R. v. Leaney, [1989] 2 SCR 393

R. v. Leaney, [1989] 2 S.C.R. 393

 

Frank Earl Leaney         Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

and between

 

Henry Hugh Rawlinson Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. leaney

 

File Nos.:  20557, 20558.

 

1989:  May 23; 1989:  September 14.

 

Present:  Lamer, Wilson, L'Heureux-Dubé, Sopinka and McLachlin JJ.

 

on appeal from the court of appeal for alberta

 

    Criminal law -- Appeals -- Error of law at trial -- Provision for upholding of conviction if no substantial wrong or miscarriage of justice ‑‑ Appellants convicted of charges arising out of a robbery and a break and enter -- Error with respect to admission of evidence as to identity of accused ‑‑ Remaining evidence circumstantial -- Convictions upheld on appeal ‑‑ Whether or not Court of Appeal erred in upholding convictions -- Criminal Code, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii).

 

    The accused were alleged to have been involved in the robbery of one drugstore and the break‑in of another.  Both were convicted of armed robbery, of use of a firearm in the commission of that robbery, of break and enter, and, in Rawlinson's case, of possession of stolen property.  Leaney appealed all of his convictions and Rawlinson all except the break and enter which he had admitted committing.  A majority of the Court of Appeal dismissed the appeals of both on all counts.  The issue before this Court was whether the Court of Appeal had correctly applied s. 613(1)(b)(iii) of the Criminal Code  when it decided that, notwithstanding a finding of error of law, the verdict would necessarily have been the same absent error of law.

 

    The break and enter was recorded on videotape.  At trial, four police officers, who were unacquainted with the accused, and a police sergeant, who had been acquainted with Leaney, identified Leaney as one of the persons shown on the videotape.  The second person was not identified but matched the description of Rawlinson.  The evidence of the police officers was admitted without a voir dire and that of the police sergeant was fully cross‑examined.  The trial judge viewed the videotape and concluded independently of the police officers' testimony that Leaney was one of the persons shown on it.

 

    The identification evidence of the break and enter was admitted as similar fact evidence in the robbery charge against Leaney.  The only other admissible evidence linking Leaney to the robbery and the firearms offence was circumstantial:  boxes found hours after the robbery just outside Rawlinson's apartment with Leaney's finger and palm prints on them, a general description of Leaney matching one of the two persons involved in the robbery and Leaney's association with Rawlinson who matched the description of the other person involved in the robbery.

 

    Rawlinson was not positively identified in the robbery.  The circumstantial evidence linking Leaney to the crime, however, also linked Rawlinson.  In addition, drugs had been found in a bag in his anal cavity, some of the kind stolen in the robbery and some not, and a witness, following his instructions, recovered a sawed‑off rifle which was similar to the weapon used in the robbery by the person fitting his description.  Finally, Rawlinson declined to testify despite the incriminating circumstances.

 

    Held:  The appeal of Frank Earl Leaney from convictions for robbery and for use of firearms in the commission of an offence should be allowed.

 

    Held (Wilson J. dissenting):  The appeal of Frank Earl Leaney from the conviction for break and enter should be dismissed.

 

    Held (Lamer and Wilson JJ. dissenting):  The appeal of Henry Hugh Rawlinson should be dismissed.

 

    Per McLachlin, Sopinka and L'Heureux-Dubé JJ.:  Two fundamental errors occurred at trial:  (1) when the trial judge treated evidence of the break‑in as similar fact evidence going to the identification of the accused on the charges arising out of the robbery and, (2) when the evidence of the police officers as to the identity of the persons shown on the videotape was admitted.

 

    The Court of Appeal properly applied s. 613(1)(b)(iii) in upholding Leaney's conviction for the break‑in because no reasonable jury, properly instructed and acting judicially, could fail to convict on the admissible evidence presented on the break‑in.  Since the trial judge arrived at his conclusion as to identity independently of the evidence of the police officers, their evidence assumed the character of mere surplusage and its being inadmissible did not impair his independent conclusion.  No appearance unfairness could be said to arise here, nor was there a miscarriage of justice.

 

    The Court of Appeal erred in applying s. 613(1)(b)(iii) to the charges against Leaney arising out of the robbery for a reasonable jury could acquit on the evidence.  The trial judge's conclusions as to identity in the break‑in could not be admitted as similar fact evidence in the charges relating to the robbery.

 

    The trial judge erred in using evidence on the break‑in trial as similar fact evidence on the robbery and firearms charges against Rawlinson.  The Court of Appeal, however, correctly concluded that no reasonable jury, properly instructed and acting judicially, could fail to convict on the admissible evidence on the robbery and firearms charges and properly applied s. 613(1)(b)(iii).  The admissible evidence against Rawlinson was impressive and the court could take into account his failure to explain evidence connecting him to the crime.

 

    Per Lamer J. (dissenting with respect to the appeal of Henry Hugh Rawlinson):  The application of s. 613(1)(b)(iii) to a given set of facts in a case involves a question of law.

 

    A new trial should have been ordered because the evidence against Leaney on the robbery and on the firearms charges was such that a reasonable jury could convict and yet the conclusion could not be made that no reasonable jury could acquit.

