R. v. O’Kane; R. v. Zebrun, 2012 MBCA 82

Citation: R. v. O’Kane; R. v. Zebrun, 2012 MBCA 82 Date: 20120927 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Docket: AR 11-30-07530 BETWEEN : HER MAJESTY THE QUEEN ) R. L. Tapper, Q.C. and ) J. D. Kendall Appellant ) for the Appellant ) - and - ) ) S. E. Pinx, Q.C. and PETER JOHN O’KANE ) T. E. Bourcier ) for the Respondent P. J. O’Kane (Accused) Respondent ) ) - and - ) H. Weinstein, Q.C. and ) J. A. Weinstein Docket: AR 11-30-07531 ) for the Respondent J. J.

Zebrun BETWEEN : ) ) ) HER MAJESTY THE QUEEN ) ) Appeals heard: Appellant ) September 22, 2011 ) - and - ) ) Judgment delivered: JESS JOHN ZEBRUN ) September 27, 2012 ) (Accused) Respondent ) HAMILTON J.A. 1 The Crown appeals the acquittals, by way of directed verdict, of the respondents (the accused) of the charges of perjury and being unlawfully in a dwelling house.

At their jury trial, after denying the Crown’s motion to reopen its case to present “in dock” identification of the accused, the trial judge directed the acquittals based on a lack of identification evidence. 2 By its appeals, the Crown puts at issue the fairness of the procedure followed by the judge, the adequacy of her reasons and the correctness of her rulings. The Crown seeks a new trial.

This raises the additional issues of what is the Crown’s burden for a new trial on an appeal from a directed verdict and whether that burden has been met. 3 For the reasons that follow, I am of the view that the trial judge erred in granting the accused’s motions for a directed verdict and that the Crown has met its burden for a new trial. Background 4 The accused are police officers with the Winnipeg Police Service. In 2005, they were involved in an investigation that resulted in the arrests of Danny George and Scott Guiboche for drug offences.

5 During the investigation, a search warrant was obtained to search Room 1707 at the Fairmont Hotel. Two pounds of crack cocaine and $18,000 in cash were seized from the room. O’Kane swore the affidavit in support of the application for the search warrant. 6 In 2006, the accused testified at the preliminary inquiry of George and Guiboche about their involvement in the investigation.

Their testimony included evidence about how they came to have a pass key for Room 1707, how they came to believe that there were drugs in that room, when they went to the hotel and their entry and search of Room 1707. 7 As a result of their testimony at the preliminary inquiry, O’Kane faced two counts of perjury, Zebrun faced one count of perjury and both faced a count of unlawfully entering a dwelling house. 8 The counts of perjury against O’Kane were: Count 1: ... [K]nowingly provid[ing] false evidence with intent to [mis]lead the, the court with, which evidence was as follows: (

a) By testifying that at 6:23 a.m. … he was at the Public Safety Building and took a phone call from an informant. [(b)] By testifying that at the time of the aforesaid phone call, he was actually at the Public Safety Building, and then went to the Fairmont Hotel for the purpose of determining that a passkey was valid. [(c)] By testifying that he went to the Fairmont Hotel to determine what room the passkey was for. [(d)] By testifying that he received the information that the passkey was for room 1707, while at the Fairmont Hotel. [(e)] By testifying that he was at the Public Safety Building between 6:30 a.m. and 7:15 a.m. …. [(f)] By testifying that he went to room 1707 once only that day … after the search warrant was obtained.

Count 2: … [H]e ... provided evidence in an affidavit sworn ... for the use in an application for a search warrant ... knowingly provid[ing] false evidence in the affidavit with intent to mislead the court, by testifying that he went into room 1707 at the Fairmont Hotel only on one occasion that day. 9 The count of perjury against Zebrun was: ... [D]id commit perjury by knowingly provid[ing] false evidence with intent to mislead the court, which evidence was as follows: . . . . .

That he attended the Fairmont Hotel at 6:30 a.m. only to speak to the night manager; . . . . . 10 The counts of unlawfully entering a dwelling house stem from the accused’s alleged entry into Room 1707 before obtaining the search warrant.

11 The central issue of the trial concerned whether the accused went once to the hotel, after receiving the search warrant, as they testified at the preliminary inquiry, or whether they went twice; the first time to check out Room 1707 and then to return after obtaining the warrant. The Trial 12 The trial proceeded in February 2011. Over the course of three days, the Crown called nine witnesses and submitted five exhibits into evidence related to the events of the investigation.

The evidence included testimony from three hotel staff working that particular morning (one being the desk clerk, Michael Hrechka) as to what occurred; the occurrence report prepared by the hotel staff, which included the names of the accused accompanied by a Winnipeg Police Service business card with the accused’s names written on it; “GPS” evidence from the accused’s cruiser car; the accused’s pass card entries for the Public Safety Building; the testimony of a communications center employee (Janet Allard) identifying the accused’s voices on a communication center recording; the accused’s police notes; and a transcript of their testimony at the preliminary inquiry. 13 The accused’s police notes, pass card entries, cellular phone records and the preliminary inquiry transcript were tendered at the commencement of the trial by consent of the accused, through their counsel.

At the time that the agreed book of exhibits was tendered, Mr. Pinx, counsel for O’Kane, stated: .... Firstly the, the exhibits, so the jury is aware, are going in with the consent of both counsel on behalf of our two clients. . . . . . Secondly, by this agreement, I just think it’s important that jury and the court understand, we have eliminated a great number of witnesses who don’t need to be called, in other words, to prove that these are the documents relevant to this case. So it is going to have substantially shortened up -- . . . . . -- the length of the trial. . . . . .

