin near the subway entrance;
ii. the statement of Derek Pottier that the person shown in the photographs was Brian Bush not Victor Wolynec; and
iii. the absence of any credible evidence about how the encrusted tissue ended up in the sweatshirt pocket two months later having not been detected there earlier.
THE GROUNDS OF APPEAL
[34] Victor Wolynec appeals both conviction and sentence.
[35] On the appeal from conviction, Victor Wolynec (“the appellant”) contends that the trial judge failed to:
i. adequately scrutinize critical weaknesses in the case for the Crown, especially in connection with the continuity of the tissue located in the pocket of the abandoned sweatshirt that revealed the presence of the appellant’s DNA; and
ii. appreciate the position of the defence about how the tissue could have found its way into the sweatshirt pocket.
The appellant says the trial judge’s reasons were inadequate to permit effective appellate review, resulted in an unreasonable verdict and caused a miscarriage of justice.
[36] On the appeal from sentence, the appellant identifies two specific errors that render the sentence imposed unfit:
i. the sentence was based on inaccurate information about the number of the appellant’s previous convictions for robbery; and
ii. the trial judge failed to consider the rehabilitative prospects of the appellant and imposed a sentence that was so excessive as to extinguish any prospect of rehabilitation and reintegration of the appellant into society.
[37] I will first address the appellant’s conviction appeal, then move to his appeal against sentence.
THE APPEAL FROM CONVICTION
[38] The core complaint that the appellant advances focuses on what he says are two critical failures on the part of the trial judge. Those failures – to adequately scrutinize the weaknesses in the case for the Crown and to appreciate the position of the defence – warrant reversal on any of three bases:
• inadequate reasons;
• unreasonable verdict; or
• miscarriage of justice.
[39] No further recitation of the circumstances of the offences or of the chain of custody of the sweatshirt is necessary for an understanding of the arguments advanced. A reference to the reasons of the trial judge to which exception is taken will facilitate the discussion that follows.
Ground #1: Inadequate Reasons
The Reasons of the Trial Judge
[40] The trial judge delivered written reasons about a week after counsel had completed their oral submissions. The reasons included the trial judge’s ruling on Crown counsel’s motion to have the evidence on one count admitted as evidence of similar acts on the other count, as well as his reasons for finding the appellant guilty on both counts. The similar act ruling is not challenged here. Nothing more need be said about it.
[41] In deciding whether he was satisfied beyond a reasonable doubt that the appellant was the robber of both banks, the trial judge considered several items of evidence. He took into account the video surveillance evidence, including both the videos and the still photographs taken from them; the testimony of Judy Kelly and Det. Fairey; and the DNA evidence. He also considered the statement of Derek Pottier identifying the robber as a Brian Bush. Pottier did not testify. No evidence was given about the circumstances of his identification. No photograph of Brian Bush was filed to permit comparison with the features of the robber disclosed in the videos.
[42] Neither the evidence of Judy Kelly nor the testimony of Det. Fairey played any part in the determination of the appellant’s guilt.
[43] The trial judge assigned little or no weight to Kelly’s evidence because her identification with one hundred percent certainty of the appellant as the robber was contaminated by her consultation with other parole officers prior to advising police of her identification.
[44] The trial judge assigned no weight to Det. Fairey’s identification of the appellant as the robber. The officer, retired at the time of trial, did not take an objective approach to the potential participation by Brian Bush, but rather simply rejected it out of hand after a brief glance at a police photograph. He made no notes of his interaction with Pottier and demonstrated no respect for the roles of any of the participants in the administration of criminal justice.
