COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Dodd, 2015 ONCA 286
DATE: 20150427
DOCKET: C55606
Sharpe, Simmons and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Donald Michael Dodd
Appellant
Brian H. Greenspan and Naomi Lutes, for the appellant
R. Pinnock, for the respondent
Heard: March 3-4, 2015
On appeal from the conviction entered on February 18, 2012 and the sentence imposed on June 8, 2012 by Justice Renee M. Pomerance of the Superior Court of Justice, sitting with a jury.
Benotto J.A:
[1] Two men disappeared after last being seen or heard in the garage and backyard of a home in Windsor. Their decomposed bodies were discovered many months later. They had been beaten to death.
[2] The appellant was convicted, along with his co-accused Timothy Carter, of murdering both men. His position at trial – maintained on appeal - was that he was not present when the fatal beatings took place.
[3] The appellant and Carter were convicted of second degree murder for the deaths of Peter Kambas and Vaois Koukousoulas. Carter’s appeal of his conviction and sentence was heard together with this appeal. The reasons in both appeals are being released together.
[4] The last place at which the two victims were seen or heard was Carter’s residence. There was no evidence of any other location at which the two victims were assaulted and killed. Therefore, the first question for the jury was whether the appellant was present at Carter’s residence at the time of the beatings.
[5] The evidence relied on by the Crown to establish the appellant’s presence was – individually and collectively – so frail that a thorough judicial scrutiny is triggered. When the evidence is examined through the lens of judicial experience, it is apparent that the fact-finding exercise applied by the jury was flawed in light of the unreasonable result it produced.
[6] For the following reasons, I would allow the appeal on the basis of an unreasonable verdict.
OVERVIEW OF THE CROWN’S CASE
[7] The theory advanced by the Crown may be summarized as follows:
· Kambas, Koukousoulas and the appellant were together at Kambas’s residence in the early morning hours of June 29, 2008. The three then travelled by taxi - which had been summoned by the appellant - to Carter’s residence.
· While at this residence, the victims – Kambas and Koukousoulas – were killed by Carter and the appellant. Witnesses saw or heard portions of assaults which took place in the garage and backyard of Carter’s home. One witness thought she had heard Kambas moaning in pain, and the appellant threatening him. Another witness saw a thin man being assaulted in the backyard by a larger man that resembled the appellant in some respects. Yet another witness observed Carter in his garage telling a distraught Koukousoulas to shut up, while a silent and unmoving body lay on the floor.
· Carter’s vehicle was seen leaving his residence later that morning and was absent for several hours. The same day, Carter left town with his girlfriend, driving a stolen pickup truck rather than his own vehicle. That very evening, a fire consumed Carter’s garage and vehicle. Dentures belonging to Kambas were located in the burned remains of Carter’s vehicle.
· The skeletal remains of Kambas and Koukousoulas were discovered together some months later.
EVIDENCE OF THE EVENTS OF JUNE 28 AND 29, 2008
[8] On June 28, 2008, Timothy Carter was living with his girlfriend Krystal Hamelin and their three-month-old baby in a detached house in Windsor. A friend, Adelino Moreira, often slept in the house as well. Moreira was helping Carter build a garage in the backyard that faced onto a back alleyway. The backyard had a deck next to the house. An above-ground pool was situated between the deck and the garage.
[9] In addition to Moreira, Carter’s friends included Kambas, Koukousoulas, George Mavrakakis, Dan Ross, and the appellant. There was evidence that at least Carter, Moreira, and Kambas were in the drug dealing business.
[10] The events of June 28 and the early morning hours of June 29 were the subject of evidence from Hamelin, Kambas’s girlfriend Mary McConnell, McConnell’s friend Manny Pereira, and Carter’s next-door neighbours Denisa Lamanna and Shawn Grubb.
Krystal Hamelin
[11] On June 28, 2008, Hamelin was at home with her baby. Although she was regularly using cocaine at the time, she did not recall if she was using on that day. She did not drink alcohol that day or night. At some point in the afternoon or early evening, Hamelin spoke with Carter, who was on the back deck having a beer with the appellant and another man. She could not recall hearing the appellant’s voice.
