Unofficial English Translation Hurtubise c. R. 2011 QCCA 337 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004128-08 6. 500-10-004129-084 500-10-004164-081, 500-10-004165-088 (505-01-062687-062) DATE: February 10, 2011 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. NICOLE DUVAL HESLER, J.A. JACQUES A. LÉGER, J.A. Nos. 500-10-004128-086 and 500-10-004165-088 (505-01-062687-062 SEQ. ACC. 002/003) DANIEL HURTUBISE APPELLANT-Accused v.

HER MAJESTY THE QUEEN RESPONDENT- Prosecutrix _____________________________________________________________________ Nos. 500-10-004129-084 et 500-10-004164-081 (505-01-062687-062 SEQ. ACC. 001/003) MICHEL MAYER APPELANT-Accused v.

HER MAJESTY THE QUEEN RESPONDENT- Prosecutrix JUDGMENT [ 1 ] THE COURT: - On the appeals from convictions rendered on May 4, 2008, as well as on the motions for leave to appeal against a sentence rendered on June 19, 2008, by the Superior Court, Criminal Division, District of Longueuil, (the Honourable Mister Justice Wilbrod Décarie), which sentenced Michel Mayer to 17 years and 8 months’ imprisonment (20 years less 14 months of pre-trial custody counting as double time) and Daniel Hurtubise to 12 years’ imprisonment (16 years less 2 years of pre-trial custody counting as double time), deferred to the panel that will hear the appeal on July 9, 2008; [ 2 ] After having examined the file, heard the parties and deliberated; [ 3 ] For the reasons of Duval Hesler JA., with which Rochon and Léger JJ.A. concur; [ 4 ] DISMISSES the appeals from the convictions;

[ 5 ] ALLOWS the motions for leave to appeal the sentence; [ 6 ] DISMISSES the appeals against the sentences imposed. ANDRÉ ROCHON, J.A. NICOLE DUVAL HESLER, J.A. JACQUES A. LÉGER, J.A. Mtre Sandra Brouillette Paris, Brouillette, Richard, Piché For Michel Mayer Mtre Mylène Lareau Brouillard, Bibeau, Gariépy et Associés For Daniel Hurtubise Mtre Magalie Cimon For the Director of Criminal and Penal Prosecutions For Her Majesty the Queen Date of hearing: September 29, 2010 REASONS OF DUVAL HESLER, J.A.

Background [ 7 ] The appellants Michel Mayer and Daniel Hurtubise were found guilty on numerous counts of robbery of three Desjardins Caisses Populaires branches in Longueuil, Saint-Constant, and Sherbrooke, between February and May of 2006. They appeal both the verdict and the sentence. [ 8 ] The trial judge’s

summary of the facts, in his judgment on the sentence, [1] clearly explains what took place. I propose to reproduce it: [ translation ] 1 On May 4, 2008, a jury found Daniel Hurtubise guilty on six counts, namely:

a) two counts of conspiracy to commit robberies;

b) two counts of armed robbery; and

c) two counts of breaking and entering a place other than a dwelling house with intent to commit an indictable offence therein. 2 The same day, the jury found his accomplice, Michel Mayer, guilty on fifteen counts, namely:

a) two counts of conspiracy to commit robberies;

b) two counts of robbery involving the use of a firearm;

c) seven counts of breaking and entering a place other than a dwelling house with intent to commit an indictable offence therein;

d) one count of breaking and entering a place other than a dwelling house and committing a robbery therein; and

e) three counts of having disguised himself with intent to commit an indictable offence. … 4 On the night of February 23, 2006, Mayer broke into the suspended ceiling in the portion of the automated banking machine room

accessible to the public in the Caisse Populaire located at 2401, Rolland Therrien, in Longueuil. 5 On February 24, at about 8:15 a.m., the employees of the caisse were in the counting room. This is a protected place with restricted access. This is where the night deposits are counted and the cash for replenishing the automated banking machines (ABMs) is kept. 6 As the employees were going about their daily routine, Mayer burst out of the room’s ceiling. In addition to his person, he let fall a nylon training bag. 7 Mayer was dressed in black and wore a balaclava of the same colour.

He was also equipped with a walkie-talkie and a small sledgehammer. He ordered the employees to empty the contents of the ABMs into his bag, which they did. 8 Having completed the robbery, he left the premises by shattering a picture window. An accomplice was waiting for him outside. He got into a stolen van and quickly left the crime scene. 9 Less than one kilometre away, Mayer and his accomplice abandoned their vehicle at the exit of the parking lot of the École Pierre Dupuy and transferred themselves and their goods to a second escape vehicle.