[45] After summarizing the evidence about the finding of the sweatshirt and newspaper in the garbage bin and the chain of custody followed until discovery of the tissue in the pocket and the DNA analysis conducted at CFS, the trial judge recorded his findings about the provenance of the sweatshirt and tissue:
Based upon these circumstances, I am satisfied that the hooded sweatshirt observed in the garbage bin near the southeast corner of the NYCC by Constable Shewchenko on March 17, 2011 around 5:30 p.m. had the crusty tissue in its right pocket from then until it was discovered by Megan Shepherdson on May 27, 2011. The searches of the sweatshirt by Detective Constable Seguin, near the bin and at the station, did not detect its presence, probably because the information she received was that the perpetrator told the teller he had a gun and, thus, her search was probably for a gun. The sweatshirt was in the secure custody of Detective Constable Seguin and the lockers she used to store it until it arrived at the CFS through Constable Cabral on March 23, 2011 at 1:30 p.m. The sweatshirt was in a sealed bag from 2:40 p.m. on March 18, 2011 until the seal was broken at the CFS on April 20, 2011. Detective Fairey did not express any interest in a DNA examination of the sweatshirt until his email message to Detective Constable Seguin on March 22, 2011 around 10:50 a.m. By then, the sweatshirt was sealed in the lockers at the station, and had been since March 18, 2011. Detective Fairey formulated his belief that Victor Wolynec was the perpetrator on March 22, 2011, after he viewed the Scotiabank, HSBC and NYCC dvd’s. As the sweatshirt was transferred to the CFS on March 23, 2011, there was a very small window of opportunity for Detective Fairey to tamper with the evidence. He testified that he did not have contact with the evidence and was not cross-examined about placing the crusty tissue into the pocket. Detective Fairey did not attempt to fabricate incriminating evidence against Victor Wolynec by planting the crusty tissue with his DNA on it into the pocket of the hooded sweatshirt.
[46] The trial judge then examined the evidence that linked the sweatshirt to the HSBC robber. After reciting the evidence about the time impressions on the videos, the trial judge concluded that the robbery at the HSBC branch occurred shortly after 4 p.m. on March 17, 2011. The perpetrator left little more than a minute later, his movements depicted on various cameras around the North York City Centre complex. The trial judge concluded:
Looking at the evidence as a whole, I am satisfied that the alleged perpetrator in the NYCC dvd was the perpetrator of the HSBC robbery as shown on the HSBC dvd. The time of his entry into the bank as shown on the NYCC dvd and the HSBC dvd is approximately the same. The duration of the robbery on each dvd is approximately the same. The HSBC dvd shows the perpetrator approaching the entrance to the bank from the north, as does the NYCC dvd. The images of the alleged perpetrator and the perpetrator show the same clothing, the same physical stature and the same sunglasses. When the alleged perpetrator entered the subway station, he no longer had the light colored upper garment in his possession. It was found by Constable Shewchenko in the garbage bin situated near that entrance, with the newspaper produced by the perpetrator to the teller with the written threat “Have gun give me all money”, on top of it. The perpetrator of the robbery as shown on the HSBC dvd is one and the same man as the alleged perpetrator shown on the NYCC dvd. The hooded sweatshirt he wore during the robbery at the HSBC is the hooded sweatshirt examined at the CFS, as described earlier in this judgement.
[47] The trial judge next turned to the statement of Derek Pottier who identified Brian Bush as the robber. The trial judge concluded that this evidence did not raise a reasonable doubt about the appellant as the robber. In the words of the trial judge:
Looking at the evidence as a whole, I decline to place any weight on the declaration by Derek Pottier. The probative value of the DNA evidence identifying the defendant as the perpetrator of the HSBC robbery is extremely high. It proves that Brian Bush was not the perpetrator of that robbery, because there is no evidence Brian Bush was so related to Victor Wolynec that their DNA is identical. The circumstances surrounding the out-of-court identification by Derek Pottier of Brian Bush as the perpetrator were not proven. Those circumstances are important to my determination of what weight, if any, should be given to the declaration. The inadequate investigation of Brian Bush as a third party suspect is regrettable, as is the failure of the Crown to call any other evidence relating to the reliability of the Pottier declaration. However, the inadequate investigation and the absence of any other such evidence, such as a photograph of Brian Bush that would permit the Court to compare his appearance to the appearance of the perpetrator of the robberies, does not raise the probative value of the Pottier declaration to a reasonable doubt on the issue of identity, looking at the evidence as a whole.
