R. v. Muise, 2016 NSCA 34

Nova Scotia Court of Appeal Citation: R. v. Muise , 2016 NSCA 34 Date: 20160504 Docket: CAC 438457 Registry: Halifax Between: Her Majesty the Queen Appellant v. Victor Daniel Joseph Muise Respondent Judges: The Honourable Justice Hamilton The Honourable Justice J.E. (Ted) Scanlan (dissenting) Appeal Heard: February 8, 2016, in Halifax, Nova Scotia Subject: Appeal by Crown from acquittal; Totality of evidence must be considered in reaching verdict.

Summary: The respondent was acquitted of robbing a bank. The robber was given a red dye pack after presenting a hold-up note to the teller, which dye pack exploded after he left the bank. The evidence included a bank video; the teller’s identification of the respondent from a photo line-up and in court; the respondent’s possession of some of the red-stained stolen money several hours after the robbery; his red-stained hands and his DNA, among others, on the hold-up note.

It also included evidence that the police had identified two other people as possible robbers from viewing the bank video; the search of the respondent’s residence did not turn up the clothes worn by the robber; the hold-up note was written on paper from a public venue and the teller’s testimony about the numbers she saw on the robber’s bank card differed from the numbers on the respondent’s card found in the his residence.

Issues: Did the judge err in law by subjecting individual pieces of evidence to the standard of proof beyond a reasonable doubt – by failing to consider the whole of the evidence in relation to the ultimate issue of guilt or innocence? Result: Appeal dismissed. Majority: A Crown appeal from acquittal is limited to an error of law. We are not to reassess the evidence in order to determine if the judge’s findings are reasonable. Here, the judge considered the whole of the evidence in reaching his decision.

Minority: Would have allowed the appeal based on the fact that the decision does not reflect that the trial judge considered the evidence as a whole. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages. Nova Scotia Court of Appeal Citation: R. v. Muise , 2016 NSCA 34 Date: 20160504 Docket: CAC 438457 Registry: Halifax Between: Her Majesty the Queen Appellant

v. Victor Daniel Joseph Muise Respondent Judges: Scanlan, Hamilton and Van den Eynden, JJ.A. Appeal Heard: February 8, 2016, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Hamilton, J.A; Van den Eynden, J.A. concurring; Scanlan, J.A. dissenting. Counsel: Mark Scott, Q.C., for the appellant Luke Craggs, for the respondent Dissenting reasons for judgment (Scanlan, J.A.): [ 1 ] Seldom are bank robbers caught red handed when they rob banks.

Trial judges are often left to sift through both direct and circumstantial evidence and determine whether the crown has proven that an accused person is the one who, beyond a reasonable doubt, committed the robbery. In performing that analysis, the trial judge must ask whether the circumstantial evidence supports or detracts from direct evidence that, alone may not otherwise support a conviction.

In this case, in the end, the trial judge had to ask if he was satisfied beyond a reasonable doubt that the person with the red stained hands, spending the red dye stained money, within a few hours of the robbery, was the same person who robbed the bank. He was the same person the bank teller had independently identified from a photo line-up and whose DNA was on the robbery note. Background [ 2 ] The Crown appeals an acquittal of Mr. Muise on a charge that he did rob the TD Bank on Spring Garden Road, Halifax on October 17, 2012. The sole assailant handed the teller a note inscribed with the words “I have a gun.

I will kill you. $5,000 fast”. The teller gave the robber a bundle of money which contained a dye packet, programmed to explode as the assailant passed sensors when exiting the bank. A DNA sample from the robbery note matched Mr. Muise’s DNA. [ 3 ] There was surveillance video from a number of bank security cameras showing the robber entering the bank, handing the note to the teller, and exiting the bank. The police reviewed the security footage and initially suspected one of two individuals, but not Mr. Muise. Subsequent investigation by police ultimately showed those two individuals were not involved.

