





CITATION:
R. v. Manley, 2011
          ONCA 128



DATE: 20110214



DOCKET: C50195



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Sharpe and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Michael Manley



Appellant



Brian Snell, for the appellant



Randy Schwartz, for the respondent



Heard: November 26, 2010



On appeal from the convictions imposed on January 15, 2008 by
          Justice Denis Power of the Superior Court of Justice, sitting with a jury.



Sharpe J.A.:



[1]

The appellant appeals his convictions for several
    offences related to two retail store robberies.  The key issue at trial was identity.
The appellant
    argues that the trial judge erred by failing to provide the jury with an
    adequate instruction about the frailties of the identification evidence.  The appellant also submits that the trial
    judge erred by rejecting the submission that the police breached his s. 8
Charter
rights by searching the stored
    data on a cell phone they seized from him at the time of his arrest and that a
    photograph found on the phone should have been excluded under s. 24(2) of the
Charter
.  Finally, the appellant submits that the trial
    judge erred by instructing the jury that robbery was an included offence to
    armed robbery and that as the jury acquitted him of using a firearm, to wit: a
    sawed off shotgun, in robbing [the cashier] of cash monies, the conviction for
    robbery with violence should be set aside.

Facts

[2]

On October 19, 2006, a man with his face partially
    covered and holding a gun and a knife robbed a Mr. Sub restaurant in
    Trenton.  The cashier described him as
    5-foot-8, medium build, in his twenties, with dark eyes and without an accent.  Using a sniffer dog following the trail from
    the store, the police found in a nearby parking lot a T-shirt with a hole cut
    out of it that could have been used as a mask. The dog followed the scent to a
    point where there were fresh tire tracks, suggesting that the robber may have
    fled in a car. DNA on the T-shirt matched that of the appellant.

[3]

On November 11, 2006, a Trenton music store was robbed
    by a man holding a sawed off shotgun.  The owner, a salesperson, and a customer were present.  The salesperson described him as 5-foot-8 to
    5-foot-9, in his mid to late twenties, with short light brown hair.  The owner described him as 5-foot-8 to
    5-foot-9 and thin.  The salesperson and
    the customer were unable to identify the appellant in a photo line-up.  The owner was not asked to do so.

[4]

The police obtained information from a confidential
    informant identifying the appellant as a suspect in the music store robbery.  The appellant was arrested on November 13,
    2006 for the music store robbery and on an outstanding arrest warrant for break
    and enter.  The police conducted a frisk
    search incident to the arrest.  They
    seized a concealed knife and a cell phone, as well as two GM car keys (one
    apparently modified to break into cars), a hypodermic needle, handcuffs and a
    handcuff key capable of unlocking standard police handcuffs, binoculars, and
    local garbage bag tags.  The police
    examined the cell phone, purportedly to identify the lawful owner.  They opened it, searched its stored data, and
    found a photograph of the appellant holding a sawed off shotgun, taken the day
    after the music store robbery.  The
    photograph was copied and printed.  A
    warrant was subsequently obtained to search the contents of the phone.

[5]

A
voir dire
was held to determine the admissibility of the photograph of the appellant
    holding a sawed off shotgun.  The defence
    did not challenge the lawfulness of the arrest, and conceded that the frisk
    subsequent to arrest and the seizure of the items found were both lawful.  The defence did, however, submit that the
    photo should be excluded because it was unlawful to examine the phones
    contents without a warrant, and the subsequent warrant was tainted by the
    earlier warrantless search.  The trial
    judge ruled that the initial search was reasonable, that the search warrant was
    valid, and that in any event, the photo would have been admissible under s. 24(2).

The in-dock identification evidence

[6]

The Mr. Sub cashier was not shown a photo line-up and could
    not identify the appellant at the preliminary inquiry.  She was not asked in examination-in-chief at
    trial if she could identify the appellant, but did testify as to the robbers
    general features, his approximate height, weight, colouring, and clothing.  She testified that the robber had dark eyes.  In cross-examination by the appellants trial
    counsel (not Mr. Snell), the following transpired:

Q:
    You see the accused sitting in the box.  Take your time and just look at him, look in his eyes.  Can you say for sure that those are the eyes?

A:
    He was fully covered and he looks, yeah.

Q:
    Those are definitely the eyes you saw when you look again?

A:
    Yeah

Q:
    Youre sure?

A:
    Yeah.

Q:
    How many seconds did you see the eyes, do you think, all said?

A:
    I dont know.  I dont know for sure how
    long it would have taken for everything to interchange.  Less you know, a couple of minutes.  Like, there was no argument; the money was
    given.

Q:
    Is it possible, maam, that those could be somebody elses eyes in the heat of
    the moment that youre mistaken as to the eyes?

A:
    I dont believe so.

Q:
    You dont believe so, or do you know for sure those are the eyes?  Is there any possibility those eyes could
    have been somebody elses eyes other than this man sitting here?

A: No

[7]

Like the Mr. Sub cashier, the music store owner could
    only give a general description of the robber and she was not asked to identify
    the robber in a photo line-up.  When
    asked at the preliminary inquiry, she failed to identify the appellant as the
    perpetrator.  At trial, she attempted to
    explain her failure to identify him at the preliminary inquiry:

Q: After this
    robbery, did you think that you would be able to identify that person, the
    robber?

A: I
    thought I could, yes.

Q:
    And have you seen him since?

A:
    Yes.

Q:
    And can you tell us about that?

A:
    Yes.  Um, when I was at thethe last time
    I was in court we had, umyou were asking questions similar to what we are
    now.  Um, but at that time I was asked,
    Can you identify him, and I was the distance away I am now, from behind
    you.  And at that point I was unable to
    see the features that I had recognized at the robbery.  But on going out of that courtroom, I was as
    close to him as the jurors are to each other, as I walked past him, and then I
    recognized him.

Q:
    Okay.  And how is it, at that point, you
    recognize him?

A: Because the profile that I saw at that time, as
    he turned away from me, as I went past him ... that I recognized the profile.

[8]

However, the music store owner was still unable to
    identify the appellant at trial as the robber.

[9]

The other witnesses to the music store robbery could
    not identify the appellant from a photo line-up, nor could they identify the
    appellant in-dock at the preliminary inquiry or at trial.  The music store customer did testify that the
    appellants features were similar, very similar although the appellant
    appeared to be heavier than the robber whose facial features were more drawn
    and more muscular.  The music store
    salesperson testified much to the same effect.  She could not say that the appellant was the
    robber but he did have similar features although the appellant appeared to be
    fuller in the face.

[10]

The Crown relied primarily on the circumstantial
    evidence tying the appellant to the music store robbery.  In addition to the T-shirt and the cell phone
    photograph, the music store robber was wearing a coat or jacket with a
    fur-lined hood and he fled the scene on a bicycle.  When arrested two days later, the appellant
    was wearing a coat or jacket with a fur-lined collar and riding a bicycle.

The verdict

[11]

The appellant was charged with nine offences: two
    counts of robbery, one count of pointing a firearm, one count of possession of
    a prohibited weapon without a licence, one count of possession of a weapon for
    a purpose dangerous to the public peace, one count of possession of a firearm
    while under a prohibition, one count of carrying a concealed weapon, one count
    of obstruction of a police officer, and one count of possession of instruments
    for breaking into vehicles.  He pleaded
    guilty to obstruction of a police officer, the possession of a prohibited
    weapon count was dismissed during the trial, and the jury returned guilty
    verdicts on the other counts.  The
    pointing a weapon count was stayed on the
Kienapple
principle.

[12]

Both robbery counts in the indictment specified the use
    [of] a firearm, to wit: a sawed off shotgun ... contrary to s. 344 (a) of the Criminal
    Code of Canada.  In his charge to the
    jury, the judge instructed that simple robbery, i.e. stealing with violence or
    threats of violence, was an included offence to armed robbery.  During its deliberation, the jury asked if
    the weapon had to be a sawed off shotgun.  While the Crown conceded, and the judge agreed, that the Crown had to
    prove the charge as particularized, the judge in his response to the jury
    reminded them that simple robbery was an included offence.  On the count for the Mr. Sub robbery, the jury
    found the appellant not guilty of robbery as charged, but guilty of robbery
    accompanied by extorting stolen money with the use of violence or threats of
    violence.

[13]

The appellant was sentenced to a total of eight years
    imprisonment. He appeals his convictions on all counts except obstruction of a
    police officer and possession of instruments for breaking into vehicles.

