



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Wolynec, 2015 ONCA 656

DATE: 20150930

DOCKET: C57487

Gillese, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Victor Wolynec

Appellant

Erika Chozik, for the appellant

John Patton, for the respondent

Heard: February 19, 2015

On appeal from the conviction entered on October 22, 2012
    and the sentence imposed on December 12, 2012 by Justice W. Brian Trafford of
    the Superior Court of Justice, sitting without a jury.

Watt J.A.:

[1]

A lone bandit robbed a bank. He wore a grey hoodie. And sunglasses. He had
    a dark French goatee. He was soft-spoken when he asked the teller for cash. He
    made no gestures, nor any express threats.

[2]

The next day, a few blocks away, the same thing happened. A lone bandit.
    A hoodie and sunglasses. A beard and moustache. But this time, the bandit
    presented a note. It said he wanted money. And that he had a gun.

[3]

A short time after the second robbery, police found a grey sweatshirt in
    a garbage bin. On top of the sweatshirt was a newspaper. And on the newspaper,
    somebody had printed have gun give me all money. And on the top of the
    newspaper sat an open napkin similar to those supplied by restaurants.

[4]

Police seized the sweatshirt. And the newspaper. But not the napkin.

[5]

A few months later, a technician found a crusty tissue in a pocket of
    the sweatshirt. On the pocket and the tissue, a scientist detected evidence of
    bodily fluids. The chance of somebody other than Victor Wolynec being the
    source of the bodily fluids was one in 57 billion.

[6]

A judge found Victor Wolynec guilty of both robberies and imposed concurrent
    sentences of imprisonment of 9 years.

[7]

Victor Wolynec claims that the trial judge failed to adequately scrutinize
    weaknesses in the evidence adduced by the Crown and failed to grasp the
    position of the defence. As a result, he says his convictions are unreasonable
    and a miscarriage of justice.

[8]

Victor Wolynec also challenges the sentence the trial judge imposed. He
    contends the sentence is too long, crushing any prospect of rehabilitation or
    reintegration into society.

[9]

These reasons explain why I have decided that Victor Wolynec`s
    convictions are unassailable and his sentence fit. I would dismiss his appeal
    from conviction and grant leave but dismiss his appeal from sentence.

BACKGROUND FACTS

[10]

In
    large measure, the circumstances in which the robberies occurred are
    uncontroversial. The trial judge decided that the evidence on each count could
    be applied in determining the adequacy of the case for the Crown on the other
    count. Victor Wolynec does not contest the correctness of that ruling in this
    court.

[11]

The
    controversy at trial focused on the identity of the robber, whom defence
    counsel acknowledged was the same person in both instances. To be more
    specific, defence counsel fastened on the provenance of the tissue in the
    sweatshirt pocket and questioned whether its origins and integrity had been
    properly established.

The First Robbery

[12]

The
    first robbery occurred around 2:30 p.m. on March 16, 2011, at a Scotiabank
    branch at 5607 Yonge St. at Finch Ave. The lone bandit was a man, about 510 tall,
    who wore a greyish hoodie and dark sunglasses. The man had a dark coloured goatee.
    He asked the teller for cash. The teller gave the man some cash including bait
    money, which looks like a stack of bills but gives off red smoke causing stains
    when it is taken more than a certain distance from the bank. About two and half
    hours after the robbery, police were advised that the dye pack wrapper and some
    dye had been found on the steps leading to the subway, about 100 feet from the
    bank.

[13]

The
    surveillance cameras in the bank recorded the robbery. The teller who had been
    robbed identified the robber in the footage captured on the video cameras and in
    still photographs taken from those videos.

The Second Robbery

[14]

The
    following afternoon, March 17, 2011, a man wearing a hoodie and sunglasses
    approached a teller at a branch of the HSBC located in the North York City
    Centre mall at 5160 Yonge St. The man was about 59 or 510 tall and had a
    large face with a beard and moustache. He presented a note to the teller
    indicating that he had a gun and wanted cash. The teller gave the man some
    money, including bait money, meaning bills whose serial numbers had been
    recorded by the bank. The man left the bank.

[15]

The
    banks surveillance cameras captured the robbery. The teller identified an
    individual in the footage as the robber, but acknowledged some uncertainty about
    this identification.

The Clothing
    Change

[16]

Police
    responded to a call about the robbery at the HSBC branch. While an officer was
    taking statements from bank employees, a security guard pointed out that
    security video at the mall showed a man, matching the description of the
    robber, leaving the mall around 4:08 p.m. and walking south on Yonge St. immediately
    outside the mall. The video also showed the man removing his jacket.

The Trash Bins

[17]

Police
    walked around the outside of the mall looking at garbage cans and recycling
    bins. Within minutes, at about 5:35 p.m., they found a grey zipped-up
    sweatshirt in a garbage bin. On top of the sweatshirt was a newspaper on which
    the words have gun in black marker were visible. And on top of the newspaper
    was a disposable restaurant napkin. The material was coarser than facial
    tissue. The napkin was open, not crumpled up, and appeared to be two or three inches
    by five or six inches.

[18]

The
    bin was one of a group of three a few feet west of a coffee shop at the southeast
    corner of the mall. About a dozen feet away was a staircase leading to the
    subway. Pedestrian traffic was heavy in the area of the stairs to the subway.

[19]

Police
    maintained security in the area around the garbage bin. It was a very windy
    day. The bins moved back and forth in the wind, but their contents did not.

[20]

About
    an hour after the discovery of the sweatshirt and newspaper, a police officer
    took a photo of the items in the garbage bin. The napkin was missing, but the
    newspaper and sweatshirt remained. No police officer removed anything from the
    bin before the seizure of the shirt and paper.