This initial investigation of the other two individuals preceded the photo identification by the bank teller and the receipt of results of the DNA analysis. [ 4 ] Two witnesses outside the bank saw a man leaving the bank and red powder or a trail of powder was coming from a bag he was carrying. [ 5 ] Within a couple of hours of the robbery Mr. Muise went to a local pharmacy and paid a bill using money that was marked with red dye. The serial numbers on those bills matched the previously recorded serial numbers on the bills that were in the bundle with the dye packet. At the pharmacy Mr.

Muise was noted to have red colouring on his hands. He suggested to the employee at the pharmacy that he got this red colouring from a painting job he had worked on. When the drug store later advised Mr. Muise of the fact the money he had used to pay his bill was seized by the police, he reimbursed the drug store for the cash the police had seized. There was video evidence showing Mr. Muise at the drug store on the day he paid his bill using the marked bills. [ 6 ] The teller from the bank reviewed a police photo line-up within a couple of days of the robbery. She picked Mr.

Muise’s photo from that line-up and said she was 90 to 95% sure the photo she picked was the person who committed the robbery. At that time the DNA analysis from the note had not been completed. In addition to picking Mr. Muise out of the photo line-up, the bank teller identified Mr. Muise at the preliminary inquiry and at trial. I will return to the issue of how the trial judge dealt with the teller’s identification evidence as it is an essential aspect of this case.

Position of the Parties [ 7 ] The Crown argues on appeal that the trial judge erred in law: 1. by embarking on a two-staged analysis of the evidence; 2. by embarking on a piecemeal analysis of the evidence; and 3. in his application of the doctrine of recent possession. [ 8 ] The Crown does not suggest that the trial judge made a palpable and overriding error in relation to factual findings. Instead,

the appellant argues that the trial judge piecemealed the evidence in such a way that he failed to consider the cumulative effect of all ofthe evidence in relation to the ultimate issue of guilt or innocence. The appellant suggests that this is an error in law and subject to thestandard of correctness (See R. v. H.(J.M.), 2011 SCC 45, ¶24 and ¶31). [9] Mr. Muise suggests the Crown simply disagrees with the trial judge’s factual findings and that the appeal is nothing more thanan attempt to package that disagreement as an error of law.

He argues that the appellant gives lip service to the fact a crown appeal islimited to questions of law, saying the thrust of the appellant submissions are that the appellant disagrees with the judge’s factualfindings. [10] I am satisfied that issues one and three above are actually subsumed in issue two. I, therefore, ask whether the trial judge erredin law by embarking on a piecemeal analysis of the evidence and failed to consider the evidence as a whole. For the reasons below, I amsatisfied the trial judge did err.

By considering important aspects of the evidence on a piecemeal basis he failed to consider the evidenceas a whole. Standard of Review [11] Pursuant to the Criminal Code of Canada, R.S.C. 1985 C-46 the Crown may appeal an acquittal on a question of law withoutleave. To obtain a new trial, the onus on the Crown is a heavy one. The standard of review is one of correctness. Analysis [12] Appeal cases often involve sufficiency of reasons as was the situation in R. v. Sheppard, 2002 SCC 26 and R. v. Dinardo, 2008SCC 24.

In those cases the court urged a functional approach, asking whether the reasons of the trial judge respond to the live issues inthe case, having regard to the evidence as a whole, and the submissions of counsel. In those cases an appeal, based on sufficiency ofreasons, will only be allowed where the trial judge’s reasons are so deficient that they will foreclose meaningful appellate review (seeSheppard, ¶25). [13] Sheppard sets out a number of important principles that guide appellate review.

Appeal courts must recognize the timeconstraints in criminal courts, andmust not hold trial judges to an abstract standard of perfection. The reasons must be sufficient toaddress the particular circumstances of the case and provide the basis for meaningful review of the correctness of the decision. It ispresumed that trial judges know the law but even learned judges can err in particular cases.