Issues

[14]

The appellant raises three issues:

1. Did the trial judge
    err in his instructions on identification evidence?

2. Did the trial judge
    err by admitting the photograph from the cell phone?

3. Did the trial judge
    err in his instruction that robbery was an included offence to armed robbery?

Analysis

1. Did the trial judge err in his instructions on
    identification evidence?

[15]

The trial judge gave the jury a standard instruction
    regarding the need for caution in relation to eyewitness identification
    evidence.  He told the jury that the case
    depended to a large extent on eyewitness testimony and that they had to be
    very cautious about relying on eyewitness testimony to find that the
    appellant was guilty of the crimes alleged.  He instructed the jury that miscarriages of justice had occurred because
    of mistaken eyewitness identification evidence, that [i]t is quite possible
    for an honest witness to make a mistaken identification, and that honest and
    apparently convincing witnesses, even ones who are sure and positive can still
    be mistaken.

[16]

The trial judge also cautioned the jury with respect to in-dock
    identification evidence:

Now identification of a witness, I have to tell
    you, made in court is evidence that you have to be careful about because Mr.
    Manley is sitting in the prisoners box. So theres sort of a suggestion, hes
    the guy. But hes there because thats where he has to sit. Hes accused of it.
    So if a witness comes into the court and identifies somebody in the prisoners
    box, you have to be careful of that.
I'm
    not saying it's not good; not at all.
But

you have to be careful of that kind of identification. [Emphasis
    added.]

[17]

Later in the charge when dealing with the evidence
    pertaining to each count in detail, the trial judge returned to the issue of
    identification evidence.  Dealing first
    with the Mr. Sub cashiers evidence, he reminded the jury that she could initially
    only give a very general description of the robber but that when asked in
    cross-examination whether the perpetrators eyes were the same as the eyes of
    the accused in the prisoners box, she answered yes:

So how reliable is that identification, the
    identification of somebody's eyes? In and of itself, how reliable is it? In
    connection with all the other evidence does it fit in? Does it come up against
    other evidence? Is it contradicted by other evidence? Does other evidence
    confirm it? Does it confirm other evidence? That's the type of process you have
    to go through. You have to be satisfied beyond a reasonable doubt that the
    perpetrator was Mr. Manley.

[18]

With respect to the music store robbery, the trial
    judge reminded the jury that the salesperson could not identify the appellant
    from a photo line-up shortly after the robbery and that she could not identify
    the appellant in court other than to say he had similar characteristics.  Similarly, the customer could not identify the
    appellant from a photo line-up and could only say that the appellants features
    were similar to those of the robber.  The
    trial judge observed:

Thats not identification beyond a reasonable doubt
    for sure, but is that, when taken with all of the evidence, sufficient for you
    to come to a conclusion as to whether the accused was or was not the perpetrator?

[19]

Finally, the trial judge dealt with the music store
    owners evidence.  He reminded the jury
    that she had only given a general description of the robber and that she had
    not been asked to view a photo line-up.  As for what transpired at the time of the preliminary inquiry, he simply
    stated:

[Y]ou heard her explanation about why she didn't
    identify him during the preliminary inquiry but did later. How reliable is that
    identification? Even if she's telling the truth, is it reliable? How much does
    that tip the scales either way in your deliberating as to whether identity has
    been proven beyond a reasonable doubt?

[20]

The appellant argues that the trial judges instruction
    regarding the in-dock identification evidence was even weaker than the little
    weight caution disapproved of by the Supreme Court in
R. v. Hibbert
, [2002] 2 S.C.R. 445 at para. 49, where the court
    stated that an in-dock identification had an almost total absence of value as
    reliable positive identification.  See
    also
R. v. Tebo
(2003), 175 C.C.C.
    (3d) 116 at para. 19 (Ont. C.A.): this was a case where the jury should have
    been forcefully told that they could give virtually no weight to the in-dock
    identification evidence.

[21]

In my view, it would have been preferable had the trial
    judge given a stronger warning about the nature and weakness of the in-dock
    identification evidence.  In particular,
    the trial judge should not have said in relation to that evidence Im not
    saying its not good; not at all

and
    should instead

have instructed the jury
    that an in-dock identification had almost no value as reliable positive
    identification. However, I am not able to say that, in the circumstances of
    this case and reading the charge as a whole, the manner in which the trial
    judge instructed the jury on this issue amounted to an error of law.

[22]

The danger posed by the in-dock identification evidence
    at issue in this case is different from that faced in
Hibbert
where two eyewitness testified that the prisoner in the
    dock was the perpetrator of the crime alleged.  There is a significant risk that the jury will
    accord far more weight to a confident positive identification of that nature
    than it deserves and hence the need for a strong warning about the very limited
    probative value the evidence has.

