R v Ballantyne, 2015 SKCA 107

Court of Appeal for Saskatchewan Docket: CACR2413 Citation: R v Ballantyne , 2015 SKCA 107 Date: 2015-10-13 Between: Her Majesty the Queen Appellant And John Marcien Ballantyne Respondent Before: Lane, Jackson and Caldwell JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Caldwell On Appeal From: CR 1 of 2013, Prince Albert Appeal Heard: 17 June 2015 Counsel: Andrew Stuart Davis for the Appellant Bruce Campbell for the Respondent Jackson J.A. I.

Introduction [ 1 ] This is a Crown appeal from the acquittal of the respondent, John Ballantyne, of one count of robbery contrary to s. 344(1) (

b) of the Criminal Code , RSC 1985, c C-46. [ 2 ] Briefly speaking, on December 23, 2011, a man wearing a baseball cap and sunglasses robbed a bank in Prince Albert of $1,845. The identity of the robber was the central issue at trial. Michael Benjamin testified that earlier on the day of the robbery John Ballantyne had asked him to play the role of the lookout man: to enter the bank first and to watch. He agreed to do so and described, at trial, how he entered the bank and saw Mr. Ballantyne enter and then ultimately to line up and receive a bag. [ 3 ] The bank video recorded the event. Mr.

Benjamin identified himself on the video. He also identified Mr. Ballantyne on the video. [ 4 ] The judge accepted that Mr. Benjamin could be seen on the video, but since Mr. Benjamin was an accomplice and had criminal antecedents, the judge looked for corroboration of his identification of Mr. Ballantyne as the robber. The Crown called Sgt. Troy Dumont who testified that he had known Mr. Ballantyne for about 13 years and for some of that time he would have had almost daily contact with him. He testified that the person performing the robbery was Mr.

Ballantyne. [ 5 ] The judge seemed to agree with counsel for Mr. Ballantyne that Sgt. Dumont’s identification evidence was less than “compelling” (see trial transcript p. T184) and the judge found the officer could not explain to the court’s satisfaction why he believed the man robbing the bank was Mr. Ballantyne: “Sergeant Dumont steadfastly maintained that he recognized the accused to be the robber …. He repeated, almost as a mantra, the phrase ‘that is John Ballantyne in a hat and sunglasses,’ numerous times” (p. T178). The judge also did not find the video could serve as corroborative evidence of Mr.

Benjamin’s identification of Mr. Ballantyne as the robber. In the end, the judge acquitted Mr. Ballantyne, saying he had a reasonable doubt as to guilt. [ 6 ] The Crown appeals. The broad issue on appeal is whether the Crown can point to an error of law of sufficient significance to warrant a new trial or whether the Crown is in effect attempting to appeal an unreasonable acquittal for which no right of appeal lies. [ 7 ] I have concluded, albeit with much respect, that the learned judge erred in law.

Notwithstanding the heavy burden on the Crown, I conclude that the acquittal should be set aside and a new trial is in order. II. Background [ 8 ] The Crown’s case was comprised of Diana Hunter (bank teller), Mr. Benjamin, Sgt. Dumont and the video evidence. [ 9 ] Ms. Hunter did not get a good look at the robber’s face because he was wearing a hat and sunglasses, but she believed he had angular cheekbones and an angular chin. She described his jaw and face as “thin” (p. T23). She gave him money totalling $1,845, which she put in a blue bag that the robber had brought with him. The robber left.

After he was gone, she told her supervisor what had happened. It was not in issue that this robbery took place as she described it. [ 10 ] Mr. Benjamin was an accomplice to the robbery, a fact that also was not in dispute. He was acquainted with Mr. Ballantyne, although they were not close friends. He knew him well enough to describe a distinctive feature about one of his eyes: Q Okay. Now, are -- are you able to tell us, Michael, does this John that you’re talking about have any unique, you know, facial

features or anything like that? A A bad eye. Q Okay? A He’s got a bad eye. (p. T42) [ 11 ] Mr. Benjamin testified that a man he identified as Mr. Ballantyne approached him on the street and asked him whether he would take

part in a robbery. Mr. Ballantyne asked him to enter the bank and act as a lookout. [ 12 ] In direct examination, Mr. Benjamin testified as to his and Mr. Ballantyne’s involvement in the robbery: Q Okay. And so while you’re sitting there eventually then I -- does the accused come into the bank? Does John come into the bank? A Yeah. Q Okay. And what do you see him doing when he enters? A He just come walking in; got in a line. Q Okay. And what do you do once you see him come in? A I got really nervous, but I just sat there. I didn’t do anything, I just sat there. Q All right.