Mayer and his accomplice had stolen $114,260. 10 On March 18, 19 and 25, Mayer re-offended. He broke into the suspended ceiling of the ABM room of the Les Berges Caisse Populaire in St-Constant in preparation for his next robbery. 11 On March 31, at about 7:15 a.m., the employees of the Caisse Populaire Les Berges were busy, as they were every morning, counting the night deposits and replenishing the ABMs.

They too were in the most secure place in the building, with the exception of the vault, of course, namely the counting room. 12 At about 7:20 a.m., without warning and with a crashing noise, two individuals, who were dressed in black, were wearing balaclavas, and were armed and equipped with a portable telephone, burst out of the ceiling and took control of the situation. They asked the employees to stay calm and took $1,041,633.76 in assets, which they put in gym bags. 13 Mayer and his accomplice left a fake bomb.

They told the employees that they would deactivate the time bomb a few minutes after their departure if the employees did not contact the police. They left the premises by smashing a picture window and rushed into a stolen van parked behind the building. The escape vehicle was abandoned in the Écomusée parking lot about one kilometre from the place where the robbery was committed. 14 On May 5 and 7, Mayer re-offended.

He broke into the suspended ceiling in the Caisse Populaire at 2185 King Street West, in Sherbrooke, to prepare the scene for his third and last go around. 15 On the morning of May 12, as the employees were going about their business, two individuals, wearing balaclavas, dressed in black, armed, and equipped with a walkie-talkie, literally fell from the ceiling, behind the ABMs in the counting room. They took more than $100,000 in cash, which they put into a hockey bag.

They left the premises by the entrance door and rushed into a stolen pickup truck parked besides the building. 16 Less than half a kilometre from the crime scene, Mayer and his accomplice abandoned the stolen pickup truck and transferred themselves and the goods to a second escape vehicle. 17 After a long investigation and tight surveillance, Mayer was arrested on May 22 at Montréal-Trudeau Airport and Hurtubise was arrested during the night of May 23, in Trois-Rivières.

Issues [ 9 ] In their inscription in appeal, the appellants raise 12 questions, each involving several subquestions. [2] In reality, the faults that the appellants find with the trial judge can be divided into two categories, namely those concerning the decisions on motions and voir-dire and those concerning the instructions to the jury and the final arguments. Obviously, the appellants also found fault with the sentences imposed, which they considered excessive. I shall therefore address them in the following order: A. The motions and the voir dire 1.

Parole officer Michel Dyotte and the identification evidence. 2. The orders and the search warrants: admissibility of the evidence under subsection 24 (2) of the Canadian Charter . B. The instructions to the jury and the final arguments 1. The circumstantial evidence of possession of a firearm and the directed verdict of acquittal. 2. The judge’s instructions concerning the defence theory. 3. The absence of Daniel Hurtubise’s DNA on the evidence collected in Longueuil. 4. The place where the vehicle was stolen in Laval.

5. The instructions concerning reasonable doubt. 6. The caution concerning expert evidence. C. The sentences imposed A. The motions and the voir dire 1. Parole officer Michel Dyotte and Michel Mayer’s identification evidence. [ 10 ] According to the appellants, the identification testimony of Michel Dyotte, the parole officer of Michel Mayer, was highly prejudicial although unreliable, given the risk of contamination of the testimony by other correctional services officers. [ 11 ] The allegations of possible contamination are without merit.

The witness Dyotte is the only parole officer who testified before the jury, and his testimony was limited to identifying Michel Mayer from video recordings made at the scene of the robberies. Of the three officers called to testify at the preliminary hearing, Dyotte knew the accused best. Catching a glimpse of Mayer at the crime scene, he identified him immediately without the slightest hesitation. [ 12 ] The parole officer Michel Dyotte admittedly knew the appellant Mayer in a “professional” context. This does not mean that his testimony was marked by prejudice.

His credibility, like that of any witness, could have been impugned during cross-examination. But the appellant, who had initially objected to his testimony, decided not to cross-examine him because of the dangers that this could present, given the nature of his relationship with the witness. The assumption of bias was not raised until the stage of final arguments. [ 13 ] It was too late. One cannot impugn the credibility of a witness or the evidence that he gives without asking him the least question on the matter.

