Page: 1 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Mr.

Justice Alan D. MacInnes

Docket: AR 11-30-07530 B E T W E E N: HER MAJESTY THE QUEEN Appellant - and PETER JOHN OKANE (Accused) Respondent - and Docket: AR 11-30-07531 B E T W E E N: HER MAJESTY THE QUEEN Appellant - and JESS JOHN ZEBRUN (Accused) Respondent HAMILTON J.A. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) R. L. Tapper, Q.C. and J. D. Kendall for the Appellant S. E. Pinx, Q.C. and T. E. Bourcier for the Respondent P. J. OKane H. Weinstein, Q.C. and J. A. Weinstein for the Respondent J. J. Zebrun

Appeals heard: September 22, 2011 Judgment delivered: September 27, 2012

1.

The Crown appeals the acquittals, by way of directed verdict, of the respondents (the accused) of the charges of perjury and being unlawfully in a dwelling house. At their jury trial, after denying the Crowns motion to reopen its case to present in dock

identification of the accused, the trial judge directed the acquittals based on a lack of identification evidence.
2.

2 By its appeals, the Crown puts at issue the fairness of the procedure followed
by the judge, the adequacy of her reasons and the correctness of her rulings. The Crown seeks a new trial. This raises the additional issues of what is the Crowns burden for a new trial on an appeal from a directed verdict and whether that burden has been met.

3.

3 For the reasons that follow, I am of the view that the trial judge erred in
granting the accuseds motions for a directed verdict and that the Crown has met its burden for a new trial.
4. Background

5.

5 The accused are police officers with the Winnipeg Police Service. In 2005,
they were involved in an investigation that resulted in the arrests of Danny George and Scott Guiboche for drug offences.

6.

6 During the investigation, a search warrant was obtained to search Room 1707
at the Fairmont Hotel. Two pounds of crack cocaine and $18,000 in cash were seized from the room. OKane swore the affidavit in support of the application for the search warrant.

7.

7 In 2006, the accused testified at the preliminary inquiry of George and

Guiboche about their involvement in the investigation. Their testimony included evidence about how they came to have a pass key for Room 1707, how they came to believe that there were drugs in that room, when they went to the hotel and their entry and search of Room 1707.

Page: 3
8.

8 As a result of their testimony at the preliminary inquiry, OKane faced two

counts of perjury, Zebrun faced one count of perjury and both faced a count of unlawfully entering a dwelling house.

9.

9 The counts of perjury against OKane were:

Count 1: ... [K]nowingly provid[ing] false evidence with intent to [mis]lead the, the court with, which evidence was as follows: (a)( By testifying that at 6:23 a.m. he was at the Public Safety Building and took a phone call from an informant.

[(b)] By testifying that at the time of the aforesaid phone call, he was actually at the Public Safety Building, and then went to the Fairmont Hotel for the purpose of determining that a passkey was valid.

[(c)] By testifying that he went to the Fairmont Hotel to determine what room the passkey was for.

[(d)] By testifying that he received the information that the passkey was for room 1707, while at the Fairmont Hotel.

[(e)] By testifying that he was at the Public Safety Building between 6:30 a.m. and 7:15 a.m. .

[(f)] By testifying that he went to room 1707 once only that day after the search warrant was obtained. Count 2: [H]e ... provided evidence in an affidavit sworn ... for the use in an application for a search warrant ... knowingly provid[ing] false evidence in the affidavit with

intent to mislead the court, by testifying that he went into room 1707 at the Fairmont Hotel only on one occasion that day.
10. 11.

1 The count of perjury against Zebrun was:

... [D]id commit perjury by knowingly provid[ing] false evidence with intent to mislead the court, which evidence was as follows: That he received information from an informant; That he attended the Fairmont Hotel at 6:30 a.m. only to speak to the night manager; That he was seeking a search warrant to enter room 1707 for the first time that day.
12.

13.

The counts of unlawfully entering a dwelling house stem from the accuseds

alleged entry into Room 1707 before obtaining the search warrant.
14.

1 The central issue of the trial concerned whether the accused went once to the
hotel, after receiving the search warrant, as they testified at the preliminary inquiry, or whether they went twice; the first time to check out Room 1707 and then to return after obtaining the warrant.
15. The Trial

16.

The trial proceeded in February 2011. Over the course of three days, the Crown

called nine witnesses and submitted five exhibits into evidence related to the events of the investigation. The evidence included testimony from three hotel staff working that particular morning (one being the desk clerk, Michael Hrechka) as to what occurred; the occurrence report prepared by the hotel staff, which included the names of the accused accompanied by a Winnipeg Police Service business card with the accuseds names written on it; GPS evidence from the accuseds cruiser car; the accuseds pass card

Page: 5

entries for the Public Safety Building; the testimony of a communications center employee (Janet Allard) identifying the accuseds voices on a communication center recording; the accuseds police notes; and a transcript of their testimony at the preliminary inquiry.
17.

1 The accuseds police notes, pass card entries, cellular phone records and the
preliminary inquiry transcript were tendered at the commencement of the trial by consent of the accused, through their counsel. At the time that the agreed book of exhibits was tendered, Mr. Pinx, counsel for OKane, stated:
18. 19. 20. 21. 22. 23.

.... Firstly the, the exhibits, so the jury is aware, are going in with the consent of both counsel on behalf of our two clients. . . . . .

Secondly, by this agreement, I just think its important that jury and the court understand, we have eliminated a great number of witnesses who dont need to be called, in other words, to prove that these are the documents relevant to this case. So it is going to have substantially shortened up -25.

24.

. . . . .

26. 27. 28. 30. 31. 32.

-- the length of the trial.

29.

. . . . .

So I just wanted the jury to be aware of that, so its going to make their task a bit easier. Theyll hopefully focus on whats important -33.