The Arguments on Appeal
[48] The appellant says that the trial judge failed to consider the defence position on the critical issue at trial – the continuity of the tissue recovered two months later in the sweatshirt pocket. Admittedly, the trial judge considered and rejected one aspect of the defence position – that Det. Fairey planted the tissue. But the reasons betray any consideration of the possibility that the tissue was inadvertently swept into the evidence bag from its original position on top of the newspaper in the bin. The failure of the trial judge to address this crucial issue amounts to a failure to explain why he found guilt established and puts his decision beyond meaningful appellate review.
[49] The respondent characterizes the reasons of the trial judge as not merely adequate to permit meaningful appellate review, but comprehensive. Taken as a whole, the reasons explain not only what the trial judge decided – that the appellant committed two bank robberies – but also why he reached that conclusion – the combined force of the video surveillance, DNA and similar act evidence.
[50] The respondent points out that the trial judge’s findings that the crusty tissue was in the sweatshirt pocket when it was recovered from the garbage bin and remained there until retrieved two months later when the CFS technician checked the pockets addressed both aspects of the position advanced by trial counsel for the appellant: deliberate subterfuge and inadvertent collection. The respondent adds that the item first seen and the one later recovered were clearly not the same. An open restaurant napkin of coarser texture than facial tissue cannot be equated with an “industrial strength tissue or paper towel”.
The Governing Principles
[51] Arguments based on alleged inadequacies in trial judge’s reasons may take any one or more of three different forms.
[52] Sometimes, an appellant will contend that an inadequacy demonstrates an underlying or implicit error in the trial judge’s reasoning process, such as, for example, a misapplication of the standard of proof to credibility determinations: R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, at para. 27.
[53] At other times, an appellant may identify inadequacies in the reasons to ground a claim that the verdict is unreasonable or cannot be supported on the evidence adduced at trial. The submission is that the inadequacies in the reasons reveal errors or gaps in the trial judge’s legal analysis or the processing of evidence. This explains how a reasonable person could have reached an unreasonable conclusion: J.J.R.D., at para. 28.
[54] On still other occasions, an appellant will argue that the inadequacies in the reasons are enough on their own to warrant reversal without inferring any legal error from them and without finding the verdict unreasonable. The absence or serious inadequacy of reasons can amount to a freestanding error of law justifying setting aside the verdict and directing a new trial: J.J.R.D., at para. 29.
[55] The line of argument advanced is of no moment to the approach to be followed on appellate review of the adequacy of reasons or to the test or standard to be applied. Our approach to the adequacy of reasons in a criminal case is at once functional and context-specific: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15. The reasons must be sufficient to fulfil their threefold functions:
• explaining the verdict;
• providing public accountability; and
• permitting effective appellate review: R.E.M., at para. 15.
[56] Consideration of the sufficiency of reasons requires reading the reasons as a whole, in the context of the evidence, the arguments and the trial, together with an appreciation of the purposes or functions for which reasons are delivered: R.E.M., at para. 16; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 46, 50; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 12.
[57] The reasons of a trial judge fulfil their purpose if the reasons, read in context, show why the trial judge decided as she did. To show why, the reasons need not show how the judge reached her conclusion in a “watch me think” fashion: R.E.M., at para. 17. The reasons must display a logical connection between the “what” – the verdict – and the “why” – the basis for the verdict: R.E.M., at para. 17. But explaining the “why” and its logical link to the “what” imposes no obligation on a trial judge to set out every finding or conclusion in the process of reaching a decision: R.E.M., at para. 18.
[58] A trial judge need not explicate the well settled, repeat the uncontroversial or retill common legal ground between the parties. So too with evidence. A trial judge is not obliged to detail his or her finding on each morsel of evidence or controverted fact, provided the findings linking the evidence to the verdict can be logically discerned: R.E.M., at paras. 19-20.
