





CITATION:
R. v. Wolfe-Bard, 2011 ONCA 158





DATE:
          20110228



DOCKET: C52127



COURT OF APPEAL FOR ONTARIO



MacPherson, Blair and
Rouleau
JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Andre Wolfe-Bard



Appellant



Brian Snell, duty counsel, for the appellant



Jennifer
Woollcombe
, for the
          respondent



Heard: February 9, 2011



On appeal from the conviction entered on February 19, 2010 by
          Justice Jack Nadelle of the Ontario Court of Justice.



MacPherson J.A.:




A.

INTRODUCTION

[1]

Andre
    Wolfe-Bard was convicted of robbery following a one-day trial before Justice
    Nadelle of the Ontario Court of Justice in Ottawa. The conviction related to an
    attack on Marie
Carriere
at about 1:30 a.m. on
    December 13, 2009 at the front door of her apartment building on Montreal Road
    in Ottawa.

[2]

The
    principal issue at the trial was the identity of the man who attacked Ms.
Carriere
. The trial judge rejected Ms.
Carrieres
in-dock identification of the appellant. However, he nevertheless convicted the
    appellant because this is a case in which there are a large number of facts,
    that show that it was in fact, the accused, who committed the robbery.

[3]

The
    appellant appeals the conviction. He contends that the trial judges treatment
    of the evidence, especially the identification evidence, resulted in an
    unreasonable verdict.

B.

FACTS

(1)

The parties and events

[4]

Marie
Carriere
was unloading her car in the parking lot of
    her apartment building on Montreal Road in Ottawa at about 1:30 a.m. on
    December 13, 2009. She noticed a man walking behind her. As she reached the
    front door of the building, she noticed the same man running towards her. He
    grabbed her and said Give me your keys. He then grabbed her hand in which she
    was holding the keys. Ms. Carrier fought back, grabbing her assailants shirt,
    hitting him on the head, and kneeing him in the groin area. The assailant
    backed away and then left empty-handed.

[5]

Ms.
Carriere
went upstairs to her apartment and told her
    boyfriend about the attack. Together, they looked out the apartment window and
    Ms.
Carriere
saw the same man in the parking lot of
    the church next to the apartment buildings parking lot. The boyfriend called
    the police.

[6]

The
    police arrived at the apartment shortly after the call. Ms.
Carriere
provided a description of her assailant. The police officer at the scene,
    Constable
Quintonea
, broadcast a description of the
    assailant, summarized by the trial judge as: white male, baggy clothes,
    intoxicated.

[7]

Sergeant
    Josh
Pulfer
was in his cruiser on Montreal Road when
    he heard the broadcast description of a man involved in a robbery and attempted
    car-jacking. Almost immediately, he saw a man fitting this description walking
    on the sidewalk on Montreal Road. Sergeant
Pulfer
pulled over and started to talk to the man, who identified himself as Justin
    Bard.

[8]

As
    they were talking, Constable
Quintonea
gave an
    updated description of the suspect, which Sergeant
Pulfer
recalled as: white male in his 20s, wearing light blue jeans, a baggy dark
hoody
sweater with some sort of pattern and he had some
    facial hair. Sergeant
Pulfer
was of the view that
    this description matched the man to whom he was speaking.

[9]

Constable
    Adrian Benjamin arrived in a second police cruiser. The suspect became
    belligerent. The officers formally arrested him shortly after he was first
    observed at 2:03 a.m. The officers searched the suspect and discovered that his
    name was Andre Wolfe-Bard. The scene of the arrest was just
under
one kilometer from the scene of the attack.

(2)

The trial

[10]

The
    appellant was charged with robbery and obstruction of a peace officer. The
    Crown called three witnesses  Ms.
Carriere
and
    Officers
Pulfer
and Benjamin. The
defence
called one witness, the
accuseds
mother, Nicole
    Bard, who essentially testified that she saw her son on the street about seven
    hours before the attack at which point he was wearing an orange, not a dark,
hoody
.

[11]

At
    the conclusion of the evidence, the trial judge, without objection from the
    Crown, did not call on counsel to make submissions on the obstruction charge
    because [t]heres no evidence of obstruction and acquitted the accused on
    that charge.

[12]

On
    the robbery charge, the principal issue was identity. The trial judge rejected
    the complainants in-dock identification of the accused, saying that it would
    be very dangerous to convict on this basis. He also said that the
    complainants in-dock identification was also quite tainted by her viewing of
    his picture on
Facebook
a day or two after the
    robbery.