And what are you able to see John doing? A Just standing in line there till he got to the cashier. Q Okay. And then what happened once he got up to the cashier, did you see? A I -- I was really trying not -- trying not to look, but I saw him hand him [ sic ] -- hand him a bag. That’s about it, a blue one. Q Okay. Did you see the cashier hand him anything back? A I -- I didn’t notice -- see that part, I was trying not to be noticed, trying not to watch. Q Okay. You were trying not to watch, but did you happen to see her hand anything to him? A The bag. Q Okay. And then what happened once he got the bag back?

A He walked out. (p. T41) [ 13 ] When he was then shown the video, Mr. Benjamin was able to point to himself and to the robber, identifying him as Mr. Ballantyne. In the video, however, the robber’s eyes were not visible as they were covered by sunglasses. [ 14 ] Following the robbery, Mr. Benjamin sat outside the bank for a while. He was observed by the police who asked him a few brief questions before he moved on. [ 15 ] Mr. Benjamin testified that Mr. Ballantyne had offered him a cut, but that the latter did not come to the pre-arranged meeting place. He saw him a few days later.

When Crown counsel attempted to examine Mr. Benjamin on what was said on that occasion, the judge questioned whether he was getting into the realm of impermissible hearsay. The line of questioning was not pursued further. [ 16 ] Sgt. Dumont viewed the video shortly after the robbery took place. He recognized Mr. Ballantyne as the robber, but the police did not arrest Mr. Ballantyne until April 17, 2012, almost four months after the robbery, at which time the police also arrested Mr. Benjamin. [ 17 ] On April 17, 2012, the police attempted to take a statement from Mr. Benjamin. He did not cooperate.

During this interview, the police shared details of the robbery with Mr. Benjamin. Sgt. Dumont said Mr. Benjamin was extremely agitated while he gave his statement: “He was very scared, shaking, very scared for his life” (p. T124). Mr. Benjamin did say that the robber was “downstairs” and that he was too scared to say anything. He was released from custody the next morning and the police told him they decided not to charge him. He spoke to police for about 45 minutes in the police car after his release. The officers explained to him they were not charging him because his involvement was minimal.

They also said they would like him to provide a witness statement about what really happened. Mr. Benjamin was still very scared, but he did agree to provide a statement. Mr. Benjamin gave a statement in which he implicated both Mr. Ballantyne and himself.

[18] The bank’s video was entered as an exhibit. It included six camera angles with relevant information. Mr. Benjamin and therobber are visible in the video. The robber is visible for several minutes at a time, depending on the camera angle. Details of hischeekbones, cheeks, chin, clothing and stature are apparent. The video shows him waiting in line and robbing the teller. It is, however,grainy and shot in a series of stills. [19] At the time of trial, Sgt. Dumont was a 13-year member of the Prince Albert Police Service. He began his career in 2000performing general patrol duties in downtown Prince Albert.

He has known Mr. Ballantyne since that time. They had contact on a dailybasis during some of the next 13 years. The officer called him by his first name, John. [20] Sgt. Dumont had dealings with Mr. Ballantyne in his subsequent postings as well. He described a specific conversation withMr. Ballantyne from his days in the Drug Unit. When he was in the Criminal Investigations Unit, he would regularly watchMr. Ballantyne. The officer agreed that his interactions with Mr. Ballantyne were not prolonged and that he had never arrestedMr. Ballantyne, although he was present during the most recent arrest.

In short, the officer “got to know John very well” (p. T83). Theofficer became familiar with Mr. Ballantyne’s physical appearance to the point where he would notice fluctuations of as little as twentypounds in his weight. He was able to describe Mr. Ballantyne physically, making note of his cheekbones and jaw line, and his eyes andhis manner of walking. He, too, described what he called “a deformed eye” (p. T86). [21] Sgt. Dumont watched the bank surveillance video and he identified Mr. Ballantyne as the robber, noting that he was slimmeron the video than he was in court. He recognized Mr.

Ballantyne’s distinct jaw line, which he said was visible on the video. [22] He agreed that the video was not the best quality and that he could not see Mr. Ballantyne’s eyes, hair or walk on the video.But he said that “I based my conclusion on me seeing that as John Ballantyne that I see every day” (p. T109). [23] Mr. Ballantyne did not call evidence. III. Decision of the Trial Judge [24] The judge accepted that Mr. Benjamin was an accomplice and noted that Mr. Benjamin had a motive to lie in order to “curryfavour with the authorities by implicating the accused” (p. T185).

The judge said that the fact he was involved in the robbery made himwell-placed to “concoct a story that falsely implicates the accused.” [25] The judge considered what he found to be contradictions in Mr. Benjamin’s testimony. These were with respect to which doorhe entered, who handled the robber’s bag, and whether the robber ever left the line. [26] The judge discounted Sgt. Dumont’s recognition evidence. The judge noted that high cheekbones and a particular jaw line arenot unique to Mr. Ballantyne. Thus, they could not have formed the basis for the officer’s identification evidence.

The judge said thatshort interactions over a number of years were not enough to allow the officer to reliably recognize Mr. Ballantyne. He held that, havingset aside the features the officer did mention, Sgt. Dumont was unable to articulate how he recognized the robber. [27] The judge said the video did not confirm Mr. Benjamin’s testimony because the police could have fed Mr. Benjamin whatthey were able to see from the video and that he could just be parroting back what he heard. In the result, he held that there was noevidence that confirmed Mr. Benjamin’s testimony. IV. Analysis A.

Burden on the Crown and the Grounds of Appeal [28] As this is a Crown appeal, it is important to consider the significant burden on the Crown with respect to an appeal from anacquittal. The Crown is entitled to appeal an acquittal on a question of law (s. 676(1)(

a) of the Criminal Code, RSC 1985, c C-46), butunlike with respect to an appeal from conviction, the Crown has no right to appeal from what could be regarded as an “unreasonableacquittal”: R v Walker, 2008 SCC 34 at para 21, [2008] 2 SCR 245 [Walker]; R v Kent, (SCC), [1994] 3 SCR 133 atpara 20; R v Biniaris, 2000 SCC 15 at para 33, [2000] 1 SCR 381; and R v J.M.H., 2011 SCC 45 at paras 27 and 32, [2011] 3 SCR 197[J.M.H.].

In order to obtain a new trial, the Crown bears the heavy onus of demonstrating that the error might reasonably have had amaterial bearing on the acquittal (R v Graveline, 2006 SCC 16 at para 14, [2006] 1 SCR 609 [Graveline]). [29] The Crown has raised a number of grounds of appeal. It is necessary to consider three of those grounds only. The Crownalleges the following: (

i) the judge erred by considering the evidence piecemeal and, thereby, failed to consider that Sgt. Dumont’sevidence could serve to confirm Mr. Benjamin’s testimony; (ii) the judge misapprehended the law in relation to corroboration, which ledhim not to consider Sgt. Dumont’s evidence and the video as potentially confirmatory pieces of evidence; and (iii) the judge erred bypreventing the Crown from cross-examining Mr. Benjamin about his post-offence conversation with Mr. Ballantyne. The first andsecond grounds pertain to Sgt. Dumont’s evidence and the video evidence.

The second ground addresses primarily an error of law madein relation to the video evidence. The third ground is a stand-alone ground of appeal. A. The treatment of the evidence in a piece-meal fashion and failure toconsider whether Sgt. Dumont’s evidence could be corroborative [30] In my respectful view, the judge’s treatment of Sgt. Dumont’s evidence reveals two errors of law: (

i) the failure to identifypotentially corroborative evidence; and (ii) the failure to consider all of the evidence cumulatively.

[ 31 ] The judge did not reject Sgt. Dumont’s evidence, and defence counsel expressly agreed that it was admissible (trial transcript, p. T87), but the judge found Sgt. Dumont’s evidence to be “anything but compelling” (p. T184): I’ve also considered R. v. John , 2010, Ontario Superior Court 6085, where the usefulness of recognition evidence is discussed. One of the difficulties with Sergeant Dumont’s evidence in this case is his inability to articulate how he recognized the person in the video to be the accused. He just repeated that it was John Ballantyne in a cap and sunglasses .

He referred to sideburns, cheekbones, cheeks and jawline. These indicia have been dealt with already in this judgment. … I am not saying a recognition witness must be able to talk about special idiosyncrasies which allow recognition to be readily, but there should be something more than a general description. Here there was a bit more, but it has been discounted through a thorough cross- examination. What is left of Sergeant Dumont’s opinion is anything but compelling . (Emphasis added, pp. T183–184) [ 32 ] In dealing with Sgt.

Dumont’s evidence, the judge wrote, “I have considered the officer’s opinion on its own and also in conjunction with all other identification evidence and all other accepted evidence that is before the court” (pp. T180–181). Read generously, this could be considered as referring to a cumulative consideration of the evidence , but, later in his reasons, the judge states this in relation to Sgt. Dumont’s evidence: The court has determined that Sergeant Dumont’s evidence is not persuasive as to identity .

The following factors are of note: While the officer’s involvement with the accused has been over a number of years, the actual involvement was relatively minor. Passing comments to the accused such as, move along, when he was found loitering and observation through surveillance at an undisclosed distance, are not sufficient to accord significant weight to the officer’s opinion. … On these facts, I do not find Sergeant Dumont’s testimony of recognition to be particularly reliable or persuasive, either independently or in conjunction with all of the other evidence I have accepted .

The Crown provided several cases which, it was argued, bolstered the admission of this evidence and the weight to be accorded to it. Unfortunately, those cases are not determinative and are not of significant assistance to the court in other than a general sense. (Emphasis added, pp. T181–182) [ 33 ] The judge makes this statement before he analyses Mr. Benjamin’s evidence and indeed even before he reviews it. He also does not accept Mr. Benjamin’s evidence. The only evidence the judge accepted with respect to identity is the testimony of the teller. Thus, to state that he does not find Sgt.

Dumont’s testimony of recognition particularly reliable or persuasive, taken in conjunction with all other evidence that he had accepted, means very little. [ 34 ] The judge is clearly looking at whether—based on the evidence he accepts —Sgt. Dumont’s evidence is probative of the direct question of identity. Importantly, the judge never returns to the question of whether Sgt. Dumont’s evidence could be used to overcome any perceived difficulties with Mr. Benjamin’s evidence. [ 35 ] With respect to Mr.

Benjamin’s evidence, the judge said the following: Additionally I have considered whether a Vetrovec warning is appropriate in this case. It is. Mr. Benjamin possesses many of the factors leading to such a warning. He admits he assisted in the commission of this offence. There is independent evidence to conclude he did so . He has an extensive criminal record including one week before this trial. His convictions involve offences of dishonesty including nine convictions for obstruction, which include lying to police officers. He has an unsavoury reputation.

He may have motives for his testimony other than the pursuit of truth. The court is especially concerned about the fact that this witness is also implicated in the commission of this robbery. The law recognizes that this means he is in a particularly good position to concoct a story that falsely implicates the accused. When involved in the crime that is before the court he simply has to tell what happened, but add the accused into the story. There is much danger in such testimony. There is also a lack of independent confirmatory evidence in Mr. Benjamin’s testimony.