The Sweatshirt

[21]

An
    officer from the Forensic Identification Service (FIS) removed the newspaper
    and sweatshirt from the bin. Each was placed in a separate paper bag. Relying
    on her usual practice rather than a specific recollection, the FIS officer said
    she would have done a pat search for weapons, papers or anything else in the
    sweatshirt. She had no note of anything in the pockets.

[22]

At
    the police station, the FIS officer removed the sweatshirt and newspaper from
    the bags and photographed them. She had no note of actually searching the
    pockets, but acknowledged that she would usually have done so and noted any
    contents. She had no note of finding any napkin, tissue, or papers.

The Video Reviews

[23]

A
    member of the Holdup Squad, Det. Russell Fairey, reviewed photographs of the
    robberies taken from the security systems in both banks. He concluded that the
    same person had robbed both banks  Victor Wolynec, with whom the officer had
    had dealings about a decade earlier.

The Brian Bush Connection

[24]

Det.
    Fairey conducted a background check on Victor Wolynec. He learned that Wolynec
    lived in Sudbury and had a parole officer, Derek Pottier. Fairey contacted Pottier,
    said he was with the Toronto Police Service and asked Pottier to look at some
    photographs that Fairey would email to him. Pottier agreed. Fairey emailed
    several individual photographs from each bank as well as from outside the mall.

[25]

Pottier,
    who was not called as a witness at trial, responded. Pottier told Fairey that
    he believed the person shown in the photographs was Brian Bush. Fairey looked
    at a photo of Bush and concluded that he was not the robber. He did not further
    investigate Brian Bush.

The Second Parole Officer

[26]

Det.
    Fairey contacted a second parole officer, Judy Kelly, who had previously
    supervised Victor Wolynec. He asked her to view a poster that showed photographs
    of both robberies. She expressed one hundred percent certainty that Wolynec was
    the robber based on his facial features, hairstyle and size. She admitted that
    she testified at the preliminary inquiry that she had called several colleagues
    to look at the poster before calling police to report her identification.

The Forensic Examination

[27]

The
    sweatshirt was sent to the Centre for Forensic Sciences about a week after the
    robberies. Scientists took cuttings from inside the cuff and the inner side of
    the neck to determine whether they could find substances for forensic DNA
    analysis. Nothing suitable for analysis was found.

[28]

About
    two months after the robberies, a third technician was directed to take
    cuttings from the pocket of the sweatshirt. Inside the right pocket, the
    technician found a crumpled up crusty tissue. Samples were taken from the
    tissue and pocket. The lead scientist described the tissue as an industrial
    strength tissue or paper towel.

[29]

Analysis
    of the tissue and pocket located bodily substances, likely nasal fluid or
    saliva, and yielded results consistent with the DNA of Victor Wolynec with a
    one in 57 billion chance that an unrelated individual would share the same DNA
    profile. The material identified on the pocket could have been transferred from
    the tissue.

The Defence Case

[30]

Victor
    Wolynec did not testify at trial. No witnesses gave evidence on his behalf.

The Positions of the Parties at
    Trial

[31]

The
    critical issue at trial was the identity of the robber.

[32]

The
    case for the Crown at trial was that the same person committed both robberies
    and that person was Victor Wolynec. In support of his case, Crown counsel
    relied on:


i.

the video surveillance evidence and still photographs taken from the
    videos;


ii.

the identification evidence of Judy Kelly;


iii.

the evidence of the DNA analysis of the substances found on the tissue
    in the pocket and on the pocket of the sweatshirt recovered from the trash bin;
    and


iv.

the evidence of similar acts tending to show the same person committed
    both robberies.

[33]

The
    defence advanced at trial was a denial of participation in either robbery or,
    more accurately, the failure of the Crown to prove guilt beyond a reasonable
    doubt. A reasonable doubt about Victor Wolynecs guilt emerged from several
    factors:


i.

the absence of evidence linking the person who committed the HSBC
    robbery to the person who abandoned the sweatshirt in the trash bin near the
    subway entrance;


ii.

the statement of Derek Pottier that the person shown in the photographs was
    Brian Bush not Victor Wolynec; and


iii.

the absence of any credible evidence about how the encrusted tissue
    ended up in the sweatshirt pocket two months later having not been detected
    there earlier.

THE GROUNDS OF APPEAL

[34]

Victor
    Wolynec appeals both conviction and sentence.

[35]

On
    the appeal from conviction, Victor Wolynec (the appellant) contends that the
    trial judge failed to:


i.

adequately scrutinize critical weaknesses in the case for the Crown,
    especially in connection with the continuity of the tissue located in the
    pocket of the abandoned sweatshirt that revealed the presence of the
    appellants DNA; and


ii.

appreciate the position of the defence about how the tissue could have
    found its way into the sweatshirt pocket.

The appellant says the trial judges reasons were
    inadequate to permit effective appellate review, resulted in an unreasonable
    verdict and caused a miscarriage of justice.

[36]

On
    the appeal from sentence, the appellant identifies two specific errors that
    render the sentence imposed unfit:


i.

the sentence was based on inaccurate information about the number of the
    appellants previous convictions for robbery; and


ii.

the trial judge failed to consider the rehabilitative prospects of the
    appellant and imposed a sentence that was so excessive as to extinguish any
    prospect of rehabilitation and reintegration of the appellant into society.

[37]

I
    will first address the appellants conviction appeal, then move to his appeal
    against sentence.

THE APPEAL FROM CONVICTION

[38]

The
    core complaint that the appellant advances focuses on what he says are two
    critical failures on the part of the trial judge. Those failures  to
    adequately scrutinize the weaknesses in the case for the Crown and to
    appreciate the position of the defence  warrant reversal on any of three
    bases:

·

inadequate reasons;

·

unreasonable verdict; or

·

miscarriage of justice.

[39]

No
    further recitation of the circumstances of the offences or of the chain of
    custody of the sweatshirt is necessary for an understanding of the arguments
    advanced. A reference to the reasons of the trial judge to which exception is
    taken will facilitate the discussion that follows.

Ground #1: Inadequate Reasons

The Reasons
    of the Trial Judge

[40]

The
    trial judge delivered written reasons about a week after counsel had completed
    their oral submissions. The reasons included the trial judges ruling on Crown
    counsels motion to have the evidence on one count admitted as evidence of
    similar acts on the other count, as well as his reasons for finding the
    appellant guilty on both counts. The similar act ruling is not challenged here.
    Nothing more need be said about it.

[41]

In
    deciding whether he was satisfied beyond a reasonable doubt that the appellant
    was the robber of both banks, the trial judge considered several items of
    evidence. He took into account the video surveillance evidence, including both
    the videos and the still photographs taken from them; the testimony of Judy
    Kelly and Det. Fairey; and the DNA evidence. He also considered the statement
    of Derek Pottier identifying the robber as a Brian Bush. Pottier did not
    testify. No evidence was given about the circumstances of his identification.
    No photograph of Brian Bush was filed to permit comparison with the features of
    the robber disclosed in the videos.

[42]

Neither
    the evidence of Judy Kelly nor the testimony of Det. Fairey played any part in
    the determination of the appellants guilt.

[43]

The
    trial judge assigned little or no weight to Kellys evidence because her
    identification with one hundred percent certainty of the appellant as the
    robber was contaminated by her consultation with other parole officers prior to
    advising police of her identification.

[44]

The
    trial judge assigned no weight to Det. Faireys identification of the appellant
    as the robber. The officer, retired at the time of trial, did not take an
    objective approach to the potential participation by Brian Bush, but rather simply
    rejected it out of hand after a brief glance at a police photograph. He made no
    notes of his interaction with Pottier and demonstrated no respect for the roles
    of any of the participants in the administration of criminal justice.

[45]

After
    summarizing the evidence about the finding of the sweatshirt and newspaper in
    the garbage bin and the chain of custody followed until discovery of the tissue
    in the pocket and the DNA analysis conducted at CFS, the trial judge recorded
    his findings about the provenance of the sweatshirt and tissue:

Based upon these circumstances, I am satisfied that the hooded
    sweatshirt observed in the garbage bin near the southeast corner of the NYCC by
    Constable Shewchenko on March 17, 2011 around 5:30 p.m. had the crusty tissue
    in its right pocket from then until it was discovered by Megan Shepherdson on
    May 27, 2011. The searches of the sweatshirt by Detective Constable Seguin,
    near the bin and at the station, did not detect its presence, probably because
    the information she received was that the perpetrator told the teller he had a
    gun and, thus, her search was probably for a gun. The sweatshirt was in the
    secure custody of Detective Constable Seguin and the lockers she used to store
    it until it arrived at the CFS through Constable Cabral on March 23, 2011 at
    1:30 p.m. The sweatshirt was in a sealed bag from 2:40 p.m. on March 18, 2011
    until the seal was broken at the CFS on April 20, 2011. Detective Fairey did
    not express any interest in a DNA examination of the sweatshirt until his email
    message to Detective Constable Seguin on March 22, 2011 around 10:50 a.m. By
    then, the sweatshirt was sealed in the lockers at the station, and had been
    since March 18, 2011. Detective Fairey formulated his belief that Victor Wolynec
    was the perpetrator on March 22, 2011, after he viewed the Scotiabank, HSBC and
    NYCC dvds. As the sweatshirt was transferred to the CFS on March 23, 2011,
    there was a very small window of opportunity for Detective Fairey to tamper
    with the evidence. He testified that he did not have contact with the evidence
    and was not cross-examined about placing the crusty tissue into the pocket.
    Detective Fairey did not attempt to fabricate incriminating evidence against
    Victor Wolynec by planting the crusty tissue with his DNA on it into the pocket
    of the hooded sweatshirt.

[46]

The
    trial judge then examined the evidence that linked the sweatshirt to the HSBC
    robber. After reciting the evidence about the time impressions on the videos,
    the trial judge concluded that the robbery at the HSBC branch occurred shortly
    after 4 p.m. on March 17, 2011. The perpetrator left little more than a minute
    later, his movements depicted on various cameras around the North York City
    Centre complex. The trial judge concluded:

Looking at the evidence as a whole, I am satisfied that the
    alleged perpetrator in the NYCC dvd was the perpetrator of the HSBC robbery as
    shown on the HSBC dvd. The time of his entry into the bank as shown on the NYCC
    dvd and the HSBC dvd is approximately the same. The duration of the robbery on
    each dvd is approximately the same. The HSBC dvd shows the perpetrator
    approaching the entrance to the bank from the north, as does the NYCC dvd. The
    images of the alleged perpetrator and the perpetrator show the same clothing,
    the same physical stature and the same sunglasses. When the alleged perpetrator
    entered the subway station, he no longer had the light colored upper garment in
    his possession. It was found by Constable Shewchenko in the garbage bin
    situated near that entrance, with the newspaper produced by the perpetrator to
    the teller with the written threat Have gun give me all money, on top of it.
    The perpetrator of the robbery as shown on the HSBC dvd is one and the same man
    as the alleged perpetrator shown on the NYCC dvd. The hooded sweatshirt he wore
    during the robbery at the HSBC is the hooded sweatshirt examined at the CFS, as
    described earlier in this judgement.