If the trial decision is deficient in explainingthe result an appeal court will not order a new trial if it is able to sufficiently explain the result. [14] The second type of case does not involve a question of the adequacy of reasons, or turn on a failure to record each and everysubtlety in the trial judge’s analysis. This second type of case involves the trial judge’s reasons, as expressly written, and whether thosewritten reasons reveal an error of legal principle in the approach to the case. That was the situation in R. v. Armbruster, 2010 SKCA 25.

That is the situation that I say exists in this case. [15] In R. v. Graveline, 2006 SCC 16, Fish J., for the majority of the Court, wrote: 14 It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purelyhypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown.

It is theduty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonablybe thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is notrequired, however, to persuade us that the verdict would necessarily have been different. … 16 Speaking more recently for a unanimous court in R. v. Sutton, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated: The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v.

The Queen, (SCC), [1977] 2S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors notoccurred. In R. v. Morin, (SCC), [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy one and that theCrown must satisfy the court with a reasonable degree of certainty” (p. 374). [para. 2] [16] As noted in R. v. H.(J.M.), a trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt orinnocence is an error of law.

An error of law is to be reviewed applying a standard of correctness: [31] This was Sopinka J.’s last category in Morin (at pp. 295-96). The underlying legal principle is set out in another decision called R. v. Morin, [1988] 2 S.C.R. 345. The principle is that it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole: see e.g., B. (G.), at pp. 75-77 and 79. However, Sopinka J. sounded an important warning about how this error may be identified.

It is a misapplication of the Morin principle to apply it whenever a trial judge fails to deal with each piece of evidence or record each piece of evidence and his or her assessment of it. As noted in Morin (1992), at p. 296, “A trial judge must consider all

of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect.” This was the basis of intervention relied on by the Court of Appeal, but as noted earlier, a fair reading of the trial judge’s reasons does not supportthis finding of legal error. [32] A trial judge is not required to refer to every item of evidence considered or to detail the way each item of evidence was assessed.

As Binnie J. pointed out in Walker, “Reasons are sufficient if they are responsive to the case’s live issues and the parties’ keyarguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue” (para.20). Walker also clearly holds that the adequacy of a trial judge’s reasons is informed by the limited grounds for Crown rights of appealfrom acquittals (paras. 2 and 22).

As Binnie J. succinctly put it, “Caution must be taken to avoid seizing on perceived deficiencies in atrial judge’s reasons for acquittal to create a ground of ‘unreasonable acquittal’ which is not open to the court under the provisions of theCriminal Code ” (para. 2). I reference Graveline ¶14 and note that before a court on appeal interferes with a decision of a trial court judge, the court must also besatisfied that the trial judge’s error might reasonably be thought to have had a material bearing on the verdict (See also R. v.

Rudge, 2011ONCA 791, ¶85). [17] In a case such as this, a court must look to the reasons of the trial judge and ask whether those reasons demonstrate a failure toconsider all the evidence in relation to the ultimate issue of guilt or innocence. Appeal courts must be cognizant of the limited role theyhave in assessing the weight of the evidence.

It is not for this court to re-weigh the evidence in an attempt to determine the guilt orinnocence of the respondent or attempt to determine if this Court would reach a different conclusion. [18] The trial judge reviewed the various pieces of evidence individually and pointed out the frailties of each of those pieces ofevidence. It is not for me to second guess the weight he attributed to those individual pieces of evidence. [19] In conducting my review of the trial decision I also remind myself of the comment in R. v. H.(J.M.), ¶32.

The trial judge is notrequired to refer to every item of evidence or to detail the way each item of evidence was assessed. The question to be asked is whetheror not the judge’s reasons respond to the substance of what was in issue. [20] The question for this Court is not whether this was an ‘unreasonable acquittal’. That is not a permissible ground of appealpursuant to the Criminal Code. [21] At trial the crucial issue was identity; specifically did the crown prove beyond a reasonable doubt that Mr. Muise was theperson who committed the robbery? That is not the issue on appeal.

On appeal, the issue is whether the decision demonstrates that thetrial judge erred in law by only focusing on the individual pieces of evidence or categories of evidence, related to the issue of identity,and asked only whether they individually proved the guilt of the accused beyond a reasonable doubt. It was not enough for the trial judgeto look to the weaknesses of the individual pieces of evidence and say that each piece or even several pieces of evidence together, do notprove guilt beyond a reasonable doubt.

At some point, the trial judge had to ask the question as to whether all of the evidence, consideredas whole, even with the frailties of the individual pieces, add up to proof beyond a reasonable doubt. [22] In a trial, some evidence invariably influences the weight a trial judge might attribute to other evidence. At the end of the day itis an error in law to simply ask whether the individual pieces of evidence, standing alone, proves guilt beyond a reasonable doubt. [23] To a certain extent, the trial judge did lump and consider parts of the evidence together.

Several pieces of circumstantialevidence were considered together; for example, the DNA on the robbery note, the payment at the pharmacy using the marked bills andthe red stained hands. The trial judge determined this did not add up to proof beyond a reasonable doubt. I am satisfied that the trial judgesiloed the circumstantial evidence and did not use that evidence as part of his analysis of the direct evidence. [24] The direct evidence I refer to is the evidence from the bank teller who testified as to the identity of Mr. Muise.

The bank telleridentified the accused from a police photo line-up a few days after the robbery. She also identified him at trial.

The trial judge pointedout some issues related to the photo line-up and the frailties of in-dock identification. [25] The unreliability of in-dock identification has been the subject of much discussion in the legal community. (See Harold Cox,Cox’s Criminal Evidence Handbook (Toronto: Thomson Reuters Canada Limited, 2014) at 115; David Paciocco et al., The Law ofEvidence (Toronto: Irwin Law Inc., 2015) at 574; Criminal Law Quarterly, 2006 52 C.L.Q. 175; Criminal Law Quarterly, 1982-1983 25C.L.Q. 313; Criminal Law Quarterly, 2012 58 C.L.Q. 331 at 9.). It is notoriously weak evidence.

A lot of the same weaknesses can existwith identification tools such as a police photo line-up. In this case, the trial judge discounted the direct evidence from the photo line-upand in-dock identification by the bank teller, referencing the unreliability of that type of evidence. [26] I am cognizant of the fact that in-dock identification is notoriously weak if it is not corroborated. In this instance, it was not acase of the bank teller simply identifying Mr. Muise at trial.

She had previously identified him during the preliminary inquiry and shehad identified him through the photo line-up and where she said she was 90 or 95% sure that the person she had picked from the photoline-up was the bank robber. The fact that the bank teller had identified Mr.

Muise in both the photo line-up and the preliminary inquirymay well have enhanced the in-dock identification, but that is a matter for the trial judge to determine. [27] In cases where there is identification by a stranger, the existence of confirmatory circumstantial evidence can go a long way tominimize the dangers inherent in eyewitness identification. R. v. Quercia (1990), (ON CA), 60 C.C.C. (3d) 380 (Ont.C.A.); R. v. Hibbert; and, R. v. Hay, 2013 SCC 61. This is where I have the most difficulty with the trial judge’s decision. The trial

judge had discussed the evidence, both direct and circumstantial, at length. At page 19 of his decision he said: In this case there is both direct and circumstantial evidence. The direct evidence is that of Ms. MacKay, who identified the accused as the perpetrator.

For the reasons I have already stated, I am not satisfied that her evidence positively establishes the identity of the accused as the robber. [ 28 ] I take no issue with the trial judge finding that the direct evidence of the bank teller alone was not sufficient to establish the identity of the robber. [ 29 ] Despite the frailties of in-dock identification and eyewitness identification in general, it would be unreasonable for the trial judge to require 100% certainty. The trial judge stated that a 90 to 95% identification is not a positive identification. In R. v.

Kish , 2014 ONCA 181 the court noted there is no need for 100% certainty. It was not the criminal standard (see ¶53-54). Even though eyewitness evidence is notoriously weak that does not mean it can never be relied upon or that it cannot be relied upon if it is corroborated with other evidence. [ 30 ] In R. v.

Dowe , 2007 NSCA 128 , rev’d 2008 SCC 55 , Cromwell, J.A. (as he then was) in dissent, described corroborating evidence: [40] [To] be capable in law of constituting corroboration, the evidence must simply be independent evidence which is “…capable of restoring the trier’s faith in the relevant aspects of the witness’ account”: R. v. Kehler , [2004] 1 S.C.R. 328, 2004 SCC 11 ¶12.

Whether the evidence actually has that effect is for the trier of fact. (Note: The SCC reversed the NSCA majority, adopting the reasons of Cromwell, J.A.) [ 31 ] The trial judge also noted that there were frailties with the individual pieces of circumstantial evidence. It would appear to me from reading the decision that the trial judge siloed some individual pieces of the circumstantial evidence, perhaps all of the circumstantial evidence, and did not consider it in relation to the direct evidence.

For the trial judge to end his analysis by looking only at the individual pieces of evidence or separate silos of evidence is an error in law. The evidence must be considered as a whole. [ 32 ] The trial judge at one point used words that suggested that he had or would consider the evidence as a whole saying (page 17- 18): “In determining the guilt or innocence of the accused, this Court must assess the evidence cumulatively and as a whole.” That is not dissimilar to the words used in R. v. Ballantyne , 2015 SKCA 107 and R. v. Armbruster .

In those cases, the trial judges self-instructed on the importance of considering all the evidence using terms “ as a whole ” or “ the totality of the evidence ”. [ 33 ] In the present appeal, a reading of the decision does not indicate the trial judge considered the evidence as a whole. For example, at no point did the trial judge in his decision as rendered, deal with the issue as to whether the DNA evidence was potentially corroborative of the direct eyewitness identification by the bank teller. At no point did the trial judge address the fact that Mr.

Muise used the marked bills to pay his debt at the pharmacy and relate that back to the direct evidence on identification. Nor did he address the issue of whether his red stained hands were potentially corroborative of the bank teller’s identification of Mr. Muise. [ 34 ] It was incumbent upon the judge in this case, at some point to ask if the circumstantial evidence corroborated the direct evidence. He had to ask if there was a point at which there was a linkage between the identification by the bank teller and the circumstantial evidence.

In a trial involving circumstantial evidence there often comes a point where circumstances go beyond mere coincidence. A series of coincidences can in and by themselves prove guilt. [ 35 ] In the case on appeal even if the circumstantial evidence alone did not prove guilt beyond a reasonable doubt, I am satisfied the trial judge erred at law by not using the circumstantial evidence in assessing the direct evidence. [ 36 ] In Ballantyne the court was dealing with an analogous situation and it said: [36] It is apparent from the judge’s reasons that he does not consider Sgt.

Dumont’s evidence as being capable of confirming Mr. Benjamin’s evidence. This is an error of law arrived at because the judge has either considered the evidence piecemeal and set aside Sgt. Dumont’s evidence in its entirety before he considers Mr. Benjamin’s evidence or he has failed to identify Sgt. Dumont’s evidence as potentially corroborative evidence. It is true that he did not find the evidence “compelling,” but he did not find Sgt. Dumont to be untruthful. Sgt. Dumont’s evidence remained capable of confirming a material aspect of Mr. Benjamin’s evidence: to wit, that Mr.

Ballantyne was the robber. [ 37 ] A reading of the written decision here suggests that, after referring to the evidence from the bank teller, the trial judge asked only whether her evidence proved the identity of Mr. Muise as the assailant. There was no line of reasoning in the decision that references the totality of the evidence or the effect of the potentially corroborative DNA evidence and the evidence of Mr.

Muise using the marked bills to pay his debt at the pharmacy. [ 38 ] As I noted above, this is not an error that is rooted in the sufficiency or insufficiency of reasons, or any failure to record every subtlety in his analysis. In this case, the reasons as expressed, reveal an error of legal principle in the approach to the case. It may turn out that this is the result of inadvertence in adequately setting out the approach the trial judge took to the evidence and the issue of corroboration.

In saying that, I echo the comments of the court in Armbruster , ¶ 30 “ … we are presented with his decision as written and must deal with it on that basis.” [ 39 ] At some point the trial judge should have noted that yes, eye witness identification has its limitations. In this case the witness selected the accused from a photo line-up in spite of the fact that the police thought the robber was someone else. She did this not knowing his DNA would be found on the robbery note.

She did this not knowing that he had spent some of the stolen money at a local pharmacy and that his hands were stained red, as was the money. [ 40 ] At some point, the trial judge had to consider all of the evidence as a whole. In spite of him saying this was done the decision

does not reflect it as having occurred. As was noted in R. v. Sykes , 2014 NSCA 57 , ¶43, the whole of the evidence may be more compelling than the sum of its parts. As noted in R. v. Dowe, ¶26, although pieces of evidence viewed in isolation might not constitute corroborative evidence, collectively they may do so. Had the evidence been considered as a whole, it might reasonably have had a material bearing on the verdict ( Rudge ) . [ 41 ] Mr. Muise was not caught red-handed in the bank. Bank robbers don’t always have to be caught red handed.

In this case, if the evidence had not been siloed by the trial judge it may have affected the verdict. The failure to consider the evidence as a whole is an error in law that justifies setting aside the acquittal. Conclusion [ 42 ] I am satisfied the acquittal should be set aside and the matter remitted for trial before a different judge. Scanlan, J. A. Reasons for judgment (Hamilton, J.A.): [ 43 ] The Crown’s right of appeal from an acquittal of an indictable offence is limited to “any ground of appeal that involves a question of law alone”: Criminal Code , s. 676(1)(a).

The narrower ground of appeal from an acquittal, as opposed to an appeal from a conviction, reflects the fundamental principle that an accused is presumed to be innocent until proven guilty by proof beyond a reasonable doubt. On an appeal from an acquittal such as this, we are not to reassess the evidence in order to determine whether the trial judge’s findings were reasonable.

In my opinion, the appellant Crown is asking this Court to do just that. [ 44 ] I agree with Justice Scanlan that there is only one issue to be resolved in this appeal - did the trial judge err in law by subjecting individual pieces of evidence to the standard of proof beyond a reasonable doubt; by failing to consider the whole of the evidence in relation to the ultimate issue of guilt or innocence. The standard of review is correctness. [ 45 ] Cromwell J., succinctly summarizes the law applicable to this issue in paragraphs 31 and 32 of R. v.

H. (J.M.) , set out in paragraph 16 of Justice Scanlan’s reasons. “It is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole.” “Caution must be taken to avoid seizing on perceived deficiencies in a trial judge’s reasons for acquittal to create a ground of ‘unreasonable acquittal’ which is not open to the court under the provisions of the Criminal Code ”. [ 46 ] With respect, I do not agree with Justice Scanlan that the trial judge considered the teller’s identification evidence, that Mr.

Muise was the robber, in isolation, and that he failed to consider it in light of Mr. Muise’s DNA on the hold-up note, his possession of some of the stolen money and the red dye on his hands. In my opinion, this is not clear from a fair reading of the trial judge’s reasons. [ 47 ] Some reference to the trial judge’s reasons is helpful.

He gave his eighteen page decision orally, following a two and a half day trial, summarizing virtually all of the evidence. [ 48 ] Among other things, he stated the following with respect to the teller’s testimony: Exhibit 2, photograph number 15, shows a debit card and a Health card. There is nothing in the photographs of items seized from the accused’s residence showing a Provincial identification card. When she spoke to Detective Fish on the day of the robbery, she told him that she knew the last two digits of the bank card shown or presented, the bank card that she saw, the last two numbers were 09.

The card shown in Exhibit 2, photograph 15, does not end with the numbers 09 but, rather, in 18. [ 49 ] He reviewed the evidence indicating that Mr. Muise was in possession of some of the stolen money and had red dye on his hands several hours following the robbery, noting there was no evidence the red dye on the money could not be transferred by simply touching stained currency. He recognized that Mr. Muise’s DNA was not the only DNA found on the hold-up note that was written on paper from Addiction Prevention & Treatment Services, a public venue, suggesting the possibility of innocent contact by Mr. Muise.

He reviewed the evidence of the police, noting that they initially thought, based on viewing the bank’s surveillance video only, that the robber was one of two other people known to them, highlighting the difficulty of determining identification with certainty from a surveillance video. He noted the search of Mr.

Muise’s residence did not turn up the clothes worn by the robber as shown in the bank surveillance video. [ 50 ] After summarizing the evidence, the trial judge explained why he found the teller’s identification of limited value: Erin MacKay’s in-dock identification of the accused as the robber is of limited value. She had seen him before at the Preliminary Inquiry and she testified that the person she identified in court looked much thinner than the person who robbed the bank. Ms.

MacKay’s identification evidence at trial and her selection of photograph number 4 at the police station was not based on any identifiable features or reasonable observations, but, rather, was based on the uncomfortable feeling of nervousness she experienced when seeing the photograph and when being in the presence of the accused. Her selection of the accused’s photograph, after she had viewed 12 photos shown to her, was not a positive identification, as evidenced

by her comment that she was 90 to 95 percent certain that this was the man who robbed the bank. Ms. MacKay’s description of the robber, given a short time after the incident, made no mention of any distinguishing features or characteristics. As stated previously, she described the robber as an older, unshaven, white male, five-feet-six to five-feet-seven tall. She was unable to provide the colour of the robber’s eyes, despite saying that she looked at the robber more carefully after she saw the holdup note.

She was quite candid in her testimony, when she stated on cross-examination, “I believe that the man in court is the robber, but I guess there is the chance that I could be wrong.” [ 51 ] In reviewing the evidence and explaining his view of the teller’s evidence as he did, the trial judge was doing his job of turning a critical eye to the evidence. He was not dealing with it on a piecemeal basis. He was weighing it and commenting on its strength and reliability, not subjecting it to the standard of proof beyond a reasonable doubt or saying that he would not later consider it in determining whether Mr.

Muise was innocent or guilty. [ 52 ] The trial judge then did what Crown counsel at trial urged him to do. He considered the teller’s testimony in light of the bank surveillance video, Mr. Muise’s possession of some of the stolen money, the red dye on his hands, and his DNA on the hold-up note along with other DNA, not in isolation: The position of the Crown is that the bank surveillance video corroborates Ms. MacKay’s evidence. It submits that there are unique facial features, such as the nose, chin, lips, and eyes shown on the video, which are very similar to those of the accused, Mr. Muise.

It is worthwhile noting that Ms. MacKay never identified any of these features in the description that she gave the police. A review of the videotaped footage from the bank and the pharmacy makes an assessment and comparison of the two persons shown very difficult, due, in large part, to the poor quality of the video footage. Crown counsel also argued that the accused’s possession of money stolen from the bank and covered in red dye later that same day, together with the evidence that the accused also had red on his hands, is another indicator of guilt.