. . . . .

34. 35. 36. 37.

-- in this trial.

3 At the close of the Crowns case on a Friday, and in the context of pre-charge
discussions, Mr. H. Weinstein, counsel for Zebrun, informed the judge that the accuseds intention was that they would be electing not to call evidence. He also advised that:

6 38. 39.

[T]heres going to be a motion for a directed verdict on the aspect of identification or no in court identification of either OKane or Zebrun. . So that will be done Tuesday.
41.

40.

[emphasis added]

42. 43.

4 Mr. Pinx then advised the judge that he intended to make motions that there
was no evidence to support some of the transactions set out in count 1 against OKane and with respect to count 2 against him. He also indicated that he would be arguing that the requirement for corroboration was not met by the Crown and joining on the motion on the identification issue.

44.

The following exchange took place in response to the judges inquiry as to

whether the Crown was ready to address the issue of identification:

45. 46. 47. 48. 49. 50.

MR. TAPPER: No, I mean the reality is that we have their notebooks, their evidence. We have Janet Allard saying I recognize their voices. .... THE COURT: No, but the point is that nobody pointed them out in court. MR. TAPPER: Yes. Theres no question, but reality is you have their call numbers, you have their cruiser numbers, you have Janet Allard saying that those are their voices. THE COURT: Yeah. No, but the point that theyre making is that -MR. TAPPER: No, I understand, nobodys stand up and said -THE COURT: Nobodys saying that those are the two that are the same people -MR. H. WEINSTEIN: Right. THE COURT: -- that are in the indictment. MR. PINX: Yes.

51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63.

Page: 7
64.
6

Later in the discussion about identification, Mr. Tapper indicated that he might

want to ask permission of the judge to reopen the Crowns case. He agreed that the hotel managers and desk clerk cant say they remember these people and I have to prove that inferentially. He stated that he was going to ask to reopen it just to call someone to say thats the people who are police officers, Zebrun and OKane.
65. 66. 67.

6 After a brief recess, the following exchange occurred:

MR. TAPPER: ... [Y]oull see ... the notebooks of Jess Zebrun and Peter OKane and the cell phone logs of Peter OKane and Jess Zebrun, respectively. That, coupled with the fact that of course at the preliminary hearing identity was admitted, perhaps led me into believing that this was just not an issue and if I have to take it on the chin for that, Ill take it on the chin for that. I submit based on that and the evidence of Allard you have sufficient identification, not as to who went in the room of 1707 but who these two individuals are. If youre not satisfied in that respect, in my respectful submission no prejudice accrues to the accused in this situation and Im going to ask for leave to reopen, just to say that those are the two people whose names were attached to those documents.
69. 70. 71. 72. 73. 74. 75. 76. 77.

68.

. . . . .

MR. TAPPER: They are agreed exhibits, however. THE COURT: Theyre agreed exhibits and, but, but two and three [the notebooks] have not been linked up to the accused. Thats the issue -MR. TAPPER: Yes. THE COURT: -- nor has the com centre thing. So thats precisely what Ive been thinking about, which is its an issue as to the discretion to, to reopen the Crowns case and its not something that Im going to do quickly and Id like some law on it because Id like to know what the test for reopening is before I determine, you know, whether or not to allow that, but its quite clear that there has been no -MR. TAPPER: Yes. THE COURT: -- in court identification even with agreed documents -MR. H. WEINSTEIN: Yes, thats right.

78. 79. 80. 81. 82. 83. 84.

8 85. 86. 87. 88. 89.

THE COURT: -- it hasnt been linked up to the specific bodies that are sitting in the court. MR. TAPPER: I think thats fair. THE COURT: So thats quite clear. So its a question of whether the discretion that resides to reopen the case should be exercised or not. So I would actually like some, some assistance on that.

90. 91.
9

In the context of discussing the adjournment of the trial to Tuesday morning and

the timing to hear, firstly, the Crowns motion to reopen, and then, the defence motions for directed verdicts, Mr. Pinx stated:
92. 93.

. I think what were talking about is first obviously we need ruling A. Depending on the result of ruling A will determine whether theres a need to move towards a motion for the directed verdict.

94. 95.
9

The judge heard submissions on the Crowns motion to reopen on the Tuesday

morning. The Crown argued that it was seeking only to recall a witness to make the in dock identification. The accused argued prejudice based on their counsels strategic decision to limit cross-examination of witnesses to avoid any identification of them in court.
96.

9 After a brief recess, the judge denied the Crowns motion to reopen its case
and immediately granted the accuseds motions for directed verdicts of acquittal.
97. The Judges Reasons

98. 99. 100.

9 Because the judges reasons are brief, I set them out in their entirety:
There is before me a motion for non-suit on the basis of lack of identification of Peter OKane and Jess Zebrun and a motion by the Crown to re-open to permit the identification to be made.

101.

102.

Page: 9 The Crowns position is that this is merely a technical matter and that they were under a misapprehension that there was any issue with respect to OKane and Zebrun in court being the individuals whose notes, cell phone records, et cetera, went into the agreed book of documents. The defence argues real prejudice to the accused has occurred. Case law is clear that the trial judge has a wide discretion to allow a case to be reopened unless there would be prejudice to the accused in the legal sense. The Crowns position is that the defence would not have put their case in or approached their case differently or cross-examined differently as it was never controversial about who the accused are. I have been satisfied on the submissions of the defence counsel that the issue is larger than the mere formal identification of the accused. As counsel pointed out, there were strategic decisions made based on lack of identification that led to other areas not being canvassed, for example, voice identification and issues of intent. To permit Crown to open its case to have someone point out OKane and Zebrun in court would not be sufficient. It would require the recalling of a number of witnesses to be dealt with in substantive areas that were strategically avoided. On the totality of what is before me, Ive been persuaded that it would not be fair to allow the Crown to re-open its case at this time. The motion for non-suit is therefore granted and as a result acquittals will be entered on all counts against both accused.
114.