[47]

The
    trial judge next turned to the statement of Derek Pottier who identified Brian
    Bush as the robber. The trial judge concluded that this evidence did not raise
    a reasonable doubt about the appellant as the robber. In the words of the trial
    judge:

Looking at the evidence as a whole, I decline to place any
    weight on the declaration by Derek Pottier. The probative value of the DNA
    evidence identifying the defendant as the perpetrator of the HSBC robbery is
    extremely high. It proves that Brian Bush was not the perpetrator of that
    robbery, because there is no evidence Brian Bush was so related to Victor
    Wolynec that their DNA is identical. The circumstances surrounding the
    out-of-court identification by Derek Pottier of Brian Bush as the perpetrator
    were not proven. Those circumstances are important to my determination of what
    weight, if any, should be given to the declaration. The inadequate
    investigation of Brian Bush as a third party suspect is regrettable, as is the
    failure of the Crown to call any other evidence relating to the reliability of
    the Pottier declaration. However, the inadequate investigation and the absence
    of any other such evidence, such as a photograph of Brian Bush that would
    permit the Court to compare his appearance to the appearance of the perpetrator
    of the robberies, does not raise the probative value of the Pottier declaration
    to a reasonable doubt on the issue of identity, looking at the evidence as a
    whole.

The
    Arguments on Appeal

[48]

The
    appellant says that the trial judge failed to consider the defence position on
    the critical issue at trial  the continuity of the tissue recovered two months
    later in the sweatshirt pocket. Admittedly, the trial judge considered and
    rejected one aspect of the defence position  that Det. Fairey planted the
    tissue. But the reasons betray any consideration of the possibility that the
    tissue was inadvertently swept into the evidence bag from its original position
    on top of the newspaper in the bin. The failure of the trial judge to address
    this crucial issue amounts to a failure to explain
why
he found guilt
    established and puts his decision beyond meaningful appellate review.

[49]

The
    respondent characterizes the reasons of the trial judge as not merely adequate
    to permit meaningful appellate review, but comprehensive. Taken as a whole, the
    reasons explain not only
what
the trial judge decided  that the
    appellant committed two bank robberies  but also
why
he reached that
    conclusion  the combined force of the video surveillance, DNA and similar act
    evidence.

[50]

The
    respondent points out that the trial judges findings that the crusty tissue
    was
in
the sweatshirt pocket when it was recovered from the garbage
    bin and remained there until retrieved two months later when the CFS technician
    checked the pockets addressed both aspects of the position advanced by trial
    counsel for the appellant: deliberate subterfuge and inadvertent collection.
    The respondent adds that the item first seen and the one later recovered were
    clearly not the same. An open restaurant napkin of coarser texture than facial
    tissue cannot be equated with an industrial strength tissue or paper towel.

The Governing Principles

[51]

Arguments
    based on alleged inadequacies in trial judges reasons may take any one or more
    of three different forms.

[52]

Sometimes,
    an appellant will contend that an inadequacy demonstrates an underlying or
    implicit error in the trial judges reasoning process, such as, for example, a
    misapplication of the standard of proof to credibility determinations:
R.
    v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal
    refused, [2007] S.C.C.A. No. 69, at para. 27.

[53]

At
    other times, an appellant may identify inadequacies in the reasons to ground a
    claim that the verdict is unreasonable or cannot be supported on the evidence
    adduced at trial. The submission is that the inadequacies in the reasons reveal
    errors or gaps in the trial judges legal analysis or the processing of
    evidence. This explains how a reasonable person could have reached an
    unreasonable conclusion:
J.J.R.D.
, at para. 28.

[54]

On
    still other occasions, an appellant will argue that the inadequacies in the
    reasons are enough on their own to warrant reversal without inferring any legal
    error from them and without finding the verdict unreasonable. The absence or
    serious inadequacy of reasons can amount to a freestanding error of law
    justifying setting aside the verdict and directing a new trial:
J.J.R.D.
,
    at para. 29.

[55]

The
    line of argument advanced is of no moment to the approach to be followed on
    appellate review of the adequacy of reasons or to the test or standard to be
    applied. Our approach to the adequacy of reasons in a criminal case is at once
    functional and context-specific:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3
    S.C.R. 3, at para. 15. The reasons must be sufficient to fulfil their threefold
    functions:

·

explaining the verdict;

·

providing public accountability; and

·

permitting effective appellate review:
R.E.M.
, at para.
    15.

[56]

Consideration
    of the sufficiency of reasons requires reading the reasons as a whole, in the
    context of the evidence, the arguments and the trial, together with an
    appreciation of the purposes or functions for which reasons are delivered:
R.E.M.
,
    at para. 16;
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at
    paras. 46, 50;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at
    para. 12.

[57]

The
    reasons of a trial judge fulfil their purpose if the reasons, read in context,
    show
why
the trial judge decided as she did. To show
why
, the
    reasons need not show
how
the judge reached her conclusion in a watch
    me think fashion:
R.E.M.
, at para. 17. The reasons must display a
    logical connection between the what  the verdict  and the why  the basis
    for the verdict:
R.E.M.
, at para. 17. But explaining the why and its
    logical link to the what imposes no obligation on a trial judge to set out
    every finding or conclusion in the process of reaching a decision:
R.E.M.
,
    at para. 18.

[58]

A
    trial judge need not explicate the well settled, repeat the uncontroversial or
    retill common legal ground between the parties. So too with evidence. A trial
    judge is not obliged to detail his or her finding on each morsel of evidence or
    controverted fact, provided the findings linking the evidence to the verdict
    can be logically discerned:
R.E.M.
, at paras. 19-20.

[59]

The
    core question to be answered in determining whether a trial judges reasons are
    sufficient is whether those reasons, read in context, show why the judge
    decided as she did on the offences charged:
Vuradin
, at para. 15.