This is an important piece of circumstantial evidence, but not without its limitations. There is no evidence to indicate that the red dye cannot be transferred by simply touching currency which has been stained, nor is there any evidence before the Court to indicate how long the dye remains active once the dye pack has exploded. The Crown also relies on another piece of circumstantial evidence, the DNA profile obtained from the holdup note, as evidence that Mr. Muise was the robber. Mr. McCarroll was quite candid in his submission on this evidence.

He acknowledged that this evidence does not establish conclusively that it was the accused who passed the note to the teller, but submits that it is another piece of the puzzle. The accused’s DNA profile matched the profile obtained from the note. However, that note also contained a female profile and what I believe to be a trace profile. No DNA sample was taken from Ms.

MacKay for comparison with the female profile on the note, and the trace profile was not of sufficient quantity to be analyzed. [ 53 ] After considering this evidence, the trial judge reminded himself that he was required to consider all of the evidence in relation to the ultimate issue of guilt or innocence: In determining the guilt or innocence of the accused, this Court must assess the evidence cumulatively and as a whole. [ 54 ] While I agree with Justice Scanlan that his statement of the correct law is not a guarantee that he applied it correctly, it does indicate he clearly knew and understood the law and was considering it moments before pronouncing his verdict. [ 55 ] Both Crown and defence had argued before the trial judge that this case was predominantly a circumstantial one where all pieces of evidence had to be considered.

The trial judge correctly reviewed the law relating to circumstantial evidence, the burden of proof, and reasonable doubt. The transcript of his reasons then indicates he referred once again to the teller’s evidence and the circumstantial evidence: In this case there is both direct and circumstantial evidence. The direct evidence is that of Ms. MacKay, who identified the accused as the perpetrator. For the reasons I have already stated, I am not satisfied that her evidence positively establishes the identity of the accused as the robber.

Evidence of the accused’s recent possession of dye-stained currency proven to have come from the bank robbery, his DNA being found on the holdup note, his possession of a reusable grocery bag similar to the one used by the robber, and his possession of both a TD, Toronto Dominion bank debit card and an MSI card similar to the ones presented by the robber, are all pieces of circumstantial evidence. These are all circumstances that relate to a fact in issue from which the inference of the existence of another fact – in this case, the identity of the robber – may be drawn. and quickly thereafter acquitted Mr.

Muise. [ 56 ] In explaining the reasons for his reasonable doubt, the trial judge referred to the other DNA on the hold-up note, the error the teller made about the last two numbers of the bank card, the fact no clothes similar to those the robber wore were found in Mr. Muise’s residence, and the fact the police had thought from viewing the bank surveillance video that the robber was one of two other men known to them. [ 57 ] He concluded: Although I suspect guilt, I am not satisfied beyond a reasonable doubt that the guilt of the accused has been proven beyond a reasonable doubt.

Accordingly, I find him not guilty. [ 58 ] Reading his decision as a whole, it cannot be said that the trial judge misdirected himself with respect to the relevant evidence.

After initially summarizing virtually all of the evidence, he weighed and considered the teller’s identification testimony alone and then in light of the DNA evidence, the bank surveillance video, the respondent’s possession of some of the stolen money and the red dye on his hands.

He then, immediately before announcing his verdict, stated that the law required that he consider all of the evidence in reaching a verdict, and then again referred to the teller’s evidence and all of the circumstantial evidence. [ 59 ] The trial judge never stated that any piece of evidence was to be considered with respect to reasonable doubt in isolation from the rest of the evidence, nor did he suggest that any piece of evidence should be completely disregarded for failing to meet such a standard. [ 60 ] While the trial judge’s reasons may not have been as clear as one might wish, his reference to the requirement that he consider the whole of the evidence when reaching his verdict, followed quickly by his reference to the teller’s evidence and the circumstantial evidence and then his verdict, along with the fact he is an experienced judge, satisfies me he applied the law correctly. [ 61 ] I would dismiss the appeal.

Hamilton, J.A. Concurred in: Van den Eynden, J.A.