103. 104. 105. 106. 107. 108.

109. 110.

111. 112.

113.

[emphasis added]

115. 116. 117. 118.

The Positions of the Parties The Crown asserts that the judge erred in law by:

1. refusing to allow the Crown to reopen its case;

119.

2. denying the Crown the opportunity to argue on the motions for directed verdict and not providing reasons for the directed verdicts; and
120.

10

3. directing the acquittals of the accused because there was no identification evidence.
121. 122. 123.

1 The Crown seeks a new trial. 1 The accused respond that the judge made no errors as alleged by the Crown.
In their joint factum, they also assert that even if the judge did err, the Crown has not met its burden for a new trial as set out in Vzeau v. The Queen, [1977] 2 S.C.R. 277. In other words, they say that verdicts of acquittal will be the result after a new trial notwithstanding that the judge erred by directing the verdicts of acquittal, arguing that a review of the evidence called by the Crown demonstrates this. By way of example, they argue Hrechkas ability to recall and the contradictions in his testimony exposed real doubt on the issue of which officers attended room 1707 ... and real doubt regarding whether any officers had actually attended into the room in question prior to obtaining a search warrant.

124.

1 In addition, in oral submissions, Mr. Pinx argued that the Vzeau test has not
been met by the Crown because there was no corroboration of the alleged falsehood of the accused that they went into Room 1707 only once. Therefore, the accused assert there was no corroboration of a material particular as required by s. 133 of the Criminal Code (the Code).

125.

1 In response, the Crown says that it has met the appropriate burden for a new
trial, which it asserts is set out in the more recent Supreme Court of Canada decision of R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609. It also says that whatever the test, it has been met. The Crown also points out that both Vzeau and Graveline concerned acquittals by juries, not directed acquittals, and that this case should be allowed to

Page: 11

proceed to the jury for it to weigh and consider the evidence, including the issue of corroboration.
126. 127. 128.

Analysis and Decision The Crowns right of appeal from an acquittal is limited to a question of law

alone. See s. 676(1)(a) of the Code.

129. 130.

Reopening of the Crowns Case

1 The decision of whether or not to permit the Crown to reopen its case is a
matter of discretion for the trial judge. Therefore, deference is owed to the judges ruling unless she misdirected herself with respect to the law or the facts or if her decision is so clearly wrong as to amount to an injustice. See Elsom v. Elsom, [1989] 1 S.C.R. 1367, and R. v. Katzenback (J.P.), 2011 ABCA 318, 515 A.R. 141.

131.

1 The law regarding the reopening of the Crowns case is relatively settled. The
parties cited the three leading cases: Robillard v. The Queen, [1978] 2 S.C.R. 728; R. v. P. (M.B.), [1994] 1 S.C.R. 555; and R. v. G. (S.G.), [1997] 2 S.C.R. 716. These cases establish that the considerations for a trial judge hearing a Crown motion to reopen differ depending upon the stage of the trial at which the motion is made. The Honourable R. E. Salhany, Q.C. summarized the law in this regard in Canadian Criminal Procedure, 6th ed., looseleaf (Aurora: Thomson Reuters Canada Limited, 2010) vol. 1 (at paras. 6.3975, 6.3980, 6.3990):
Traditionally, the courts recognized three stages in the trial during which the discretion could be exercised. In the first stage, before the Crown closed its case, the trial judge had a wide latitude in allowing the Crown to recall a witness to prove an omitted element of the case or to correct earlier testimony. The second stage was after the Crown had closed its case. Here the trial judge had the

12

discretion to allow the Crown to reopen its case to correct some oversight or to prove a matter which it had failed to do inadvertently, provided that there was no prejudice to the accused. Once the defence had begun to present its case, the judges discretion was narrowly restricted. The Crown was only allowed to reopen its case to prove a matter, ex improviso, which no human ingenuity could have foreseen. . In Robillard, the Supreme Court of Canada decided that the trial judge should have a wide discretion to permit the Crown to reopen its case and such discretion should not be subject to the strict limitation of matters which arise ex improviso which no human ingenuity could have foreseen. The Court was of the view that a trial judge should be left with some degree of freedom to meet and deal with unexpected problems which might arise in a trial. However, in P.(M.B.), the Supreme Court of Canada decided that although Canadian jurisprudence has not applied the strict ex improviso rule as it has been applied at common law, the circumstances in which the Crown should be allowed to reopen its case after the defence has begun its case are narrow. . The Court decided that the Robillard case should be more narrowly construed as applying only to situations where the Crown is seeking to reopen its case in order to correct a matter of form. .
132. 133. 134. 135.
1

[emphasis added]

The Crown argues that the judge erred in how she approached the issue of

prejudice and that she failed to consider the interests of justice beyond any prejudice to the accused that could be cured by the recalling of witnesses for cross-examination. It submits that the conduct of the defence (the decision not to ask questions that may lead to identification of the accused) contributed to the prejudice asserted by the accused (that is, areas of cross-examination were specifically not pursued by the accused) and that the omission or mistake was non-controversial and purely procedural. It challenges the accuseds assertions that their cross-examinations would have proceeded differently if identification had been made in court, given that they acknowledge the identification of the accused could have been made by the last witness called by the Crown.

Page: 13
136.

1 There are cases where trial judges have permitted the Crown to reopen its case
where identification has not been established. For example, see R. v. Dill (T.T.), 2005 ABQB 49, 375 A.R. 210, and R. v. Smith (D.H.), 2011 SKQB 324, 382 Sask.R. 150. There are others where the Crown has not been allowed to do so. See, for example, R. v. Gowing, 2012 ABPC 38 (QL), and R. v. Kotchea, 2003 NWTSC 29 (QL).