 

    The evidence adduced against Rawlinson on the robbery and firearms charges did not meet the test of s. 613(1)(b)(iii) and a new trial should be ordered.  It was evidence upon which a verdict of guilt could rest comfortably and stand well beyond the reach of a court of appeal's determination that it was unreasonable and could not be supported by the evidence.  Much more, however, was required under s. 613(1)(b)(iii).

 

    The trial judge erred in admitting the evidence of the five police officers in Leaney's trial for break and enter.  The testimony of four of the officers was inadmissible and that of the police sergeant should first have been considered on a voir dire.  The proviso of s. 613(1)(b)(iii) was nevertheless properly operative as regards admission of the police sergeant's testimony.  He had been fully cross‑examined and the matter was not raised on appeal or through affidavit evidence alleging the his defence had been prejudiced by the omission.  The fact that the trial judge arrived at his own conclusion as to Leaney's identity, quite independently of the police officers' testimony, did not result in or appear to result in a substantial wrong or miscarriage of justice.

 

    Per Wilson J. (dissenting with respect to the appeal of Henry Hugh Rawlinson and with respect to the appeal of Frank Earl Leaney from the conviction for break and enter):  The convictions of Leaney and Rawlinson relating to the robbery and firearms offences could not stand and a new trial should be ordered for the reasons given by Lamer J.  A new trial, too, should be ordered for Leaney on the break and enter conviction.

 

    A "substantial wrong or miscarriage of justice" sufficient to preclude s. 613(1)(b)(iii) can occur when an appearance of unfairness is created by the judge's error of law.  An appearance of unfairness was created when the trial judge admitted the evidence of the police officers and buttressed his own conclusions with it.  The evidence of four of the officers was clearly inadmissible and that of the police sergeant, even if admissible, could not be separated from that of the other officers because the overall appearance was still one of unfairness.  A voir dire should have been held to determine the admissibility of the police sergeant's testimony.  The appearance of unfairness could only be dispelled if no reliance were placed on the trial judge's reasons regarding the identification of the man in the videotape.  Since the admissible evidence against Leaney, apart from the videotape evidence, was inadequate to compel the conclusion that a properly instructed trier of fact would necessarily have convicted him of the break and enter charge, s. 613(1)(b)(iii) should not be applied.

 

Cases Cited

 

By McLachlin J.

 

    Referred to:  R. v. Hertrich (1982), 137 D.L.R. (3d) 400; Colpitts v. The Queen, [1965] S.C.R. 739; Avon v. The Queen, [1971] S.C.R. 650.

 

By Lamer J. (dissenting in part)

 

    Referred to:  Colpitts v. The Queen, [1965] S.C.R. 739; Brooks v. The King, [1927] S.C.R. 633; Mahoney v. The Queen, [1982] 1 S.C.R. 834.

 

By Wilson J. (dissenting in part)

 

    Referred to:  R. v. Hertrich (1982), 137 D.L.R. (3d) 400, leave to appeal refused, [1982] 2 S.C.R. x; R. v. Duke (1985), 39 Alta. L.R. (2d) 313; Graat v. The Queen, [1982] 2 S.C.R. 819.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C‑34, s. 613(1)(a)(ii), (b)(iii).

 

    APPEAL from a judgment of the Alberta Court of Appeal (R. v. Leaney) (1987), 55 Alta. L.R. (2d) 362, 81 A.R. 247, 38 C.C.C. (3d) 263, dismissing an appeal from conviction by Plomp Prov. Ct. J.  Appeal allowed with respect to the convictions for robbery and for use of firearms in the commission of an offence.  Appeal dismissed with respect to the conviction for the break and enter (Wilson J. dissenting).

 

    APPEAL from a judgment of the Alberta Court of Appeal (R. v. Rawlinson) (1987), 55 Alta. L.R. (2d) 362, 81 A.R. 247, 38 C.C.C. (3d) 263, dismissing an appeal from convictions by Plomp Prov. Ct. J.  Appeal dismissed (Lamer and Wilson JJ. dissenting).

 

    Thomas Engel, for the appellant Frank Earl Leaney.

 

    Darcy DePoe, for the appellant Henry Hugh Rawlinson.

 

    Michael Watson, for the respondent.

 

//Lamer J.//

 

    The following are the reasons delivered by

 

    LAMER J. (dissenting in part) -- The two accused were convicted by a Provincial Court judge, sitting in Edmonton, Alberta, of armed robbery, break and enter, use of a firearm in the commission of an offence and, in Rawlinson's case, possession of stolen property.  Rawlinson appealed below (and in this Court) all of his convictions except the break and enter and possession convictions which are not before us; Leaney appeals all of his convictions.

 

    By a majority the Court of Appeal of Alberta [(1987), 55 Alta. L.R. (2d) 362] dismissed the appeals of both on all counts.  Harradence J.A. would have granted the appellant Rawlinson a new trial on the robbery and firearms charges, but dismissed his appeal on the charge of possession of stolen property; he would have granted a new trial to the appellant Leaney on the charge of break and enter, and a new trial with regard to the robbery and firearm charges.

 

    As Harradence J.A.'s dissent was one on a question of law, the two accused came to this Court as of right.  The only question of law upon which Harradence J.A. dissented in both appeals was whether these were proper cases for the application of s. 613(1)(b)(iii) of the Criminal Code, R.S.C. 1970,  c.  C-34.  There does not appear to be any disagreement below as to what is the proper test to be applied under s. 613(1)(b)(iii) which is now well known and which was set out in Colpitts v. The Queen, [1965] S.C.R. 739, per Cartwright J. at p. 744:

 

. . . once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred.  The satisfaction of this onus is a condition precedent to the right of the Appellate Court to apply the terms of the subsection at all.  The Court is not bound to apply the subsection merely because this onus is discharged.