[60]

To
    succeed on an appeal based on inadequate reasons, an appellant must show not
    only a deficiency in the reasons, but also that the deficiency has occasioned
    prejudice to the exercise of his or her legal rights to an appeal in a criminal
    case:
Sheppard
, at para. 33;
R. v. Braich
, 2002 SCC 27,
    [2002] 1 S.C.R. 903, at para. 31. An appeal based on insufficient reasons will
    only be allowed where the trial judges reasons are so deficient that they
    foreclose meaningful appellate review:
Sheppard
, at para. 25;
Vuradin
,
    at para. 10;
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para.
    25. A failure to explain rejection of a submission does not mean the reasons
    are deficient, provided the reasons demonstrate the acceptance of contrary
    evidence:
Vuradin
, at para. 13.

The Principles Applied

[61]

As
    I will explain, I would not give effect to this ground of appeal.

[62]

First,
    the trial judge found as fact that the tissue recovered from the pocket on
    forensic examination had been in the pocket from the initial discovery of the
    sweatshirt. It had not been detected earlier because no one had actually
    searched the pockets, but at best only patted down the exterior of the garment.
    These findings, grounded in the evidence adduced at trial, lead ineluctably to
    the conclusion that the accidental presence explanation proposed by the
    appellant was rejected. The failure to explain, in express terms, why he
    rejected the alternative proposed by the appellant does not render the reasons
    inadequate in the face of a well-grounded contrary conclusion.

[63]

Second,
    the hypothesis of accidental collection advanced by the appellant is
    speculative. The seizure involved a newspaper and a sweatshirt. The napkin
    first seen was open, of a different texture and absent when the items were
    collected. None of the witnesses who made the initial observation, provided
    security or seized the items was crossed-examined on this claim of accidental
    collection. Any suggestion that the tissue ended up in the pocket  crumpled
    and crusty and bearing the appellants DNA  borders on the absurd.

[64]

Third,
    the trial judge was not required to provide reasons for rejecting every
    argument advanced at trial. It is all the more so when the submission is not
    cumbered by an air of reality.

[65]

Fourth,
    the trial judges reasons, read as a whole, in the context of the evidence, the
    arguments and the trial, show why the judge decided as he did. They reflect
    painstaking attention to the minutiae of the evidence and an acute awareness of
    the alleged deficiencies in the case for the Crown. It simply cannot be said
    that these reasons are so deficient that they foreclose meaningful appellate
    review.

Ground #2: Unreasonable Verdict

[66]

The
    second ground of appeal, also tethered to a complaint that the trial judge
    failed to grasp or consider the position of the defence, is that the findings
    of guilt are unreasonable.

[67]

The
    relevant passages in the trial judges reasons have been excerpted earlier.
    Their repetition is unnecessary.

The
    Arguments on Appeal

[68]

The
    appellant contends that the findings of guilt made by the trial judge are
    unreasonable. He says that a verdict that is available on the record may
    nonetheless be unreasonable if it was reached illogically or irrationally. In
    this case, the argument continues, the verdict is incompatible with evidence
    that has not otherwise been contradicted or rejected by the trial judge. And
    this is so because the trial judge failed to grasp or chose to ignore the
    defence position about the provenance of the tissue with the appellants DNA on
    it.

[69]

The
    respondent rejects any suggestion that the verdict is unreasonable in either
    sense described in the authorities.

[70]

First
    of all, according to the respondent, the verdict is one that a properly
    instructed trier of fact acting judicially could reasonably have rendered. The
    probative value of the DNA evidence was exceptional in the circumstances of
    this case. On its own, the DNA evidence was sufficient to establish the identity
    of the appellant as the robber at the HSBC. But there is more, including the
    video surveillance evidence which showed the same person  a man remarkably
    like the appellant  committed both offences.

[71]

Second,
    the inferences drawn and findings made by the trial judge were not contradicted
    by the evidence relied upon for that purpose by the trial judge. Nor were the
    inferences and findings incompatible with evidence that was not otherwise
    contradicted or rejected by the trial judge.

The Governing Principles

[72]

Section
    686(1)(a)(i) of the
Criminal Code
, R.S.C., 1985, c. C-46,

permits
    an appellate court to set aside a conviction if the conviction is unreasonable
    or cannot be supported by the evidence.

[73]

In
    terms, the focus of any inquiry under this section is on the
verdict
reached
    at trial:
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 77.
    The section requires the appellate court to assess the reasonableness of the
    verdict when measured against the totality of the evidence adduced at trial.
    What the court must determine is whether, on the whole of the evidence, the
    verdict is one that a properly instructed jury, acting judicially, could
    reasonably have rendered:
R. v. Yebes
, [1987] 2 S.C.R. 168, at p. 186;
Sinclair
, at paras. 4, 79.

[74]

Recent
    jurisprudence has expanded the scope of review for unreasonableness where the
    trial proceedings have taken place before a judge sitting without a jury:
R.
    v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26. Under this
    expanded scope of review, the appellate court scrutinizes the judges findings
    of fact or inferences drawn from the evidence admitted at trial. Verdicts
    reached illogically or irrationally are not reasonable:
R. v. Beaudry
,
    2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 77-80, 97. An appellate court is entitled
    to intervene where a trial judge draws an inference or makes a finding of fact
    that is plainly contradicted by the evidence relied upon for that purpose or is
    demonstrably incompatible with evidence that is not otherwise contradicted or
    rejected by the trial judge:
Sinclair
, at para. 16;
Beaudry
,
    at paras. 79, 105.

[75]

Two
    further points about this expanded scope of review for unreasonable verdicts
    warrant emphasis.