[12] Hamelin described the appellant as of medium or average build (not heavy or skinny), bald, tattooed, with a goatee that was five to six inches long. She did not know the third man but described him as bigger than Carter and the appellant, heavyset, in his forties, with a long, scruffy, “goatee-style” beard, “kind of [a] biker-looking type.” The third man was wearing a hat so Hamelin did not know if he was bald.
[13] At around 9 or 10 p.m., Moreira came into the house appearing agitated. He asked Hamelin for the base to the baby monitor, which detected noise. He walked out the back door with it. Moreira came back inside, without the baby monitor, and barricaded the door. It was not clear where Moreira put the base. After he returned, Moreira and Hamelin listened to the receiver portion of the baby monitor for 10 or 20 minutes. They heard nothing. Moreira left out the back door.
[14] Sometime in the early morning hours of June 29, 2008, around 1 or 2 a.m., McConnell came to the door. McConnell appeared upset. They had a brief conversation and McConnell left.
[15] Hamelin then heard “what sounded like someone fighting” in the backyard. She heard no voices, just noises like banging or rustling. It sounded as though the fighting was coming from between the pool and garage. She looked out the window but saw nothing. She barricaded the door with a piece of wood, just as Moreira had done earlier.
[16] Hamelin turned on the baby monitor. She heard what sounded to be Kambas’s voice in pain, grunting and groaning. She recognized Kambas’s voice because she had heard it at least 50 times before; he had a rough, raspy, “sandpaperish-type of voice” and a Greek accent. She also expected Kambas to be in the backyard or garage as Kambas was the person Moreira had been afraid of earlier.
[17] She then heard a voice say, “Keep your voice down. Shut up or I’ll stomp your head.” The voice was speaking over the moaning. It spoke for anywhere from four to ten seconds. There was static on the baby monitor. Hamelin agreed that voices heard over the baby monitor were not as clear as over a cell phone. She had a head cold at the time, but it was possible she was using cocaine that day. Hamelin turned the monitor off because she was scared.
[18] Hamelin testified that she recognized the threatening voice as the appellant’s. It sounded like the appellant’s voice because it was loud, deep and obnoxious.
[19] Hamelin admitted not liking the appellant. She could not recall ever speaking directly to the appellant, including on the phone. She had heard his voice when she and Carter would go out to bars with the appellant and his girlfriend, Teri Brinn. During these times, music would be playing and Hamelin would be using alcohol and cocaine. She would talk with Brinn and Carter, but not the appellant. There were probably three occasions when they went out together, with the last occasion being possibly three to five years before June 2008.
[20] Hamelin’s certainty that she heard the appellant’s voice had wavered in the lead-up to trial. In September 2009, she had given a statement to Crown counsel that the voice could have been anyone else. On re-examination, Hamelin said that she changed her story in September 2009 because she was scared.
[21] After speaking to him on the deck in the afternoon or early evening of June 28, 2008, Hamelin did not see Carter until around 9 a.m. the next morning when he returned to the house and suggested that they go on a vacation.
Mary McConnell
[22] Mary McConnell was Kambas’s girlfriend. At about 9:30 p.m. on June 28, 2008, Kambas and Koukousoulas were with her at the bar where she worked. At some point, Kambas and Koukousoulas left. At about 2 a.m., Kambas called McConnell and asked for a ride to Carter’s residence. He was still with Koukousoulas. She told him she would not pick him up at home.
[23] She expected that Kambas would come to the bar when her shift ended, but he did not arrive. McConnell telephoned Kambas at 2:37 a.m. and 2:51 a.m. In at least one of those calls, Kambas told her that he was already at Carter’s and to come pick him up. McConnell was alarmed when she overheard Kambas ask someone else, “What are you talking about? You don’t trust me.”
[24] McConnell went to Carter’s house looking for Kambas. She knocked on the front door and Hamelin answered. Hamelin told her Kambas was not there. McConnell tried calling Kambas several times, with no success. She drove to the nearby home of her friend, Manny Pereira, and returned a few minutes later.
[25] McConnell and Pereira parked near Carter’s residence around 3:15 a.m. They approached the house from the back alley. They heard male voices arguing in Carter’s backyard but could see nothing. One of the voices was Kambas’s. McConnell and Pereira looked through a small hole in the back wall of the garage. The garage’s interior was lit, but there were no people inside. They left Carter’s residence and McConnell drove Pereira home.