So I just wanted the jury to be aware of that, so it’s going to make their task a bit easier. They’ll hopefully focus on what’s important -- . . . . . -- in this trial. 14 At the close of the Crown’s case on a Friday, and in the context of pre-charge discussions, Mr. H. Weinstein, counsel for Zebrun, informed the judge that the accused’s intention was that they would be electing not to call evidence. He also advised that: … [T]here’s going to be a motion for a directed verdict on the aspect of identification or no in court identification of either O’Kane or Zebrun …. ….

So that will be … done Tuesday. [emphasis added] 15 Mr. Pinx then advised the judge that he intended to make motions that there was no evidence to support “some of the transactions” set out in count 1 against O’Kane and with respect to count 2 against him. He also indicated that he would be arguing that the requirement for corroboration was not met by the Crown and “joining on the motion on the identification issue.”

16 The following exchange took place in response to the judge’s inquiry as to whether the Crown was ready to address the issue of identification: MR. TAPPER: No, I mean the reality is that we have their notebooks, their evidence. We have Janet Allard saying I recognize their voices. .... THE COURT: No, but the point is that nobody pointed them out in court. MR. TAPPER: Yes. There’s no question, but reality is you have their call numbers, you have their cruiser numbers, you have Janet Allard saying that those are their voices. THE COURT: Yeah. No, but the point that they’re making is that -- MR.

TAPPER: No, I understand, nobody’s stand up and said -- THE COURT: Nobody’s saying that those are the two that are the same people -- MR. H. WEINSTEIN: Right. THE COURT: -- that are in the indictment. MR. PINX: Yes. 17 Later in the discussion about identification, Mr. Tapper indicated that he might want to ask permission of the judge to reopen the Crown’s case.

He agreed that “the hotel managers and desk clerk can’t say they remember these people and I have to prove that inferentially.” He stated that he was going to “ask to reopen it just to call someone to say that’s the people who are police officers, Zebrun and O’Kane.” 18 After a brief recess, the following exchange occurred: MR. TAPPER: ... [Y]ou’ll see ... the notebooks of Jess Zebrun and Peter O’Kane and the cell phone logs of Peter O’Kane and Jess Zebrun, respectively.

That, coupled with the fact that of course at the preliminary hearing identity was admitted, perhaps led me into believing that this was just not an issue and if I have to take it on the chin for that, I’ll take it on the chin for that. I submit based on that and the evidence of Allard you have sufficient identification, not as to who went in the room of 1707 but who these two individuals are.

If you’re not satisfied in that respect, in my respectful submission no prejudice accrues to the accused in this situation and I’m going to ask for leave to reopen, just to say that those are the two people whose names were attached to those documents. . . . . . MR. TAPPER: They are agreed exhibits, however. THE COURT: They’re agreed exhibits and, but, but two and three [the notebooks] have not been linked up to the accused. That’s the issue -- MR. TAPPER: Yes.

THE COURT: -- nor has the com centre thing. So that’s precisely what I’ve been thinking about, which is it’s an issue as to the discretion to, to reopen the Crown’s case and it’s not something that I’m going to do quickly and I’d like some law on it because I’d like to know what the test for reopening is before I determine, you know, whether or not to allow that, but it’s quite clear that there has been no -- MR. TAPPER: Yes. THE COURT: -- in court identification even with agreed documents -- MR. H. WEINSTEIN: Yes, that’s right.

THE COURT: -- it hasn’t been linked up to the specific bodies that are sitting in the court. MR. TAPPER: I think that’s fair. THE COURT: So … that’s quite clear. So it’s a question of whether the discretion that resides to reopen the case should be exercised or not. So I would actually like some, some assistance on that. 19 In the context of discussing the adjournment of the trial to Tuesday morning and the timing to hear, firstly, the Crown’s motion to reopen, and then, the defence motions for directed verdicts, Mr. Pinx stated: …. I think what we’re talking about is first obviously we need ruling A.

Depending on the result of ruling A will determine whether there’s a need to move towards a motion for the directed verdict. 20 The judge heard submissions on the Crown’s motion to reopen on the Tuesday morning. The Crown argued that it was seeking only to recall a witness to make the “in dock” identification.

The accused argued prejudice based on their counsel’s strategic decision to limit cross-examination of witnesses to avoid any identification of them in court. 21 After a brief recess, the judge denied the Crown’s motion to reopen its case and immediately granted the accused’s motions for directed verdicts of acquittal. The Judge’s Reasons 22 Because the judge’s reasons are brief, I set them out in their entirety: There is before me a motion for non-suit on the basis of lack of identification of Peter O’Kane and Jess Zebrun and a motion by the Crown to re-open to permit the identification to be made.

The Crown’s position is that this is merely a technical matter and that they were under a misapprehension that there was any issue with respect to O’Kane and Zebrun in court being the individuals whose notes, cell phone records, et cetera, went into the agreed book of documents. The defence argues real prejudice to the accused has occurred. Case law is clear that the trial judge has a wide discretion to allow a case to be re-opened unless there would be prejudice to the accused in the legal sense.

The Crown’s position is that the defence would not have put their case in or approached their case differently or cross-examineddifferently as it was never controversial about who the accused are. I have been satisfied on the submissions of the defence counsel that the issue is larger than the mere formal identification of the accused. As counsel pointed out, there were strategic decisions made based on lack of identification that led to other areas not being canvassed,for example, voice identification and issues of intent.

To permit Crown to open its case to have someone point out O’Kane and Zebrunin court would not be sufficient. It would require the recalling of a number of witnesses to be dealt with in substantive areas that werestrategically avoided. On the totality of what is before me, I’ve been persuaded that it would not be fair to allow the Crown to re-open its case at this time.

