R. v. O'Brien (M.D.), (2010) 293 N.S.R.(2d) 78 (CA)

• Judge: Fichaud, Beveridge and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 14, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 293 N.S.R.(2d) 78 (CA);2010 NSCA 61

R. v. O'Brien (M.D.) (2010), 293 N.S.R.(2d) 78 (CA);

    928 A.P.R. 78

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JL.028

Marty David O'Brien (appellant) v. Her Majesty The Queen (respondent)

(CAC 310964; 2010 NSCA 61)

Indexed As: R. v. O'Brien (M.D.)

Nova Scotia Court of Appeal

Fichaud, Beveridge and Farrar, JJ.A.

July 14, 2010.

Summary:

In 2004, a store was robbed at knifepoint by a person wearing a mask. The mask was recovered and a DNA sample was obtained. Years later, the DNA profile matched that of the accused, an incarcerated prisoner. The accused was charged with robbery, being masked while committing an indictable offence, and possession of a weapon for the purpose of committing an offence. The accused was tried by judge alone and did not testify. At trial, the investigating police officer testified as to how the accused's DNA sample was obtained and his extensive criminal record and history of incarceration (i.e., highly prejudicial bad character evidence). The accused's lawyer did not object to admission of this evidence and the trial judge made no comment on it.

The Nova Scotia Supreme Court, in a judgment reported (2009), 279 N.S.R.(2d) 157; 887 A.P.R. 157, found the accused guilty on all counts. The accused was subsequently sentenced to a total of six years and six months' imprisonment (see 279 N.S.R.(2d) 162; 887 A.P.R. 162). The only real issue was whether the circumstantial evidence (mask and DNA) proved beyond a reasonable doubt that the accused was the person who committed the robbery. The court was satisfied that it did. The accused appealed against conviction and sentence, submitting that the verdict was unreasonable or unsupported by the evidence. The accused submitted that the evidence of his criminal record and reputation was highly prejudicial and inadmissible, the trial judge did not properly disabuse himself of this knowledge and the only appropriate remedy was a new trial.

The Nova Scotia Court of Appeal, Fichaud, J.A., dissenting, allowed the conviction appeal and ordered a new trial. The bad character evidence was highly prejudicial and patently inadmissible. The evidence made the inference of guilt a foregone conclusion. Although the verdict was not unreasonable or unsupported by the evidence, it was not appropriate to apply s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error. The Crown did not argue that the result would have inevitably been the same but for the error. The trial judge did not expressly disabuse himself of the bad character evidence and did not state that it played no role in his judgment. Fichaud, J.A., dissenting, would have applied s. 686(1)(b)(iii) to dismiss the appeal notwithstanding the inadmissible evidence, as it was clear from the trial judge's reasons that the improper evidence could not have affected the result. Fichaud, J.A., having dismissed the conviction appeal, would have also dismissed the sentence appeal.

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Criminal Law - Topic 5037 ].