[26] McConnell returned again to Carter’s residence by herself a few minutes later, around 3:22 a.m. She did not hear any noise in the backyard. She again looked through the hole in the garage wall. This time she saw Carter standing at the opposite end of the garage making circular motions with his hands, as if he was cleaning something in his hands. She saw the arm of someone who was lying on the floor near her end of the garage, not moving, not making any sounds. Her view of the rest of the body was obstructed. She did not recognize the arm and acknowledged, on cross-examination, that she did not think, at the time, it was Kambas’s arm. McConnell heard Koukousoulas, whom she could not see, ask Carter if he had a problem with him. Carter responded, “No, I don’t. Just shut up.” Koukousoulas sounded distraught. McConnell’s car left the area around 3:26 a.m.
[27] When McConnell returned to Carter’s residence around 3:49 a.m. with Pereira, the hole in the garage wall had been boarded up.
[28] During cross-examination, McConnell stated that she knew the appellant’s voice from social occasions. She agreed that his voice was “high-pitched” and “[n]ot a deep voice”.
Manny Pereira
[29] Pereira did not testify at trial but his sworn police statement was admitted. He told the police that when he and McConnell arrived (her second visit, around 3:15 a.m.), he heard Kambas saying in Carter’s backyard, “What the fuck! What the fuck!” He heard another really loud voice say, “Hold him! Hold him!” He heard a “very violent struggle” taking place, but couldn’t see anything in the backyard. He also looked in the hole in the garage and saw nothing of interest. When he returned later that morning with McConnell, about 20-30 minutes after she saw the body in the garage, the hole was boarded up.
Denisa Lamanna
[30] Carter’s next-door neighbour, Denisa Lamanna, was awakened by noises between 3:00 and 3:30 a.m. on June 29, 2008. She opened her bedroom window and heard very loud groaning coming from near Carter’s garage. She heard a man yell, “Stop hurting me.” A different man yelled in an angry way, “Shut the fuck up.” She also heard a third voice but it was muffled. She could not see into Carter’s backyard due to a fence, trees, and shrubbery. She called 911, about 5-10 minutes after waking up. The sounds stopped so she called 911 back to cancel her request for police. According to call records, the calls to 911 were made at 3:33 a.m. and 3:51 a.m.
Shawn Grubb
[31] Carter’s other next-door neighbour, Shawn Grubb, had come home from work between 3:20 and 3:30 am. He had been working as a bouncer at a club. He sat down to watch TV and heard a “ruckus”. He opened a window that faced onto Carter’s backyard. He heard two voices. A submissive voice was saying, “Leave me alone. Stop hitting me. Get away from me.” A loud aggressive voice was repeatedly yelling, “You think I’m kidding? You think I’m kidding around with you? Shut up.” Grubb saw that the aggressive voice belonged to a heavyset man in his thirties, around 5 foot 10 inches tall and weighing 220 pounds or more, with very short, brown hair. He had a long goatee around three to four inches long tapering down from his chin. This man was overpowering a thinner, older man in his fifties, kicking him and striking him in the head with an open hand. The older man was cowering, trying to protect his head and face with his hands, and fell to the ground on several occasions. The two men were in between the pool and garage in Carter’s backyard.
[32] Grubb also heard three or four thuds emanating from Carter’s garage.
[33] Grubb yelled at the men to stop. The younger man stopped his attack, but continued to occasionally “open hand cuff” the older man in the head. Grubb called three or four times for Carter, who appeared after 10 or 15 seconds. Carter was out of breath and using the fence for support. Carter approached Grubb, who was above Carter in his open window, and the two men spoke across the fence. Carter told the other two men to stop it and told Grubb that all was fine. At this point, the older man was on the ground, behind the pool, but he later leaned up against the fence. The younger man was at the pool, washing and rubbing his face and eyes with water.
[34] There was some light in Carter’s backyard – emanating from Grubb’s open window, from the inside of the garage through a door, and from the moon. Light glistened off the surface of the pool.
[35] When shown a photo line-up by the police, over two weeks after the night he saw the assaults, Grubb paused at the photo of the appellant but did not identify him as the man he saw in Carter’s back yard. However, he testified at trial that the facial hair and the shape of the head, neck and shoulders in the photograph of the appellant matched his recollection of the man attacking the other.