Themotion for non-suit is therefore granted and as a result acquittals will be entered on all counts against both accused. [emphasis added] The Positions of the Parties 23 The Crown asserts that the judge erred in law by: 1. refusing to allow the Crown to reopen its case; 2. denying the Crown the opportunity to argue on the motions for directed verdict and not providing reasons for the directed verdicts;and 3. directing the acquittals of the accused because there was no identification evidence. 24 The Crown seeks a new trial. 25 The accused respond that the judge made no errors as alleged by the Crown.

In their joint factum, they also assert thateven if the judge did err, the Crown has not met its burden for a new trial as set out in Vézeau v. The Queen, (SCC),[1977] 2 S.C.R. 277. In other words, they say that verdicts of acquittal will be the result after a new trial notwithstanding that the judgeerred by directing the verdicts of acquittal, arguing that a review of the evidence called by the Crown demonstrates this.

By way ofexample, they argue Hrechka’s ability to recall and the contradictions in his testimony “exposed real doubt on the issue of which officersattended room 1707 ... and real doubt regarding whether any officers had actually attended into the room in question prior to obtaining asearch warrant.” 26 In addition, in oral submissions, Mr. Pinx argued that the Vézeau test has not been met by the Crown because there wasno corroboration of the alleged falsehood of the accused that they went into Room 1707 only once.

Therefore, the accused assert therewas no corroboration of “a material particular” as required by s. 133 of the Criminal Code (the Code). 27 In response, the Crown says that it has met the appropriate burden for a new trial, which it asserts is set out in the morerecent Supreme Court of Canada decision of R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609. It also says that whatever the test, ithas been met.

The Crown also points out that both Vézeau and Graveline concerned acquittals by juries, not directed acquittals, and thatthis case should be allowed to proceed to the jury for it to weigh and consider the evidence, including the issue of corroboration. Analysis and Decision 28 The Crown’s right of appeal from an acquittal is limited to a “question of law” alone. See s. 676(1)(

a) of the Code. Reopening of the Crown’s Case 29 The decision of whether or not to permit the Crown to reopen its case is a matter of discretion for the trial judge. Therefore, deference is owed to the judge’s ruling unless she misdirected herself with respect to the law or the facts or if her decision isso clearly wrong as to amount to an injustice. See Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367, and R. v. Katzenback(J.P.), 2011 ABCA 318, 515 A.R. 141. 30 The law regarding the reopening of the Crown’s case is relatively settled. The parties cited the three leading cases: Robillard v. The Queen, (SCC), [1978] 2 S.C.R. 728; R. v. P. (M.B.), (SCC), [1994] 1 S.C.R. 555;

and R. v. G. (S.G.), (SCC), [1997] 2 S.C.R. 716. These cases establish that the considerations for a trial judge hearinga Crown motion to reopen differ depending upon the stage of the trial at which the motion is made. The Honourable R. E. Salhany,Q.C. summarized the law in this regard in Canadian Criminal Procedure, 6th ed., looseleaf (Aurora: Thomson Reuters Canada Limited,2010) vol. 1 (at paras. 6.3975, 6.3980, 6.3990): Traditionally, the courts recognized three stages in the trial during which the discretion could be exercised.

In the first stage, before theCrown closed its case, the trial judge had a wide latitude in allowing the Crown to recall a witness to prove an omitted element of thecase or to correct earlier testimony. The second stage was after the Crown had closed its case. Here the trial judge had the discretion toallow the Crown to reopen its case to correct some oversight or to prove a matter which it had failed to do inadvertently, provided thatthere was no prejudice to the accused. Once the defence had begun to present its case, the judge’s discretion was narrowly restricted.

The Crown was only allowed to reopen its case to prove a matter, ex improviso, which no human ingenuity could have foreseen. …. In Robillard, the Supreme Court of Canada decided that the trial judge should have a wide discretion to permit the Crown to reopenits case and such discretion should not be subject to the strict limitation of matters which arise ex improviso which no human ingenuitycould have foreseen. The Court was of the view that a trial judge should be left with some degree of freedom to meet and deal withunexpected problems which might arise in a trial.

However, in P.(M.B.), the Supreme Court of Canada decided that although Canadian jurisprudence has not applied the strict ex improvisorule as it has been applied at common law, the circumstances in which the Crown should be allowed to reopen its case after the defencehas begun its case are narrow. ….

The Court decided that the Robillard case should be more narrowly construed as applying only tosituations where the Crown is seeking to reopen its case in order to correct a matter of form. …. [emphasis added] 31 The Crown argues that the judge erred in how she approached the issue of prejudice and that she failed to consider theinterests of justice beyond any prejudice to the accused that could be cured by the recalling of witnesses for cross-examination.

Itsubmits that the conduct of the defence (the decision not to ask questions that may lead to identification of the accused) contributed tothe prejudice asserted by the accused (that is, areas of cross-examination were specifically not pursued by the accused) and that theomission or mistake was non-controversial and purely procedural.

It challenges the accused’s assertions that their cross-examinationswould have proceeded differently if identification had been made in court, given that they acknowledge the identification of the accusedcould have been made by the last witness called by the Crown. 32 There are cases where trial judges have permitted the Crown to reopen its case where identification has not beenestablished. For example, see R. v. Dill (T.T.), 2005 ABQB 49, 375 A.R. 210, and R. v. Smith (D.H.), 2011 SKQB 324, 382 Sask.R.150. There are others where the Crown has not been allowed to do so. See, for example, R. v.

Gowing, 2012 ABPC 38 (QL), and R. v.Kotchea, 2003 NWTSC 29 (QL). 33 It is evident from the record that the trial judge understood the applicable law. She correctly determined that the casefell within the second stage of the trial; that is, after the Crown had closed its case, but before the accused made their formal elections asto whether to call evidence. She applied the law to the facts before her. I cannot say that the decision was unjust. 34 The Crown’s real complaint is that it wishes the trial judge had exercised her discretion differently, as perhaps anotherjudge may have done.

