File - Mr. Justice JT McCarthy and the Canadian Judicial

In the Court of Appeal of Alberta
Date: 20150219
Docket: 1201-0271-A
Registry: Calgary
Between:
Her Majesty the Queen
Respondent
– and –
Brian Alvin Moose
Appellant
_______________________________________________________
The Court:
The Honourable Mr. Justice Jean Côté
The Honourable Madam Justice Patricia Rowbotham
The Honourable Mr. Justice Brian O’Ferrall
_______________________________________________________
Memorandum of Judgment
Appeal from the Conviction by
The Honourable Mr. Justice J.T. McCarthy
Dated the 17th day of July, 2012
(Docket: 110345444Q1)
2015 ABCA 71 (CanLII)
Citation: R v Moose, 2015 ABCA 71
_______________________________________________________
The Court:
[1]
Mr. Moose appeals his conviction on one count of robbery of a convenience store contrary
to section 344(1)(b) of the Criminal Code, RSC 1985, c C-46. The robbery took place March 25,
2011 and the appellant was convicted July 17, 2012. At the conclusion of the hearing we allowed
the appeal with reasons to follow. These are the reasons.
[2]
The sole issue at trial was identity. The trial judge heard evidence from the convenience
store clerk and four police officers, one of whom completed a fingerprint analysis of the glass
counter on which the robber had rested his hand. The fingerprint evidence did not identify the
appellant. There was video surveillance of the exterior and interior of the store. It shows a male
wearing a dark jacket- like garment with a hood that is pulled down partly concealing his face. He
is also wearing lighter blue jeans. He enters the store, waits while the clerk attends to two other
customers, then with his hand under the jacket in a position simulating holding a gun, robs the
clerk. He walks away calmly while two other customers also walk past the counter. The clerk
reported that the robber was aboriginal. The appellant, also aboriginal, was arrested approximately
10 blocks away, fifteen minutes after the robbery. The appellant’s clothing was not dissimilar to
that described by the clerk in her 911 call. Low denomination bills with a total value of about $60,
including some older $5 bills, were found in his vicinity. This was approximately the amount
stolen. The clerk collected old currency and testified that she had earlier set aside a $5 bill in her
till. At trial the clerk identified the appellant as the robber. A voir dire led to the admissibility of
the appellant’s statement made shortly after he was cautioned : “Yes, I would love to say anything.
... If the lady can ID me, then I’m fine. It’s fine if she can ID me.”: Transcript 103/36-38.
[3]
The trial judge used this cumulative evidence of guilt to convict the appellant.
[4]
The appellant submits that the trial judge misapprehended the totality of the evidence
which led to an unreasonable verdict. The Crown’s response is that the appellant is arguing about
the weight which the trial judge gave certain evidence and the inferences which he drew, which are
supported by the evidence and entitled to deference. The appellant also argues that a properly
instructed jury could not have convicted him given the cumulative inconsistencies in the evidence.
The Crown concedes that any one of the pieces of evidence may leave a reasonable doubt but when
taken together, they support each other.
[5]
We have re-examined the evidence, including the video surveillance, to determine whether
the verdict was reasonable, as required by R v AG, 2000 SCC 17 at para 1, [2000] 1 SCR 439. A
verdict may be unreasonable if the trial judge has drawn an inference or made a finding of fact
essential to the verdict that is incompatible with evidence that has not otherwise been contradicted
or rejected by the trial judge: R v RP, 2012 SCC 22 at para 9, [2012] 1 SCR 746.
2015 ABCA 71 (CanLII)
Memorandum of Judgment
_______________________________________________________
[6]
Our review of the record reveals cumulative inconsistencies between the appearance or
description of the robber and the appellant. More importantly, some of the evidence is exculpatory.
First, the appellant was extremely intoxicated when arrested and needed support to stand. After his
arrest he was transported to hospital and admitted under a mental health warrant due to his
intoxication and erratic behaviour. By contrast the clerk, who had experience dealing with
intoxicated customers, testified that the robber showed no signs of intoxication; there was no odour
of alcohol, no stumbling, no slurring or other visible signs of intoxication. The outdoor video
shows the robber walking normally and the till video shows him standing normally while the clerk
served other customers. When the robber interacted with the clerk, they were less than two feet
apart. The police found no evidence of intoxicating substances in the vicinity of the arrest.