137.

1 It is evident from the record that the trial judge understood the applicable law.
She correctly determined that the case fell within the second stage of the trial; that is, after the Crown had closed its case, but before the accused made their formal elections as to whether to call evidence. She applied the law to the facts before her. I cannot say that the decision was unjust.

138.

1 The Crowns real complaint is that it wishes the trial judge had exercised her
discretion differently, as perhaps another judge may have done. That is not an error of law that can ground an appeal by the Crown of an acquittal. Directed Verdict Motion

139.

1 The Crown asserts two fundamental arguments with respect to the directed
verdicts of acquittal; the first I would describe as procedural and the second as substantive. The procedural argument is that the judge did not give the Crown a fair opportunity to respond to the accuseds motions for a directed verdict and that she failed to provide reasons for her decision to direct the acquittals. The substantive argument is that the trial judge erred in granting the accuseds motions for a directed verdict, given that there was circumstantial evidence of identification that should have gone to the jury.
140.

The Procedural Argument

14 141.

1 Given the record and how the proceedings transpired, in my view, the more
important aspect of the Crowns procedural argument is its assertion that the judge failed to provide reasons.

142.

1 In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, and R. v. Braich, 2002
SCC 27, [2002] 1 S.C.R. 903, which were conviction appeals, the Supreme Court of Canada confirmed a functional, purpose-driven approach when an appellate court is faced with a ground of appeal concerning the failure to provide, or the adequacy of, reasons. The court explained that there is no general duty to give reasons and that [e]ach adjudicative setting drives its own requirements (Sheppard at para. 19). The court emphasized that the requirement of reasons is tied to their purpose and the purpose varies with the context (at para. 24). See also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3.

143.

1 The same policy considerations that arose in Sheppard apply equally to

acquittals, in the context of the Crowns limited right of appeal. See R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, and R. v. Kerr, 2004 MBCA 30, 48 M.V.R. (4th) 201. In my view, there is no reason to distinguish an acquittal by directed verdict from an acquittal at the end of trial. Both are crucial, pivotal and decisive (R. v. Woodard (J.), 2009 MBCA 42 at para. 25, 240 Man.R. (2d) 24) in nature. Therefore, the purposedriven, functional Sheppard/Braich analysis is called for when an appellant alleges that the judge erred by not providing any, or adequate, reasons for a directed verdict of acquittal.

144.

1 However, I need not engage in that analysis here, given that I agree with the
Crowns substantive argument that the judge erred in law in directing the verdicts of acquittal.
145.

The Substantive Argument

Page: 15
146.
1

The test to be applied by a trial judge on a directed-verdict motion is whether

there is admissible evidence which could, if it were believed, result in a conviction (R. v. Arcuri, 2001 SCC 54 at para. 21, [2001] 2 S.C.R. 828). It is the same test that is applied by a preliminary inquiry judge when determining whether an accused should be committed to stand trial.
147.

1 In Arcuri, McLachlin C.J.C. explained the test and how it is more complicated
when there is circumstantial evidence (at paras. 22-23, 30):
148.

The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, [1986] 1 S.C.R. 802, at pp. 842-43; Monteleone, [[1987] 2 S.C.R. 154], at p. 161. The nature of the judges task, however, varies according to the type of evidence that the Crown has advanced. Where the Crowns case is based entirely on direct evidence, the judges task is straightforward. . If there is direct evidence as to every element of the offence, the accused must be committed to trial.
149. 150.

The judges task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence that is, those elements as to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established that is, an inferential gap beyond the question of whether the evidence should be believed . The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judges task is to determine whether, if the Crowns evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of limited weighing never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

151.

16 152. 153.
1

The application of these principles to the evidence raises a question of law. See R. v.

Barros, 2011 SCC 51 at para. 48, [2011] 3 S.C.R. 368.

154.

1 The judge did not give specific reasons for granting the accuseds motions
(being the reason for the Crowns Sheppard argument). When I review the record of her discussion with counsel on the Friday before her Tuesday ruling and her reasons for not permitting the Crown to reopen its case, it seems to me that the judge was concerned that the Crown had not presented any in dock identification of the accused to link the documents in evidence to the accused.

155.

1 In a criminal case, the Crown must prove not only that an offence has been
committed but that the accused was the one who committed it (see The Honourable Mr. Justice S. Casey Hill, David M. Tanovich & Louis P. Strezos, eds., McWilliams Canadian Criminal Evidence, 4th ed., looseleaf (Aurora: Thomson Reuters Canada Limited, 2010) vol. 2 at para. 29:10). The latter element is commonly referred to as identification or identity and may be proven by either direct or circumstantial evidence or a combination thereof (ibid.).

156.

1 I n R. v. Nicholson (1984), 52 A.R. 132 (C.A.), leave to appeal to S.C.C.

denied, [1984] S.C.C.A. No. 176 (QL), Kerans J.A. explained that there are a number of facets to the notion of identification (at para. 6):
157.

One can speak of identification in several contexts. One question, for example, which seemed in argument here to be confused with others in this: precisely which member of the human race is charged with the offence? Another is in terms of a judge being satisfied that the accused is actually before the Court for the purposes of a trial. Yet another arises when the Crown or defence seek to introduce certain documents which purport to relate to the accused. And, lastly, the Crown must, as I have said, prove beyond a reasonable doubt that it was the accused, and no other, who committed the crime charged. These four are quite separate questions, although often closely related. Problems which arise in one

Page: 17 context cannot be permitted to cause confusion in another. I will therefore enlarge on each in general terms and in terms of this case. For the latter purpose, it is now necessary to review the facts in some detail.
158. 159.
1

I n Nicholson, which the Crown relies on, the issue was whether the accused

should have been convicted when the arresting officer was unable to pick him out of a crowd at his trial. There were four pieces of evidence as to the identity of the offender: (1) the appearance notice; (2) similarity of names between the accused and the offender; (3) the offenders drivers licence; and (4) the defence evidence. Kerans J.A. confirmed that in dock identification was not required and, furthermore, that there was sufficient identification evidence. As a result, the appeal was dismissed.
160.

1 In my view, the fundamental question here is whether the similarity of names

between the accused and the officers referred to in the evidence was sufficient to fulfill the identification component of the test to be applied on the directed-verdict motions.

161.

1 The case law is clear that similarity of names may serve as circumstantial
evidence of identity, particularly at the directed-verdict stage. Similarity of names is an item of proof of identity (Nicholson at para. 33). 29:40.20.90):
162. 163. 164.

See also McWilliams (at para.

Name It has been held that some evidence of identity is provided simply by a similarity of name and address. . The point to remember is that some evidence is all that is needed to commit for trial or to resist a motion for non-suit.

165. 166.

The seminal case in Canada regarding similarity of name as identification evidence is R. v. Chandra (1975), 29 C.C.C. (2d) 570 (B.C.C.A.). Chandra was a directed verdict case where the jury was directed to acquit based on a lack of identification evidence. The accused was alleged to have run over an elderly woman with his car as she was crossing the street. The Court of Appeal concluded that there

18

was some admissible evidence of identification and, therefore, allowed the appeal and directed a new trial. McIntyre J.A. (as he then was), for the court, made the following remarks regarding similarity of name as identification evidence (at p. 573):
167. 168.

In my opinion mere identity of name affords some evidence of identity of a person. When accompanied by other factors such as the relative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a licence or other document of significance, its weight is strengthened. The trier of fact when such evidence is before it, whether Judge alone or jury, must consider it, weigh it and reach its determination. When such evidence is adduced to the trier of fact it cannot be said there is no evidence. .

169. 170.

1 I n R. v. D.R.H., 2007 MBCA 136, 220 Man.R. (2d) 271, which was a
conviction appeal relating to a sexual assault, Scott C.J.M., writing for the majority, cited Chandra and concluded that the fact the accused and the perpetrator share the same name may be used as circumstantial evidence of identity (at para. 46). See also R. v. Zarubin (G.A.), 2004 SKCA 14, 241 Sask.R. 292, R. v. J.V.-R. (1999), 120 O.A.C. 298, and R. v. D.B., 2007 ONCA 368 (QL).

171.

1 Here there is the similarity of the names of the accused, who are police
officers, to evidence tendered with their consent. There is also the evidence of Hrechka that four police officers appeared at the hotel desk, that they had a pass key for Room 1707 and that they sought access to it. He testified that one of the police officers identified himself later as Officer OKane and that he received a police officer business card with the names Zebrun and OKane on it. Given this evidence, I am of the view that there was some admissible evidence as to the identity of the accused that was sufficient to resist the accuseds motions for a directed verdict. Therefore, the judge erred in law when she directed the verdicts of acquittal on the basis of lack of identification.

Page: 19
172.

Crowns Burden for a New Trial on Appeal from a Directed Verdict of Acquittal The accused argue that in order for the Crown to obtain a new trial, the Crown

173.

must not only demonstrate a legal error, but must also discharge the heavy onus imposed by Vzeau, and R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595. As noted earlier, the Crown responds that if the Crown has a burden for appeals of directed verdicts of acquittal, the test is set out in Graveline. Vzeau, Sutton and Graveline involved appeals from verdicts of acquittal at the end of a trial.
174.
1

The test, as articulated in Vzeau, is that it is the duty of the Crown, in order to

obtain a new trial, to satisfy the Court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury (at p. 292).
175. 176. 177.

1 In Sutton, McLachlin C.J.C. wrote (at para. 2):

. The test as set out in Vzeau ... requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred. I n R. v. Morin, [1988] 2 S.C.R. 345, this Court emphasized that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty (p. 374).

178. 179.
1

This passage was quoted by Fish J. in Graveline (see para. 16), in which he

explained the Crowns duty as follows (at para. 14):

180. 181.

. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

182.

20 183.

1 I n Sutton, McLachlin C.J.C. explained the issue to be (at para. 7): Has the
Crown established with reasonable certainty that the jury, had it been charged correctly, would not necessarily have reached the same verdict?

184.

1 I accept that the Crown must have a burden on an appeal from a directed
verdict of acquittal to satisfy the court that a new trial is warranted. It would be a miscarriage of justice for an appellate court to order a new trial in a case where there is no likelihood that the new trial would result in a different verdict. However, as will be seen, the case law demonstrates that the burden is easily met and that it is only in exceptional circumstances that a new trial will not be ordered after an appellate court concludes that a trial judge erred in law in directing an acquittal.

185.

1 There is no shortage of Supreme Court of Canada cases on Crown appeals

from acquittals after a trial in which the Vzeau/Graveline test is addressed. However, when dealing with appeals from directed verdicts of acquittal, the Supreme Court has not generally discussed or invoked the Vzeau/Graveline test. See, for example, Ebner v. The Queen, [1979] 2 S.C.R. 996, and R. v. Monteleone, [1987] 2 S.C.R. 154, which is one of the leading cases on directed verdicts.

186.

In Monteleone, in addition to setting out the appropriate test for when to direct a verdict of acquittal, the court also commented on the role of appellate courts in cases involving appeals from directed verdicts. McIntyre J., writing for the court, stated (at pp. 160, 167):
187. 188.

There is only one question which arises in this appeal. Should the case have gone to the jury after the defence had either called evidence or declined to do so, or should the acquittal have been directed? At this point in these proceedings it is not for this Court, nor was it for the Court of Appeal, to reach a conclusion or even to consider the issue of guilt or innocence. Our sole concern is to inquire whether there was a case made by the Crown at trial which ought to have been left to the jury for that determination.

Page: 21
189. 190.

In conclusion, I do not suggest that the inculpatory evidence is conclusive or even persuasive. That is not the function of an appellate court. The resolution of that question is for the jury upon proper instructions on the law after having heard the evidence. .
191. 192.

[emphasis added]

193. 194.
1

A more recent example is Barros, in which the accused was charged with

obstruction of justice and two counts of extortion. The trial judge directed a verdict of acquittal on the first charge, but allowed the two counts of extortion to proceed. In the end, the accused was acquitted on those charges as well. The Supreme Court mentioned Vzeau and Graveline only in connection with the appeals from the acquittals, but not in connection with the directed verdict. The majority concluded that the trial judge was wrong to impose a directed verdict, and so ordered a new trial.
195.

1 There is no shortage of cases in other jurisdictions involving Crown appeals

from directed verdicts where a new trial was ordered without any reference to Vzeau or Graveline. See, for example, R. v. Dyer (1991), 90 Nfld. & P.E.I.R. 225 (Nfld. C.A.), R. v. Allen, [1993] O.J. No. 3644 (QL) (C.A.), R. v. Martell (D.F.) (1999), 173 N.S.R. (2d) 48 (C.A.), R. v. Blizzard (A.J.) et al., 2002 NBCA 13, 247 N.B.R. (2d) 203, R. v. Robinson (W.D.), 2005 NSCA 65, 232 N.S.R. (2d) 46, R. v. Solomon (J.N.), 2006 NBCA 52, 299 N.B.R. (2d) 327 (a case involving lack of in-court identification), R. v. Plaha, 2008 ONCA 96 (QL), R. v. Masterson, 2008 ONCA 481 (QL), R. v. Hutchinson (C.), 2010 NSCA 3, 286 N.S.R. (2d) 331, R. v. J.D.J.(B.)M., 2010 SKCA 39 (QL), R. v. D.L.A., 2011 PECA 15, 311 Nfld. & P.E.I.R. 148, R. v. M.R., 2011 ONCA 190, 277 O.A.C. 99, and R. v. Barrett (A.), 2012 NLCA 12, 319 Nfld. & P.E.I.R. 287.

196.

1 There are cases where the Crowns burden on such an appeal is discussed,
often briefly. See, for example, R. v. Sillars (1978), 45 C.C.C. (2d) 283 (B.C.C.A.), R. v. Hunniford, [1982] B.C.J. No. 2268 (QL) (C.A.), R. v. Pedrazzini, [1986] A.J. No. 210

22

(QL) (C.A.), R. v. Greenwood (1991), 5 O.R. (3d) 71 (C.A.), R. v. Ackerman, [1992] O.J. No. 3682 (QL) (C.A.), and R. v. Collins (1993), 12 O.R. (3d) 161 (C.A.).
197.

1 The question that must be addressed is: What is the appropriate test for
ordering a new trial in a directed verdict appeal? The articulation of the tests set out in Vzeau, Sutton and Graveline differ somewhat. The test set out in Vzeau and Sutton is focussed on whether the verdict might have been different, whereas the test in Graveline is focussed on the effect of the trial judges error. Depending on which formulation is adopted, these two tests could have different effects in directed verdict cases. This is because, in a directed verdict case, it is obvious that the error had an impact on the verdict and the test is easily met. However, if the reviewing court is instead supposed to inquire whether the verdict would potentially have been different absent the error, it invites a more probing review of the case.

198.

1 I am of the view that the appropriate approach is found in Greenwood and

Collins. These decisions of the Ontario Court of Appeal caution appellate courts from speculating as to what might have happened had the trial judge not directed the verdict and that only in exceptional cases will a new trial not be required despite the trial judges legal error. It seems to me that this explains why most cases involving appeals of directed acquittals do not address the Crowns burden, as it is obviously met.

199.

1 Greenwood, which involved two co-accused, was one of those exceptional

cases where a new trial was not ordered. After the directed verdict was entered for Greenwood, the trial of his co-accused continued, in which Greenwood testified. The co-accused was acquitted. Despite finding that the trial judge erred in directing the acquittal of Greenwood, the court did not order a new trial given the evidence of Greenwood at the co-accuseds trial.

Page: 23
200.

2 In explaining why this was an exceptional case, Doherty J.A., writing for the
court, also explained that an appellate court cannot be asked to speculate and why it should be rare for an appellate court not to order a new trial if it found error by the trial judge in directing an acquittal (at pp. 77-78):
201. 202.

I am satisfied that the trial judge erred in acquitting Mr. Greenwood at the close of the Crowns case. That error does not, however, necessitate reversal. The Crown must show not just legal error, but error which may have impacted on the verdict. In most cases where a trial judge erroneously directs a verdict at the end of the Crowns case, the Crown will have no difficulty demonstrating with a reasonable degree of certainty that the verdict might have been different had the error not been made. The court cannot speculate as to what might have happened had the trial judge not directed a verdict. This case, however, presents unusual circumstances. Following the directed verdict of acquittal, Mr. Greenwood testified . . For all practical purposes, the trial proceeded as though Mr. Greenwood was still an accused. The trial judge accepted Mr. Greenwoods evidence. Had the motion for a directed verdict been dismissed, I am satisfied that Mr. Greenwood would inevitably have testified in his own defence as he did when he was called on behalf of [the co-accused], and that the trial judge would have made the same finding with respect to his credibility.
208.

203. 204.

205. 206.

207.

. . . . .

209. 210.