That is not an error of law that can ground an appeal by the Crown of an acquittal. Directed Verdict Motion 35 The Crown asserts two fundamental arguments with respect to the directed verdicts of acquittal; the first I woulddescribe as procedural and the second as substantive. The procedural argument is that the judge did not give the Crown a fairopportunity to respond to the accused’s motions for a directed verdict and that she failed to provide reasons for her decision to direct theacquittals.

The substantive argument is that the trial judge erred in granting the accused’s motions for a directed verdict, given that therewas circumstantial evidence of identification that should have gone to the jury. The Procedural Argument 36 Given the record and how the proceedings transpired, in my view, the more important aspect of the Crown’s proceduralargument is its assertion that the judge failed to provide reasons. 37 In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, and R. v.

Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, which wereconviction appeals, the Supreme Court of Canada confirmed a functional, purpose-driven approach when an appellate court is faced witha ground of appeal concerning the failure to provide, or the adequacy of, reasons. The court explained that there is no general duty to

give reasons and that “[e]ach adjudicative setting drives its own requirements” (Sheppard at para. 19). The court emphasized that “therequirement of reasons is tied to their purpose and the purpose varies with the context” (at para. 24). See also R. v. R.E.M., 2008 SCC51, [2008] 3 S.C.R. 3. 38 The same policy considerations that arose in Sheppard apply equally to acquittals, in the context of the Crown’s limitedright of appeal. See R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, and R. v. Kerr, 2004 MBCA 30, 48 M.V.R. (4th) 201.

In my view,there is no reason to distinguish an acquittal by directed verdict from an acquittal at the end of trial. Both are “crucial, pivotal anddecisive” (R. v. Woodard (J.), 2009 MBCA 42 at para. 25, 240 Man.R. (2d) 24) in nature. Therefore, the purpose-driven, functionalSheppard/Braich analysis is called for when an appellant alleges that the judge erred by not providing any, or adequate, reasons for adirected verdict of acquittal. 39 However, I need not engage in that analysis here, given that I agree with the Crown’s substantive argument that thejudge erred in law in directing the verdicts of acquittal.

The Substantive Argument 40 The test to be applied by a trial judge on a directed-verdict motion is whether “there is admissible evidence whichcould, if it were believed, result in a conviction” (R. v. Arcuri, 2001 SCC 54 at para. 21, [2001] 2 S.C.R. 828). It is the same test that isapplied by a preliminary inquiry judge when determining whether an accused should be committed to stand trial. 41 In Arcuri, McLachlin C.J.C. explained the test and how it is more complicated when there is circumstantial evidence(at paras. 22-23, 30): The test is the same whether the evidence is direct or circumstantial: see Mezzo v.

The Queen, (SCC), [1986] 1 S.C.R.802, at pp. 842-43; Monteleone, [ (SCC), [1987] 2 S.C.R. 154], at p. 161. The nature of the judge’s task, however, variesaccording to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’stask is straightforward. …. If there is direct evidence as to every element of the offence, the accused must be committed to trial. The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence.

The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has notadvanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requiresthe judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should bebelieved ….

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting theinferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself wouldconclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether theevidence, if believed, could reasonably support an inference of guilt. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assesscredibility.

Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properlyinstructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidenceitself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantialevidence. 42 The application of these principles to the evidence raises a question of law. See R. v.

Barros, 2011 SCC 51 at para. 48,[2011] 3 S.C.R. 368. 43 The judge did not give specific reasons for granting the accused’s motions (being the reason for the Crown’s Sheppardargument).

When I review the record of her discussion with counsel on the Friday before her Tuesday ruling and her reasons for notpermitting the Crown to reopen its case, it seems to me that the judge was concerned that the Crown had not presented any “in dock”identification of the accused to link the documents in evidence to the accused. 44 In a criminal case, the Crown must prove “not only that an offence has been committed but that the accused was theone who committed it” (see The Honourable Mr. Justice S. Casey Hill, David M. Tanovich & Louis P.

Strezos, eds., McWilliams’Canadian Criminal Evidence, 4th ed., looseleaf (Aurora: Thomson Reuters Canada Limited, 2010) vol. 2 at para. 29:10). The latterelement is commonly referred to as “identification” or “identity” and may be proven “by either direct or circumstantial evidence or acombination thereof” (ibid.). 45 In R. v. Nicholson (1984), 1984 ABCA 88 , 52 A.R. 132 (C.A.), leave to appeal to S.C.C. denied, [1984]S.C.C.A. No. 176 (QL), Kerans J.A. explained that there are a number of facets to the notion of identification (at para. 6): One can speak of identification in several contexts.

One question, for example, which seemed in argument here to be confused withothers in this: precisely which member of the human race is charged with the offence? Another is in terms of a judge being satisfiedthat the accused is actually before the Court for the purposes of a trial. Yet another arises when the Crown or defence seek to introduce

certain documents which purport to relate to the accused. And, lastly, the Crown must, as I have said, prove beyond a reasonable doubtthat it was the accused, and no other, who committed the crime charged. These four are quite separate questions, although often closelyrelated. Problems which arise in one context cannot be permitted to cause confusion in another. I will therefore enlarge on each ingeneral terms and in terms of this case.

For the latter purpose, it is now necessary to review the facts in some detail. 46 In Nicholson, which the Crown relies on, the issue was whether the accused should have been convicted when thearresting officer was unable to pick him out of a crowd at his trial. There were four pieces of evidence as to the identity of the offender: (1) the appearance notice; (2) similarity of names between the accused and the offender; (3) the offender’s driver’s licence; and (4) thedefence evidence.