While the Crown points to the video as confirmatory, it may well be that many facts were suggested to him by Sergeant Dumont who obtained his facts from watching the video. That reasoning is circular and I do not find the video to be confirmatory of what Mr. Benjamin is saying to the court . (Emphasis added, p. T185) [ 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 ] Like Mr. Benjamin, Sgt. Dumont confirmed that Mr. Ballantyne had a “deformed” or “bad” eye. Mr. Benjamin described three encounters with Mr. Ballantyne: (

i) the request for assistance with the robbery; (ii) the robbery; and (iii) the chance encounter after the robbery. With respect to the first and last event, there is no video recording, but Mr. Benjamin described them as meetings with Mr. Ballantyne, a person he knows has a bad eye. Even apart from Sgt. Dumont’s recognition evidence, his evidence as to this defining characteristic was some evidence that could serve to provide comfort to the trier of fact that the two encounters between the two men occurred.

[38] Sgt. Dumont’s evidence was directed to the question of whether Mr. Ballantyne was the robber, but it was capable of servingtwo purposes: (

i) independent evidence of the identity of the robber; and (ii) corroboration of Mr. Benjamin’s evidence as to the identityof the robber. The judge may have thought that Mr. Benjamin’s evidence was offered as corroboration of Sgt. Dumont’s evidence, butthat Sgt. Dumont’s evidence could not be used to corroborate Mr. Benjamin’s testimony. Either way, the result is an error of law. In myrespectful opinion, the judge considered Sgt. Dumont’s evidence only in relation to the direct question of identity. He never evaluated orreconsidered Sgt. Dumont’s evidence when he weighed Mr.

Benjamin’s evidence. [39] In R v Murphy, (SCC), [1977] 2 SCR 603, Spence J., speaking for the majority, held that whether theevidence at issue “could qualify as corroboration within the provisions of s. 142 of the Criminal Code” is a question of law (p. 612).

Indetermining whether a trier of fact can safely convict, Spence J. stated, “The weight which should be given to such evidence was, ofcourse, a matter for the jury.” This distinction between identification and weight tracks the approach taken in R v Parish, (SCC), [1968] SCR 466, where Ritchie J., for the Court, held the following: “In my view, the evidence … was capable of beingconstrued as circumstantial evidence of the respondent’s connection with the crime of which he was charged.

It was for the jury to sayunder all the circumstances whether or not it in fact amounted to corroboration” (p. 473). [40] Subsequent Supreme Court authority supports the view that whether evidence is capable of confirming the testimony of anuntrustworthy witness is a question of law: R v B.(G.), (SCC), [1990] 2 SCR 57 at 71 [B.(G.).]; R v Kheler, 2004 SCC11 at para 15, [2004] 1 SCR 328; R v Khela, 2009 SCC 4 at paras 38–43, [2009] 1 SCR 104 [Khela] (see also R v Chayko (1984), 1984ABCA 80 , 31 Alta LR (2d) 113 (CA) at paras 6 and 23 and R v Drabinsky, 2011 ONCA 582 at paras 139 and 140, 274 CCC(3d) 289 (leave to appeal refused, [2011] SCCA No 491 (QL)). [41] In Khela, Fish J. for the majority held that there are two requirements for a piece of evidence to serve as corroborativeevidence: first, the evidence must be independent; and second, the evidence must be capable of supporting a relevant aspect of thewitness’s testimony (see paras. 39–43).

Expanding on this latter point, Fish J. wrote that “the evidence does not have to implicate theaccused” (para. 40), but “the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or herassertion that the accused is the person who committed the offence” (para. 42). [42] In J.M.H., Cromwell J. for the Court considered under what circumstances a judge’s allegedly flawed assessment of theevidence can constitute an error of law.

The Crown’s ground of appeal on this point raises the fourth category in J.M.H.: “it is an error oflaw to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as awhole” (para. 31).

As examples of cases where the Crown has successfully appealed an acquittal on the basis of the judge’s failure toconsider the evidence cumulatively, Cromwell J. referred to R v Morin, (SCC), [1988] 2 SCR 345 [Morin #1]; B.(G.); andR v Morin, (SCC), [1992] 3 SCR 286. [43] In B.(G.), a decision that sustained this Court’s decision setting aside an acquittal, the Supreme Court of Canada dealt with asimilar issue to that presented by this appeal.

Wilson J., speaking for the majority, found that the judge considered the evidence of thetwo Crown witnesses separately and failed to consider their evidence as part of the whole. She wrote the following: [The judge] first considered the evidence of the complainant in isolation and rejected it as unreliable. He then moved on to the evidenceof the accomplice, stating that, having found the evidence of the complainant unreliable, all he had left was the evidence of C.Z.

Further,he looked only for discrepancies as to details in the evidence presented and did not consider the corroborative aspects of the evidenceand the numerous elements of the alleged offence which were testified to by both witnesses capable of substantiating each other’s story.… I do not believe that the judge considered the individual pieces of evidence “in the context of all of the evidence”. Rather, theevidence was viewed “without the support of other evidence”.

According to Morin this amounts to serious misdirection. (Emphasis added, p. 77) [44] B.(G.) is often cited for the proposition that evidence cannot be considered piecemeal, but it also supports the proposition thatit is an error of law not to consider evidence capable of serving as corroboration. In this appeal, in my respectful view, the judge madeboth of these errors in relation to Sgt.

Dumont’s evidence. [45] The judge was required to ask the question that Vetrovec raises: “does this supporting evidence strengthen our belief that [theaccomplice] is telling the truth?” (R v Vetrovec, (SCC), [1982] 1 SCR 811 at 832). The judge, however, did not considerwhether Sgt. Dumont’s evidence that Mr. Ballantyne is the person in the video and the video taken together could be seen as supportingthe credibility of Mr. Benjamin. B. The judge’s treatment of the video [46] As I have indicated, the judge rejected the video as evidence capable of confirming Mr.

Benjamin’s identification evidence: There is also a lack of independent confirmatory evidence in Mr. Benjamin’s testimony. While the Crown points to the video asconfirmatory, it may well be that many facts were suggested to him by Sergeant Dumont who obtained his facts from watching thevideo. That reasoning is circular and I do not find the video to be confirmatory of what Mr. Benjamin is saying to the court. (Trial transcript, p. T185)[1] [47] The judge’s approach to the video is perplexing. He appears to reject the video for two reasons.

First, as illustrated by thefollowing series of questions and answers, the judge appears to overlook that Mr. Benjamin testified as to what happened in the bank andthe Crown was offering the video as confirmation of that testimony. In examining Crown counsel as to what use could be made of the

video vis à vis the evidence of Mr. Benjamin, this point becomes apparent: THE COURT: So you’re saying the video corroborates the story? MR. PILON [counsel for the Crown]: I’m saying the video 100 percent corroborates the story, yes. THE COURT: But the video is the genesis of the story? MR. PILON: Absolutely. For Michael Benjamin -- THE COURT: Well, then it’s a self-fulfilling prophecy. MR. PILON: Well -- but -- … MR. PILON: Yeah, and -- and I guess what -- to clarify what I’m trying to say, is the evidence coming from Benjamin is corroborated with the video.

The -- the warned statement -- the statements he provided to the police where he was provided some information by Sergeant Dumont was in April of 2012. So basically, two years ago. When Michael Benjamin comes to court yesterday, he testifies about that. At no time was he confronted with a contradiction between his evidence and his KGB statement and at no time was he confronted between an inconsistency or contradiction between his evidence and his evidence at the preliminary inquiry.

So when we look at the video and we see that it’s corroborative or it’s the same as his evidence, we look at the totality of his evidence and find there is no other story though . We don’t have him -- THE COURT: Other -- other than -- other than the very genesis of the information . He says, the police asked me a bunch of questions. It’s like an examination-in-chief and a cross; isn’t it? He’s basically saying, the officer examined me in-chief; asked me a bunch of open- ended questions and I gave him answers. Dumont is saying, yeah, I cross-examined him. I suggested the answers to him. I pushed him.

Those are two different things. (Emphasis added, pp. T150–152) [ 48 ] The trial judge appears to have concluded that Mr. Benjamin is testifying as to what happened in the video, which is the genesis of the story, rather than recounting what happened during the robbery. The judge appears to forget the robbery happened independent of the video—and was part of three interactions between Mr. Ballantyne and Mr. Benjamin. It is as if the judge does not see the video as recording the event. Indeed, the judge states that there is only one eyewitness to the event: the bank teller.

In his reasons for judgment, he stated, “Here, the only eye witness is Ms. Hunter” (p. T180). [ 49 ] Second, the judge may have rejected the video because Sgt. Dumont used information gleaned from it to question Mr. Benjamin: THE COURT: If -- if Benjamin -- there’s a couple of different ways of looking at it. If Benjamin is fed information from the police officer, Dumont, Dumont’s source of the information he feds to Benjamin is the video. So we shouldn’t throw a parade for this guy when the story fed to Benjamin matches the video. Of course it’s going to match the video. MR. PILON: Why?

THE COURT: Because Dumont has seen the video a couple of months before he’s feeding stuff to -- this is the defence’s theory. MR. PILON: So -- okay, so you’re saying Dumont’s, I guess, information -- THE COURT: If you -- if I accept the defence theory which seems to be Benjamin -- you’ve got the Vetrovec -- you’ve got at least some of the Vetrovec criteria there and some self-interest there. MR. PILON: Yeah.

THE COURT: And I’m not saying I do accept the defence theory because there’s some problems with this concept too, but if you accept for a moment the defence theory that Dumont feeds a story to Benjamin who then just repeats it, the source of Dumont’s information is the video and he’s not going to tell -- and of course he’s going to say, hey, I know what you were wearing. You had a white bunny hug under a black jacket and -- well, of course, the video is going to corroborate it because Dumont gets it from the video . It’s a full circle. (Emphasis added, p.

T151) [ 50 ] I recognize that the weight to be given to corroborative evidence is a question of fact, but the judge did not weigh the video and find it to be wanting. He rejected it outright. In the only paragraph of his reasons dealing with the video, the judge stated the following (and I repeat the statement for clarity): There is also a lack of independent confirmatory evidence in Mr. Benjamin’s testimony. While the Crown points to the video as confirmatory, it may well be that many facts were suggested to him by Sergeant Dumont who obtained his facts from watching the video.

That reasoning is circular and I do not find the video to be confirmatory of what Mr. Benjamin is saying to the court . (Emphasis added, p. T185) [ 51 ] In my respectful view, the judge made a similar error with respect to the video that he made with respect to Sgt. Dumont’s evidence: he did not recognize the video as corroborative of Mr. Benjamin’s presence in the bank and therefore potentially corroborative

of his identification of Mr. Ballantyne. [52] If the trial judge did not make this error, then, in my view, the trial judge failed to consider the video when he came toconsider the evidence as a whole, and, in that regard, the error parallels the error made with respect to Sgt. Dumont’s evidence. Hetreated the evidence in a piecemeal fashion: i.e., he considered the evidence of the video and discarded it before arriving at the ultimatequestion on the whole of the evidence including the confirmatory evidence of the video as to whether the Crown had proven its casebeyond a reasonable doubt.

Nowhere in the trial judge’s reasons does he again mention the video on this point. Given that Mr. Benjaminis shown in the video, a fact which is beyond dispute, the trial judge had to consider it as part of the whole of the evidence. [53] Admittedly, when the trial judge sums up his reasons in relation to Mr. Benjamin, he prefaces his conclusion as follows: Taking all of this and all of the evidence into consideration, it would be exceedingly dangerous to convict this accused based onMr.

Benjamin’s evidence in whole or in part and when considered either in isolation or in conjunction with all other evidence that hasbeen accepted by the court. He has admitted he lies to the police; he lied to them the day of the robbery. He is a career criminal with aconviction less than a week before this trial. He is fundamentally dishonest in his dealings with other people. He did not present to thiscourt as a believable or reliable or credible witness either in what he said or how he said it. This court does not accept his evidence. (Emphasis added, p.

T187) [54] I recognize that the judge is saying here he has considered Mr. Benjamin’s evidence “in conjunction with all other evidencethat has been accepted by the court,” but it must be pointed out that, after rejecting Sgt. Dumont’s evidence and the video, there is noother evidence on the question of identity other than that of the bank teller. [55] I have considered whether I have over-read the judge’s oral reasons. In that regard, I have considered the words of Binnie J. inWalker at paras. 22–24, which exhort appellate judges to read a judge’s reasons “in terms of their appellate purpose” (para. 24).