In the circumstances, the Crown cannot demonstrate with any degree of certainty that the verdict as regards Mr. Greenwood might well have been different had the trial judge not erroneously directed his acquittal at the end of the Crowns case. The appeal from his acquittal must be dismissed.
212.

211.

[emphasis added]

213. 214.
2

I n Collins, the Crown successfully appealed a directed verdict of acquittal on

charges of second degree murder. The defence argued that there was no substantial wrong or miscarriage of justice caused by the acquittal because the Crown had failed to show with any reasonable certainty that the outcome would have been any different after

24

a trial. In considering this argument, Arbour J.A. (as she then was) wrote (at pp. 17072):
215. 216.

There is no doubt that, despite the silence of the Criminal Code on the point, in the case of an appeal by the Crown from an acquittal, the Court of Appeal is entitled to consider whether a substantial wrong or miscarriage of justice occurred, and to dismiss the Crown appeal, despite having found an error of law at trial, if no such wrong or injustice did occur (R. v. Vezeau R. v. Morin, [1988] 2 S.C.R. 345 R. v. Finta (1992), 73 C.C.C. (3d) 65 (Ont. C.A.), at pp. 207-08 . All these were cases where the Crown was appealing an acquittal entered by a jury, after a determination of the case on the merits. Here, the case was aborted prematurely by a wrongful ruling that there was no case to answer. The accused were not put to their election and it is impossible to speculate as to what evidence the jury would have had to consider had the case been allowed to proceed as it should have. In strictly procedural terms, the Crown was also effectively deprived of its entitlement to have its case decided by a jury. Counsel for the respondents have not provided us with any authority in which a court of appeal has concluded that no substantial wrong or miscarriage of justice had occurred as a result of a wrongly directed verdict of acquittal in a trial by jury. .
220.

217. 218.

219.

. . . . .

221. 222.

As well in Monteleone McIntyre J. indicated that the sole issue in the appeal was whether the matter should have been left to the jury. There was no consideration by the Supreme Court of the application of s. 686(1)(b)(iii) of the Code. . The recent decision of this court in R. v. Greenwood also a case involving a trial by judge alone, illustrates the near impossibility of applying the proviso in the case of a jury trial. . . Ultimately, it is only in rare cases that the court of appeal will be in a position to conclude that no substantial wrong or miscarriage of justice has occurred despite a wrongly directed verdict of acquittal. This, it appears, has yet to occur in the case of a jury trial.
228.

223. 224.

225. 226.

227.

[emphasis added]
229. 230. 231.

Page: 25
232.
2

Arbour J.A. explained that the defence argument was too speculative (at pp.

173-74):
233. 234.

.... Even if both the respondents elected not to testify, the case that would go to the jury would not necessarily be the same as the case for the Crown on the motion for a directed verdict. There is, of course, no way of anticipating what evidence would have been called by the defence. . It is too speculative for an appellate court to assume what position the defence would have taken, had it been called upon to elect, to assess the evidentiary consequences of that speculative decision, and then to determine whether a conviction based on that hypothetical scenario would be unreasonable. The fact is that the Crown was entitled to have its case answered by the defence and determined by the jury.

235. 236.

In her concurring judgment in Collins, Weiler J.A. also commented on the extent of the burden on the Crown, especially in an aborted jury trial (at p. 182):
237. 238.

In a jury case, the trial judges view of the evidence is entitled to no deference as the judge is not the trier of fact. It should not be too difficult for the Crown to show, therefore, that the trial judges misdirection to the jury to acquit could have affected their verdict and the result would not necessarily have been the same.

239. 240.
2

The Collins approach was confirmed by the Ontario Court of Appeal in R. v.

Seth (L.W.) (2001), 147 O.A.C. 101, where a new trial was ordered because it was not the rare case referred to in Collins (at para. 108).
241.

To conclude, the Crown does have the burden to demonstrate that the legal error may have impacted the verdict of acquittal. However, it will be only in exceptional circumstances that the Crown will not be able to demonstrate the verdict may be different after a new trial. Appellate courts cannot speculate as to what might have occurred if the trial had proceeded. Therefore, it will be rare that an appellate court will not order a new trial after determining that a directed verdict of acquittal was an error of law, particularly when the trial was with a jury.

26 242.

Given that conclusion, I will briefly address the accuseds argument that acquittals of the accused, after a new trial, are a certainty given that the Crown cannot present the corroborative evidence required by s. 133 (perjury) of the Code. to the principles just articulated.t The accuseds other arguments, in my view, clearly call for this court to speculate, contrary

243. 244. 245. 246.

2 Section 133 of the Code reads:

Corroboration 133 No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.

247. 248.
2

I n R. v. Evans (D.L.) (1995), 102 Man.R. (2d) 186 (C.A.), a case involving a

charge of perjury against a Winnipeg police officer, this court explained the elements of the offence of perjury (at paras. 34-37):
249. 250.

The elements required to be proved to support a conviction for perjury were set forth by the Supreme Court in the leading case of R. v. Calder, [1960] S.C.R. 892. . Therefore Calder and a plain reading of s. 131(1) make it clear that knowingly giving false evidence is not enough for a conviction. There must, in addition, be an intent to mislead. It is incumbent upon the Crown to prove not only that the accused lied but that he did so for the purpose of misleading the court. It is not necessary that the false statement actually mislead the court, but only that the accused intended to mislead the court: R. v. Regnier (1955), 21 C.R. 374; 112 C.C.C. 79 (Ont. C.A.). Mere recklessness, however, is not enough: R. v. Besner (1975), 33 C.R.N.S. 122 (Que. C.A.); see also R. v. Doyle (1906), 12 C.C.C. 69 (N.S. Co. Ct.). Cartwright, J., also added in Calder that absent evidence to the contrary, the intent to mislead could be inferred from evidence establishing that the accused gave false evidence knowing it to be false. .

251. 252.