The DNA evidence at Kambas’s apartment
[36] It was admitted by the appellant that the DNA of the appellant, Kambas and Koukousoulas was isolated from drinking glasses found on a coffee table in Kambas’s apartment by police executing a search warrant following the disappearances. It was also admitted that the appellant’s DNA was found on cigarette butts found in an ashtray on the same coffee table. DNA from a fourth unidentified man was found on a cigarette butt. This DNA was not attributable to the appellant or either of the deceased.
The taxi
[37] At 2:27 a.m. on June 29, 2008, a call was made from the appellant’s cellphone to a taxi company. The same taxi company received a call that ordered a taxi at 2:29 a.m. to the apartment building where Kambas lived. A taxi was dispatched at 2:31 a.m. Kambas and two other men got into a taxi in front of Kambas’s apartment. The taxi dropped the three passengers off at Carter’s residence.
[38] The appellant’s call to the taxi company registered at the cell tower closest to Kambas’s residence. The cell tower was also the closest one to the home of Brinn, the appellant’s girlfriend.
[39] At 2:28 a.m., a call was placed from the appellant’s phone to Carter’s phone; the call lasted around two minutes. The appellant’s phone records suggest that he made no calls after that until the following afternoon.
[40] Allen Seguin was the taxi driver who picked up three men from Kambas’s apartment and drove them to Carter’s house. Seguin was interviewed three times by the police: on June 30, 2008; July 5, 2008; and December 16, 2008.
[41] On June 30, 2008, the day after the taxi ride, Seguin was shown three photographs by police officers: Kambas, Moreira, and Mavrakakis. Seguin identified Kambas and Moreira as two of the three passengers in the taxi and referred to one of them as “elderly.” He described the third passenger to the police as “[m]aybe 5’10”, thin build,” and the same age as the other two.
[42] Five days later on July 5, 2008, he was shown photographs of two other men. Seguin said that neither man was in the taxi but that the features of one of the men were similar to the third passenger. The photograph did not resemble the appellant, as the man in the photograph was not bald, did not have a goatee or beard, and was significantly older.
[43] On December 16, 2008, Seguin was shown a line-up of photographs which included the appellant. He did not identify any of the men as having been in the taxi. But this time, he told the police that the third man was “bald and husky”. Seguin also was shown a photo of Koukousoulas, but did not identify him as one of the men in his taxi.
[44] At trial, Seguin’s testimony-in-chief was that the third passenger was “bald” and “husky”, but stated that he did not get a good look at him. During cross-examination, Seguin said that he only saw the third passenger “out of the corner of my eye”. Seguin also acknowledged that it was possible his description on December 16, 2008, had been influenced subconsciously by the fact that he had just looked at a line-up of bald, stocky men. He agreed that his memory would have been “much better” at the time of his initial description.
Subsequent events
[45] Before she cancelled the 911 call at 3:51 a.m., Lamanna observed a SUV or truck leaving the area of Carter’s home and going down the back alley.
[46] Carter’s GMC Jimmy truck was seen returning to the area at 4:27 a.m. At 4:59 a.m. his vehicle again left the area. Carter’s vehicle returned home at around 9:30 a.m., which is about when Hamelin testified that she first saw Carter that morning.
[47] That same evening, Carter and Hamelin left Windsor in a vehicle provided by Moreira, rather than driving Carter’s GMC Jimmy. They drove to nearby Chatham for a vacation. They left the baby with Hamelin’s father.
[48] Carter’s GMC Jimmy and garage were destroyed in a fire the night of June 29, 2008. Dentures and a shoe stained with blood were found in the burned-out vehicle. DNA and other evidence very strongly suggested that the dentures and blood were Kambas’s. The appellant does not dispute this on appeal.
[49] The bodies of Kambas and Koukousoulas were found on December 8, 2008, near Harrow, about a 40 minute drive one way from Carter’s home.
[50] The forensic evidence established that both men had died as a result of multiple blunt force injuries which would have damaged organs. In the case of Koukousoulas, his sternum had been broken and a severe skull fracture alone may have proved fatal.