 

and per Spence J., at p. 755, quoting Brooks v. The King, [1927] S.C.R. 633, as follows:

 

. . . this Court must apply the test set out in the aforesaid cases and, to quote again from Brooks v. The King:

 

    The onus is upon the Crown to satisfy the Court that the  jury, charged as it should have been, could not, as reasonable men, have done otherwise than find the appellant guilty.

 

and then, further on, at p. 756:

 

If there is any possibility that twelve reasonable men, properly charged, would have a reasonable doubt as to the guilt of the accused, then this Court should not apply the provisions of s. 592(1)(b)(iii) to affirm a conviction.

 

    The Crown argues that, the Court of Appeal having applied the right test, the issues raised by the appellants before this Court relate to the applicability of this test to the evidence before the learned trial judge, and that, as such an exercise requires a reconsideration of the evidence, there is not raised a question of law alone.

 

    This Court has decided that the application of s. 613(1)(b)(iii) to a given set of facts in a case involves a question of law (see Mahoney v. The Queen, [1982] S.C.R. 834).  This, in my view, disposes of the Crown's preliminary objection.  This case does not raise the issue where the difference of result is due to a disagreement on the facts.  In this case, the facts are common ground.  There is, however, a disagreement as regards the admissibility of a police sergeant's evidence in the break and enter charge only and also in relation to Leaney only.  But that also is a question of law.

 

    As this case requires that we deal with the charges separately as regards Leaney and with the accused separately on the hold-up and arms charge, I will address this latter disagreement in due course, that is when I address Leaney's appeal of the hold-up conviction.

 

The Robbery and Arms Charge

 

The Facts

 

    On February 4, 1985, at approximately 7:00 p.m., two armed persons robbed the Owl Drug Mart at 10713, 124th Street in Edmonton, taking a certain quantity of drugs.  This robbery was witnessed by two employees of the drugstore.  The smaller of the two persons was carrying a sawed-off rifle.  A few hours later, a video camera captured a break-in by two men at Danlaur Drugs, which is a drugstore situated about two miles away from Owl Drug Mart.

 

The Evidence Against Leaney

 

    At trial, the judge admitted as evidence in the hold-up charge that of the break and enter as similar fact evidence.  This consisted of the videotape and evidence by the police officers identifying the accused Leaney, as being the taller person on the videotape.  As I said, all in the Court of Appeal agreed that this was wrong and that that evidence was to be excluded.

 

    The admissible evidence is that of a general description and circumstantial:

 

    Ahmed Hassan stated that he heard some running in the pharmacy and saw a man with a mask, a toque over his face, carrying a rifle.  He described this man as 5'7" to 8", kind of slim, 140 pounds.  He was wearing a blue denim jacket with a white collar, blue prints and a toque.  He said the man had blue eyes and a blonde mustache.

 

                                                                          . . . 

 

Mr. Hassan described the taller of the two men as 6'2" to 6'4", 160-170 pounds, quite thin, with a hunch in his back, also wearing a toque.  He was wearing a short jean jacket, blue jean pants and wearing runners.  Both Ms. Zemed and Mr. Hassan were very scared by the experience.  The robbery took about 5 minutes and a large quantity of drugs was taken.

 

    The police found in a garbage pail in the laundry room adjacent to Rawlinson's suite, five small empty boxes marked "Owl Drug Mart".  These boxes were identified as having come from the robbery.  A finger and palm print of the appellant Leaney was found upon these boxes.

 

    Finally, Leaney was seen in Rawlinson's apartment with an unidentified man the day before the robbery.  The majority in the Court of Appeal stated that the man was Rawlinson.  With respect, that had not been established; but not much turns upon this.

 

    Once excluded the evidence of the break and enter, there remains only, and I quote from the Crown's factum, the following evidence:

 

a)Just hours after the commission of the robbery, boxes taken in the robbery were found just outside Rawlinson's apartment with the Appellant Leaney's fingerprints and palm prints upon them.

 

b)Leaney matched the general description of one of the two culprits involved in the robbery.

 

c)The association of Leaney with Rawlinson, who matched the description of the other culprit . . . .

 

    While one must acknowledge that a jury could reasonably convict on this evidence, we could surely not conclude that this evidence is such that no jury could reasonably acquit.  Accordingly, as would have Harradence J.A., I would order a new trial for Leaney on the hold-up and arms charge.

 

The Evidence Against Rawlinson

 

    There is more of it than in Leaney's case but it is circumstantial only.  There is no positive identification.  Harradence J.A. merely stated that it could not meet the test of s. 613(1)(b)(iii).  The majority, however, were more specific and listed the evidence they felt did, as follows at p. 379:

 

1.  Twelve to 14 hours after the robbery, boxes taken by the robbers during the robbery were found in the laundry room next to Rawlinson's apartment and Rawlinson admitted putting them there or having them put there.

 

2.  The police recovered from Rawlinson's anal cavity a bag containing 4 of the 12 kinds of drugs stolen during the robbery.

 

3.  The witness Soroka, based on what Rawlinson told him, went and recovered a sawed-off rifle and turned it over to the police.  The rifle was similar to the weapon described by witnesses as being carried by the smaller person in the robbery.

 

4.  The witnesses to the robbery described the smaller robber as being thin and short and carrying a sawed-off shotgun.  One witness thought the smaller robber had a blonde mustache.  The evidence is that Rawlinson was clean shaven but the description otherwise fits the general physical description of Rawlinson.

 

5.  The day before the robbery the accused Leaney, who is thin and tall (6 foot 2 inches to 6 foot 4 inches), was seen visiting the apartment residence of Rawlinson.  The witnesses to the robbery described the smaller robber's companion as being thin and tall (6 foot 2 inches to 6 foot 4 inches).

 

    Additionally, the accused Rawlinson declined to testify at the trial despite the incriminating circumstances heretofore listed.

 

With respect, my reading of the evidence requires a small qualification to the evidence referred to by the Court of Appeal.  Indeed, as regards the drugs found in a bag in Mr. Rawlinson's rectum, there were found, along with four or five drugs of the same kind taken from the drugstore, other drugs which were identified as not coming from the robbery.

 

    I agree with Harradence J.A. that the evidence adduced against Rawlinson does not meet the test of s. 613(1)(b)(iii).  It is evidence upon which a verdict of guilt could rest comfortably and stand well beyond the reach of a court of appeal's determination that it was unreasonable and could not be supported by the evidence.  But with respect for the views of the majority, as has often been stated, much more is required under s. 613(1)(b)(iii).  I would therefore allow Rawlinson's appeal as regards the hold-up and firearms charge and order a new trial.

 

    There remains the break and enter charge against Leaney.

 

Leaney and the Break and Enter

 

    The evidence is an identification by the judge upon viewing a video of the burglary, coupled with the identification by a police sergeant who also viewed the video.  The admissibility of the latter identification is contested and I will be addressing that issue shortly.  In addition to the identification, there is evidence of Leaney's association with Rawlinson, who is definitely linked to the burglary.

 

    At trial, the judge admitted as evidence the testimony of five police officers who testified as to Leaney's identity as being the taller person on the videotape.  It is common ground that this opinion evidence was inadmissible as regards four of the five police officers.  As for the remaining officer, one Sergeant Cessford, who had known the appellant Leaney for 15 years, it is common ground that his opinion evidence could be received.  However, the appellant Leaney, at trial and in this Court, but not in the Court of Appeal, takes the position that this evidence could not be received without the holding of a voir dire as to Sergeant Cessford's particular qualifications to give opinion evidence.  Harradence J.A. proprio motu raised the matter and excluded the evidence.  The position taken by the majority in the Court of Appeal is best enunciated by quoting integrally what they said at pp. 380-81:

 

    On his appeal of the conviction for the break, enter and theft, Leaney is faced with the finding of the trial judge that he was the taller person shown on the videotape.  This is a finding of fact which the trial judge was entitled to make and it is one which is entirely consistent with the evidence tendered at trial, some of which is:

 

1.  Rawlinson has admitted that he is the smaller thief shown in the videotape and the evening before the break and enter Rawlinson met with the accused Leaney at the Rawlinson apartment.

 

2.  A baseball cap similar to that worn by the taller thief in the break and enter was found several hours after the break and enter in the car parked outside the Rawlinson residence and which has been associated with Rawlinson's apartment.

 

3.  A liquid of the same sort as the cough syrup taken in the break and enter was found outside that automobile and empty containers of the same were found outside of the Rawlinson apartment.

 

4.  A baseball bat similar to the baseball bat seen carried by the taller thief in the break and enter was seized at Rawlinson's apartment.

 

5.  Clothing similar to some of the clothing worn by the thieves in the break and entry was found at Rawlinson's apartment.

 

6.  Various police officers viewed the videotape, one of whom was Sergeant Cessford.  Cessford has known the accused Leaney for 15 or 16 years and was able to identify Leaney as the taller thief in the videotape by reference to Leaney's jaw, slouch, back and movements generally.

 

    In concluding that Leaney's conviction for the break and entry ought to be quashed and a new trial ordered, Harradence J.A. put emphasis on the fact that the trial judge refused a defence request for a voir dire on the admissibility of police testimony identifying Leaney as the taller person in the videotape.

 

    Neither in his factum nor in argument before us did Leaney raise the refusal of the trial judge to hold a voir dire as a ground or argument of appeal.  Notwithstanding that, I would be prepared to recall counsel to argue the point if there was some possibility that a change in result would occur.  But that is not the case.

 

    Even if the ruling was wrong and the trial judge ought not to have heard or considered the testimony of the police officers on this point, would a quashing of the conviction be warranted?  The trial judge makes clear that his finding of fact that Leaney is the man in the videotape is based upon his review of the videotape and of seeing Leaney every day during the trial.  Indeed, in commenting on the impugned police evidence the trial judge speaks of accepting it as it conforms to his own conclusion.  Finally, it is clear that, had a voir dire been held, that Cessford's testimony would have been allowed and his testimony is direct and unequivocal and based upon his 15-or 16-year acquaintance with the accused Leaney.

 

    In short, if the trial judge was in error in refusing the voir dire and some evidence was wrongly admitted, no substantial wrong or miscarriage of justice has occurred.

 

    This is the evidence that Leaney faces, subject to the following qualification.  There is no evidence that Leaney met Rawlinson on the eve of the burglary.  There is evidence that at that time, Leaney met an unidentified person at Rawlinson's apartment.  Furthermore, Rawlinson's admission that he is the smaller burglar on the video is not, with respect, under the circumstances of this case, admissible against Leaney.

 

    I agree with Harradence J.A. that a voir dire should have been held.  But, Sergeant Cessford, after having been heard, was fully cross-examined; furthermore, Leaney did not raise the matter in the Court of Appeal, and, in this Court, did not seek through affidavit evidence to indicate in what way he was prejudiced in his defence by that omission.  I therefore agree with Dea J. that the proviso of s. 613(1)(b)(iii) is properly operative as regards the trial judge's error and that if there is to be a new trial, it cannot be grounded on this error committed by the trial judge.

 

    Furthermore, the trial judge made it clear that he had arrived at his conclusion irrespective of what the sergeant or the others had to say.  While no doubt is cast on the sincerity of the judge's assertion, one might argue that the circumstances cast doubt on its accuracy or at least on the appearances thereof.  We constantly ask jurors to disregard what they know through reading the papers or viewing telecasts of the news; we tell them to disregard certain answers given by witnesses;  we tell them that while certain evidence may be used for one purpose, we will trust them not to use it for another.  I do not see why judges cannot be trusted for same.  In fact, our judges hold voir dires on confessions and sometimes reject them on grounds that in no way cast doubt on their accuracy; they are expected to and are accepted as being capable of deciding innocence or guilt without using their knowledge of the accused's admission of guilt in the rejected confession.  So, if Plomp Prov. Ct. J. says that he identified Leaney on the video independently and without the aid of the identification of Sergeant Cessford, I am satisfied that there has not been any substantial wrong or miscarriage of justice, nor appearance thereof.  I would therefore uphold Leaney's conviction for the break and enter.

 

Conclusion

 

    To conclude, I would allow the appellant Rawlinson's and the appellant Leaney's appeal of the robbery and use of arms convictions, set aside the conviction entered below and order a new trial.  I would dismiss Leaney's appeal from the break and enter charge.

 

//Wilson J.//

 

    The following are the reasons delivered by

 

    WILSON J. (dissenting in part) -- I have had the benefit of the reasons for judgment of my colleagues, Justice McLachlin and Justice Lamer.  I agree with Lamer J. for the reasons given by him that the convictions of Leaney and Rawlinson relating to the robbery and firearms offences cannot stand and that a new trial must be ordered.  However, unlike my colleagues, I would also order a new trial for Leaney on the break and enter charge.

 

    The evidence which was adduced in relation to the break and enter charge against Leaney consisted of a videotape of the incident taken by a store security camera.  The trial judge allowed the Crown to tender the opinion evidence of five police officers who expressed the view that one of the persons they saw in the videotape was Leaney.  Only one of these police officers, Sergeant Cessford, had had any previous contact with Leaney.  At the conclusion of the trial the trial judge made the following remarks with regard to the break and enter charges against Rawlinson and Leaney:

 

    The two persons responsible for the commission of the offence came into the range of the camera.  Again, the lighting was good, focus was good but I could see no distortion of the picture whatsoever.  The two men can be described as the shorter of the two, male Caucasian, wearing a toque high on his head, jean jacket, pants, carrying a baseball bat.  There are several good views of this person, and having observed Hugh Rawlinson in the courtroom over a period of 16 days, I have no difficulty in saying without hesitation that they, the man in the video, and Hugh Rawlinson, in the courtroom, are one and the same.

 

    The taller of the two, second person; on the video, he appears dark, long hair, Metis or Native appearance, very tall, much taller than Rawlinson and there's a perfect example when they are standing back to back when the hips of the taller man are almost to the height of the shoulders of Rawlinson, much taller man.  Wearing a peaked cap of a baseball type which subsequently shows in the video a tree on the right-hand side of the indicator on the front of the cap which is similar to a cap seized by the police and was an exhibit.  He's wearing a down filled type ski jacket, jeans with jacket, appearing above the waist, a comb, round shaped tail, in the right rear pocket.  These are not as good -- there is not as good a view of this face of this person, but again having had the opportunity to view the video and the accused, Frank Leaney in the court over 16 days, I have no difficulty in saying without hesitation that they are one and the same; the man in the video is Frank Leaney.

 

    Having reached this conclusion myself, I have no trouble in accepting the evidence of the police officers with their different knowledge of the two accused persons and how they in their own way were able to identify the two accused from the video.  [Emphasis added.]

 

    In upholding Leaney's conviction by applying s. 613(1)(b)(iii) of the Criminal Code  the majority of the Alberta Court of Appeal concluded that the trial judge identified Leaney as one of the persons in the videotape independently of the testimony of the police officers and it therefore did not matter whether the evidence of the police officers ought to have been admitted absent a voir dire or not.  In any event, the majority of the Court of Appeal ruled that the testimony of one of the officers, Sergeant Cessford, would have been admissible had a voir dire been held.  The majority found Sergeant Cessford's evidence to be one of several factors which supported the trial judge's finding of guilt.  These factors are listed by the Court of Appeal in its reasons which are now reported at (1987), 55 Alta. L.R. (2d) 362, at pp. 380-81:

 

1.  Rawlinson has admitted that he is the smaller thief shown in the videotape and the evening before the break and enter Rawlinson met with the accused Leaney at the Rawlinson apartment.

 

2.  A baseball cap similar to that worn by the taller thief in the break and enter was found several hours after the break and enter in the car parked outside the Rawlinson residence and which has been associated with Rawlinson's apartment.

 

3.  A liquid of the same sort as the cough syrup taken in the break and enter was found outside that automobile and empty containers of the same were found outside of the Rawlinson apartment.

 

4.  A baseball bat similar to the baseball bat seen carried by the taller thief in the break and enter was seized at Rawlinson's apartment.

 

5.  Clothing similar to some of the clothing worn by the thieves in the break and entry was found at Rawlinson's apartment.

 

6.  Various police officers viewed the videotape, one of whom was Sergeant Cessford.  Cessford has known the accused Leaney for 15 or 16 years and was able to identify Leaney as the taller thief in the videotape by reference to Leaney's jaw, slouch back and movements generally.

 

As my colleagues point out in their reasons, the appeal before this Court is concerned solely with the application of s. 613(1)(b)(iii) of the Criminal Code .  The relevant portions of s. 613 read:

 

    613. (1)  On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal

 

(a)  may allow the appeal where it is of the opinion that

 

                                                                          . . .

 

(ii)  the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law . . .

 

                                                                          . . .

 

(b)  may dismiss an 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 in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

 

A "substantial wrong or miscarriage of justice" sufficient to preclude the invocation of s. 613(1)(b)(iii) has been held to include a situation in which the trial judge's error of law creates an appearance of unfairness: see R. v. Hertrich (1982), 137 D.L.R. (3d) 400 (Ont. C.A.), leave to appeal refused, [1982] 2 S.C.R. x, and R. v. Duke (1985), 39 Alta. L.R. (2d) 313 (C.A.)

 

    In my opinion the trial judge erred in admitting the opinion evidence of at least four of the police officers.  Opinion evidence is not admissible when the witness offering the opinion is in no better position than the trier of fact to assess the situation under scrutiny: see Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 836.  The Crown submits that the outcome of the trial was unaffected by the admission of this evidence since the trial judge stated that he arrived at his conclusion independently of the impugned testimony.  I do not, of course, question the sincerity of the trial judge's statement.  However, it cannot be determined objectively what effect, if any, the admission of the impugned evidence had on how the trial judge reached his opinion.  This being so, the appearance of unfairness can exist even although it cannot be shown that the admission of the evidence in fact influenced the trial judge.  I believe that Harradence J.A. in the Court of Appeal below was correct in drawing a parallel between the situation in the present case and one in which a witness is asked to view a line-up already knowing whom the police suspect.  He stated at p. 376:

 

    In a situation such as this, the trier of fact becomes, in effect, an eyewitness to the crime.  When called upon to determine whether the person in the video is actually the accused, the trier of fact must do so in circumstances that are not prejudicial.  Just as there is an element of unfairness when an eyewitness knows before making an identification in a lineup who the police suspect, so too the identification made by a trial judge will appear to be unfair if he already knows the opinion of the police with respect to identity.  That is what happened in the present case.  Even if the trial judge came to his conclusion without the aid of the police officers' evidence, the circumstances under which the identification was made had the appearance of unfairness.

 

    The appearance of unfairness would have been dispelled had the trial judge considered the evidence of the police officers and explicitly discounted it.  The trier of fact in a criminal case, be it judge or jury, frequently hears evidence which is not admissible or which is subsequently excluded or evidence which is admissible for one purpose and not for another.  In such circumstances the trier of fact is explicitly advised of the extent to which and for what purposes the evidence may be used.  In such cases this admonition is sufficient to purge the trial of any appearance of unfairness.  However, the trial judge in this case not only did not expressly reject the evidence of the police officers but used it to buttress his own conclusions, conclusions made after he had heard the impugned testimony.  Under the circumstances, I am of the opinion that the trial judge's admission and acceptance of the police officers' testimony created, at the very least, an appearance of unfairness.

 

    It has been argued that the identification of Leaney by Sergeant Cessford should be treated differently from the identification by the other officers since Cessford had previous contact with Leaney.  This may well be true.  However, a voir dire ought to have been held by the trial judge to determine whether Cessford's knowledge was such that his opinion ought to have been admitted.  In other words, would Cessford's knowledge have provided the trial judge with vital information which he would not otherwise have had?  Even if I were to assume that Sergeant Cessford's testimony would have been ruled admissible had a voir dire been held, I find that Cessford's identification evidence cannot be separated from that of the other police officers.  The effect of the identification evidence of the other police officers was to create an appearance of unfairness.  This overall appearance cannot be dispelled by the fact that Cessford's evidence may have been admissible.

 

    As a consequence, unless there is some way in which this appearance of unfairness can be dispelled, I do not think this Court can apply the proviso in s. 613(1)(b)(iii).  It is my view that the appearance of unfairness could only be dispelled if no reliance were placed on the trial judge's reasons regarding the identification of the man in the videotape.  The question then becomes whether there is sufficient evidence apart from the identification of Leaney through the videotape to compel the conclusion that the result reached by the trial judge was the only possible result.  In considering this question I turn to the factors listed and relied upon by the majority of the Court of Appeal.  In my opinion, these factors standing by themselves are wholly inadequate to allow for the application of s. 613(1)(b)(iii).  The first factor listed, that Rawlinson and Leaney had met the previous day, is inaccurate in that, as Lamer J. points out, it was never established at trial that Leaney and Rawlinson met that day.  All that was established at trial was that Leaney was present at Rawlinson's apartment and had met with an unidentified person.  Rawlinson's apartment had the reputation of being "a shooting gallery", a place where numerous individuals met to traffic in and consume drugs.  It is entirely conceivable that Leaney met someone other than Rawlinson the day before the break-in.  As for factors two to five, none of them reveal any connection to Leaney.  Factor six re-introduces the issue of identification of Leaney by the police officers, an issue which I have already concluded created an appearance of unfairness.

 

    Since the admissible evidence against Leaney is inadequate to compel the conclusion that a properly instructed trier of fact would necessarily have convicted him of the break and enter charge, I am unwilling to apply s. 613(1)(b)(iii).  In the result, therefore, I would, along with Lamer J., order a new trial for Rawlinson and Leaney in respect of their robbery and firearms charges.  Additionally, however, I would order a new trial for Leaney in respect of his break and enter charge.

 

//McLachlin J.//

 

    The judgment of L'Heureux-Dubé, Sopinka and McLachlin JJ. was delivered by

 

    MCLACHLIN J. --

 

Introduction

 

    Rawlinson and Leaney appeal from their convictions of offences related to a robbery of one drugstore and a break-in of another drugstore, both in North Edmonton, over the course of the night of February 4 - 5, 1985.  The main issue at trial and on appeal concerned the identity of the robbers and of the thieves.   The evidence respecting identity took the form of eye-witness testimony about the robbery, some circumstantial evidence tending to connect the accused with the two crimes, and a videotape of the break-in, supplemented by the opinion evidence of five police officers as to the identity of the two thieves depicted therein.

 

    I am satisfied that two fundamental errors occurred at trial.  The first was that the trial judge treated evidence of the second incident, the break-in, as similar fact evidence going to the identification of the accused on the charges arising out of the first incident, the robbery.

 

    The second error was the admission of the evidence of the police officers as to the identity of the persons shown on the videotape.  Four of the officers had no acquaintance with the accused and were in no better position than the trial judge to say whether the persons shown in the video were the accused.  Thus their evidence could not assist and should not have been received.  The fifth, Sergeant Cessford, knew one of the accused, Leaney, since childhood, and had spent time with him shortly before the two incidents.  The judge erred in not determining as a preliminary matter the qualification of Sergeant Cessford before receiving his evidence, as well as that of the other police officers.  However, this failure is irrelevant in the case of Cessford, since I am satisfied his evidence was clearly admissible in any event.  I note in this regard that Cessford was cross-examined thoroughly as to his acquaintance with Leaney.

 

    Error being established, the only question is whether the Court of Appeal erred in upholding the conviction under s. 613(1)(b)(iii) of the Criminal Code, R.S.C. 1970, c. C-34.  Subsection 613(1) provides in part:

 

    613. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal

 

(a) may allow the appeal where it is of the opinion that

 

                                                                          . . .

 

(ii)  the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law . . .

 

                                                                          . . .

 

(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 in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

 

The Case Against Leaney

 

    The main identification evidence against Leaney on the charges arising out the second incident, which I shall refer to as the break-in incident, was the evidence of the videotape and the testimony of the police officers concerning the identity of the thieves captured on the videotape.

 

    The trial judge viewed the videotape several times and had ample opportunity during the course of the sixteen-day trial to form an opinion as to whether the persons shown on the tape were the accused.  The tape contained several face shots of each accused.  At the end of the trial, the trial judge stated that he had formed the firm conclusion that the persons shown on the videotape were the accused.  His pronouncements make it clear that this opinion was formed independently of the evidence of any of the police officers on the question.  He stated:

 

    The two persons responsible for the commission of the offence came into the range of the camera.  Again, the lighting was good, focus was good but I could see no distortion of the picture whatsoever.  The two men can be described as the shorter of the two, male Caucasian, wearing a toque high on his head, jean jacket, pants, carrying a baseball bat.  There are several good views of this person, and having observed Hugh Rawlinson in the courtroom over a period of 16 days, I have no difficulty in saying without hesitation that they, the man in the video, and Hugh Rawlinson, in the courtroom, are one and the same.

 

    The taller of the two, second person; on the video, he appears dark, long hair, Metis or Native appearance, very tall, much taller than Rawlinson and there's a perfect example when they are standing back to back when the hips of the taller man are almost to the height of the shoulders of Rawlinson, much taller man.  Wearing a peaked cap of a baseball type which subsequently shows in the video a tree on the right-hand side of the indicator on the front of the cap which is similar to a cap seized by the police and was an exhibit.  He's wearing a down-filled type ski jacket, jeans with jacket, appearing above the waist, a comb, round shaped tail, in the right rear pocket.  These are not as good -- there is not as good a view of this face of this person, but again having had the opportunity to view the video and the accused, Frank Leaney in the court over 16 days, I have no difficulty in saying without hesitation that they are one and the same;  the man in the video is Frank Leaney.

 

    Having reached this conclusion myself, I have no trouble in accepting the evidence of the police officers with their different knowledge of the two accused persons and how they in their own way were able to identify the two accused from the video.