Thesewords direct appellate judges to consider whether an error of law has been made, for which an appeal would clearly lie, or whether thetrial judge is indicating that he or she has a reasonable doubt as to whether an inadequate foundation has been laid. Recently, Cromwell J.summarized Walker on this latter point and re-emphasized that the “trial judge is not required to refer to every item of evidenceconsidered or to detail the way each item of evidence was assessed” (J.M.H., para. 32).

Cromwell stressed this passage from Walker:“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” (para. 2). [56] Considering the trial judge’s reasons in this case, I am nonetheless driven to the conclusion that he discounted, discarded ordisregarded evidence that could be corroborative and he did not consider or reconsider that evidence when addressing the ultimatequestion of whether he had a reasonable doubt about the identity of the robber—all of this is said with the utmost respect for a busy trialjudge with a heavy docket. [57] Given that the judge found Mr.

Benjamin is shown in the video as being in the bank when the robbery takes place, the videois an item of evidence that has the potential to give “comfort to the jury that the witness can be trusted in his or her assertion that theaccused is the person who committed the offence” (para. 42)—to reiterate the words of Fish J. in Khela. Whether the trier of fact finds itto be so is another issue, but it could not be rejected for the reasons given by the judge. C. The judge’s treatment of the post-offence conversation betweenMr. Benjamin and Mr.

Ballantyne [58] At trial, Crown counsel attempted to tender evidence of a statement made by Mr. Ballantyne to Mr. Benjamin some days afterthe bank had been robbed. It appeared that the statement would relate to the bank robbery. The judge prevented Crown counsel fromasking the question on the basis that it would be hearsay. This too is an error of law.

Statements made by an accused person to hisalleged accomplice are not caught by the exclusionary rule against hearsay and are admissible: R v Simpson, (SCC),[1988] 1 SCR 3 at 21; R v S.G.T., 2010 SCC 20 at para 20, [2010] 1 SCR 688. [59] To his credit, counsel for Mr. Ballantyne on appeal agrees that the judge erred when he stopped the Crown prosecutor fromeliciting this evidence. However, it is counsel’s submission that it would have had no bearing on the judge’s assessment of the evidenceas he had difficulty in accepting the evidence of Mr. Benjamin.

In these circumstances, he argues that such an error should be discountedby this Court under s. 686(1)(b)(iii) of the Criminal Code: Powers 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal … (

b) may dismiss the appeal where … (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or [60] Subclause 686(1)(b)(iii) does not apply to a Crown appeal from acquittal. Notions similar to the curative principle,nevertheless, are considered when determining whether to set aside an acquittal.

D. Whether the trial judge’s errors of law might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal? [ 61 ] As I have indicated, the judge’s reasons disclose three errors of law.

Taken individually, these errors might not justify a new trial; but taken together, they potentially increase the quantity of evidence probative of guilt in a not insignificant way. [ 62 ] In Graveline , Fish J. for the majority described the burden on the Crown: [14] It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown.

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 might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different . (Emphasis added) [ 63 ] This is a significant burden.

As Sopinka J. stated for the majority in Morin #1 , “An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it” (para. 80). [ 64 ] Notwithstanding this heavy burden, however, I have concluded that the standard is met and the acquittal should be set aside. [ 65 ] In setting aside the acquittal—I reiterate—it does not mean that a conviction would automatically result if Sgt.

Dumont’s evidence and the bank video evidence had been weighed in relation to, and together with, Mr. Benjamin’s evidence and also if the latter had been permitted to testify about his post-offence encounter with Mr. Ballantyne. As Fish J. indicated in Khela , the trier of fact must determine what weight to be given to Mr. Benjamin’s identification of his accomplice as Mr. Ballantyne. V. Conclusion [ 66 ] I would allow the appeal, set aside the acquittal and order a new trial. “Jackson J.A.” Jackson J.A. I concur. “Lane J.A.” Lane J.A. I concur. “Caldwell J.A.” Caldwell J.A.