Kerans J.A. confirmed that “in dock” identification was not required and, furthermore, that there was sufficientidentification evidence. As a result, the appeal was dismissed. 47 In my view, the fundamental question here is whether the similarity of names between the accused and the officersreferred to in the evidence was sufficient to fulfill the identification component of the test to be applied on the directed-verdict motions. 48 The case law is clear that similarity of names may serve as circumstantial evidence of identity, particularly at thedirected-verdict stage.

Similarity of names “is an item of proof of identity” (Nicholson at para. 33). See also McWilliams’ (at para.29:40.20.90): Name It has been held that some evidence of identity is provided simply by a similarity of name and address. …. The point to remember is thatsome evidence is all that is needed to commit for trial or to resist a motion for non-suit. 49 The seminal case in Canada regarding similarity of name as identification evidence is R. v. Chandra (1975), (BC CA), 29 C.C.C. (2d) 570 (B.C.C.A.).

Chandra was a directed verdict case where the jury was directed to acquit basedon a lack of identification evidence. The accused was alleged to have run over an elderly woman with his car as she was crossing thestreet. The Court of Appeal concluded that there was some admissible evidence of identification and, therefore, allowed the appeal anddirected a new trial. McIntyre J.A. (as he then was), for the court, made the following remarks regarding similarity of name asidentification evidence (at p. 573): In my opinion mere identity of name affords some evidence of identity of a person.

When accompanied by other factors such as therelative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a licence or other document ofsignificance, its weight is strengthened. The trier of fact when such evidence is before it, whether Judge alone or jury, must consider it,weigh it and reach its determination. When such evidence is adduced to the trier of fact it cannot be said there is no evidence. …. 50 In R. v.

D.R.H., 2007 MBCA 136, 220 Man.R. (2d) 271, which was a conviction appeal relating to a sexual assault,Scott C.J.M., writing for the majority, cited Chandra and concluded that “the fact the accused and the perpetrator share the same namemay be used as circumstantial evidence of identity” (at para. 46). See also R. v. Zarubin (G.A.), 2004 SKCA 14, 241 Sask.R. 292, R. v.J.V.-R. (1999), (ON CA), 120 O.A.C. 298, and R. v. D.B., 2007 ONCA 368 (QL). 51 Here there is the similarity of the names of the accused, who are police officers, to evidence tendered with theirconsent.

There is also the evidence of Hrechka that four police officers appeared at the hotel desk, that they had a pass key for Room1707 and that they sought access to it. He testified that one of the police officers identified himself later as Officer O’Kane and that hereceived a police officer business card with the names Zebrun and O’Kane on it. Given this evidence, I am of the view that there wassome admissible evidence as to the identity of the accused that was sufficient to resist the accused’s motions for a directed verdict.

Therefore, the judge erred in law when she directed the verdicts of acquittal on the basis of lack of identification. Crown’s Burden for a New Trial on Appeal from a Directed Verdict of Acquittal 52 The accused argue that in order for the Crown to obtain a new trial, the Crown must not only demonstrate a legal error,but must also discharge the heavy onus imposed by Vézeau, and R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595. As noted earlier, theCrown responds that if the Crown has a burden for appeals of directed verdicts of acquittal, the test is set out in Graveline.

Vézeau,Sutton and Graveline involved appeals from verdicts of acquittal at the end of a trial. 53 The test, as articulated in Vézeau, is that it is “the duty of the Crown, in order to obtain a new trial, to satisfy the Courtthat the verdict would not necessarily have been the same if the trial judge had properly directed the jury” (at p. 292). 54 In Sutton, McLachlin C.J.C. wrote (at para. 2): …. The test as set out in Vézeau ... requires the Crown to satisfy the court that the verdict would not necessarily have been the same hadthe errors not occurred. In R. v.

Morin, (SCC), [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy oneand that the Crown must satisfy the court with a reasonable degree of certainty” (p. 374).

55 This passage was quoted by Fish J. in Graveline (see para. 16), in which he explained the Crown’s duty as follows (atpara. 14): …. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge mightreasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal.

The Attorney Generalis not required, however, to persuade us that the verdict would necessarily have been different. 56 In Sutton, McLachlin C.J.C. explained the issue to be (at para. 7): “Has the Crown established with reasonablecertainty that the jury, had it been charged correctly, would not necessarily have reached the same verdict?” 57 I accept that the Crown must have a burden on an appeal from a directed verdict of acquittal to satisfy the court that anew trial is warranted.

It would be a miscarriage of justice for an appellate court to order a new trial in a case where there is nolikelihood that the new trial would result in a different verdict. However, as will be seen, the case law demonstrates that the burden iseasily met and that it is only in exceptional circumstances that a new trial will not be ordered after an appellate court concludes that atrial judge erred in law in directing an acquittal. 58 There is no shortage of Supreme Court of Canada cases on Crown appeals from acquittals after a trial in which theVézeau/Graveline test is addressed.

However, when dealing with appeals from directed verdicts of acquittal, the Supreme Court has notgenerally discussed or invoked the Vézeau/Graveline test. See, for example, Ebner v. The Queen, (SCC), [1979] 2S.C.R. 996, and R. v. Monteleone, (SCC), [1987] 2 S.C.R. 154, which is one of the leading cases on directed verdicts. 59 In Monteleone, in addition to setting out the appropriate test for when to direct a verdict of acquittal, the court alsocommented on the role of appellate courts in cases involving appeals from directed verdicts.

McIntyre J., writing for the court, stated (atpp. 160, 167): There is only one question which arises in this appeal. Should the case have gone to the jury after the defence had either called evidenceor declined to do so, or should the acquittal have been directed? At this point in these proceedings it is not for this Court, nor was it forthe Court of Appeal, to reach a conclusion or even to consider the issue of guilt or innocence. Our sole concern is to inquire whetherthere was a case made by the Crown at trial which ought to have been left to the jury for that determination.

In conclusion, I do not suggest that the inculpatory evidence is conclusive or even persuasive. That is not the function of an appellatecourt. The resolution of that question is for the jury upon proper instructions on the law after having heard the evidence. …. [emphasis added] 60 A more recent example is Barros, in which the accused was charged with obstruction of justice and two counts ofextortion. The trial judge directed a verdict of acquittal on the first charge, but allowed the two counts of extortion to proceed. In theend, the accused was acquitted on those charges as well.

The Supreme Court mentioned Vézeau and Graveline only in connection withthe appeals from the acquittals, but not in connection with the directed verdict. The majority concluded that the trial judge was wrong toimpose a directed verdict, and so ordered a new trial. 61 There is no shortage of cases in other jurisdictions involving Crown appeals from directed verdicts where a new trialwas ordered without any reference to Vézeau or Graveline. See, for example, R. v. Dyer (1991), (NL CA), 90 Nfld. &P.E.I.R. 225 (Nfld. C.A.), R. v. Allen, [1993] O.J. No. 3644 (QL) (C.A.), R. v.

Martell (D.F.) (1999), 1999 NSCA 50 , 173N.S.R. (2d) 48 (C.A.), R. v. Blizzard (A.J.) et al., 2002 NBCA 13, 247 N.B.R. (2d) 203, R. v. Robinson (W.D.), 2005 NSCA 65, 232N.S.R. (2d) 46, R. v. Solomon (J.N.), 2006 NBCA 52, 299 N.B.R. (2d) 327 (a case involving lack of in-court identification), R. v. Plaha,2008 ONCA 96 (QL), R. v. Masterson, 2008 ONCA 481 (QL), R. v. Hutchinson (C.), 2010 NSCA 3, 286 N.S.R. (2d) 331, R. v. J.D.J.(B.)M., 2010 SKCA 39 (QL), R. v. D.L.A., 2011 PECA 15, 311 Nfld. & P.E.I.R. 148, R. v. M.R., 2011 ONCA 190, 277 O.A.C. 99, andR. v.

Barrett (A.), 2012 NLCA 12, 319 Nfld. & P.E.I.R. 287. 62 There are cases where the Crown’s burden on such an appeal is discussed, often briefly. See, for example, R. v. Sillars(1978), (BC CA), 45 C.C.C. (2d) 283 (B.C.C.A.), R. v. Hunniford, [1982] B.C.J. No. 2268 (QL) (C.A.), R. v.Pedrazzini, [1986] A.J. No. 210 (QL) (C.A.), R. v. Greenwood (1991), (ON CA), 5 O.R. (3d) 71 (C.A.), R. v.Ackerman, [1992] O.J. No. 3682 (QL) (C.A.), and R. v. Collins (1993), (ON CA), 12 O.R. (3d) 161 (C.A.). 63 The question that must be addressed is: What is the appropriate test for ordering a new trial in a directed verdictappeal?

The articulation of the tests set out in Vézeau, Sutton and Graveline differ somewhat. The test set out in Vézeau and Sutton isfocussed on whether the verdict might have been different, whereas the test in Graveline is focussed on the effect of the trial judge’serror. Depending on which formulation is adopted, these two tests could have different effects in directed verdict cases. This is because,in a directed verdict case, it is obvious that the error had an impact on the verdict and the test is easily met. However, if the reviewing

court is instead supposed to inquire whether the verdict would potentially have been different absent the error, it invites a more probingreview of the case. 64 I am of the view that the appropriate approach is found in Greenwood and Collins. These decisions of the OntarioCourt of Appeal caution appellate courts from speculating as to what might have happened had the trial judge not directed the verdict andthat only in exceptional cases will a new trial not be required despite the trial judge’s legal error.

It seems to me that this explains whymost cases involving appeals of directed acquittals do not address the Crown’s burden, as it is obviously met. 65 Greenwood, which involved two co-accused, was one of those exceptional cases where a new trial was not ordered.After the directed verdict was entered for Greenwood, the trial of his co-accused continued, in which Greenwood testified. The co-accused was acquitted.

Despite finding that the trial judge erred in directing the acquittal of Greenwood, the court did not order a newtrial given the evidence of Greenwood at the co-accused’s trial. 66 In explaining why this was an exceptional case, Doherty J.A., writing for the court, also explained that an appellatecourt cannot be asked to speculate and why it should be rare for an appellate court not to order a new trial if it found error by the trialjudge in directing an acquittal (at pp. 77-78): I am satisfied that the trial judge erred in acquitting Mr. Greenwood at the close of the Crown’s case.

That error does not, however,necessitate reversal. The Crown must show not just legal error, but error which may have impacted on the verdict. In most cases wherea trial judge erroneously directs a verdict at the end of the Crown’s case, the Crown will have no difficulty demonstrating with areasonable degree of certainty that the verdict might have been different had the error not been made. The court cannot speculate as towhat might have happened had the trial judge not directed a verdict. This case, however, presents unusual circumstances. Following the directed verdict of acquittal, Mr.

Greenwood testified …. …. Forall practical purposes, the trial proceeded as though Mr. Greenwood was still an accused. The trial judge accepted Mr. Greenwood’s evidence. Had the motion for a directed verdict been dismissed, I am satisfied thatMr. Greenwood would inevitably have testified in his own defence as he did when he was called on behalf of [the co-accused], and thatthe trial judge would have made the same finding with respect to his credibility. . . . . . In the circumstances, the Crown cannot demonstrate with any degree of certainty that the verdict as regards Mr.

Greenwood might wellhave been different had the trial judge not erroneously directed his acquittal at the end of the Crown’s case. The appeal from hisacquittal must be dismissed. [emphasis added] 67 In Collins, the Crown successfully appealed a directed verdict of acquittal on charges of second degree murder. Thedefence argued that there was no substantial wrong or miscarriage of justice caused by the acquittal because the Crown had failed toshow with any reasonable certainty that the outcome would have been any different after a trial.

In considering this argument, ArbourJ.A. (as she then was) wrote (at pp. 170-72): There is no doubt that, despite the silence of the Criminal Code on the point, in the case of an appeal by the Crown from an acquittal, theCourt of Appeal is entitled to consider whether a substantial wrong or miscarriage of justice occurred, and to dismiss the Crown appeal,despite having found an error of law at trial, if no such wrong or injustice did occur (R. v. Vezeau … R. v. Morin, (SCC),[1988] 2 S.C.R. 345 … R. v. Finta (1992), (ON CA), 73 C.C.C. (3d) 65 … (Ont. C.A.), at pp. 207-08 ….

All thesewere cases where the Crown was appealing an acquittal entered by a jury, after a determination of the case on the merits. Here, the casewas aborted prematurely by a wrongful ruling that there was no case to answer. The accused were not put to their election and it isimpossible to speculate as to what evidence the jury would have had to consider had the case been allowed to proceed as it should have. In strictly procedural terms, the Crown was also effectively deprived of its entitlement to have its case decided by a jury.

Counsel for the respondents have not provided us with any authority in which a court of appeal has concluded that no substantial wrongor miscarriage of justice had occurred as a result of a wrongly directed verdict of acquittal in a trial by jury. ….

. . . . . As well in Monteleone … McIntyre J. indicated that the sole issue in the appeal was whether the matter should have been left to thejury. There was no consideration by the Supreme Court of the application of s. 686(1)(b)(iii) of the Code. …. The recent decision of this court in R. v. Greenwood … also a case involving a trial by judge alone, illustrates the near impossibilityof applying the proviso in the case of a jury trial. …. ….

Ultimately, it is only in rare cases that the court of appeal will be in a position to conclude that no substantial wrong or miscarriageof justice has occurred despite a wrongly directed verdict of acquittal. This, it appears, has yet to occur in the case of a jury trial. [emphasis added] 68 Arbour J.A. explained that the defence argument was too speculative (at pp. 173-74): .... Even if both the respondents elected not to testify, the case that would go to the jury would not necessarily be the same as the casefor the Crown on the motion for a directed verdict.

There is, of course, no way of anticipating what evidence would have been called bythe defence. …. It is too speculative for an appellate court to assume what position the defence would have taken, had it been calledupon to elect, to assess the evidentiary consequences of that speculative decision, and then to determine whether a conviction based onthat hypothetical sce​nario would be unreasonable.

The fact is that the Crown was entitled to have its case answered by the defence anddetermined by the jury. 69 In her concurring judgment in Collins, Weiler J.A. also commented on the extent of the burden on the Crown,especially in an aborted jury trial (at p. 182): In a jury case, the trial judge’s view of the evidence is entitled to no deference as the judge is not the trier of fact.

It should not be toodifficult for the Crown to show, therefore, that the trial judge’s misdirection to the jury to acquit could have affected their verdict and theresult would not necessarily have been the same. 70 The Collins approach was confirmed by the Ontario Court of Appeal in R. v. Seth (L.W.) (2001), (ON CA), 147 O.A.C. 101, where a new trial was ordered because it was “not the rare case referred to in Collins” (at para. 108). 71 To conclude, the Crown does have the burden to demonstrate that the legal error may have impacted the verdict ofacquittal.

However, it will be only in exceptional circumstances that the Crown will not be able to demonstrate the verdict may bedifferent after a new trial. Appellate courts cannot speculate as to what might have occurred if the trial had proceeded.

Therefore, it willbe rare that an appellate court will not order a new trial after determining that a directed verdict of acquittal was an error of law,particularly when the trial was with a jury. 72 Given that conclusion, I will briefly address the accused’s argument that acquittals of the accused, after a new trial, area certainty given that the Crown cannot present the corroborative evidence required by s. 133 (perjury) of the Code. The accused’s otherarguments, in my view, clearly call for this court to speculate, contrary to the principles just articulated. 73

Section 133 of the Code reads: Corroboration 133 No person shall be convicted of an offence under

section 132 on the evidence of only one witness unless the evidence of that witnessis corroborated in a material particular by evidence that implicates the accused.

74 In R. v. Evans (D.L.) (1995), (MB CA), 102 Man.R. (2d) 186 (C.A.), a case involving a charge ofperjury against a Winnipeg police officer, this court explained the elements of the offence of perjury (at paras. 34-37): The elements required to be proved to support a conviction for perjury were set forth by the Supreme Court in the leading case of R. v.Calder, (SCC), [1960] S.C.R. 892. .… Therefore Calder and a plain reading of s. 131(1) make it clear that knowingly giving false evidence is not enough for a conviction. There must, in addition, be an intent to mislead.

It is incumbent upon the Crown to prove not only that the accused lied but that he did sofor the purpose of misleading the court. It is not necessary that the false statement actually mislead the court, but only that the accused intended to mislead the court: R. v.Regnier (1955), (ON CA), 21 C.R. 374; 112 C.C.C. 79 (Ont. C.A.). Mere recklessness, however, is not enough: R. v.Besner (1975), 33 C.R.N.S. 122 (Que. C.A.); see also R. v. Doyle (1906), (NS SC), 12 C.C.C. 69 (N.S. Co. Ct.).

Cartwright, J., also added in Calder that absent evidence to the contrary, the intent to mislead could be inferred from evidenceestablishing that the accused gave false evidence knowing it to be false. …. 75 The requirement for corroboration under s. 133 is not an essential element of the offence, but merely an evidentiaryrequirement. See R. v. Vasarhelyi (P.), 2011 ONCA 397, 278 O.A.C. 95. Nonetheless, a lack of corroborative evidence can lead to adirected verdict of acquittal. See, for example, R. v.

Parsons (G.J.) (1992), (NL CA), 100 Nfld. & P.E.I.R. 260 (Nfld.C.A.), and McWilliams’ at para. 31:30.10. 76 It is important to note that the law regarding the more common form of confirmatory evidence arising from Vetrovec v.The Queen, (SCC), [1982] 1 S.C.R. 811, does not apply to cases involving perjury. See R. v. Neveu (2004), (QC CA), 184 C.C.C. (3d) 18 (Que. C.A.).

Instead, the more rigid historical concepts of corroboration continue to applyto perjury cases. 77 The jurisprudential trend in perjury trials is that the material particular requiring corroboration is the falsity of thestatement alleged as perjury. Monnin J.A. (as he then was), in his dissenting judgment in R. v. Bouchard (1982), (MBCA), 13 Man.R. (2d) 344 (C.A.), commented on this (at para. 17): In other words, the material particular in which corroboration is required is the falsity of the statement alleged as the perjury.

Thepurpose of this rule is to protect an accused from the false testimony of a single witness swearing against him and saying that the accusedlied. It has been said that the court should not be left with one oath, (that of the witness) against another oath, (that of the accused). Itused to be said that “where there is only oath against oath, it stands in suspense on which side the truth lies”.

That is simply notsufficient proof in a serious charge of perjury. [emphasis added] 78 As explained in Morris Manning, Q.C. & Peter Sankoff, Manning, Mewett & Sankoff: Criminal Law, 4th ed.(Markham: LexisNexis Canada Inc., 2009) (at p. 638): The classic definition of corroborative evidence is independent proof that affects the accused by connecting him or her with the crime. …. The corroboration required must be of a material particular implicating the accused, but what is material will depend on the facts of thecase.

From a practical perspective, what usually needs to be established is the falsity of the statement or the accused’s knowledgethereof. .… …. … [T]he corroboration requirement is not avoided merely by the presence of multiple witnesses. Rather, “there must be more thanone witness whose evidence deals in a substantial way with a material particular of the false oath which is alleged”.

[emphasis added] 79 Here the essence of the alleged falsity is that the accused entered Room 1707 only once, after obtaining the warrant,rather than twice, as alleged by the Crown. 80 As explained by Doherty J.A. in R. v. Bosley (M.) (1992), (ON CA), 59 O.A.C. 161, whendetermining whether certain evidence confirms or supports the evidence to be corroborated in some material particular and implicates theaccused in the crime, “the totality of the circumstances revealed by that evidence must be considered” (at para. 65). 81 Neveu is a more recent decision concerning perjury and the need for corroboration.

In that case, a police officer wasalleged to have made two false statements in an information to obtain a search warrant sworn before a justice of the peace. He wasconvicted at trial. On appeal, the court explained why the Vetrovec approach was not applicable to perjury cases and that “in this area,corroboration must 1) concern one of the material particulars of the offence and 2) implicate the accused in relation to this materialparticular” (at para. 14). The court explained that (at para. 17): ….

It is therefore not sufficient that the corroboration concern a neutral element; it must constitute independent proof which connects, ortends to connect, the accused to one of the essential elements of the offence. In practical terms, it therefore suffices that thecorroboration concern the false nature of the statement, thereby implicating its author (the accused) in a material particular: as s. 133 …provides, the corroboration need only involve one of the essential elements. …. 82 However, the court also opined that if the Crown relies solely on circumstantial evidence, corroboration is notrequired.

It reasoned as follows (at para. 19): …. The very essence of circumstantial evidence, which requires that everything be considered as a whole, entails that a part of thisevidence, on its own, would not be enough to permit a finding of guilt on a charge of perjury. As a result, s. 133 … is inapplicable in thecase of circumstantial evidence because it requires corroboration only when an accused can be found guilty of perjury on the evidence ofonly one witness. See also R. v. Reyat, 2012 BCCA 311 (QL). 83 I do not have the benefit of a ruling from the judge on the issue of corroboration.

I understand the accused’s argumentto be that the Crown did not present any evidence from another person to confirm Hrechka’s testimony, which the Crown says puts theaccused into Room 1707 before the warrant was issued.

Therefore, they say that the requirement of corroboration of a material particularcannot be satisfied at a new trial, given that the Crown acknowledged that there is no other evidence on this point that the Crown will beable to call at a new trial. 84 Whether the evidence of Hrechka is the one witness contemplated by s. 133, thus demanding corroboration, need not bedecided, nor, in my view, should it be. In addition to Hrechka’s evidence, there was a great deal of other evidence presented at the trial,much of it circumstantial, which may have fulfilled the requirement of s. 133.

However, because of the directed verdict, the jury did nothave an opportunity to assess it in the context of instructions on the law. The accused’s corroboration argument invites this court toengage in speculation contrary to the principles that I articulated earlier. This is not one of those exceptional cases where an error of lawin directing a verdict of acquittal should not result in a new trial.

Conclusion 85 I conclude that the judge erred in law when she directed the verdicts of acquittal on the basis that there was noidentification evidence of the accused for the jury to consider and that the Crown has met its burden to demonstrate that a new trial mustbe ordered. 86 I would allow the appeals, set aside the acquittals and order a new trial. J.A. I agree: J.A. I agree: J.A.