[59] The core question to be answered in determining whether a trial judge’s reasons are sufficient is whether those reasons, read in context, show why the judge decided as she did on the offences charged: Vuradin, at para. 15.
[60] To succeed on an appeal based on inadequate reasons, an appellant must show not only a deficiency in the reasons, but also that the deficiency has occasioned prejudice to the exercise of his or her legal rights to an appeal in a criminal case: Sheppard, at para. 33; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 31. An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25; Vuradin, at para. 10; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25. A failure to explain rejection of a submission does not mean the reasons are deficient, provided the reasons demonstrate the acceptance of contrary evidence: Vuradin, at para. 13.
The Principles Applied
[61] As I will explain, I would not give effect to this ground of appeal.
[62] First, the trial judge found as fact that the tissue recovered from the pocket on forensic examination had been in the pocket from the initial discovery of the sweatshirt. It had not been detected earlier because no one had actually searched the pockets, but at best only patted down the exterior of the garment. These findings, grounded in the evidence adduced at trial, lead ineluctably to the conclusion that the accidental presence explanation proposed by the appellant was rejected. The failure to explain, in express terms, why he rejected the alternative proposed by the appellant does not render the reasons inadequate in the face of a well-grounded contrary conclusion.
[63] Second, the hypothesis of accidental collection advanced by the appellant is speculative. The seizure involved a newspaper and a sweatshirt. The napkin first seen was open, of a different texture and absent when the items were collected. None of the witnesses who made the initial observation, provided security or seized the items was crossed-examined on this claim of accidental collection. Any suggestion that the tissue ended up in the pocket – crumpled and crusty and bearing the appellant’s DNA – borders on the absurd.
[64] Third, the trial judge was not required to provide reasons for rejecting every argument advanced at trial. It is all the more so when the submission is not cumbered by an air of reality.
[65] Fourth, the trial judge’s reasons, read as a whole, in the context of the evidence, the arguments and the trial, show why the judge decided as he did. They reflect painstaking attention to the minutiae of the evidence and an acute awareness of the alleged deficiencies in the case for the Crown. It simply cannot be said that these reasons are so deficient that they foreclose meaningful appellate review.
Ground #2: Unreasonable Verdict
[66] The second ground of appeal, also tethered to a complaint that the trial judge failed to grasp or consider the position of the defence, is that the findings of guilt are unreasonable.
[67] The relevant passages in the trial judge’s reasons have been excerpted earlier. Their repetition is unnecessary.
The Arguments on Appeal
[68] The appellant contends that the findings of guilt made by the trial judge are unreasonable. He says that a verdict that is available on the record may nonetheless be unreasonable if it was reached illogically or irrationally. In this case, the argument continues, the verdict is incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge. And this is so because the trial judge failed to grasp or chose to ignore the defence position about the provenance of the tissue with the appellant’s DNA on it.
[69] The respondent rejects any suggestion that the verdict is unreasonable in either sense described in the authorities.
[70] First of all, according to the respondent, the verdict is one that a properly instructed trier of fact acting judicially could reasonably have rendered. The probative value of the DNA evidence was exceptional in the circumstances of this case. On its own, the DNA evidence was sufficient to establish the identity of the appellant as the robber at the HSBC. But there is more, including the video surveillance evidence which showed the same person – a man remarkably like the appellant – committed both offences.
[71] Second, the inferences drawn and findings made by the trial judge were not contradicted by the evidence relied upon for that purpose by the trial judge. Nor were the inferences and findings incompatible with evidence that was not otherwise contradicted or rejected by the trial judge.
The Governing Principles
[72] Section 686(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46, permits an appellate court to set aside a conviction if the conviction is unreasonable or cannot be supported by the evidence.
[73] In terms, the focus of any inquiry under this section is on the verdict reached at trial: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 77. The section requires the appellate court to assess the reasonableness of the verdict when measured against the totality of the evidence adduced at trial. What the court must determine is whether, on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 186; Sinclair, at paras. 4, 79.