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - A store was robbed by a person wearing a mask and armed with a knife - Police found the mask alongside of the knife and the plastic cover from the cash register that was robbed - Video surveillance and the store clerk identified the mask - The only DNA sample from inside the mask matched the accused's DNA - There was no evidence identifying the robber by physical characteristics - The trial judge found the accused guilty on the basis of the circumstantial evidence, particularly the DNA evidence - The Nova Scotia Court of Appeal rejected the submission that the verdict was unreasonable or unsupported by the evidence - See paragraphs 29 to 39.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - The accused was tried for robbery and other offences before a judge alone - The Crown's evidence was circumstantial, including DNA evidence from a mask used in the robbery - The accused did not testify - Inexplicably, the Crown elicited evidence from a police officer respecting the accused's history of incarceration, his extensive criminal record, and that he was known to be an "active criminal" in the community where the robbery was committed - The accused's counsel did not object to admission of the bad character evidence, the trial judge did not exclude it on his own motion, and there was no mention of the evidence in the trial judge's reasons for convicting the accused (i.e., no evidence that judge relied on the evidence or disabused himself of it) - At issue was whether, in a judge alone trial where the verdict was not unreasonable or unsupported by the evidence, the court should apply s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the patent evidentiary error - The Nova Scotia Court of Appeal stated that "where the trial judge who has heard inadmissible prejudicial evidence, disabuses herself from the evidence, or the reviewing court is satisfied that the impugned evidence played no part in the reasons that led to conviction, and there was no impact on trial fairness, the proviso may be relied upon." - The court declined to apply s. 686(1)(b)(iii), stating that "if the trial judge had disabused himself of this evidence, either in his reasons, or arrived at his conclusion by expressly relying on evidence untainted by the impugned evidence, or otherwise made it plain that the impugned evidence could play no part in the process, I might be inclined to take a different view. But none of these factors are present." - The error impacted trial fairness - The dangers of propensity reasoning were real, even if diminished where the trial was by judge alone - The Crown failed to establish that the impugned evidence could not have consciously or unconsciously influenced the judge's decision - See paragraphs 40 to 96.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 5037 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - The Nova Scotia Court of Appeal stated that "the Crown is not entitled to lead evidence tending to show the accused is a person of bad character. Furthermore, such evidence is inadmissible, not because it is irrelevant - but because of its unfair prejudicial effect." - See paragraph 40.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - A store was robbed by someone wearing a mask - The mask was found near the store - A DNA sample obtained from the mask matched the accused's DNA - The Nova Scotia Court of Appeal discussed the role of DNA evidence - The court stated that "DNA evidence is simply a piece of circumstantial evidence. Like fingerprint evidence, it merely indicates that a person's DNA somehow got where it was found, not that a person committed the crime. ... The Crown acknowledged that the DNA evidence in this case was the equivalent to that of a fingerprint. That is, if accepted, it established that at some point in time, the appellant had handled, or even worn the mask. It did not, without more, establish that the appellant had committed the robbery. ... proof that DNA was found on items associated with a crime is not the end of the inquiry - the next step, and the crucial one, is whether the trier of fact can then draw the inference that the accused was a party to the offences charged." - The court stated that "[the trial judge's] reasoning process can be summarized as: the mask was worn by a person who robbed the store. The accused at some point handled or wore the mask. Ergo, he robbed the store. ... the trial judge needed to ask himself a further question: in light of the evidence, and bearing in mind the obligation of the Crown to prove beyond a reasonable doubt the identity of the accused as the robber, can I draw the inference that the accused was the person who robbed the store? By not asking this question, the trial judge failed to consider if there was any other explanation for the presence of the appellant's DNA on the mask along with other factors such as the presence or absence of other evidence on the issue of identity." - The court allowed the accused's appeal on other grounds, finding it unnecessary to decide the appeal on this ground - See paragraphs 18 to 28.

Criminal Law - Topic 5855

Sentence - Robbery - The accused robbed a convenience store at knifepoint while masked - He was convicted of robbery, wearing a face mask with intent to commit an indictable offence, and possessing a knife for the purpose of committing an offence - The accused had a lengthy record of approximately 70 convictions for various offences, many of them serious, including a previous robbery conviction and break and enter convictions - The trial judge sentenced the accused to six years and six months' imprisonment for robbery (consecutive to time being served), two years' imprisonment for being masked (concurrent) and three years' imprisonment (concurrent) for the weapons offence - The Nova Scotia Court of Appeal, Fichaud, J.A., allowed the accused's conviction appeal and ordered a new trial, making it unnecessary to deal with the sentence appeal - However, Fichaud, J.A., opining that the conviction appeal should be dismissed, would also have dismissed the sentence appeal - See paragraphs 154 to 163.

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5935

Sentence - Disguise with intent - [See Criminal Law - Topic 5855 ].

Cases Noticed:

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 123 C.C.C.(3d) 1 (C.A.), affd. [1999] 3 S.C.R. 866; 250 N.R. 98; 129 O.A.C. 283, refd to. [para. 18].

R. v. Mars (M.) (2006), 206 O.A.C. 387; 205 C.C.C.(3d) 376 (C.A.), refd to. [para. 19].

R. v. D.D.T. (2009), 257 O.A.C. 258; 2009 ONCA 918, refd to. [para. 20].

R. v. Samuels (S.R.), [2009] O.A.C. Uned. 471; 2009 ONCA 719, refd to. [para. 22].

R. v. Mayers (R.), [2007] O.T.C. Uned. I01 (Sup. Ct.), refd to. [para. 23].

R. v. Foster (T.), [2008] O.T.C. Uned. 501 (Sup. Ct.), refd to. [para. 24].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193, refd to. [para. 30].

R. v. MacLellan, 2008 ONCA 204, refd to. [para. 31].

R. v. Barrett (J.R.) (2004), 222 N.S.R.(2d) 182; 701 A.P.R. 182; 2004 NSCA 38, refd to. [para. 33].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 34].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 34].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 34].

R. v. Abourached (N.) (2007), 259 N.S.R.(2d) 379; 828 A.P.R. 379; 2007 NSCA 109, refd to. [para. 38].

R. v. Matthews (B.J.) (2008), 264 N.S.R.(2d) 276; 847 A.P.R. 276; 2008 NSCA 34, refd to. [para. 38].

R. v. Rowton (1865), 169 E.R. 1497 (C.C.A.), refd to. [para. 40].

Michelson v. United States of America (1949), 69 S.Ct. 213 (Sup. Ct.), refd to. [para. 41].