[76]

First,
    while it is now open to reviewing courts to look beyond the evidence adduced in
    non-jury trials and to consider flaws in the reasoning process in the
    assessment for reasonableness, the focus never shifts from the
conclusion
reached
    at trial. To properly invoke s. 686(1)(a)(i), a reviewing court must be
    satisfied that the
verdict
is in error. There must be a demonstrated
    nexus between the error in reasoning and the verdict rendered. No
per se
rule requires a conclusion that a verdict is unreasonable every time an error
    in reasoning appears, even an error that is demonstrably incompatible with the
    evidence adduced at trial:
Sinclair
, at para. 81. Context is critical:
Sinclair
, at para. 82.

[77]

Second,
    unreasonable verdicts of the nature marked out under this expanded review for
    unreasonableness are exceedingly rare:
Sinclair
, at paras. 22, 80.

The
    Principles Applied

[78]

I
    would reject this ground of appeal. In my respectful view, the verdict is not
    unreasonable or unsupported by the evidence under either the traditional or
    expanded review for unreasonableness.

[79]

First,
    the traditional review. The appellant did not press the argument that the
    verdict of guilt on the HSBC count was a conclusion no reasonable trier of
    fact, acting judicially, could reasonably have rendered.

[80]

A
    lone bandit wearing sunglasses and a light coloured sweatshirt and carrying a
    newspaper walked into the bank and approached a teller. On the newspaper were
    several words including gun and money. About a minute later, the man left
    the bank. Video surveillance records his exit and the direction of his travel.
    He is seen removing the sweatshirt a short distance away. A sweatshirt, found with
    the sleeves inside out, and a newspaper with the same words written on it are
    found in a garbage bin along his path of travel. The appellant resembles the
    man in the videos. A crusty tissue in the sweatshirt pocket and the surface of
    the pocket reveal his DNA. End of traditional reasonableness analysis.

[81]

On
    the expanded review for reasonableness under
Beaudry
, the appellant
    also fails.

[82]

First,
    the appellants attack on the trial judges review of the evidence about the
    provenance of the tissue comes perilously close to an attempt to invite us, at
    one remove and based on a lifeless printed record, to substitute our
    conclusions for his. Nothing emerges from the record that furnishes any reason
    for us to conclude that he failed to consider the entirety of the evidence and
    to appreciate the position of the defence.

[83]

Second,
    the record is barren of any basis to conclude that any finding of fact made by
    the trial judge was either:


i.

plainly contradicted by the evidence relied upon to make the finding or
    draw the inference; or


ii.

demonstrably incompatible with evidence that was neither contradicted by
    other evidence nor rejected by the trial judge.

[84]

Third,
    unreasonable verdicts targeted by this expanded review for reasonableness are
    exceedingly rare. The focus must remain on the verdict, the conclusion reached
    at trial. Any errors in reasoning identified under
Beaudry
must be carefully
    assessed to determine whether the error vitiates the verdict. In this case,
    there is nothing irrational in the judges reasoning process. Nor is that
    reasoning process at odds with the evidence adduced at trial. This is not one
    of those rare cases in which we would be justified in concluding that the
    verdict is unreasonable.

Ground #3: Miscarriage of
    Justice

[85]

The
    third ground of appeal recycles the same alleged error  failure to properly
    assess the case for the Crown and to appreciate the defence advanced  and
    characterizes it as having caused a miscarriage of justice.

The Arguments on Appeal

[86]

The
    appellant says that the trial judges conclusion does not represent a true
    verdict according to the evidence. The conclusion was flawed by a
    misapprehension of evidence. The trial judge rejected the evidence about an
    alternate suspect because of the DNA findings on the tissue. His reasoning in
    doing so was circular and reflects a failure to fully appreciate the defences
    position. A miscarriage of justice occurred as a result.

[87]

The
    respondent spurns any suggestion of a miscarriage of justice. The trial judge
    rejected the alternate suspect evidence  the admitted statement of Derek
    Pottier  on several grounds including, but not only, the compelling force of
    the DNA evidence. The admission of Pottiers statement that Bush was the robber
    expressly left the weight of the evidence to the trial judge. No evidence was
    adduced about the details of the identification or the circumstances in which
    Pottier concluded that Bush was the robber. No photograph of Bush was filed as
    an exhibit so that the trial judge could make his own comparisons. Pottiers
    statement had no probative value.

The Governing Principles

[88]

Errors
    in the apprehension or appreciation of evidence or in the drawing of conclusions
    from the evidence may warrant an appellate court quashing a conviction:
R.
    v. G.(G.)
(1996), 97 C.C.C. (3d) 362 (Ont. C.A.), at p. 377. But not in
    all cases.

[89]

When
    an appellate court identifies an error, the court has a duty to consider:

·

the nature of the error;

·

the effect of the error on the verdict; and,

·

where the trial is before a judge sitting without a jury, the
    effect of the error on the reasoning process by which the verdict was reached:
G.(G.)
,
    at p. 377.

An appellate court will intervene if the error leads
    to an unreasonable verdict or a miscarriage of justice or is an error of law
    beyond the reach of s. 686(1)(b)(iii):
G.(G.)
, at p. 377.

[90]

Errors
    in the apprehension or appreciation of evidence that do not amount to errors of
    law and do not lead to a finding that a verdict was unreasonable may
    nonetheless invoke appellate review because they result in the miscarriage of
    justice:
G.(G.)
, at p. 380.