[74] Recent jurisprudence has expanded the scope of review for unreasonableness where the trial proceedings have taken place before a judge sitting without a jury: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26. Under this expanded scope of review, the appellate court scrutinizes the judge’s findings of fact or inferences drawn from the evidence admitted at trial. Verdicts reached illogically or irrationally are not reasonable: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 77-80, 97. An appellate court is entitled to intervene where a trial judge draws an inference or makes a finding of fact that is plainly contradicted by the evidence relied upon for that purpose or is demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge: Sinclair, at para. 16; Beaudry, at paras. 79, 105.
[75] Two further points about this expanded scope of review for unreasonable verdicts warrant emphasis.
[76] First, while it is now open to reviewing courts to look beyond the evidence adduced in non-jury trials and to consider flaws in the reasoning process in the assessment for reasonableness, the focus never shifts from the conclusion reached at trial. To properly invoke s. 686(1)(a)(i), a reviewing court must be satisfied that the verdict is in error. There must be a demonstrated nexus between the error in reasoning and the verdict rendered. No per se rule requires a conclusion that a verdict is unreasonable every time an error in reasoning appears, even an error that is demonstrably incompatible with the evidence adduced at trial: Sinclair, at para. 81. Context is critical: Sinclair, at para. 82.
[77] Second, unreasonable verdicts of the nature marked out under this expanded review for unreasonableness are exceedingly rare: Sinclair, at paras. 22, 80.
The Principles Applied
[78] I would reject this ground of appeal. In my respectful view, the verdict is not unreasonable or unsupported by the evidence under either the traditional or expanded review for unreasonableness.
[79] First, the traditional review. The appellant did not press the argument that the verdict of guilt on the HSBC count was a conclusion no reasonable trier of fact, acting judicially, could reasonably have rendered.
[80] A lone bandit wearing sunglasses and a light coloured sweatshirt and carrying a newspaper walked into the bank and approached a teller. On the newspaper were several words including “gun” and “money”. About a minute later, the man left the bank. Video surveillance records his exit and the direction of his travel. He is seen removing the sweatshirt a short distance away. A sweatshirt, found with the sleeves inside out, and a newspaper with the same words written on it are found in a garbage bin along his path of travel. The appellant resembles the man in the videos. A crusty tissue in the sweatshirt pocket and the surface of the pocket reveal his DNA. End of traditional reasonableness analysis.
[81] On the expanded review for reasonableness under Beaudry, the appellant also fails.
[82] First, the appellant’s attack on the trial judge’s review of the evidence about the provenance of the tissue comes perilously close to an attempt to invite us, at one remove and based on a lifeless printed record, to substitute our conclusions for his. Nothing emerges from the record that furnishes any reason for us to conclude that he failed to consider the entirety of the evidence and to appreciate the position of the defence.
[83] Second, the record is barren of any basis to conclude that any finding of fact made by the trial judge was either:
i. plainly contradicted by the evidence relied upon to make the finding or draw the inference; or
ii. demonstrably incompatible with evidence that was neither contradicted by other evidence nor rejected by the trial judge.
[84] Third, unreasonable verdicts targeted by this expanded review for reasonableness are exceedingly rare. The focus must remain on the verdict, the conclusion reached at trial. Any errors in reasoning identified under Beaudry must be carefully assessed to determine whether the error vitiates the verdict. In this case, there is nothing irrational in the judge’s reasoning process. Nor is that reasoning process at odds with the evidence adduced at trial. This is not one of those rare cases in which we would be justified in concluding that the verdict is unreasonable.
Ground #3: Miscarriage of Justice
[85] The third ground of appeal recycles the same alleged error – failure to properly assess the case for the Crown and to appreciate the defence advanced – and characterizes it as having caused a miscarriage of justice.
The Arguments on Appeal
[86] The appellant says that the trial judge’s conclusion does not represent a “true” verdict according to the evidence. The conclusion was flawed by a misapprehension of evidence. The trial judge rejected the evidence about an alternate suspect because of the DNA findings on the tissue. His reasoning in doing so was circular and reflects a failure to fully appreciate the defence’s position. A miscarriage of justice occurred as a result.