United States of America v. Myers (1977), 550 F.2d 1036 (5th Cir.), refd to. [para. 42].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 46].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 47].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 49].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, refd to. [para. 50].

R. v. Klymchuk (K.) (2005), 205 O.A.C. 57; 203 C.C.C.(3d) 341 (C.A.), refd to. [para. 50].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 56].

R. v. Leaney and Rawlinson, [1989] 2 S.C.R. 393; 99 N.R. 345; 99 A.R. 291, refd to. [para. 57].

R. v. Rahm (T.E.) (2006), 384 A.R. 341; 367 W.A.C. 341; 2006 ABCA 111, refd to. [para. 59].

R. v. Lowe (D.A.) (2009), 274 B.C.A.C. 92; 463 W.A.C. 92; 2009 BCCA 338, refd to. [para. 59].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), refd to. [para. 70].

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 71].

R. v. Potvin, [1944] 3 D.L.R. 293; 81 C.C.C. 299 (Ont. C.A.), refd to. [para. 81].

R. v. Northey, [1948] S.C.R. 135, reving. [1947] 4 D.L.R. 774 (B.C.C.A.), refd to. [para. 82].

R. v. Hanlon (1958), 122 C.C.C. 384 (Nfld. C.A.), refd to. [para. 84].

R. v. Friesen (1977), 9 A.R. 361 (T.D.), refd to. [para. 85].

R. v. Parent (1947), 4 C.R. 127 (Que. K.B.), refd to. [para. 87].

R. v. Ross (1985), 72 N.S.R.(2d) 381; 173 A.P.R. 381 (C.A.), refd to. [para. 88].

R. v. Thorne (1988), 82 N.S.R.(2d) 442; 207 A.P.R. 442 (C.A.), refd to. [para. 90].

R. v. L.D.B., [2009] N.S.R.(2d) Uned. 44; 2009 NSCA 32, refd to. [para. 115].

R. v. Kagan (P.D.) (2009), 276 N.S.R.(2d) 381; 880 A.P.R. 381; 2009 NSCA 43, refd to. [para. 115].

R. v. R.S.D.L. (2009), 279 N.S.R.(2d) 301; 887 A.P.R. 301; 2009 NSCA 74, refd to. [para. 115].

R. v. Torrie (1967), 3 C.C.C. 303 (Ont. C.A.), refd to. [para. 127].

R. v. Wild, [1971] S.C.R. 101, refd to. [para. 127].

R. v. Bagshaw, [1972] S.C.R. 2, refd to. [para. 127].

R. v. Halliday (1975), 12 N.S.R.(2d) 1; 6 A.P.R. 1 (C.A.), refd to. [para. 127].

R. v. Burns (1975), 13 N.S.R.(2d) 127; 9 A.P.R. 127 (C.A.), refd to. [para. 127].

R. v. Villeneuve (1979), 30 N.S.R.(2d) 326; 49 A.P.R. 326 (C.A.), refd to. [para. 127].

R. v. Johnson (S.G.) (1995), 141 N.S.R.(2d) 133; 403 A.P.R. 133 (C.A.), refd to. [para. 127].

R. v. Taylor (T.E.) (2008), 261 N.S.R.(2d) 247; 835 A.P.R. 247; 2008 NSCA 5, refd to. [para. 127].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 134].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281, refd to. [para. 136].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239, refd to. [para. 136].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149, refd to. [para. 136].

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1, refd to. [para. 136].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4, refd to. [para. 137].

R. v. Illes (M.), [2008] 3 S.C.R. 134; 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285, refd to. [para. 139].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 140].

R. v. Beals (S.A.) et al. (1994), 130 N.S.R.(2d) 177; 367 A.P.R. 177 (C.A.), refd to. [para. 142].

R. v. Longaphy (J.F.) (2000), 189 N.S.R.(2d) 102; 590 A.P.R. 102 (C.A.), refd to. [para. 160].

R. v. Leet (1989), 88 N.S.R.(2d) 161; 225 A.P.R. 161 (C.A.), refd to. [para. 160].

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 163].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2005 Looseleaf Update), paras. 9.30.10 [para. 43]; 9.30.20.10.1 [para. 134].

Counsel:

Pavel Boubnov, for the appellant;

Kenneth W. Fiske, Q.C., for the respondent.

This appeal was heard on April 8, 2010, at Halifax, N.S., before Fichaud, Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On July 14, 2010, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Beveridge, J.A. (Farrar, J.A., concurring) - see paragraphs 1 to 96;

Fichaud, J.A., dissenting - see paragraphs 97 to 164.