253. 254.

255. 256.

257.

Page: 27
258.

2 The requirement for corroboration under s. 133 is not an essential element of

the offence, but merely an evidentiary requirement. See R. v. Vasarhelyi (P.), 2011 ONCA 397, 278 O.A.C. 95. Nonetheless, a lack of corroborative evidence can lead to a directed verdict of acquittal. See, for example, R. v. Parsons (G.J.) (1992), 100 Nfld. & P.E.I.R. 260 (Nfld. C.A.), and McWilliams at para. 31:30.10.

259.

2 It is important to note that the law regarding the more common form of
confirmatory evidence arising from Vetrovec v. The Queen, [1982] 1 S.C.R. 811, does not apply to cases involving perjury. See R. v. Neveu (2004), 184 C.C.C. (3d) 18 (Que. C.A.). Instead, the more rigid historical concepts of corroboration continue to apply to perjury cases.p

260.

2 The jurisprudential trend in perjury trials is that the material particular

requiring corroboration is the falsity of the statement alleged as perjury. Monnin J.A. (as he then was), in his dissenting judgment in R. v. Bouchard (1982), 13 Man.R. (2d) 344 (C.A.), commented on this (at para. 17):
261. 262.

In other words, the material particular in which corroboration is required is the falsity of the statement alleged as the perjury. The purpose of this rule is to protect an accused from the false testimony of a single witness swearing against him and saying that the accused lied. It has been said that the court should not be left with one oath, (that of the witness) against another oath, (that of the accused). It used to be said that where there is only oath against oath, it stands in suspense on which side the truth lies. That is simply not sufficient proof in a serious charge of perjury.
264.

263.

[emphasis added]

265. 266.

2 As explained in Morris Manning, Q.C. & Peter Sankoff, Manning, Mewett &
Sankoff: Criminal Law, 4th ed. (Markham: LexisNexis Canada Inc., 2009) (at p. 638):
267. 268.

The classic definition of corroborative evidence is independent proof that affects the accused by connecting him or her with the crime. .

28 269. 270.

The corroboration required must be of a material particular implicating the accused, but what is material will depend on the facts of the case. From a practical perspective, what usually needs to be established is the falsity of the statement or the accuseds knowledge thereof. . . [T]he corroboration requirement is not avoided merely by the presence of multiple witnesses. Rather, there must be more than one witness whose evidence deals in a substantial way with a material particular of the false oath which is alleged.
274.

271. 272.

273.

[emphasis added]
275.

276.

2 Here the essence of the alleged falsity is that the accused entered Room 1707 only once, after obtaining the warrant, rather than twice, as alleged by the Crown.

277.

2 As explained by Doherty J.A. in R. v. Bosley (M.) (1992), 59 O.A.C. 161,

when determining whether certain evidence confirms or supports the evidence to be corroborated in some material particular and implicates the accused in the crime, the totality of the circumstances revealed by that evidence must be considered (at para. 65).

278.

2 Neveu is a more recent decision concerning perjury and the need for
corroboration. In that case, a police officer was alleged to have made two false statements in an information to obtain a search warrant sworn before a justice of the peace. He was convicted at trial. On appeal, the court explained why the Vetrovec approach was not applicable to perjury cases and that in this area, corroboration must 1) concern one of the material particulars of the offence and 2) implicate the accused in relation to this material particular (at para. 14). The court explained that (at para. 17):
279. 280.

. It is therefore not sufficient that the corroboration concern a neutral element; it must constitute independent proof which connects, or tends to connect, the accused to one of the essential elements of the offence. In practical terms, it therefore suffices that the corroboration concern the false nature of the statement, thereby implicating its author (the accused) in a material particular: as s. 133 provides, the corroboration need only involve one of the essential elements. .

Page: 29
281. 282.
2

However, the court also opined that if the Crown relies solely on circumstantial

evidence, corroboration is not required. It reasoned as follows (at para. 19):

283. 284.

. The very essence of circumstantial evidence, which requires that everything be considered as a whole, entails that a part of this evidence, on its own, would not be enough to permit a finding of guilt on a charge of perjury. As a result, s. 133 is inapplicable in the case of circumstantial evidence because it requires corroboration only when an accused can be found guilty of perjury on the evidence of only one witness.
285. 286.

See also R. v. Reyat, 2012 BCCA 311 (QL).

287.

2 I do not have the benefit of a ruling from the judge on the issue of
corroboration. I understand the accuseds argument to be that the Crown did not present any evidence from another person to confirm Hrechkas testimony, which the Crown says puts the accused into Room 1707 before the warrant was issued. Therefore, they say that the requirement of corroboration of a material particular cannot be satisfied at a new trial, given that the Crown acknowledged that there is no other evidence on this point that the Crown will be able to call at a new trial.

288.

2 Whether the evidence of Hrechka is the one witness contemplated by s. 133, thus demanding corroboration, need not be decided, nor, in my view, should it be. In addition to Hrechkas evidence, there was a great deal of other evidence presented at the trial, much of it circumstantial, which may have fulfilled the requirement of s. 133. However, because of the directed verdict, the jury did not have an opportunity to assess it in the context of instructions on the law. The accuseds corroboration argument invites this court to engage in speculation contrary to the principles that I articulated earlier. This is not one of those exceptional cases where an error of law in directing a verdict of acquittal should not result in a new trial.

30 289. 290.

Conclusion

2 I conclude that the judge erred in law when she directed the verdicts of
acquittal on the basis that there was no identification evidence of the accused for the jury to consider and that the Crown has met its burden to demonstrate that a new trial must be ordered.

291.

2 I would allow the appeals, set aside the acquittals and order a new trial.
292. 293. 294.
2 u

J.A.

295. 296.

I agree:
297.

J.A.

298.

I agree:

J.A.