That is what is called the duty of fairness to the witness: To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. [3] [ 14 ] It goes without saying, first, that an accused must accept the consequences of a strategic choice and, second, that the relationship between an accused and a correctional services officer does not, in itself, lead to any protection in terms of privileged communication or knowledge.

The fact that the person who identifies the accused as an individual who committed a crime is a parole officer is undoubtedly prejudicial, as is, in general, any evidence against the accused, because the objective is to present to the trier of fact sufficient elements to conclude, beyond any reasonable doubt, that he is guilty. That does not make such evidence inadmissible when it has definite probative value, as in this case.

Furthermore, the jury was not informed of the precise nature of the relationship between the appellant Mayer and the witness Dyotte. [ 15 ] In addition, the trial judge relied on a decision of the British Columbia Supreme Court, R. v.

Anderson, [4] to conclude that identification evidence (“recognition evidence”) is admissible when the witness is in a better position than the jury to identify the accused on the basis of the following criteria: (1) the length of the prior relationship between the accused and the witness; (2) the circumstances surrounding such relationship; and (3) the recency of the contacts between the accused and the witness. [ 16 ] This approach is in accordance with the law and this ground of appeal must fail. 2.

The orders and the search warrants: admissibility of evidence under subsection 24 (2) of the Canadian Charter. [ 17 ] The appellants argue that the police officers acted in bad faith in carrying out the orders and the search of Hurtubise’s vehicle, and that the Court must dissociate itself from the contempt they showed toward the rights of the accused. They argue that these faults were far from being mere technical errors made without malice, as the respondent tried to present them.

They relied mainly on the Supreme Court’s ruling in Harrison . [5] [ 18 ] Even though the constitutional rights of the accused were violated when the orders and the search of the vehicle of the appellant Hurtubise were carried out, the three criteria in Grant [6] required to exclude evidence in such circumstances were not met in this instance.

For the following reasons, the trial judge made no error in declaring admissible the telephone records as well as the physical evidence collected in Hurtubise’s vehicle. [ 19 ] I should like to specify at the outset that the violation of the accuseds’ rights was admitted by the Crown regarding the production orders. We therefore need only consider the search of the appellant Hurtubise’s vehicle. [ 20 ] In this regard, I relunctantly note that the conduct of the officers Morin and Bouchard was unacceptable.

Knowing very well that a search warrant had been requested and that it would for all intents and purposes be issued, given the circumstances and the alleged crime, the police officers disregarded the rights of Daniel Hurtubise and searched his vehicle prematurely, thereby showing contempt for the rules intended precisely to ensure respect for fundamental rights. The trial judge concluded that the police officers were neither honest nor credible when they swore that they had waited for the warrant, which the rest of the evidence contradicts.

The violation was even more unjustified because the appellant Hurtubise had been arrested, his vehicle had been put in a secured garage and there was no perceived risk that the evidence (backpack, firearm and cellular telephones) would be lost or destroyed or would deteriorate.

[ 21 ] The trial judge was right to consider the search ancillary to the arrest. Even if the lawfulness of Daniel Hurtubise’s arrest was never questioned, the Supreme Court’s decisions in Nolet [7] and Caslake [8] must be applied in this instance, which means that the police officers had to explain why it was necessary to carry out the search at the time when it was done, by citing an objectively reasonable ground, which was not the case here. The violation of the rights of the accused remains. [ 22 ] The analysis does not stop there, however.

In Grant , supra , wherein the trial judge did not have the advantage of knowing because it was rendered after the trial, the Supreme Court proposed the following approach to weigh the admissibility of evidence collected in violation of the rights of an accused: 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [Emphasis added] [ 23 ] In the case of the search of Daniel Hurtubise’s vehicle, the first element of the analysis, that of the seriousness of the Charter - infringing state conduct, is the most important. The police officers’ lack of concern and contempt for the rights of the accused are flagrant. Yet, the other police officers involved did not adopt such an attitude.

We are not faced with an entire police force that lacks respect for the rights of the accused, but with two individuals [ translation ] “in a rush”, who were convinced that the warrant would be issued, who wanted to accelerate the process and who, after the fact, lied in an attempt to cover up their behaviour. This first element obviously argues in favour of excluding the evidence. [ 24 ] As for the second element of the analysis, it is clear that the impact of the breach of the rights of the accused was minimal.

He was not conscripted against himself and the evidence would have been discovered even without the breach of his rights. [ 25 ] Only the third element remains, namely society’s interest in the adjudication of the case on its merits. It is clear that charges of conspiracy to commit robberies as well as charges of robbery deserve to be adjudicated on their merits. Setting aside the number of victims in this case and the large amounts stolen, these are serious crimes in themselves, punishable by life imprisonment.

Society’s interest in having this case adjudicated on its merits is self-evident. [ 26 ] This analysis therefore leads to the finding that the trial judge was right to conclude that the evidence gathered from the search of the appellant Hurtubise’s vehicle was admissible. [ 27 ] The same holds for the evidence obtained by the production orders of the cellular telephone records. B. Instructions to the jury and final arguments 1.

Circumstantial evidence of possession of a firearm and the directed verdict of acquittal. [ 28 ] The appellant Hurtubise was no longer accused of possession of a prohibited firearm because the one found in his vehicle did not correspond to the one described in the indictment, namely that of a restricted firearm. The circumstances called for a directed verdict of acquittal. [ 29 ] The fact remains, however, that a firearm was found amongst Hurtubise’s belongings when his vehicle was searched. Hurtubise sought to have this evidence excluded.

He argued that it was prejudicial to him because its only effect, given his acquittal on the charge of possession, was to create evidence of propensity against him. [ 30 ] He is wrong. Firearms are not in themselves illegal. They are subject to controls. It is wrong to argue that any person in possession of a firearm necessarily has a propensity to commit crimes. [ 31 ] The trial judge gave the following instruction regarding evidence of propensity: [ translation ] Now, there is another important instruction that I would like to give you.

You have heard evidence to the effect that when Daniel Hurtubise and Noëlla Pichette were arrested, they had illegal substances in their possession, such as drugs, cannabis and cocaine, and they also had a firearm in the vehicle. I must caution you. It is very important that you understand that an accused person must be judged only with respect to the offence he is alleged to have committed.

In no way may one present as evidence behaviour by an accused in order to cause the trier of fact to conclude that, because the accused had illicit substances in his possession or associated with people who used them or was in possession of a firearm, he is more likely to have committed the crimes he is accused of. Accordingly, you must in no way use the fact that illicit substances were found on the person of Mr. Hurtubise or on Ms. Pichette or that a firearm was found to conclude that, because of this

fact, he is the type of person likely to have committed the crimes he is accused of. You must disregard this information in your determination of whether Daniel Hurtubise committed the crimes of which he is accusedbefore you, today.

You may not, in any way, conclude that the accused is guilty of an offence that he is charged with because of themere fact that he and his passenger in the Uplander had illicit substances on them and had a firearm in the vehicle.[9] [32] This passage repeats what the Supreme Courts teaches us about evidence of propensity in Handy:[10] 36 The exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial. SeeMorris v. The Queen, (SCC), [1983] 2 S.C.R. 190; R. v. Morin, (SCC), [1988] 2 S.C.R. 345; R. v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717; R. v.

Arp, (SCC), [1998] 3 S.C.R. 339. Policy Basis for the Exclusion 37 The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may alsocapture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is verygreat and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which theaccused is called on to answer.

It is excluded notwithstanding the general rule that all relevant evidence is admissible: Arp, supra, atpara. 38; Robertson, supra, at p. 941; Morris, supra, at pp. 201-2; R. v.

Seaboyer, (SCC), [1991] 2 S.C.R. 577, at p. 613. [33] In Seck,[11] Thibault and Côté JJ.A. stated the following about how to instruct the jury when there is a concern aboutevidence of propensity: [translation] 61 It is common ground that the dangers associated with evidence of propensity consist of assuming that the accused is most likely guiltybecause he is a bad person or, for the same reason, that he may have a propensity to commit the type of crime he is accused of.

In thisinstance, the evidence of the appellant’s violent and aggressive behaviour toward almost everyone he associated with could only create apicture of a violent man likely to stab people with whom he had a disagreement, including the victim.

This bleak picture could onlyinfluence the jury’s decision. 62 Furthermore, even in the absence of an objection to the evidence of propensity on the part of counsel and in the absence of anapplication for a specific directive in that regard, one must not lose sight of the fact that it is incumbent upon the judge presiding over atrial by jury to exclude any inadmissible evidence, as the Supreme Court stated in R. v.