[87] The respondent spurns any suggestion of a miscarriage of justice. The trial judge rejected the alternate suspect evidence – the admitted statement of Derek Pottier – on several grounds including, but not only, the compelling force of the DNA evidence. The admission of Pottier’s statement that Bush was the robber expressly left the weight of the evidence to the trial judge. No evidence was adduced about the details of the identification or the circumstances in which Pottier concluded that Bush was the robber. No photograph of Bush was filed as an exhibit so that the trial judge could make his own comparisons. Pottier’s statement had no probative value.
The Governing Principles
[88] Errors in the apprehension or appreciation of evidence or in the drawing of conclusions from the evidence may warrant an appellate court quashing a conviction: R. v. G.(G.) (1996), 1995 8922 (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.), at p. 377. But not in all cases.
[89] When an appellate court identifies an error, the court has a duty to consider:
• the nature of the error;
• the effect of the error on the verdict; and,
• where the trial is before a judge sitting without a jury, the effect of the error on the reasoning process by which the verdict was reached: G.(G.), at p. 377.
An appellate court will intervene if the error leads to an unreasonable verdict or a miscarriage of justice or is an error of law beyond the reach of s. 686(1)(b)(iii): G.(G.), at p. 377.
[90] Errors in the apprehension or appreciation of evidence that do not amount to errors of law and do not lead to a finding that a verdict was unreasonable may nonetheless invoke appellate review because they result in the miscarriage of justice: G.(G.), at p. 380.
[91] As a general rule, appellate courts have applied s. 686(1)(a)(iii) – miscarriage of justice – as a ground of review for errors that occurred during the trial which affected the actual or apparent fairness of that trial: G.(G.), at p. 380. But the phrase “miscarriage of justice” is endowed with an expansive reach, one that embraces any error that deprives an accused of a fair trial. An accused whose conviction is grounded on findings tainted by error has been denied a fair trial: G.(G.), at p. 380.
[92] It is also useful to recall the principles applicable to the admission of evidence concerning alleged third party perpetrators. This evidence will only be admissible if it is relevant and probative, meaning there is a significant connection between the third party and the crime. While the connection may be inferential, the inferences must be reasonable, based on the evidence and not mere speculation: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27.
The Principles Applied
[93] I would not give effect to this ground of appeal for three reasons.
[94] First, as I explained earlier, the trial judge’s reasons betray no misappreciation or misapprehension of the evidence adduced at trial. To the contrary, they display a thorough understanding of the substance of the evidence, reasonable inferences from that evidence about the appellant’s identity as the robber of both banks and a keen understanding of the position of the defence.
[95] Second, the trial judge’s rejection of Pottier’s statement about the identity of the robber as Brian Bush was firmly grounded on the whole of the evidence adduced at trial. Bush was advanced as a third party or alternate suspect entirely based on Pottier’s identification. If Pottier had been called to give the same evidence at trial, it is at best doubtful whether his testimony would have been admitted for want of an adequate evidentiary foundation.
[96] The trial judge’s rejection of Pottier’s statement was not rooted exclusively on his acceptance of the DNA evidence, although it could have been. The reasons for its rejection included the absence of any evidence about the circumstances of the identification, the absence of any photographs of Bush that would permit a comparison under R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, and, more fundamentally, the absence of any evidence of a connection between Bush and the place and time of the offence.
[97] Third, the trial judge’s findings are not tainted by any misappreciation or misapprehension of the evidence or of its value and effect. He appreciated that Pottier’s evidence was relevant to the adequacy of the Crown’s proof that the appellant was the robber and considered it on that issue, assigning it no weight for sound reasons.
THE APPEAL AGAINST SENTENCE
[98] The appellant also contests the fitness of the nine year concurrent sentences imposed on him by the trial judge. In support of his claim that the sentence imposed is unfit, the appellant seeks leave to introduce further or fresh evidence on two issues:
i. the number of his prior convictions for robbery; and
ii. his rehabilitative potential as reflected in a report from the Correctional Service of Canada compiled during his incarceration at Beaver Creek.