EVIDENCE IMPLICATING THE APPELLANT
[51] The first issue for the jury was whether the appellant was present at Carter’s residence at the time of the beatings. There were four pieces of evidence relied upon by the Crown to establish his identity as a perpetrator:
· DNA evidence placing the appellant at Kambas’s apartment before Kambas left for Carter’s residence;
· cellphone records;
· the evidence of voice recognition by Hamelin; and
· the evidence of Grubb.
[52] The Crown led no evidence of motive, post-offence conduct by the appellant, or forensic evidence connecting the appellant to the bodies or Carter’s backyard.
GROUNDS OF APPEAL
[53] The appellant raises the following grounds of appeal:
ANALYSIS
[54] As I agree with the appellant that the verdicts are unreasonable, it is not necessary for me to address the other three grounds of appeal.
[55] The authority for a court of appeal to determine whether a jury reached an unreasonable verdict is found in s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, which reads:
686. (1) On the hearing of an appeal against a conviction ... the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,...
[56] The test for an appellate court to determine whether the verdict of a jury is unreasonable or cannot be supported by the evidence has been explained by the Supreme Court of Canada. In R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186, McIntyre J. wrote for the court:
The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence.
[57] The Supreme Court in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, further explained that the “test” imports both an objective and a subjective assessment. The reviewing court first looks at the sufficiency of the evidence objectively to determine if it is capable of supporting the verdict. The subjective element requires the reviewing court to examine the weight of the evidence rather than its bare sufficiency. When a jury verdict which does not involve errors in the charge is perceived as unreasonable, it was held in Biniaris that the only rationale inference is that the jury “was not acting judicially”. Arbour J. explained this at para 39:
This conclusion does not imply an impeachment of the integrity of the jury. It may be that the jury reached its verdict pursuant to an analytical flaw similar to the errors occasionally incurred in the analysis of trial judges and revealed in their reasons for judgment. Such error would of course not be apparent on the face of the verdict by a jury. But the unreasonableness itself of the verdict would be apparent to the legally trained reviewer when, in all the circumstances of a given case, judicial fact-finding precludes the conclusion reached by the jury.
[58] It is thus through the “lens of judicial experience” that there is an additional safeguard against unwarranted convictions: Biniaris, at para. 40.
[59] Individual items of evidence are not, in general, required to be proven beyond a reasonable doubt. In R. v. Uhrig, 2012 ONCA 470, at para. 13, this court summarized the approach to be taken to the standard of proof in a case such as this one:
When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345 (S.C.C.), at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: R. v. Côté (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.
[60] When these legal principles are applied to the evidence relied on by the Crown to prove the identity of the appellant as a perpetrator, I find that the verdict is unreasonable. There is no evidence upon which a jury acting judicially could reasonably have been satisfied beyond a reasonable doubt that the appellant was one of the persons who caused the deaths of Kambas and Koukousoulas.
[61] In coming to this conclusion, I have examined the Crown’s evidence individually and in the context of the evidence as a whole. The DNA and cellphone records, the eyewitness evidence of Grubb, and the evidence of Hamelin – considered individually and collectively – are not capable of establishing the identity of the appellant as one of the perpetrators.
DNA evidence and cellphone records
[62] The DNA evidence on the coffee table at Kambas’s apartment in combination with the cellphone records suggests that the appellant was drinking with Kambas and Koukousoulas in the early hours of June 29, 2008, before Kambas, and presumably Koukousoulas, departed for Carter’s residence. The appellant’s presence at Kambas’s apartment when combined with the call from his phone to the taxi company and the dispatch of a driver to Kambas’s apartment, is capable of supporting an inference that the appellant was going to be a passenger in the taxi.
[63] The Crown’s theory was that the appellant called the taxi, got into the waiting vehicle with Kambas and Koukousoulas, called Carter to say they were coming and then arrived at Carter’s home.
[64] However, the evidence of DNA and cellphone records must be assessed together with the whole of the evidence, including that of Seguin, the taxi driver. Seguin failed to identify the appellant as being in his car. Moreover, his initial description to the police of the third passenger did not correspond to the appellant’s appearance. Further, the DNA evidence indicated that a fourth man may have been present in Kambas’s apartment. All of this evidence is relevant to the Crown’s assertion that the appellant travelled by taxi with the victims to Carter’s residence.
[65] At law, an inference must be “reasonably and logically drawn from a fact or group of facts established by the evidence”: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209.
[66] On December 16, 2008, Seguin failed to recognize the appellant’s photograph from a photo line-up as one of the passengers in his taxi on June 29, 2008. Further, the appellant bore no resemblance to the third passenger Seguin originally described to the police. Although Seguin testified in-chief that the third passenger was “bald” and “husky”, he reasonably agreed that his memory of this man’s appearance would have been much better at his June 30, 2008, and July 5, 2008, police interviews when he described the third passenger as 5’10”, thinly built and elderly. Seguin’s descriptions given in the two early police interviews bore no relationship to the appellant’s appearance. These descriptions made no note of two of the appellant’s most distinctive features at the time: he was bald and had a very long goatee.
[67] Kambas’s apartment was a few short blocks from where the appellant’s girlfriend Brinn lived at the time. There was evidence that this was where the appellant resided as well. There were no further recorded calls from the appellant’s phone for the remainder of the morning.
[68] Considered together, the DNA, cellphone records and evidence of Seguin provide minimal, if any, support for the proposition that Dodd travelled to Carter’s home in Seguin’s taxi.
Eyewitness evidence of Grubb
[69] Grubb’s evidence was relied on by the Crown to put the appellant in Carter’s backyard. However, his evidence was riddled with frailties.
[70] Grubb said the man he saw in the backyard was heavy-set, 220 pounds or more, in his mid-thirties, with cropped hair, as short as “five o’clock shadow”, and a long goatee. Hamelin described the appellant differently. She saw the appellant that previous afternoon or early evening. She testified that the appellant was bald and had an average-build, neither heavy-set nor skinny.
[71] On July 16, 2008, the Windsor police conducted a photo line-up which included a photograph of the appellant. Grubb paused at the photo of the appellant. He did not identify the appellant. His comments recorded on the viewing form were: “That’s more like the facial hair the one guy had, can’t say 100%.”
[72] During his examination in chief, the Crown showed Grubb the video of the photo line-up and then asked him: “Are you able to assist us with what you were thinking or why you paused on photograph number four?”
[73] He answered, “Yes, there were a few reasons.” In response to Crown counsel’s request for these reasons, Grubb stated:
[T]he facial hair matched my recollection of the bigger gentleman who was having his way physically in the altercation with the skinnier gentleman. And also, I was holding [the photograph] at a distance ‘cuz I saw him at a distance and the lighting at the time was from the back and I saw a silhouette and I was judging proportionally neck, shoulders, head, ‘cuz that’s really all I could see in – in the photo, and I was closing my eyes and trying to recollect the proportions of the gentleman I saw that night. So, I was trying to do my due diligence in identifying people as clearly as I could...it seemed to match my memory, um, of that night…
[74] Leaving aside the propriety of these questions by the trial Crown, Grubb’s evidence could only establish that: (i) the facial hair in the photograph of the appellant “matched [his] recollection” of the facial hair on the assailant in Carter’s backyard; and (ii) the proportions of the appellant’s head and shoulders in the photograph matched those of the assailant.
[75] In my view, Grubb’s evidence was no more than resemblance evidence which has little probative value: “As a general rule, a resemblance, without more, does not amount to an identification”: R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, at para. 121, leave to appeal refused, [2008] S.C.C.A. No. 311. Indeed, “[i]n the absence of some other inculpatory evidence, a resemblance is no evidence”: R. v. Boucher (2000), 146 C.C.C. (3d) 52, at para. 19 (Ont. C.A.). I agree with the appellant’s submission that the other evidence relied upon by the Crown is so lacking in probative value that it fails to satisfy the test in Rybak and Boucher.
[76] Even if Grubb’s evidence is categorized as identification evidence, absent additional evidence supporting the identification, it is too frail to support the proposition that it was the appellant who was present in Carter’s backyard and a party to the beatings.
[77] I turn to the propriety of the question. The appellant, relying on R. v. Tat (1997), 35 O.R. (3d) 641 (C.A.), submits that Grubb’s testimony as to the video in which Grubb perused the photo line-up was inadmissible in its entirety.