[23]

Here, the in-dock identifications  if indeed they
    amounted to in-dock identifications  were qualified.  While the music store owner explained how she
    was able to identify the appellant after testifying at the preliminary inquiry,
    she still could not identify him at trial.  The Mr. Sub cashiers evidence about the
    appellants eyes was elicited by the appellants trial counsel in
    cross-examination.  The trial Crown did
    not place undue reliance on this evidence in his closing and rested his case
    primarily on the circumstantial evidence of the dog-tracking evidence, the
    T-shirt and the matching DNA, and the cell phone photograph of the appellant.  There was no objection by defence trial
    counsel and no request for a stronger caution.

[24]

The trial judge did warn the jury in general terms
    about the dangers of eyewitness and in-dock identification evidence, and I am
    not persuaded that the shortcoming in his instruction that I have identified
    amounted to a reversible error of law in the circumstances of this case.

[25]

I am satisfied that the jury would have appreciated
    from the manner in which the case was presented by the Crown and from what they
    were told by the trial judge that, standing on its own, the identification
    evidence was weak, and that it had to be assessed on the basis that it amounted
    to no more than one small piece of a much larger puzzle.

[26]

Accordingly, I would not give effect to this ground of
    appeal.

2. Did the trial judge err by admitting the photograph from
    the cell phone?

[27]

The trial judge found that the search and seizure
    conducted at the time of the appellants arrest was carried out for three
    reasons:

1)

For
    the safety of the police and the public as the appellant was suspected of
    committing crimes with weapons;

2)

To
    check the ownership of items in the appellants possession; and

3)

To
    check for evidence and to protect it from destruction.

[28]

The trial judge made several findings of fact on the
    appellants
Charter
motion to exclude
    the cell phone photograph that are not challenged on appeal.  The police had information from a
    confidential informant making the appellant a prime suspect in the music store
    robbery and a CPIC check revealed an outstanding warrant for the appellant for
    a break and enter.  The police also had
    information that the appellant had stolen cell phones and used them with stolen
    access cards.

[29]

The trial judge found that at the detachment, the cell
    phone had been opened by the first constable with the intention of finding
    something in it that would identify the cell phones owner as there was
    nothing on the exterior of the phone to identify its owner. In the process of
    doing this the officer  pushed various scroll and other buttons in order to
    observe the saved data in the phone and in that process, observed the images
    of the appellant holding a gun.  The
    officer noted that the phone was losing power and gave the phone to another
    officer with more technical knowledge.  That
    officer feared that the images could be lost if the phone shut down.  He downloaded the images to his own phone and
    then to a computer to preserve them.

[30]

The trial judge found that the search of the cell phone
    did not violate the appellants s. 8
Charter
right, but focussed most of his attention on the validity of the search
    warrant.  He found that even if there was
    a problem with the initial search, if the tainted information from that search
    was removed, there was still an adequate basis to support the search warrant.  Finally, he found that in any event, the
    evidence of the cell phone images should not be excluded under s. 24(2).  He found that the police had acted in good
    faith, that any breach of the appellants
Charter
rights was not serious, and that the exclusion of the challenged evidence
    would adversely affect the administration of justice.

[31]

In
R. v. Grant
,
    [1993] 3 S.C.R. 22 at pp. 251-52, the Supreme Court set out the proper
    procedure to be followed where the information to obtain a search warrant
    contained facts obtained through a
Charter
violation:

[W]here the information contains other facts in
    addition to those obtained in contravention of the
Charter
, it is necessary for reviewing courts to consider whether
    the warrant would have been issued had the improperly obtained facts been
    excised from the information sworn to obtain the warrant.... [T]he warrant and
    search conducted thereunder ... will be considered constitutionally sound if
    the warrant would have issued had the observations gleaned through the
    unconstitutional ... searches been excised from the information.

However, even if the warrant would
    have issued, s. 24(2) must still be considered because of the possibility that
    the entire search process was tainted by the prior warrantless search (p.
    254). Accordingly, it is necessary to consider the validity of the initial
    search of the cell phone as well as the search conducted after the search
    warrant was obtained.