The Positions on Sentence at Trial
[99] At the time of sentencing, the appellant had spent 16 months in pre-trial custody.
[100] At trial, Crown counsel (not Mr. Patton) sought a sentence of imprisonment for ten years in addition to the time already spent in pre-trial custody. The sentence proposed was a functional equivalent of a sentence of 11 and one half years.
[101] Defence counsel (not Ms. Chozik) sought a sentence of five or six years less credit for 16 months of pre-trial custody.
The Reasons for Sentence
[102] In imposing sentence, the trial judge considered the primary sentencing objectives to be deterrence, both general and specific, denunciation and separation of the appellant from society. He considered rehabilitation less significant because of the appellant’s lengthy criminal record and repeated violations of parole and mandatory supervision.
[103] The trial judge noted the appellant’s 98 previous convictions including 21 for robbery. Included in this catalogue were 12 robbery “convictions” for which the appellant had received a discharge. The appellant had been recommitted as a parole or mandatory supervision violator 12 times.
[104] The trial judge considered the appellant to be a very high risk of reoffending. He pointed out that the appellant committed these offences within days of a prior release. The appellant was a repeat offender, 59 years of age, whose convictions extended over a period of 40 years. These offences were planned and deliberately executed by a dedicated recidivist whose history of parole and mandatory supervision violations belied any realistic rehabilitative potential.
The Fresh Evidence
[105] No issue is taken with the admissibility of the further evidence that clarifies the number of robbery convictions incurred by the appellant prior to the convictions under appeal. The reference to a discharge on 12 counts of robbery in 1991 is not to findings of guilt and an absolute or conditional discharge, but rather to a discharge at the conclusion of a preliminary inquiry where committal was sought on those charges. An absolute or conditional discharge was not then and is not now an available sentencing disposition on findings of guilt for robbery. The effect of this evidence is to reduce the number of the appellant’s prior convictions for robbery from 21, as noted by the trial judge, to nine, and the total number of his convictions to 86 rather than 98.
[106] The other fresh evidence consists of a Final Program Performance Report compiled by Correctional Service of Canada staff at Beaver Creek Medium Security Institution. The report reflects the participation and successful completion by the appellant of a high intensity violence prevention program at Beaver Creek. It is offered in support of a submission that, at 62 years of age, the appellant has rehabilitative potential which could be realized if his sentence were reduced to permit earlier release and parole supervision.
The Arguments on Appeal
[107] The appellant acknowledges his lengthy record including nine prior convictions for robbery and a dozen breaches of parole or mandatory supervision. He also concedes that the robberies with which we are concerned took place within days of his release after serving the equivalent of a 13 year sentence for robbery.
[108] The appellant contends that the trial judge placed undue emphasis on his record in determining the sentence he would impose. The trial judge erred in finding that the appellant had 21 prior convictions for robbery, rather than nine. This error influenced the judge’s decision on quantum. In addition, the sentence is disproportionate to the gravity of the offences the appellant committed. He was not armed. He hurt no one. The proceeds of the robberies were minimal.
[109] The appellant characterizes the sentence imposed as tantamount to a sentence of preventive detention. At the time of sentencing, the appellant was 59 years old and had a number of health concerns. He had learned some marketable skills in prison and wanted the opportunity to get a job where he could use those skills and become a contributing member of society. A shorter sentence and more focused parole supervision would allow him to do so.
[110] The respondent says the sentence imposed was based on normative principles of sentencing and is entitled to deference despite the error the trial judge made in calculating the number of prior convictions for robbery. The trial judge identified and applied the proper sentencing objectives, considered the relevant aggravating and mitigating factors and imposed a sentence that was well within the range of fit sentences for the appellant and his offences.