[78] I do not need to address this issue. Even assuming all of his testimony was admissible, Grubb’s evidence is of little value. He saw a person with facial hair and upper body proportions resembling that of the appellant in Carter’s backyard. There was evidence from Hamelin of other men acquainted with Carter that had goatees. As a matter of everyday human experience, goatees and upper body proportions are not so uncommon or distinctive as to be capable of identifying an individual. Grubb’s description of the assailant at trial does not match the photograph of the appellant in that the appellant was totally bald - he did not have very short, brown hair. Grubb’s description of the assailant’s hair and build was contrary to Hamelin’s description of the appellant contemporaneous to the beatings.
Voice Recognition by Hamelin
[79] Voice identification evidence is even more fraught with dangers than eyewitness identification evidence. It ought to be treated with extreme caution: R. v. Clouthier, 2012 ONCA 636, at para. 19.
[80] Hamelin’s identification of the appellant’s voice on the baby monitor had very little, if any, probative value. As largely exposed on cross-examination, the reliability and credibility of the appellant’s voice identification was dubious:
· She heard the voice she said was the appellant’s for about four to ten seconds over static and the moaning of another man;
· She could not recall speaking directly to the appellant or hearing his voice over the phone;
· She could only recall overhearing the appellant’s voice speaking to Carter in bars where music was playing and where she was using alcohol and cocaine;
· She had only spent time with the appellant a few times;
· The last time she heard the appellant’s voice might have been three to five years before June 2008;
· She did not like the appellant;
· She gave a statement to the police, later recanted, that the voice could have been someone else’s;
· Her description of the appellant’s voice as “deep” was contradicted by McConnell’s testimony who described his voice as “high-pitched” and “[n]ot a deep voice”.
[81] The ability of a lay listener to correctly identify voices is subject to a number of variables. The Court of Appeal of England and Wales commented on this in R. v. Flynn and St. John, [2008] E.W.C.A. Crim. 970, [2008] 2 Cr. App. R. 20. At para. 16, several factors are listed as relevant according to the expert evidence before that court. Those applying here include:
· The quality of the recording;
· The gap in time between the listener hearing the known voice and the attempt to recognize the disputed voice;
· The nature and duration of the voice which is sought to be identified;
· The familiarity of the listener with the known voice.
[82] There were four, possibly ten, seconds of a voice on a low quality broadcast purportedly belonging to a person the witness cannot recall speaking directly to or even hearing for three or more years.
[83] Even if the trial judge did not err by admitting the evidence or by failing to give a sufficient caution to the jury in connection with it, the evidence was not capable of providing any meaningful support to the Crown’s theory.
Combined effect of the evidence
[84] When assessed as a whole, the evidence is not capable of supporting the inference that the appellant was present at the scene when the beatings took place. The frailties of each aspect of the evidence do not gain strength when considered together. The DNA and cell phone evidence have little, if any, probative value when considered in the light of Seguin’s evidence. The weaknesses of the evidence of Hamelin and Grubb are not cured by their combination. On the contrary, an attempt to use one to support the other – while potentially alluring to a finder of fact – is insupportable.
[85] Hamelin’s voice identification evidence cannot raise Grubb’s evidence beyond a finding of some resemblance between an assailant in Carter’s backyard and the appellant, a resemblance of little to no probative value given the conflicts between Grubb’s description of the assailant and the appellant’s known appearance at the time. Likewise, Grubb’s evidence does little to address the frailties in Hamelin’s voice-identification.
[86] Grubb’s eyewitness evidence of resemblance between the appellant and the backyard assailant had no relevance at all unless supported by the evidence of Hamelin. The evidence of Hamelin cannot support the identification of the appellant so it follows that it cannot make Grubb’s resemblance evidence stronger.
[87] The evidence as a whole indicates that the timing and perhaps the location of the two assaults were different. Grubb and Hamelin could well have witnessed different assailants.
Conclusion
[88] The evidence relied upon by the Crown to prove the appellant’s presence at the scene of the homicides, when viewed collectively, cannot reasonably support a finding that the appellant was in Carter’s backyard at the necessary times.
[89] For these reasons, I have found that the jury could not have been acting judicially in determining that the appellant was at the scene of the murders and caused the deaths of the two victims. In my view, the verdict of guilt against the appellant is unreasonable.
DISPOSITION
[90] I would allow the appeal, quash the convictions of the appellant and enter acquittals.
Released: “R.J.S.” April 27, 2015
“M.L. Benotto J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree Janet Simmons J.A.”