[13]

However,
    the trial judge continued:

However,
    this is a case in which there are a large number of facts, that show that it
    was in fact, the accused, who committed the robbery. I have already mentioned a
    number of them; the clothing description matched that of the accused, as did
    the facial hair description and the drunkenness and drunken walk. Add to the
    above, the accused was the only pedestrian in the area at 2:03 a.m., the
    accused was a short distance from the site of the robbery when arrested, the
    accused had a fresh cut on the top of his right hand, which could very well
    have occurred in the struggle with Ms.
Carriere
over
    her car keys. It is an inference I think that could very well be made in the
    particular circumstances of this case. There was only a brief period from the
    time of the robbery to the time of the arrest.

Based
    on all the evidence in this case, I find the Crown had proven guilt beyond a
    reasonable doubt and the accused will be found guilty.

[14]

The
    trial judge imposed a sentence of 302 days imprisonment, with credit for 148
    days of pre-trial custody, two years probation, a lifetime firearm prohibition
    and a DNA order.

C.

ISSUE

[15]

The
    appellant contends that his conviction for robbery was an unreasonable verdict
    because the trial judge did not deal properly with the identification evidence.

D.

ANALYSIS

[16]

The
    general framework within which a submission of unreasonable verdict must be
    considered was set out by
Arbour
J. in
R. v.
Biniaris
,
    [2000] 1 S.C.R. 381 at
para
. 36:

The
    test for an appellate court determining whether the verdict of a jury or the
    judgment of a trial judge is unreasonable or cannot be supported by the
    evidence has been unequivocally expressed in
Yebes
as follows:

[C]
urial
review is invited whenever a jury
    goes beyond a reasonable standard. . . . [T]he test is whether the verdict is
    one that a properly instructed jury acting judicially, could reasonably have
    rendered.

(
Yebes
, supra
, at p. 185 (quoting
Corbett v.
The Queen
, [1975] 2 S.C.R. 275, at p. 282,
per
Pigeon J.).)


That formulation of the test imports both an
    objective assessment and, to some extent, a subjective one.
It requires the appeal court to determine what verdict a reasonable
    jury, properly instructed, could judicially have arrived at, and, in doing so,
    to review,
analyse
and, within the limits of
    appellate disadvantage, weigh the evidence.  This latter process is usually understood as referring to a subjective
    exercise, requiring the appeal court to examine the weight of the evidence,
    rather than its bare sufficiency.   The
    test is therefore mixed, and it is more helpful to articulate what the
    application of that test entails, than to characterize it as either an objective
    or a subjective test.

[17]

In
    the context of appellate review of a verdict in a judge alone trial,
Arbour
J. further defined the task for the reviewing court,
    at
para
. 37:

The
Yebes
test
    is expressed in terms of a verdict reached by a jury.  It is, however, equally applicable to the
    judgment of a judge sitting at trial without a jury. The review for
    unreasonableness on appeal is different, however, and somewhat easier when the
    judgment under attack is that of a single judge, at least when reasons for judgment
    of some substance are provided.  In those
    cases, the reviewing appellate court may be able to identify a flaw in the
    evaluation of the evidence, or in the analysis, that will serve to explain the
    unreasonable conclusion reached, and justify the reversal.



[I]n
    trials by judge alone, the court of appeal often can and should identify the
    defects in the analysis that led the
trier
of fact to
    an unreasonable conclusion.  The court of
    appeal will therefore be justified to intervene and set aside a verdict as
    unreasonable when the reasons of the trial judge reveal that he or she was not
    alive to an applicable legal principle, or entered a verdict inconsistent with
    the factual conclusions reached.  These
    discernable defects are themselves sometimes akin to a separate error of law,
    and therefore easily sustain the conclusion that the unreasonable verdict which
    rests upon them also raises a question of law.

[18]

There
    is no doubt that there were several important similarities between the
    complainants description of her assailant and the suspect detained by the two
    police officers a half-hour after the attack. Three examples come immediately
    to mind  some facial hair, light-
coloured
blue
    jeans, and intoxicated condition.

[19]

However,
    in spite of these similarities, there were several discrepancies between the
    complainants description of her assailant and the appellant which, I say with
    respect, the trial judge dealt with improperly. In addition, the trial judge
    erred in his treatment of significant contextual factors, namely, time and
    place.

[20]

First,
    and by far most importantly, there was a striking contrast between the size
    attributed to her assailant by the complainant and the appellants size.

[21]

In
    her statement to the police immediately after the attack, the complainant, who
    was 5'6'' in height, described her assailant as 5'6'', maybe 5'8''. In her
    evidence at the trial, she said that she had reconsidered this description and
    that the assailant was more than that and more than 5'8'', although she did
    not specify a new height figure. The complainant also testified that I dont
    have the impression that he was a very big muscular guyI didnt get the
    impression that he was too big, no.

[22]

In
    contrast, Sergeant
Pulfer
, who is 6' or 6'1'',
    recorded in his note book that the suspect was approximately 5'11''. In his
    trial testimony, in examination-in-chief, he said that the suspect was 5'11''
    or 6'. In cross-examination, he testified that Im about 6'1'' and I do
    recall him being kind of, either the same height as myself or a bit taller.
    Sergeant
Pulfer
also testified: Thinking back now I
    recall getting out of my car and looking at him and thinking, hes a big kid.

[23]

Constable
    Benjamin testified in examination-in-chief with respect to the suspects
    height: Based on memory it was probably six foot, 6'1'' about. In
    cross-examination his testimony was:

Q.
           Okay. And how tall are you, sir?

A.
           About 6'3'', 6'4''.

Q.
           Okay. And do you recall the height
    of Mr. Wolfe-Bard?

A.
           Yeah. He was a little bit shorter
    than me.

Q.
           So was he close to your height?

A.
           Yeah, I said about 6'1'', 6'2''.

Q.
           Okay. If Im going to suggest to
    you that he was 6'3'',   is that a fair
    assumption? Does that.

A.
           I would assume, yeah.

Q.
           Okay.

A.
    He was a fairly tall gentleman.

[24]

Finally,
    Nicole Bard, the appellants mother, testified that her son was 6'2'' tall.

[25]

In
    his reasons for judgment, the trial judge referred to the complainants
    description in her police statement of the assailant as being 5'6'', maybe 5'8''
    and to her testimony that on further consideration, she felt he was taller
    than five foot eight. Later he said:

With
    respect to the discrepancy in her initial height estimate and the accused
    actual height, again, she was under great stress and was in the midst of
    fighting off her attacker.

[26]

The
    trial judges explanation that the complainants ability to observe may have
    been compromised by the circumstances of the attack was entirely reasonable. However,
    in my view, the discrepancies in evidence with respect to the assailants and
    appellants height and size are simply too pronounced to be set aside on this
    laconic basis. The simple fact is that the complainant never put her
    assailants height at anything approximating 6' whereas both police officers
    described the appellant as about, and even well above, 6'. This is a large difference.
    Further, the complainant did not regard her assailant as a big guy, whereas
    that is precisely how Sergeant
Pulfer
described him.

[27]

Second,
    there are two important discrepancies in the testimony relating to the clothing
    worn by the assailant and the appellant on the night in question.

[28]

The
    complainant testified that her assailant was wearing a dark
coloured

hoody
or a hooded sweater. Sergeant
Pulfer
testified that the suspect was wearing a dark
coloured

hoody
. However,
    Constable Benjamin testified that the suspect was wearing a
hoody
and an outer jacket. The trial judge inaccurately described the complainants
    testimony as the hood seemed to be the same
colour
as the outer sweater or coat; in fact, the complainant said that the assailant
    wore only a
hoody
, with no additional outerwear.

[29]

In
    addition, although perhaps more minor in nature, the complainant said that the
    assailant wore a baseball cap and the suspect was wearing a baseball cap.
    However, the complainant described the cap as dark, while Sergeant
Pulfer
testified that the suspects cap was a light kind
    of brown/white and Constable Benjamin described it as a beige multi
colour
 cap.

[30]

The
    trial judge said this about the clothing: The description Ms.
Carriere
did give of the clothing, did pretty well match
    the clothing of the accused when arrested. With respect, in light of the above
    discrepancies, I do not think this is an accurate conclusion.

[31]

Turning
    to context, the trial judge included in his recitation of the facts that
    supported a conviction the accused was the only pedestrian in the area at 2:03
    a.m. and the accused was a short distance from the site of the robbery when
    arrested. In my view, the fact that the suspect was detained about a half-hour
    after the attack, that he was almost a kilometer away from the site of the
    attack, and that the suspect was on Montreal Road in the City of Ottawa
    (albeit, admittedly, at 2:03 a.m. on a December night) suggest a need for
    caution in linking the assailant at the apartment building at 1:30 a.m. and the
    appellant almost a kilometer away on a major street a half-hour later.

[32]

Taken
    together, these problems amount to, in the language of
Biniaris
, a flaw in the
    evaluation of the evidence. I do not reach this conclusion lightly in a case
    where the trial judge provided full reasons for his decision and where the
    evidence established important similarities between the complainants
    description of her assailant and the appellant when he came in contact with the
    police a half-hour later. However, in the end, the discrepancies between the
    assailant and the appellant, especially the substantial one relating to
height,
and the shift in time (about 30 minutes) and place
    (almost a kilometer) in a large city lead me to the reluctant conclusion that
    the conviction in this case was unreasonable.

E.

DISPOSITION

[33]

I
    would allow the appeal and enter a verdict of acquittal on the charge of
    robbery.

RELEASED:  FEB 28 2011 (J.C.M.)

J. C. MacPherson J.A.

I agree. R. A. Blair J.A.

I agree.
Paul S. Rouleau J.A.