[32]

The
appellant does not question the validity of the arrest or the
    initial frisk search or the validity of the seizure of the cell phone but
    argues that the trial judge erred in concluding that:

1)

the police were entitled to
    search the saved data in the phone without a warrant as an incident to arrest;

2)

even without the information
    obtained as a result of that search, namely the photograph, the police had
    sufficient information to obtain a warrant; and

3)

even if the appellants
Charter
rights were breached, the
    evidence of the photograph should be admitted under s. 24(2).

[33]

It is common ground that incident to a lawful arrest,
    the police have the power to search the person arrested without a warrant for
    the purpose of ensuring officer safety, and, if there is some reasonable
    prospect of securing evidence of the offence for which the accused is being
    arrested, to secure and preserve that evidence:
R. v. Caslake,
[1998] 1 S.C.R. 51 at para. 22 (emphasis omitted).

[34]

The appellant submits that as the only thing taken in
    the relevant robbery had been cash there was no reasonable prospect that
    searching the cell phone would provide evidence of the robbery.  However, the appellant was also arrested for
    a break and enter and the police had information that he had used stolen cell
    phones in the past.  The Crown argues
    that determining whether the cell phone was stolen was a valid purpose
    connected to the arrest.  If the phone
    did not belong to the appellant, it could serve as evidence of a break and
    enter and the rightful owner could be informed that the phone had been
    recovered.

[35]

The appellant submits that even if the police had
    grounds to believe that the cell phone had been stolen, they had no power to
    search the saved data in the cell phone without a warrant. In the leading
    Ontario case,
R. v. Polius
(2009),
    196 C.R.R. (2d) 288 (Ont. S.C.), Trafford J.
rejected the Crowns argument that the power to
    lawfully seize a cell phone incidental to arrest includes a warrantless power to
    examine its contents.  He held that one
    has a reasonable expectation of privacy in the often deeply personal contents
    of ones cell phone and, at para. 57, that to protect the privacy interests
    implicated in a manner consistent with s. 8 jurisprudence, a search incident to
    arrest should be limited to a power to seize it, where there is a reasonable
    basis to believe it may contain evidence of the crime, for the purpose of
    preserving its evidentiary value, pending a search of its content under a
    search warrant.
Polius
was followed in
R. v.
    Finnikin
,

[2009] O.J. No. 6016
    (S.C.);
R. v. O. (T.)
, 2010 ONCJ 334;
    and
R. v. McBean
, 2011 ONSC 8.
    Compare
R. v. Giles
, 2007 BCSC 1147;
R. v. Otchere-Badu
, 2010 ONSC 1059.

[36]

The
    Crown responds with two submissions, the first narrow and confined to the facts
    of this case and the second broad and general. The Crowns first submission is
    that in the circumstances of this case, the police were entitled to conduct a
    cursory warrantless inspection of the cell phone including its stored data to
    ascertain ownership of the phone
. Second, the Crown submits that
Polius
was wrongly decided and that the
    police are entitled to conduct warrantless searches of cell phones seized as an
    incident to a lawful arrest.

[37]

I agree with the Crowns first submission. The
    appellant was arrested for break and enter and, when arrested, he was in possession
    of a number of unusual and suspicious items. The police had information from a
    confidential informant that in the past the appellant had stolen cell phones. Ownership
    of the cell phone was relevant to the offences for which the appellant had been
    arrested. In my view, this combination of circumstances provided the police
    with a lawful basis for conducting a cursory search of the cell phone to
    determine whether it had been stolen. As I can see no basis to interfere with
    trial judges factual finding that the first officer came upon the photograph
    while conducting a search of the cell phone to determine its ownership, I would
    uphold the trial judges determination that the cursory search of the cell
    phone was lawful.

[38]

I wish to emphasize, however that my decision rests on
    two points. First, that the police had a legitimate interest in determining
    whether the cell phone had been stolen and second, that the police did not
    search the stored data in the cell phone for any other purpose. According to
    the testimony on the
voir dire
that
    was accepted by the trial judge, the cell phones telephone number was
    identified after the discovery of the photograph.  A telephone number is sufficient information
    from which the ownership of a phone may be determined.  Had the examination of the phone continued
    after the telephone number had been found, this would be a different case.  If the telephone number had been written or
    inscribed on the exterior of the cell phone or visible or easily found when the
    phone was opened, any further search obviously could not be justified as a
    cursory inspection to determine ownership. Likewise, in a case where there was
    no reason to doubt the arrested partys ownership of the phone and no link
    between ownership and the offence for which the person was arrested, a search
    of the stored data in the phone could not be justified on the basis that the
    police were simply trying to determine who owned the phone.