D. (L.E.): While the cross-examination by counsel for the accused compounded the error, and counsel for the accused is by no means blameless,this does not relieve the trial judge of his duty to exclude inadmissible evidence. In R. v. Ambrose (1975), (NB CA),25 C.C.C. (2d) 90 (N.B.S.C., App. Div.), aff’d (SCC), [1977] 2 S.C.R. 717, a Crown witness made an unresponsivestatement on cross-examination by defence counsel who then invited the witness to repeat the statement rather than objectingimmediately to the answer.

I agree with the following statement of the Appeal Division, at pp. 91-92, with respect to the duty of a trialjudge: In a criminal trial there is a duty on the trial Judge to exclude inadmissible evidence even though adduced by counsel for the accused ornot objected to, and should inadmissible evidence be adduced, the trial Judge should either instruct the jury immediately to disregard itor, if it is of so prejudicial a nature that the jury would not have the capability of disregarding it, he should discharge the jury and order anew trial: see R. v.

Farrell (1909), (ON CA), 15 C.C.C. 283, 20 O.L.R. 182 (C.A.); R. v. Doyle (1916), (NS CA), 26 C.C.C. 197, 28 D.L.R. 649, 50 N.S.R. 123 (C.A.). [Emphasis added.] 63 In the same way, the charge to the jury is the responsibility of the trial judge, even though counsel has a role to play, as Major J.stated in R. v. Arcangioli: It is expected that counsel will assist the trial judge in ensuring the charge to the jury is complete. It is regrettable that the appellant’strial counsel did not raise this issue before the trial judge.

However, the defence theory arose naturally and clearly out of the evidenceand the accused was entitled to have the jury charged with respect to it... [Citation omitted] [Citations of the Court omitted] [34] In this instance, the trial judge gave the jury a clear and adequate caution, as was necessary, thereby avoiding the prejudicealleged by the appellant. [35] Moreover, possession of a firearm is admissible as circumstantial evidence and is not in and of itself equivalent to evidence ofpropensity. 2.

The judge’s instructions concerning the defence theory. [36] The appellants believe they were treated unfairly by the trial judge, whom they fault for having given unfair instructions tothe jury. [37] The judge delivered his

summary of the parties’ thesis on the basis of the summaries submitted by counsel for the parties. Itshould be pointed out that counsel for the defence did not immediately give him a list of the facts distinguishing the three crime scenes,despite the judge’s request to that effect. Yet, there remains the appellants’ main criticism today, that of unfair treatment of their causetheory as against the similar facts

summary.

[38] The duty of a judge presiding over a jury trial is to treat both parties fairly and to ensure the jury has the necessary elements tounderstand the arguments of both the defence and the prosecution. His charge does not have to provide an exhaustive

summary of all theevidence: 30 It must also be stressed that the review described need not be exhaustive: R. v. John (1970), (SCC), 2 C.C.C. (2d)157 at 166 (S.C.C.). The trial judge is not expected to rehash each and every argument made by counsel. The charge is proper if it leavesthe jury with a sufficient understanding of the evidence relating to the positions taken by the parties on the various issues.[12] [39] Madam Justice Thibault wrote as follows on behalf of the Court in Devillers:[13] [translation] 65 In R. v.

Charlebois, the Supreme Court reiterated a secular rule for the judge’s role concerning the defence theory, referring to thefollowing excerpt from R. v.

G. (R.M.): In the course of giving directions to a jury, it is essential that the trial judge outline for them the theory or position of the defence andrefer the jury to the essential elements bearing on that defence in such a way that it will ensure the jury’s proper appreciation of theevidence. [Emphasis added.] 66 This principle is also endorsed unanimously by authors who see in it the consecration of the trial judge’s duty to ensure that the juryunderstands all the elements that will enable it to reach a verdict. The instructions do not have to be perfect, but it is important that theybe appropriate.

In particular, the judge’s charge must be “fair” and “adequate”. [Court citations omitted] [40] According to the information he had and taking into account the final arguments of counsel for the appellants, the judgepresented the most relevant elements of the defence theory.