 

    Given the trial judge's clear statement that he arrived at his conclusion as to identity independently of the evidence of the police officers, their evidence assumes the character of mere surplusage, which does not vitiate the judge's conclusion that Leaney was one of persons shown on the video screen.  To put it another way, the judge, properly instructing himself, concluded beyond a reasonable doubt that Leaney participated in the break-in.  The fact that the judge had before him inadmissible evidence does not impair that independent conclusion, if he did not rely on the inadmissible evidence in reaching it.

 

    It was also argued that quite apart from whether Leaney suffered actual prejudice as a result of the reception of the inadmissible evidence, its admission, and particularly the admission of the evidence of the four police officers who testified as to the identity of the persons shown on the video despite no familiarity of the accused, created an appearance of unfairness which amounted to a miscarriage of justice, making s. 613(1)(b)(iii) of the Criminal Code  inapplicable: see R. v. Hertrich (1982), 137 D.L.R. (3d) 400 (Ont. C.A.), per Martin J.A.  I cannot accept this submission.  There is no appearance of unfairness where the judge expressly arrives at his or her conclusion on the critical issue independently of the inadmissible evidence.  Judges often hear evidence which turns out to be inadmissible, for example on voir dires.  So long as the judge does not consider such evidence in arriving at his or her independent conclusion, no unfairness can be said to arise, nor has there been a miscarriage of justice.

 

    I conclude that the Court of Appeal did not err in concluding that the conviction of Leaney on the counts relating to the break-in should stand under s. 613(1)(b)(iii) of the Criminal Code , notwithstanding the reception of inadmissible evidence.   The test set out in Colpitts v. The Queen, [1965] S.C.R. 739 is met: there is no possibility that a reasonable jury, properly instructed and acting judicially, could fail to convict on the admissible evidence presented on the break-in incident.

 

    I turn next to the convictions relating to the first incident, which I shall refer to as the robbery.  In arriving at his conclusions as to identity on these offences, the trial judge erroneously referred to his conclusions on the break-in incident, praying in aid the doctrine of similar fact evidence.  The question is whether there was sufficient evidence without using the identification on the break-in incident to permit the conclusion that no jury, properly instructed, could have acquitted Leaney on the charges relating to the robbery.

 

    I agree with Lamer J. that the evidence is such that a reasonable jury could acquit Leaney on the charges relating to the robbery, and that the Court of Appeal erred in applying s. 613(1)(b)(iii) to these charges.

 

The Case Against Rawlinson

 

    Rawlinson does not appeal from his convictions arising out of the break-in incident.  He appeals from his conviction for robbery and the associated firearms charge on the ground that the trial judge erred in using the evidence on the break-in charges as similar fact evidence on the robbery charges.  There is no doubt that the trial judge wrongly considered that evidence. The only question is whether the Court of Appeal was correct in upholding the conviction under s. 613(1)(b)(iii) of the Criminal Code .

 

    The case against Rawlinson on the robbery charges, considered in the absence of the similar fact evidence from the break and enter charge, is impressive.  It may be summarized as follows:

 

    (1)The boxes which were taken in the armed robbery were found just outside Rawlinson's apartment hours after the robbery, and he admitted to Lyseyko, a fellow inmate who testified for the prosecution at trial, that he had been involved in the placing of those boxes at that location.

 

    (2)Rawlinson tried to convince Lyseyko to take responsibility for the involvement alleged against him in relation to the robbery.

 

    (3)Some of the drugs were found in Rawlinson's anal cavity which were consistent with some of the drugs stolen during the robbery.

 

    (4)The weapon similar to the one described as being used in the robbery was turned over to the police as a result of a conversation with Rawlinson.

 

    (5)The description of one of the participants in the robbery matches the general description of Rawlinson.

 

    (6)The companion of the person matching Rawlinson's description in the robbery match the description of Leaney who was seen with Rawlinson on the videotape subsequent to the robbery.

 

    (7)Like Leaney, Rawlinson failed to testify in the face of this highly incriminating evidence.

 

It is well-established that in considering whether a conviction may be upheld under s. 613(1)(b)(iii) of the Criminal Code , the court may take into account the accused's failure to explain evidence which connects him with the crime: Avon v. The Queen, [1971] S.C.R. 650, at p. 657.

 

    I am of the view that a trial judge or jury, applying the law correctly to this evidence, could not possibly entertain a reasonable doubt as to the guilt of Rawlinson.  The Court of Appeal was correct in concluding that no reasonable jury, properly instructed and acting judicially, could fail to convict Rawlinson on the admissible evidence presented at trial.

 

Conclusion

 

    I would dismiss the appeals, save for Leaney's appeal on the robbery and firearms charges, which I would allow.

 

    Appeal of Frank Earl Leaney from convictions for robbery and for use of firearms in the commission of an offence allowed.

 

    Appeal of Frank Earl Leaney from the conviction for break and enter dismissed, WILSON J. dissenting.

 

    Appeal of Henry Hugh Rawlinson dismissed, LAMER and WILSON JJ. dissenting.

 

    Solicitors for the appellant Frank Earl Leaney:  Molstad Gilbert, Edmonton.

 

    Solicitors for the appellant Henry Hugh Rawlinson:  Beresh & DePoe, Edmonton.

 

    Solicitor for the respondent:   The Attorney General for Alberta, Edmonton.