[39]

In the light of my conclusion with respect to the
    Crowns first submission, it is not necessary for me to deal with the second.  Accordingly, it is neither necessary nor
    desirable to attempt to provide a comprehensive definition of the powers of the
    police to search the stored data in cell phones seized upon arrest. However, I
    would observe it is apparent that the traditional rules defining the powers of
    the police to conduct a search incident to arrest have to be interpreted and
    applied in a manner that takes into account the facts of modern technology. While
    I would not apply
Polius
in the
    particular circumstances of this case, I am far from persuaded that
Polius
was wrongly decided or that it ought
    to be overruled. Cell phones and other similar handheld communication devices
    in common use have the capacity to store vast amounts of highly sensitive
    personal, private and confidential information  all manner of private voice,
    text and e-mail communications, detailed personal contact lists, agendas,
    diaries and personal photographs. An open-ended power to search without a
    warrant all the stored data in any cell phone found in the possession of any
    arrested person clearly raises the spectre of a serious and significant
    invasion of the
Charter
-protected
    privacy interests of arrested persons. If the police have reasonable grounds to
    believe that the search of a cell phone seized upon arrest would yield evidence
    of the offence, the prudent course is for them to obtain a warrant authorizing
    the search.

[40]

Finally, I turn to the warrant that the police did
    obtain. I do not accept the appellants submission that the trial judges
    finding that even without the information obtained from the initial search of
    the cell phone, a search warrant would have issued was unreasonable.  In my view, there was sufficient evidence to
    support the trial judges finding that the Information to Obtain Search Warrant
    recited facts sufficient to support the issuance of a search warrant to permit
    the police to search the stored data on the cell phone seized from the
    appellant upon his arrest to obtain evidence linking the appellant to the
    robbery of the music store. Those facts included:

·

the details of the music store robbery;

·

a confidential informant had identified the appellant as the
    perpetrator;

·

the informers description of the appellant matched the
    description of the robber;

·

the appellant had a lengthy criminal record for property and
    other offences;

·

the informant indicated that the appellant steals cell phones
    and uses them with stolen access cards;

·

the items found on the appellant upon his arrest, including
    the cell phone;

·

The records of incoming, outgoing and missed calls will help
    afford evidence to [sic] person(s) who may have been contacted prior to, or
    immediately after the robbery ... as these person(s) may be witnesses.

[41]

Accordingly, as I would uphold the trial judges
    overall conclusion that there was no breach of the appellants s. 8
Charter
right, I find it unnecessary to
    consider the issue of exclusion of the evidence under s. 24(2).

3. Did the trial judge err in his instruction that robbery
    was an included offence to armed robbery?

[42]

The appellant argues that this court should set aside
    the conviction on the robbery charge related to the Mr. Sub robbery, because
    the jury should not have been instructed that robbery was an included offence
    to armed robbery.

[43]

Robbery is defined by s. 343 of the
Criminal Code
:

343. Every one
    commits robbery who

(
a
)
    steals, and for the purpose of extorting whatever is stolen or to prevent or
    overcome resistance to the stealing, uses violence or threats of violence to a
    person or property;

(
b
)
    steals from any person and, at the time he steals or immediately before or
    immediately thereafter, wounds, beats, strikes or uses any personal violence to
    that person;

(
c
)
    assaults any person with intent to steal from him; or

(
d
) steals from any person while armed with
    an offensive weapon or imitation thereof.

[44]

Section 344(a) (now s. 344(1)(a.1)) provides
    that
where a firearm is used in the
    commission of the offence of robbery, the minimum punishment is imprisonment
    for a term of four years.

[45]

The indictment charged the appellant in the following
    language: that Michael Manley did, on or about the 19
th
day of
    October, 2006, at the City of Quinte West ... use a firearm, to wit: a sawed
    off shotgun, in robbing Colleen Tracey of cash monies contrary to Section 344 (a)
    of the Criminal Code.  The count on the
    second robbery was framed in the same terms.

[46]

The trial judge instructed the jury that the essential
    elements that the Crown had to prove to make out a conviction were that:

1)

the appellant stole money
    from Colleen Tracey; and

2)

he was armed with a sawed
    off shotgun at the time of the stealing.

[47]

Colleen Tracey, the cashier in the Mr. Sub robbery, was
    unable to identify the kind of gun the robber was carrying and testified that
    the gun could have been a pellet gun.  The
    trial judge explicitly instructed the jury that if they were not satisfied
    beyond a reasonable doubt that the accused was armed with a firearm, i.e. a
    sawed off shotgun, you must find him not guilty of robbery.

[48]

The trial judge instructed the jury that if they were satisfied
    that the appellant had stolen money but were not convinced beyond a reasonable
    doubt that the appellant had used a sawed off shotgun in carrying out the
    robbery, they were to go on to consider whether or not he was guilty of a
    possible included offence, the offence of robbery with violence.

[49]

During their deliberations, the jury asked the
    following question: For Count 1, does the weapon have to be a sawed off
    shotgun?  The trial judge invited
    submissions and Crown counsel raised the possibility of an amendment to the
    indictment. The trial judge indicated that he would be reluctant to grant an
    amendment at that point out of concern for fairness to the accused. The Crown
    conceded that it would not be fair at that point to no longer have it
    particularized.

[50]

The jury was instructed that the answer to their
    question was that on the count as charged, the answer is yes, the Crown must
    prove to you beyond a reasonable doubt that the firearm in question here was a sawed
    off shotgun.  However, the trial judge
    went on to remind the jury that it would still be open to them to return a
    verdict for simple robbery -  robbery with violence or threats of violence.

[51]

As I have previously noted, the jury found the
    appellant not guilty of robbery as charged, but guilty of robbery accompanied
    by extorting stolen money with the use of violence or threats of violence.

[52]

The appellant submits that the trial judge erred in law
    by instructing the jury that simple robbery was an included offence to armed
    robbery.  See
R. v. Johnson
(1974), 35 C.C.C. (2d) 439 at pp. 460-461 (B.C.C.A.):

Robbery cannot be an offence included in the offence described
    in the indictment because the latter is by definition robbery and there is
    but one offence of robbery created by s. [343]. Different ways of committing
    that offence are described in paras. (
a
), (
b
), (
c
) and (
d
) of s. [343].
Having particularized the mode by which the
    appellant was alleged to have committed robbery, the appellant submits that
    Crown was required to prove that the offence had been committed in that manner.
     As the jury acquitted the appellant of
    the offence as charged, the conviction for the included offence of robbery
    with violence or threats of violence should be set aside.

[53]

The respondent Crown does not dispute the proposition
    that the trial judge erred in his included offence instruction and accepts the
    general principle that the Crown must prove the case as it is alleged and
    particularized in the indictment.

[54]

However, the Crown submits that the conviction should
    be maintained as, properly read, this indictment did not allege a particular
    mode of robbery or limit the Crown to proving a particular mode of robbery.  The Crown submits that the trial judges
    instruction regarding the need to prove the case exactly as pleaded was wrong
    in law and unduly favourable to the appellant.  Any error in relation to the trial judges
    included offence theory was inconsequential as it was open to the jury on the
    wording of this count to convict the appellant of robbery even if the Crown
    failed to prove that he had used a sawed off shotgun.  If necessary, the curative proviso should be
    applied to sustain the conviction for robbery on the first count.

[55]

The issue to be determined is whether, on the wording
    of the indictment, to sustain a conviction for robbery the Crown was required
    to prove that the appellant did use a firearm, to wit: a sawed off shotgun in
    carrying out the robbery.

[56]

In
R. v. Saunders
,
    [1990] 1 S.C.R. 1020 at p. 1023, the Supreme Court of Canada stated: It is a
    fundamental principle of criminal law that the offence, as particularized in
    the charge, must be proved.
Saunders
involved a charge alleging
    conspiracy to import heroin but the evidence established a conspiracy to import
    cocaine.  The Supreme Court affirmed the
    decision of the British Columbia Court of Appeal setting aside the conviction
    for conspiracy to import and ordering a new trial.  Writing for the Court, McLachlin J. stated at
    p. 1023:

To permit
    the Crown to prove some other offence characterized by different particulars
    would be to undermine the purpose of providing particulars, which is to permit
    "the accused to be reasonably informed of the transaction alleged against
    him, thus giving him the possibility of a full defence and a fair trial":

R. v. Côté
, [1978] 1 S.C.R. 8, at p. 13.

[57]

The appellant relies on
R. v. Sloan
(1974), 19 C.C.C. (2d) 190 (B.C.C.A.), where the accused
    was charged that he did UNLAWFULLY attempt to steal from the Golden Arms Motor
    Hotel money while armed with an imitation of an offensive weapon, to wit: a
    gun.  The evidence established that the
    accused had covered himself with a sheet and demanded money from a hotel
    attendant.  It was common ground that the
    accused had pointed his finger under the sheet and that he was not armed with a
    gun.  McIntrye J.A. held, at p. 191, that
    as the information was framed in the terms of s. 302(d) (now 343(d)), the Crown
    was bound to prove that the robbery had been carried out in that manner: The
    Crown having alleged that the appellant had attempted to steal while armed with
    an imitation of a gun was bound to prove just that.  See also
Johnson
,
    at pp. 460-461.