[91]

As
    a general rule, appellate courts have applied s. 686(1)(a)(iii)  miscarriage
    of justice  as a ground of review for errors that occurred during the trial
    which affected the actual or apparent fairness of that trial:
G.(G.)
,
    at p. 380. But the phrase miscarriage of justice is endowed with an expansive
    reach, one that embraces any error that deprives an accused of a fair trial. An
    accused whose conviction is grounded on findings tainted by error has been
    denied a fair trial:
G.(G.)
, at p. 380.

[92]

It
    is also useful to recall the principles applicable to the admission of evidence
    concerning alleged third party perpetrators. This evidence will only be
    admissible if it is relevant and probative, meaning there is a significant
    connection between the third party and the crime. While the connection may be
    inferential, the inferences must be reasonable, based on the evidence and not
    mere speculation:
R. v. Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27.

The Principles Applied

[93]

I
    would not give effect to this ground of appeal for three reasons.

[94]

First,
    as I explained earlier, the trial judges reasons betray no misappreciation or
    misapprehension of the evidence adduced at trial. To the contrary, they display
    a thorough understanding of the substance of the evidence, reasonable
    inferences from that evidence about the appellants identity as the robber of
    both banks and a keen understanding of the position of the defence.

[95]

Second,
    the trial judges rejection of Pottiers statement about the identity of the
    robber as Brian Bush was firmly grounded on the whole of the evidence adduced
    at trial. Bush was advanced as a third party or alternate suspect entirely based
    on Pottiers identification. If Pottier had been called to give the same
    evidence at trial, it is at best doubtful whether his testimony would have been
    admitted for want of an adequate evidentiary foundation.

[96]

The
    trial judges rejection of Pottiers statement was not rooted exclusively on
    his acceptance of the DNA evidence, although it could have been. The reasons
    for its rejection included the absence of any evidence about the circumstances
    of the identification, the absence of any photographs of Bush that would permit
    a comparison under
R. v. Nikolovski
, [1996] 3 S.C.R. 1197, and, more
    fundamentally, the absence of any evidence of a connection between Bush and the
    place and time of the offence.

[97]

Third,
    the trial judges findings are not tainted by any misappreciation or
    misapprehension of the evidence or of its value and effect. He appreciated that
    Pottiers evidence was relevant to the adequacy of the Crowns proof that the
    appellant was the robber and considered it on that issue, assigning it no weight
    for sound reasons.

THE APPEAL AGAINST SENTENCE

[98]

The
    appellant also contests the fitness of the nine year concurrent sentences
    imposed on him by the trial judge. In support of his claim that the sentence
    imposed is unfit, the appellant seeks leave to introduce further or fresh
    evidence on two issues:


i.

the number of his prior convictions for robbery; and


ii.

his rehabilitative potential as reflected in a report from the
    Correctional Service of Canada compiled during his incarceration at Beaver
    Creek.

The Positions on Sentence at Trial

[99]

At
    the time of sentencing, the appellant had spent 16 months in pre-trial custody.

[100]

At trial, Crown
    counsel (not Mr. Patton) sought a sentence of imprisonment for ten years in
    addition to the time already spent in pre-trial custody. The sentence proposed
    was a functional equivalent of a sentence of 11 and one half years.

[101]

Defence counsel
    (not Ms. Chozik) sought a sentence of five or six years less credit for 16
    months of pre-trial custody.

The Reasons for Sentence

[102]

In imposing
    sentence, the trial judge considered the primary sentencing objectives to be
    deterrence, both general and specific, denunciation and separation of the
    appellant from society. He considered rehabilitation less significant because
    of the appellants lengthy criminal record and repeated violations of parole
    and mandatory supervision.

[103]

The trial judge
    noted the appellants 98 previous convictions including 21 for robbery.
    Included in this catalogue were 12 robbery convictions for which the
    appellant had received a discharge. The appellant had been recommitted as a
    parole or mandatory supervision violator 12 times.

[104]

The trial judge
    considered the appellant to be a very high risk of reoffending. He pointed out
    that the appellant committed these offences within days of a prior release. The
    appellant was a repeat offender, 59 years of age, whose convictions extended
    over a period of 40 years. These offences were planned and deliberately
    executed by a dedicated recidivist whose history of parole and mandatory
    supervision violations belied any realistic rehabilitative potential.

The Fresh Evidence

[105]

No issue is
    taken with the admissibility of the further evidence that clarifies the number
    of robbery convictions incurred by the appellant prior to the convictions under
    appeal. The reference to a discharge on 12 counts of robbery in 1991 is
not
to findings of guilt and an absolute or conditional discharge, but rather to a
    discharge at the conclusion of a preliminary inquiry where committal was sought
    on those charges. An absolute or conditional discharge was not then and is not
    now an available sentencing disposition on findings of guilt for robbery. The
    effect of this evidence is to reduce the number of the appellants prior
    convictions for robbery from 21, as noted by the trial judge, to nine, and the
    total number of his convictions to 86 rather than 98.

[106]

The other fresh
    evidence consists of a Final Program Performance Report compiled by
    Correctional Service of Canada staff at Beaver Creek Medium Security
    Institution. The report reflects the participation and successful completion by
    the appellant of a high intensity violence prevention program at Beaver Creek.
    It is offered in support of a submission that, at 62 years of age, the
    appellant has rehabilitative potential which could be realized if his sentence
    were reduced to permit earlier release and parole supervision.

The Arguments on Appeal

[107]

The appellant
    acknowledges his lengthy record including nine prior convictions for robbery
    and a dozen breaches of parole or mandatory supervision. He also concedes that
    the robberies with which we are concerned took place within days of his release
    after serving the equivalent of a 13 year sentence for robbery.

[108]

The appellant
    contends that the trial judge placed undue emphasis on his record in
    determining the sentence he would impose. The trial judge erred in finding that
    the appellant had 21 prior convictions for robbery, rather than nine. This
    error influenced the judges decision on quantum. In addition, the sentence is
    disproportionate to the gravity of the offences the appellant committed. He was
    not armed. He hurt no one. The proceeds of the robberies were minimal.

