R. v. MacCormack (C.J.),

• Jurisdiction: Ontario
• Judge: Juriansz, MacFarland and Watt, JJ.A.
• Neutral Citation: 2009 ONCA 72
• Citation: 2009 ONCA 72,(2009), 245 O.A.C. 271 (CA),241 CCC (3d) 516,64 CR (6th) 137,[2009] OJ No 302 (QL),245 OAC 271,[2009] O.J. No 302 (QL),245 O.A.C. 271,(2009), 245 OAC 271 (CA)
• Date: 18 April 2008
• Court: Court of Appeal (Ontario)

R. v. MacCormack (C.J.) (2009), 245 O.A.C. 271 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JA.144

Her Majesty the Queen (respondent) v. Craig John MacCormack (appellant)

(C45161; 2009 ONCA 72)

Indexed As: R. v. MacCormack (C.J.)

Ontario Court of Appeal

Juriansz, MacFarland and Watt, JJ.A.

January 27, 2009.

Summary:

MacCormack was convicted of robbery and disguise with intent, in connection with each of four incidents at different branches of the same bank. He denied participation in each offence. The trial judge concluded that the same person was the bandit in each incident and that the person was MacCormack; that, in each incident, the offences committed were robbery and disguise with intent; and that the offences were sufficiently similar that the evidence on all counts could be taken into account in determining whether guilt had been proven on any individual count. MacCormack appealed his convictions on the principal ground that the trial judge erred in applying the evidence adduced on all counts in determining the adequacy of proof on each individual count. He also argued that the principal offence committed in each incident was theft, not robbery, in the absence of any evidence of a threat of violence.

The Ontario Court of Appeal dismissed the appeal. The decision to invoke similar act evidence principles was reasonably open to the trial judge. And the finding of "threats of violence" was not unreasonable in this case.

Criminal Law - Topic 1641

Offences against property - Theft - Defined - [See Criminal Law - Topic 1658 ].

Criminal Law - Topic 1658

Offences against property - Theft - Evidence and proof - The accused was convicted of robbery and disguise with intent, in connection with each of four incidents at different branches of the same bank - The trial judge had concluded that the offence committed in each instance was robbery, based on the cumulative effect of several factors and despite the absence of any overt display or specific mention of a weapon or of any threatening gesture - The accused appealed on the ground, inter alia, that in the absence of any evidence of a threat of violence, the offence was theft and not robbery - The Ontario Court of Appeal dismissed that ground of appeal - In considering the governing principles, the court noted s. 343(a) of the Criminal Code and that "a threat of violence may be express, or implied from words or conduct, or from both words and conduct. All the circumstances require consideration" - The finding of "threats of violence" was not unreasonable in this case - "A bank. A direct approach to a teller. A demand for money, not a withdrawal slip or any other typical banking document. Conduct designed to intimidate and to instil a sense of fear in its recipient and to ensure compliance with its demand. Such a crime is robbery, not theft" - See paragraphs 84 to 89.

Criminal Law - Topic 1726

Offences against property - Robbery - What constitutes - [See Criminal Law - Topic 1658 ].

Criminal Law - Topic 5214

Evidence and witnesses - Admissibility and relevancy - Similar acts - Where indictment includes several counts - The accused was convicted of robbery and disguise with intent, in connection with each of four incidents at different branches of the same bank - The accused appealed on the principal ground that the trial judge erred in several respects when he concluded that similar act principles permitted the use of evidence relating to all other counts in deciding whether the accused was the bandit in an individual count - The Ontario Court of Appeal examined the governing principles relating to the degree of similarity required of various acts to qualify for reception as evidence of similar acts to prove identity of the person responsible for a crime, and to the use of evidence that linked an accused to the acts in the determination of admissibility - See paragraphs 46 to 59.

Criminal Law - Topic 5214

Evidence and witnesses - Admissibility and relevancy - Similar acts - Where indictment includes several counts - The accused was convicted of robbery and disguise with intent, in connection with each of four incidents at different branches of the same bank - The acts took place over one month - Each of the premises was located in a strip mall - The bandit directly approached the teller and demanded money - In three instances, the demand was for larger denomination bills - The bandit made no gestures, spoke in a low voice and said nothing but the words of demand - In every instance, the bank had few, if any, other customers - The four branches were located in reasonable proximity to each other - The accused appealed on the principal ground that the trial judge erred in several respects when he concluded that similar act principles permitted the use of evidence relating to all other counts in deciding whether the accused was the bandit in an individual count - The Ontario Court of Appeal disagreed - The decision to invoke similar act evidence principles was reasonably open to the trial judge - "The other counts evidence was capable of crossing the threshold required for evidence of similar acts offered to establish the identity of the perpetrator of the several offences charged. The offences contained a number of significant similarities which, taken together, warrant admission. The dissimilarities among the four incidents were neither so many nor so substantial to diminish the probative value of the evidence to the point of its domination by prejudice" - See paragraphs 60 to 71.

Criminal Law - Topic 5214

Evidence and witnesses - Admissibility and relevancy - Similar acts - Where indictment includes several counts - The accused was convicted of robbery and disguise with intent, in connection with each of four incidents at different branches of the same bank - The trial judge, in his determination of the "identity" issue, relied on the cumulative force of several items of evidence that offered a general or specific link to one or more offences - The accused appealed - His chief complaint was that the trial judge used evidence that linked him to the various acts rather than restricting himself to the manner in which the acts were committed - The Ontario Court of Appeal dismissed that ground of appeal - It was not entirely clear that the trial judge used the evidence of the accused's involvement in the alleged similar acts in deciding that the acts were sufficiently similar to warrant admission - The rule against considering both evidence of the manner in which allegedly similar acts were committed and evidence of an accused's involvement in the acts was "a general prohibition, not an unyielding or invariable rule that brooks no exception ... . To apply a test of whether the objective improbability that an accused's involvement in the alleged acts is the product of coincidence without any regard to the evidence connecting the accused and the acts seems unduly antiseptic" - See paragraphs 72 to 83.

Criminal Law - Topic 5214.1

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove identity of accused - [See second and third Criminal Law - Topic 5214 ].

Cases Noticed:

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201, refd to. [para. 48].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 48].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161, refd to. [para. 49].

R. v. Perrier (J.L.), [2004] 3 S.C.R. 228; 325 N.R. 206; 203 B.C.A.C. 4; 332 W.A.C. 4, refd to. [para. 52].

R. v. Woodcock (R.) (2003), 175 O.A.C. 279; 177 C.C.C.(3d) 346 (C.A.), refd to. [para. 58].

R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550; 37 A.R. 294, refd to. [para. 59].

Harris v. Director of Public Prosecutions, [1952] A.C. 694 (H.L.), refd to. [para. 59].

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1, refd to. [para. 75].

R. v. Sayers and McCoy (1983), 1 O.A.C. 239; 8 C.C.C.(3d) 572 (C.A.), refd to. [para. 87].

R. v. Pelletier (R.) (1992), 44 Q.A.C. 168; 71 C.C.C.(3d) 438 (C.A.), refd to. [para. 87].

Counsel:

Louis P. Strezos and Jill R. Presser, for the appellant, MacCormack;

J.K. Stewart, for the respondent.

The appeal was heard on April 18, 2008, by Juriansz, MacFarland and Watt, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following judgment and reasons for judgment of the court, which were released on January 27, 2009.