He correctly instructed the jury on the way to study the circumstantialevidence, by paying special attention to the identification evidence.[14] [41] In this case, the trial judge also repeated to the jury many times that they had to review all the evidence and that it was theirduty to assess it: [translation] It is up to you to decide what has been proved or not. This

summary of the evidence that I am going to give you, linking the essentialelements of the offences with which the accused are charged, is generally in the present.[15] The purpose of proceeding in this manner is in no way intended to influence you in your assessment of the facts. It is at most a factualrecounting intended to be as neutral as possible. It is clear that you remain the only master of the facts, of an assessment of the credibilityand reliability of the testimony. I should also like to point out that it is a

summary of evidence and therefore an abbreviated recounting of the evidence rather than acomplete, word-for-word transcript of the testimony. Some facts may be omitted, which does not eliminate them from the evidence. If I do not talk to you about something, it does not mean you must erase it from your mind. All the facts have to be analyzed. So if I donot mention a fact, it does not mean you should exclude it from your deliberations and above all it does not constitute a roundabout wayof trying to influence you. Your own knowledge of the evidence, I repeat, takes precedence over the

summary that I may give you.[16] [42] The present case was complex. The trial lasted several weeks. A reading of the transcripts shows that the trial judge adjustedhis instructions when he deemed it necessary, to satisfy the parties as best he could, while stating, as appropriate, the reasons he did notgive effect to an application for correction. The appellants were not able to convince me that his decisions were vitiated with reviewableerrors. [43] This ground is therefore rejected. 3.

The absence of Daniel Hurtubise’s DNA on the evidence gathered in Longueuil. [44] Unlike the appellant Mayer, the appellant Hurtubise was not accused of the crimes committed in Longueuil. In fact, there wasno question of conspiracy concerning the counts pertaining to this first robbery. Conspiracy was included in the counts for the twosubsequent robberies, which occured in Saint-Constant and Sherbrooke. [45] It seems obvious that the DNA of the appellant Hurtubise could not be found in Longueuil because he was not accused ofhaving taken

part in that crime. The appellant argued that this element worked in his favour. In response to a comment by theprosecution, in the absence of the jury, that Hurtubise was trying to take advantage of facts concerning offences for which he was notaccused, the judge decided to allow the Crown to reply, which was reasonable in the circumstances.

This right was not exercised,however, counsel for the defence having taken it upon themselves to correct their final arguments to avoid a reply from the respondent ora corrective measure from the Court. [46] The accused may not fault the judge concerning a strategy adopted freely to avoid a greater prejudice. [47] Moreover, the trial judge gave the jury the following instruction concerning evidence of similar facts.

[ translation ] The Crown must prove each of the charges, beyond a reasonable doubt, and you must make a decision regarding each of them. I have already told you this. I have already also told you that you may not conclude that all the offences were committed by Michel Mayer and Daniel Hurtubise based merely on the fact that the offences in question are similar. You know, it is the first principle I told you about at the start. These are distinct trials. And now, I have a special instruction to give you concerning similar facts.

You may, however, use the evidence adduced in support of one charge to make a decision about another charge, but only if you come to the conclusion that the actions concerned by both charges are so similar that in all likelihood the same person committed them all. But you are not obliged to arrive at this conclusion . I’m going to repeat it because it’s the exception I told you about at the very beginning.

You may use the evidence adduced in support of one charge to make a decision about another charge, but only if you come to the conclusion that the actions concerned by both charges are so similar that in all likelihood the same people committed them all. But you are not obliged to arrive at this conclusion.

If you cannot conclude – and this is very important – if you cannot conclude that the actions concerned by both charges are so similar that in all likelihood the same person committed them all, you must then render a decision concerning each count separately, solely on the basis of the evidence adduced in support of that one count and forget the evidence concerning the other counts . That means returning to the general rule I told you about.

I would like to remind you that, in such a case, you may not use the evidence concerning one charge to infer that the accused is the type of person who is more likely to have committed the other offences. It is understood that, if you acquit the accused on one of the counts, you may not consider the evidence concerning this count as a similar action for the others. To decide whether there is a similarity between the different counts, you must examine all the evidence. [17] [Emphasis added] [ 48 ] This caution, provided on the second day of the instructions, was also clear, unequivocal, and adequate.

The outcome of the trial could not have been affected. 4. Place where the vehicle was stolen in Laval. [ 49 ] There was confusion over the identification of two shopping centres in Laval, the one where the appellant Hurtubise was seen by a surveillance team and the other, where the escape vehicle used in Longueuil was stolen. Concerning this matter, the appellants requested a correction that never came. [ 50 ] Clearly, both the parties and the judge, in a long and complex trial, failed to ensure that this relatively minor detail was corrected.