[109]

The appellant
    characterizes the sentence imposed as tantamount to a sentence of preventive
    detention. At the time of sentencing, the appellant was 59 years old and had a
    number of health concerns. He had learned some marketable skills in prison and
    wanted the opportunity to get a job where he could use those skills and become
    a contributing member of society. A shorter sentence and more focused parole
    supervision would allow him to do so.

[110]

The respondent
    says the sentence imposed was based on normative principles of sentencing and
    is entitled to deference despite the error the trial judge made in calculating
    the number of prior convictions for robbery. The trial judge identified and
    applied the proper sentencing objectives, considered the relevant aggravating
    and mitigating factors and imposed a sentence that was well within the range of
    fit sentences for the appellant and his offences.

[111]

The respondent
    submits that the precedents support substantial penitentiary sentences for
    robberies of banks and other financial institutions. It is of no moment to
    these authorities that no violence was used or threatened or only a small
    amount of money obtained. The offences were planned and executed by a dedicated
    recidivist within days of his release from prison after serving a lengthy
    sentence for the same offence.

[112]

The respondent
    acknowledges that the trial judge erred in his understanding of the number of
    the appellants prior convictions for robbery. But in the end, the respondent
    says, the error was of no consequence. The more important factor is the dozen
    parole and mandatory supervision violations which negated any claim of
    rehabilitative potential and amply justified the trial judges decision to
    accord rehabilitation a lesser place in the determination of a fit sentence.

The Governing Principles

[113]

A parade of
    precedent is unnecessary to an informed decision about the fitness of the
    sentence imposed by the trial judge. Two brief points will suffice.

[114]

First, decisions
    of trial judges on sentence are entitled to great deference on appellate
    review. In the absence of an error in principle, a failure to consider a
    relevant factor, or an overemphasis of the appropriate factors, we should only
    intervene to vary a sentence imposed at trial if the sentence is demonstrably
    unfit:
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 90;
R. v. M.
    (L.)
, 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14. To vary a sentence
    imposed at trial, we must be convinced that the sentence is not fit, or, in
    other words, that it is clearly unreasonable:
M.(L.)
, at para. 14;
R.
    v. Shropshire
, [1995] 4 S.C.R. 227, at para. 46.

[115]

Second, the
    criteria for admitting fresh evidence on an appeal from sentence are the same
    as those that apply to appeals from conviction:
R. v. Lévesque
, 2000
    SCC 47, [2000] 2 S.C.R. 487, at paras. 16, 22. Among other things, to be
    admissible on appeal, the fresh evidence must be relevant, credible and such
    that it could, when taken with the other evidence adduced at trial, be expected
    to have affected the result:
Lévesque
, at para. 24. Evidence that
    merely adds certain details to or clarifies evidence adduced at trial is not
    admissible as fresh evidence on appeal:
Lévesque
, at para. 34.

The Principles Applied

[116]

I would not
    interfere with the sentence imposed by the trial judge despite his error in
    connection with the number of robbery convictions on the appellants record. I
    have reached this conclusion for four reasons.

[117]

First, the trial
    judge correctly identified the predominant sentencing objectives as deterrence,
    denunciation and separation of this offender from society. The appellant is a
    dedicated recidivist. He has nine prior convictions for robbery. Those convictions,
    recorded on two separate occasions in 1991 and 2005, attracted double digit
    penitentiary
[1]
sentences. Each involved a bank robbery. After statutory release on each
    occasion, the appellant was recommitted as a statutory release violator a total
    of five times. At the time of trial, the appellant had been convicted of 86
    offences over a period of 43 years.

[118]

Second, the
    trial judge took into account the rehabilitative potential of the appellant and
    accorded an appropriate weight in his determination of a fit sentence.

[119]

The appellant
    based his assertion of rehabilitative potential on his acquisition of
    marketable skills in the penitentiary and an announced desire to live a law-abiding
    life with earlier parole and close supervision by parole authorities.

[120]

It is unclear
    when the appellant acquired his marketable skills in the penitentiary. On
    statutory release after sentence on his robbery convictions, he breached the
    terms of his release five times. He committed these robberies less than a week
    after his release. There is no tangible evidence of attempts to secure gainful
    employment. The trial judge recognized that rehabilitative potential was a
    factor to consider. He assigned it appropriate weight. Sadly, the potential is
    more theoretical than real.

[121]

Third, apart
    from the fresh evidence that clarifies the number of prior convictions for
    robbery, I have grave doubts about the admissibility of the report from the
    Correctional Service of Canada setting out the appellants involvement in and
    successful completion of a program at Beaver Creek. Doubtless the report will
    be of interest to the Parole Board of Canada, but its substance is not capable
    of affecting the result of this appeal against sentence.

[122]

Finally, it
    strikes me as a bit rich for an appellant who has violated his statutory
    release or mandatory supervision a dozen times to seek a manifestly inadequate
    sentence for two bank robberies on the basis that he will thereby get earlier
    parole and the close supervision he requires to become reintegrated into society.

CONCLUSION

[123]

For these
    reasons, I would dismiss the appeal from conviction and grant leave to appeal
    but dismiss the appeal against sentence.

Released: September 30, 2015 (EEG)

David
    Watt J.A.

I
    agree E.E. Gillese J.A.

I
    agree David Brown J.A.





[1]
In 1991, the sentence was ten years. In 2005, the sentence was six years with
    credit for pre-trial custody of seven years, yielding a sentence that is the
    functional equivalent of an imposed sentence of 13 years.