[111] The respondent submits that the precedents support substantial penitentiary sentences for robberies of banks and other financial institutions. It is of no moment to these authorities that no violence was used or threatened or only a small amount of money obtained. The offences were planned and executed by a dedicated recidivist within days of his release from prison after serving a lengthy sentence for the same offence.
[112] The respondent acknowledges that the trial judge erred in his understanding of the number of the appellant’s prior convictions for robbery. But in the end, the respondent says, the error was of no consequence. The more important factor is the dozen parole and mandatory supervision violations which negated any claim of rehabilitative potential and amply justified the trial judge’s decision to accord rehabilitation a lesser place in the determination of a fit sentence.
The Governing Principles
[113] A parade of precedent is unnecessary to an informed decision about the fitness of the sentence imposed by the trial judge. Two brief points will suffice.
[114] First, decisions of trial judges on sentence are entitled to great deference on appellate review. In the absence of an error in principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors, we should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 90; R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14. To vary a sentence imposed at trial, we must be convinced that the sentence is not fit, or, in other words, that it is clearly unreasonable: M.(L.), at para. 14; R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para. 46.
[115] Second, the criteria for admitting fresh evidence on an appeal from sentence are the same as those that apply to appeals from conviction: R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at paras. 16, 22. Among other things, to be admissible on appeal, the fresh evidence must be relevant, credible and such that it could, when taken with the other evidence adduced at trial, be expected to have affected the result: Lévesque, at para. 24. Evidence that merely adds certain details to or clarifies evidence adduced at trial is not admissible as fresh evidence on appeal: Lévesque, at para. 34.
The Principles Applied
[116] I would not interfere with the sentence imposed by the trial judge despite his error in connection with the number of robbery convictions on the appellant’s record. I have reached this conclusion for four reasons.
[117] First, the trial judge correctly identified the predominant sentencing objectives as deterrence, denunciation and separation of this offender from society. The appellant is a dedicated recidivist. He has nine prior convictions for robbery. Those convictions, recorded on two separate occasions in 1991 and 2005, attracted double digit penitentiary[^1] sentences. Each involved a bank robbery. After statutory release on each occasion, the appellant was recommitted as a statutory release violator a total of five times. At the time of trial, the appellant had been convicted of 86 offences over a period of 43 years.
[118] Second, the trial judge took into account the rehabilitative potential of the appellant and accorded an appropriate weight in his determination of a fit sentence.
[119] The appellant based his assertion of rehabilitative potential on his acquisition of marketable skills in the penitentiary and an announced desire to live a law-abiding life with earlier parole and close supervision by parole authorities.
[120] It is unclear when the appellant acquired his marketable skills in the penitentiary. On statutory release after sentence on his robbery convictions, he breached the terms of his release five times. He committed these robberies less than a week after his release. There is no tangible evidence of attempts to secure gainful employment. The trial judge recognized that rehabilitative potential was a factor to consider. He assigned it appropriate weight. Sadly, the potential is more theoretical than real.
[121] Third, apart from the fresh evidence that clarifies the number of prior convictions for robbery, I have grave doubts about the admissibility of the report from the Correctional Service of Canada setting out the appellant’s involvement in and successful completion of a program at Beaver Creek. Doubtless the report will be of interest to the Parole Board of Canada, but its substance is not capable of affecting the result of this appeal against sentence.
[122] Finally, it strikes me as a bit rich for an appellant who has violated his statutory release or mandatory supervision a dozen times to seek a manifestly inadequate sentence for two bank robberies on the basis that he will thereby get earlier parole and the close supervision he requires to become reintegrated into society.
CONCLUSION
[123] For these reasons, I would dismiss the appeal from conviction and grant leave to appeal but dismiss the appeal against sentence.
Released: September 30, 2015 (EEG)
“David Watt J.A.”
“I agree E.E. Gillese J.A.”
“I agree David Brown J.A.”
[^1]: In 1991, the sentence was ten years. In 2005, the sentence was six years with credit for pre-trial custody of seven years, yielding a sentence that is the functional equivalent of an imposed sentence of 13 years.