Moreover, this does not mean that the jurors were unable to distinguish the facts clearly. In the context of all the evidence, this oversight could not have caused a denial of justice and the remedial provision must be applied. 5. Instructions concerning reasonable doubt [ 51 ] The appellants raised this ground in their factum but did not address it in any way during the hearing. Regardless, the appellants did not succeed in demonstrating that the instructions concerning reasonable doubt were vitiated by any error that would give rise to the Court’s intervention. 6.

Caution concerning expert evidence [ 52 ] Given the importance of the evidence obtained through the telephone records, the appellants would have liked the jury to have been given a specific instruction to avoid its being clouded by the apparent infallibility of the evidence, which the trial judge refused. [ 53 ] The trial judge clearly told the jury that it was not bound by the testimony of the cellular telephony experts and suggested it question certain elements of the evidence to assess the credibility and the probative value to be accorded such evidence.

A specific caution concerning the danger of considering such expertise infallible was not necessary, especially as counsel for the appellants skilfully cross-examined the witnesses concerned, about, for example, the uncertainty of capturing of the cellular signal by the towers in Sainte-Catherine and Candiac for the robbery committed in Saint-Constant, as well as the relative proximity of the towers in the Sherbrooke region, which were considered to have relayed the signal to the crime scenes. [ 54 ] This type of evidence is distinguished from DNA evidence, which is characterized by unique and highly convincing data that for all practical purposes eliminate any probability of obtaining similar DNA profiles in the population.

It is true that a special instruction has to be given to the jury in the case of DNA evidence, as shown by the following excerpt from the decision of the Court of Appeal for Ontario in Terceira : [18] 65 At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put. Additionally, in the case of DNA evidence, he or she would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence.

The trial judge should tell them to use their common sense in their assessment of the all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence. [ 55 ] In this case, the cellular telephony expert report is not made more complex and requires no special instruction merely because of its importance. In other words, the fact that it may be highly unfavourable to the appellants does not give it special status. It is expert

evidence like any other. It is up to the jury to assess it, and that is the task that the trial judge gave it. C. The sentences imposed [ 56 ] The appellant Mayer was sentenced to 17 years and 8 months’ imprisonment (20 years less 14 months’ pre-trial custody counting as double time) and the appellant Hurtubise, to 12 years (16 years less two years’ pre-trial custody counting as double time). [ 57 ] The appellants fault the trial judge for not having sufficiently taken into account the principle that a sentence should be similar to other sentences imposed in similar circumstances (subsec. 718.2b) Cr.

C. ), having erred in assessing the mitigating and aggravating factors specific to each of them, notably lack of remorse, and having imposed excessive sentences in light of the evidence adduced, going beyond the reasonable limits for similar crimes. [ 58 ] It is appropriate to eliminate at the outset the ground based on the question of expression of remorse. The judge correctly stated that lack of remorse did not constitute an aggravating factor.

The presence of remorse, however, may constitute a mitigating factor, and, because the trial judge had to impose sentences on more than one accused, he was allowed to point out what distinguished them from one another. [19] [ 59 ] As for the principle of ensuring that sentences are similar to other sentences imposed in similar circumstances, it does not call for identical sentences for accomplices or for similar offenders. There is no automatism or pre-established rule.

The existence of mitigating or aggravating circumstances in a case may lead to a sentence at the bottom of the range for one such a case and a sentence at the top of the range for another. The maximum sentence is not excluded from the analysis. [20] [ 60 ] In R. v.

Demers , the Court upheld a sentence of 16 years for the same type of offence. [21] The sentences imposed in this case were not a “substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”. [22] [ 61 ] Moreover, the trial judge was justified in applying the principle of gradation of sentences, in light of the records of the accused, who had already served significant prison sentences but had not changed their criminal behaviour. [ 62 ] The exercise of ensuring that sentences are similar is not given priority over the principle of deference to the trial judge’s exercise of discretion when the sentence is not vitiated by an error in principle and the sentence is not clearly unreasonable in light of the evidence or rendered so by excessive emphasis on a specific factor. [23] Conclusion [ 63 ] For all these reasons, I would dismiss the appeals against the conviction as well as against the sentences imposed.

NICOLE DUVAL HESLER, J.A. [5] R. v. Harrison , [2009] 2 S.C.R. 494 , 2009 SCC 34 .