[58]

The respondent does not dispute the basic proposition
    that the Crown must prove the particulars alleged in the charge, but submits
    that the wording of the count here did not limit the Crown to proving a
    particular mode of robbery.  The wording
    of the indictment did not specify one of the modes of committing robbery under
    s. 343 and the words use a firearm, to wit: a sawed off shotgun refer to the
    minimum penalty provision, s. 344(a).  The
    Crowns position is supported by a later decision of the British Columbia Court
    of Appeal,
R. v. A.D.
(2003), 173
    C.C.C. (3d) 177, where the accused were charged with the following offence:

S.L.I., E.E.H., J.P., V.M.R. and A.D., on or about
    the 16th day of January, 2001, at or near Richmond, Province of British
    Columbia, did, using a firearm, commit robbery of Faustino Esteban, contrary to
    Section 344(a) of the
Criminal Code
.

[59]

This wording, while not identical, is very close to the
    wording of the count at issue here.  The
    trial judge found that the item used by the accused was bent and damaged and
    not capable of operating as a firearm as that term is defined in s. 2 of the
Criminal Code
.  Accordingly, he held that the Crown had
    failed to prove that the accused had used a firearm as alleged in the
    information, but convicted the accused of robbery under s. 343(d) 
    stealing 
while armed with an offensive weapon or imitation thereof
.  I find the reasons of Finch C.J.B.C., at paras.
    29-31, persuasive:

In
    my respectful view, the trial judge was correct in concluding that the charge
    did not specify a particular mode of robbery described in ss. 343(a) to (d).
    The reference to robbery in the charge must be read together with the words of
    the enactment that describes the offence, namely, s. 343. The appellant could
    therefore be convicted of the offence described in s. 343(d), which encompasses
    stealing from any person while armed with an offensive weapon or imitation
    thereof.

The
    reference to s. 344(a) in the charge was unnecessary, in the sense that proof
    of the use of a firearm, as defined by s. 2, is not an essential element of the
    offence of robbery. Proof that a firearm was used is relevant to the question
    of sentence only. It is well established that non-essential averments in
    charges need not be strictly proved if there is no prejudice to the accused
    ....

In this case, the appellant does not allege that
    she was misled or prejudiced in her defence by the reference to a firearm in
    count one. In my view, on the whole of the evidence, it is clear that the
    appellant had sufficient knowledge of the circumstances of the offence alleged
    in the charge, and there was no prejudice to her. The reference to s. 344(a) in
    the charge gave the appellant notice of the minimum mandatory sentence for
    robbery where a firearm is used, if tried as an adult. [Citations omitted.]

[60]

I see no meaningful distinction between this case and
A.D
.  I note as well that in
R. v. Watson
(2008), 240 O.A.C. 370 (C.A.), this court cited
A.D.
with approval and held that use of
    a firearm goes only to sentence and is not an essential element of robbery.

[61]

I therefore conclude that the appellant was charged
    simply with robbing Colleen Tracy and the words use a firearm, to wit: a sawed
    off shotgun  contrary to Section 344 (a) of the Criminal Code did not
    particularize an element of the offence but rather put the appellant on notice
    that he faced the minimum sentence for robbery where a firearm is used.

[62]

Accordingly, I conclude that while the trial judge erred in
    leaving robbery with violence with the jury on the basis that it was an
    included offence, that error did not result in any substantial wrong or
    miscarriage of justice as it was open to the jury on the indictment as framed
    to return a verdict for robbery with violence.

Conclusion

[63]

For these reasons, and despite the very capable
    argument advanced by Mr. Snell, I would dismiss the appeal.

Robert J. Sharpe J.A.

I agree W. Winkler
    C.J.O.

I agree A.
    Karakatsanis J.A.

RELEASED:  February
    14, 2011