[7]
Secondly, the clerk consistently testified that the robber wore ripped jeans and underneath
the jeans he wore dark blue clothing, either sweat pants or thermal underwear. When the appellant
was arrested, he wore ripped jeans but wore nothing underneath the jeans.
[8]
Thirdly, the appellant was found with three older types of $5 bills. The clerk testified that
she set old bills aside because she and her mother collected them. She testified that there was one
such bill among the stolen bills and she identified one of the bills (bill number 2) as similar to the
bill she had set aside prior to the robbery. When presented with another one of the still older style
$5 bills (bill number 3) found near the appellant she said, “I haven’t seen bill number 3 in quite,
quite some time”: Transcript 13/7-8.
[9]
None of these inconsistencies was expressly or implicitly considered or rejected in the trial
judge’s brief reasons.
[10] The appellant also submits that there was a significant inconsistency in the evidence
regarding the outer garment worn by the robber and the hoodie that the appellant was wearing at
the time of his arrest. The clerk described the robber’s garment as a down filled jacket, with a hood
made of a water repellant-like fabric. When the police found the appellant, he was wearing a cloth
hoodie with a distinctive logo on the back. The police officers did not find a jacket in the area. The
trial judge said, “[t]he evidence shows in the video that the accused had something like a vest
covering the hoodie, which can be seen in photo 233957, which explains why the logos on the
hoodie itself were not seen in the video”: Transcript 179/40-41 - 180/1. We have also reviewed the
video and the still photo. It is not clear that the robber was wearing a vest. It appears to us to be a
jacket. The clerk testified that the jacket’s sleeves came to the robber’s wrists and the hood formed
part of the jacket. A police officer who reviewed the video also testified that the jacket appeared to
have a hood in addition to a collar. Moreover, when she was shown the hoodie which the appellant
was wearing when he was arrested, the clerk said she did not think it was the garment that the
robber was wearing.
[11] Finally, we are concerned with the trial judge’s conclusion that the appellant “was seen and
arrested ten minutes after the incident three blocks away from where the robbery occurred, an easy
walk from the store in question, at a time when very few pedestrians were in the area.” The
2015 ABCA 71 (CanLII)
Page: 2
evidence reveals that the appellant was found fifteen minutes after the robbery, some ten to eleven
blocks away, with a major thoroughfare to cross between the store and the place of his arrest. The
police testified to having seen some pedestrians in the area, albeit none who matched the clerk’s
description and the video showed quite a number of other customers in the store, and the clerk
testified to two more outside.
[12] When the Crown relies on circumstantial evidence to prove its case, the Crown does not
need to prove beyond a reasonable doubt each fact which is said to support the inference of guilt: R
v Morin, [1988] 2 SCR 345 at 360-62, 44 CCC (3d) 193; R v Khan (1998), 111 BCAC 221 at para
9, 129 CCC (3d) 45. It seems to us that the contrary must also be true when there is exculpatory
evidence. One piece of exculpatory evidence might not be sufficient to raise a reasonable doubt but
the cumulative effect of a number of pieces of exculpatory evidence may well do so.
[13] When we review all these inconsistencies, the verdict is not reconcilable with the record. A
properly instructed jury could not have convicted the appellant given the cumulative effect of quite
a number of pieces of exculpatory evidence, and the inconsistencies in the evidence which were
said to identify the appellant as the robber.
[14]
We allow the appeal, set aside the conviction and enter a verdict of acquittal.
Appeal heard on February 13, 2015
Memorandum filed at Calgary, Alberta
this 19th day of February, 2015
Authorized to sign for:
Côté J.A.
Rowbotham J.A.
O’Ferrall J.A.
2015 ABCA 71 (CanLII)
Page: 3
Page: 4
T. dos Santos
for the Appellant
J. Morgan
for the Respondent
2015 ABCA 71 (CanLII)
Appearances: