R. v. Swain

2010 BCSC 367 R. v. Swain IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Swain, 2010 BCSC 367 Date: 20100303 Docket: 147070 Registry: Victoria Regina v. Chris Michael Swain Before: The Honourable Mr. Justice Schultes Oral Reasons for Judgment Counsel for Crown: C. Smith Counsel for Defence: J. Watt Place and Date Trial: Victoria, B.C. March 2 - 3, 2010 Place and Date of Judgment: Victoria, B.C. March 3, 2010 [1] THE COURT: Chris Michael Swain is charged with committing the robbery of Lani David, a customer services representative at the Bank of Montreal on Menzies Street in Victoria, on February 26, 2009. There is no issue that at about 1:23 p.m. on that day, Ms. David was robbed by a man while she was on duty at the bank. The question that needs to be resolved is whether the Crown has proven beyond a reasonable doubt that this man was Mr. Swain. [2] Ms. David described a male coming to her service counter at the bank and handing her what looked like a crumpled single sheet of paper from a magazine or a flyer on which was written words to the effect "give me twenties, fifties, and hundreds, and I will not hurt anybody." She described the male as being in his mid-twenties, not more than 30 years old, 5'7" or 5'8" tall, weighing 170 pounds, of medium build, wearing a black fleece hoody (which means a hooded sweatshirt) with letters on it, and blue jeans. He also wore a white ball cap on his head with the hood of the hoody pulled over it, as well as large, dark sunglasses. All Ms. David could remember about his face was that he was "a white guy." She did not remember whether he wore a goatee beard. [3] In terms of the overall cleanliness of his appearance, he looked like a regular customer. She was very frightened during the robbery and did not really want to look at him. [4] Ms. David was later shown a photo pack containing a photograph of Mr. Swain but was unable to make a selection of the person who committed the robbery from among the photos shown to her. She was not asked to identify the robber in court, but I consider that to be a proper approach by Crown counsel in view of the opinion expressed by the Supreme Court of Canada in R. v. Hibbert, [2002] 2 S.C.R. 445 at paras. 44-53, which is to the effect that following a failed photo line-up identification by a witness, his or her identification of the accused in the dock is of little weight and can be extremely prejudicial. [5] Once the robbery was in progress, Ms. David summoned her assistant manager, Kristin Jeaurond, who then made observations of the robbery and eventually gave the money from Ms. David's cash drawer to the robber. Ms. Jeaurond described the male as being in his mid to late twenties, in the vicinity of 5'7" to 5'8" tall, and weighing in the 200-pound range with a full build (by which she meant not skinny but not overly muscular), having sunken-in dark eyes and a blank stare. She thought he was wearing a white hoody with a black toque with the hood of the hoody being worn over the toque. She did not recall the robber wearing anything on his face. She would not have picked this robber out as the type of person, in terms of the respectability of his appearance, who would be likely to commit a robbery, based on her previous experience working in the bank. [6] She also saw the robbery note and described the writing on it as being slanted and hurried. She had some difficulty reading its second line. [7] She picked someone other than Mr. Swain as the robber when she was shown a photo pack by the police. She identified Mr. Swain in court without having been asked by Crown counsel but later expressed the belief in cross-examination that it was not proper for her to have done so. My comments in respect of this aspect of Ms. David's evidence apply equally to Ms. Jeaurond's in-court identification, and I attach no significance to it. [8] Surveillance cameras were operating in the bank during the robbery and four video excerpts of it as well as three still photos extracted from those videos have been placed in evidence. The video and still photos fall into three basic stages. First, a male is seen entering the front door of the bank. Second, he is seen at the counter with his right hand on top of a piece of paper that I infer is the robbery note and then leaning forward over the counter. Third, the robber is seen turning his profile away from the camera with the right side of his body facing towards the camera. [9] The nature of the video recordings makes the actions that they record appear to unfold as a linked series of still images. The photos extracted from the recordings, which are contained in the booklet entered as Exhibit 2, are somewhat pixelated; that is, the individual squares that form the digital images are visible, which leads to a blurring of what is shown. [10] What is clear in the images and what I find they are sufficient to establish is that the robber was a male wearing a dark-coloured, hooded sweatshirt with the letters "UFC" emblazoned on the front in white, light blue pants that could be jeans, a white baseball hat with a dark logo on the front, with the hood pulled over the top of the cap. This person was also wearing dark glasses, and there is a discolouration in the area of the lower lip and chin that could be a closely trimmed goatee beard. [11] Melissa Manning is a friend of Mr. Swain who was called by the Crown to give evidence that the person shown in the video appeared to be very similar to him. This is described in the case authorities as recognition evidence and it is admissible if the person seeking to provide it meets a threshold level of familiarity with the accused subject to an assessment of its ultimate weight in the trial. Following a voir dire, I found that such a threshold level of familiarity had been met by Ms. Manning, and I admitted her evidence on the trial. [12] Ms. Manning has known Mr. Swain for 12 years. They had an intimate relationship early on and then remained friends in the years following. In the five years leading up to the robbery date, she saw him twice: once when he stayed at her house for about a week and then in the days leading up to the robbery. She lived on Menzies Street in Victoria about, in her words, "a block and a bit", or three or four minutes' walk from the Bank of Montreal that Mr. Swain is accused of robbing. [13] On the 23rd or 24th of February, she was working at the McDonald's restaurant on Douglas Street in Victoria when Mr. Swain suddenly appeared at the counter. She had no difficulty recognizing him. She then took a half an hour break from work to sit and have lunch with him. They caught up with each other. He said he was living in Vancouver but that he had come over to visit his ailing grandfather. They exchanged phone numbers. She said that Mr. Swain knew where she was living; it was the same place that she had been living when he stayed with her before. [14] She described his appearance at that time as 5'6" or 5'7" tall, in the range of 170 to 180 pounds. She is aware of his birth date because it is the same as hers, and he would have been 30 years old at the time she saw him in February 2009. At that time, he wore a "thinner" goatee, very clean, short and trimmed, and the hair on his head was short. He wore a white ball cap with some sort of logo on it, and a dark hoody with "UFC" on it. This stands for, in her explanation, "Ultimate Fighting Championship," which is a popular form of mixed martial arts competition, and she has attended its events in the past. [15] Mr. Swain's overall appearance at that time, in her view, was very neat and well groomed. When she looked at it in court during her evidence, she thought he looked "a bit bigger" than he had in February 2009, and by "bigger," I think, she referred to his overall weight or bulk. [16] Later that night or the following night she saw him again on Douglas Street when she was on her way to an evening out with her girlfriends. He was walking with a blonde woman whom she did not know. She asked Mr. Swain to give her a call. He was wearing a coat at that time, so she could not see whether or not he had the UFC hoody on underneath. [17] On the 26th of February at about 10:10 p.m., Mr. Swain phoned her. He said he was on the ferry back to Vancouver. He told her that he had stopped by her place and left her a note because she did not answer the door. He had left his bags there and came back later and knocked again. She said she was at home at that time but likely did not hear him because she was in bed suffering from a migraine and had taken medication. When she checked outside afterwards, she found a note from him, as he had described. It was on a half-sheet of paper, and she described his handwriting as being a bit difficult to read. [18] Later that night she was watching the 11 o'clock news on CHEK TV and saw an item about the Bank of Montreal down the street having been robbed that day. She then turned to the A-Channel, another television station in Victoria, which broadcast the same item, this time with a still photo taken from the surveillance cameras during the robbery. She said she was on the phone with a friend at that time, and she expressed that this guy "could be Chris", was very similar-looking, and that Chris "could have a twin" - Chris being Mr. Swain, the accused. [19] She said in relation to this photo that his clothing stood out and that he had "a bit of build look about him [sic]," the "stance of his build" was very similar, and he "had broad shoulders and stuff too." However, she could not be satisfied that the person had a full goatee. In addition, she said something told her that it might not have been Mr. Swain who committed the robbery, in particular, how well he had been doing in his life when she spoke to him. [20] She was aware from the news item that the police wanted assistance with the robbery investigation, but she did not contact them, she said, because of her uncertainty about whether or not Mr. Swain was actually the robber. She could not be 100 percent sure. [21] On May 7, she said that two Victoria police detectives came to her home. After a brief visit of 20 minutes' duration, they came back later and showed her a photo from the robbery. This is the still photo from the counter that is contained in Exhibit 2, Tab 2, bearing the time indication 13:23:49. They also showed her seven photographs from other robberies in B.C. in which Mr. Swain was apparently a suspect. [22] Ms. Manning agreed on cross-examination that when she looked at the photo from the Victoria robbery she had some doubt, that is, about the identity of the robber being Mr. Swain, but after she saw the photos from the other robberies, "that confirmed it." She also agreed that she was told by the police going into this process that it was Mr. Swain they were investigating. [23] Finally, of significance, she agreed that UFC events are very popular and that many fans attend them wearing hoodies of the kind that was worn by Mr. Swain when she saw him. [24] I permitted the Crown to lead from retired Detective Connors, the investigating officer, the statement made by Ms. Manning to him when she identified the photo of the Victoria robbery as being a photo of Mr. Swain. In that statement, Ms. Manning said, in reference to her identification, "that's a guarantee" because Mr. Swain had the same UFC sweater on when he visited her as is shown in the photograph. Further, in the statement to Detective Connors she said that when she saw the news item she "almost hit the floor. I said, 'That's my ex.'" [25] However, the purpose of this statement is only to allow me, as the trier of fact, to make an informed judgment about the value of any purported identification (analogous to understanding the vantage point of an eyewitness to a crime), and it is not admissible as substantive evidence of identification: see, for example, R. v. Campbell, 2006 BCCA 109 at para. 97. [26] Ms. Manning was referred to the video and still photos from the robbery. With respect to the photo of the robber entering the bank, she said that she could not identify the person because of how gritty the photo is but she could "mildly see" the UFC letters on the top the person was wearing. She said the person had the "broader shoulder look" quite similar to Mr. Swain, but she could not say for sure if it was him. [27] With respect to the photo at the counter, she said that the person's face was "a little bit round" and there was possibly a goatee, but again, she could not say 100 percent that it was Mr. Swain. She noted a resemblance to the hand of the robber on the counter to Mr. Swain's hand in that he has thicker hands and not "piano fingers," a phrase which I understand to mean slender fingers suitable to a proficient pianist, and that they are similar to her own hands, which have been described by others as being "like a paw." [28] In relation to the video clip of the robber entering the bank, she described this person's stance as being very similar to Mr. Swain's. She was "pretty sure" that the UFC hoody was identical but could not be sure of the hat. She had not noticed what Mr. Swain was wearing on the bottom half of his body during their dealings, so she could not comment on that aspect of what is shown in this video clip. [29] In relation to the clip of the robber leaning on the counter, all she noted was that the individual was broad-shouldered and that he leaned on the counter in a similar fashion to the way Mr. Swain had leaned on her counter when he came to McDonald's. [30] As to the clip of the robber turning in profile, she noted the kind of roundness to the face that she associated with Mr. Swain but could not say, once again, 100 percent that it was the same person. [31] Overall, she described the person depicted in the video and photographs as "very, very, very similar to Chris," but once again, she could not be 100 percent sure. The clothing was the same. She said the photos were "not the clearest". [32] My overall impression of Ms. Manning as a witness was that she was at pains wherever possible to emphasize her lack of certainty about her recognition of Mr. Swain, I infer based on sympathy towards him and a desire to avoid being seen as the one who was primarily implicating him in this robbery. I also infer, based on the narrative in the evidence, that her position has become more pronounced since she originally viewed the news item depicting the robber and spoke to the police. [33] The Crown's case relies on what Crown counsel says is the cumulative force of the various individual pieces of circumstantial evidence. While fairly conceding that Ms. Manning's recognition evidence is insufficient in itself to support a conviction, Crown counsel points to what are characterized as other compelling features of the evidence that, in the Crown's submission, cumulatively point inevitably towards guilt, such as my own ability as the trier of fact to review the video and photographic evidence and come to my own independent conclusion about whether the accused is the person depicted in it; the conformity between the eyewitnesses' description of the short stature of the robber and Ms. Manning's personal knowledge that Mr. Swain is indeed in the range of 5'6" to 5'7" in height, which is argued to be a relatively distinctive personal feature; the conformity between Ms. Manning's observations that Mr. Swain was well groomed when they met and similar observations by the eyewitnesses in contrast to what they might normally expect from a person engaged in robbing a bank; the somewhat distinctive nature of the UFC-type hoody worn by the robber and the one Mr. Swain wore during roughly the same time period, in contrast to what Crown counsel gave as examples of more ubiquitous brands of clothing that one encounters being worn in public; the physical proximity of Mr. Swain to Ms. Manning's residence which is, in turn, close to the bank that was robbed during the critical period of days; and the use of the half-sheet of paper for both the robbery note and the note left at Ms. Manning's residence and the difficult-to-decipher handwriting placed on both. [34] In response, counsel for Mr. Swain submits that, taken as a whole, the Crown has not proven the case to the required standard. He says that Ms. Manning's evidence should, in itself, raise a reasonable doubt on the critical issue of identification, given its inherent degree of uncertainty, or, that failing that, that her evidence should be given no weight because of the improper way in which the police elicited her initial confirmation that Mr. Swain was the person depicted in the robbery surveillance photo. [35] In addition, counsel for Mr. Swain emphasizes what he describes as a critical absence of forensic evidence from the robbery scene or items left by the robber, the critical errors of Ms. Jeaurond in describing the robber in light of the inherent frailties of eyewitness evidence and the poor quality of the video and photographs as further factors making a reasonable doubt on the issue of identification inevitable. [36] I approach this as a case that depends on the cumulative inferences that can potentially be drawn from individual pieces of circumstantial evidence. Accordingly, before there can be a conviction, the evidence must be consistent only with the guilt of the accused beyond a reasonable doubt and inconsistent with any other rational inference. [37] Ms. Manning's evidence, taken at its highest, is that the robber appears extremely similar to how Mr. Swain appeared during that same time period but that she cannot be sure it is him in the photographs. The robber is also clad in a hoody that appears identical and a hat that appears similar to ones that he wore in her presence two or three days earlier. [38] I agree with Crown counsel that, standing alone, this evidence is insufficient to support a conviction. It has some weight and value in an analysis of the circumstances, but it cannot be conclusive. [39] I disagree with defence counsel's submission that the police conduct in showing Ms. Manning the other robbery photos and in letting her know that the subject of their inquiries was Mr. Swain renders her evidence completely valueless. [40] In R. v. Anderson, 2005 BCSC 1346, which was relied on by counsel for Mr. Swain in relation to the principles applicable to recognition evidence, Madam Justice Smith, at paras. 26-31, goes on to consider recognition evidence in the context of the procedural safeguards for identification evidence that were recommended in the Sophonow Inquiry and concludes that those safeguards are inapplicable because the purported recognition witness already knows the subject and the question is simply whether he or she can be recognized in the photo. [41] There is no question that the process by which a recognition witness arrived at the degree of certainty expressed in his or her evidence will always be a relevant factor, and the more objective the police can make such a process, the better for all concerned. But the danger of tainting by suggesting who is in a particular photo, which is the critical concern in obtaining identification evidence from eyewitnesses who are unfamiliar with an accused, is addressed by the fact that a recognition witness is selected for his or her very familiarity with the subject. The ability to distinguish the subject from others is not the faculty being examined. [42] In assessing the probative force of the circumstantial evidence, perhaps the most useful question to ask is: what is the likelihood that another male of Mr. Swain's approximate age, weight, height, and bodily proportions, sporting a similarly trimmed goatee beard and wearing an identical UFC hoody and a similar type of ball cap, was in the vicinity of the Bank of Montreal on Menzies Street during the period of February 23 to 26, 2009? [43] Firstly, a male of Mr. Swain's age and dimensions wearing a goatee is a very familiar sight on the streets of any city such as Victoria. Although I do not think the popularity of UFC-branded clothing is sufficiently well known or notorious that I can take judicial notice of it, the only evidence on this point, which I accept, is from Ms. Manning, who described such items as being frequently worn at UFC events. It is certainly not a distinctive enough item to rule out the possibility of it being worn by someone else through innocent coincidence. Nor is a white cap with a black logo an extremely distinctive item, either in itself or when worn in combination with a dark hoody sporting the letters UFC. [44] With respect to the proximity of the robbery location, if I accept Ms. Manning's evidence of the phone conversation that she had with Mr. Swain (and there seems no reason not to accept it), he was at her residence twice on the robbery date. This is quite a suspicious circumstance. On the other hand, it seems unlikely that a person would commit a robbery so near the residence of a friend whom he intended to visit and, either before or after it, call that friend's house twice and, on one of those calls, leave his personal belongings there, only a block or so from witnesses who could still potentially recognize him. [45] With respect to the similarity of the robbery note and the note left at Ms. Manning's residence and the handwriting on it, I do not consider these to be sufficiently precise or distinctive factors to play a significant role in my analysis. I would say the same about the fact that the robber leaned over the counter in a way similar to what Ms. Manning described Mr. Swain doing at her McDonald's counter. [46] Ultimately, I find that while the evidence narrows the field of potential suspects significantly, it does not exclude others to a significant enough degree to be inconsistent with someone other than the accused having committed the robbery. In reaching this conclusion, I am not seeking to minimize in any way the high degree of suspicion that attaches to this combination of factors. Circumstantial evidence, after all, operates by accumulating sufficient weight to exclude innocent coincidence, and of course, parsing the evidence back into its original elements for the purposes of my analysis risks losing sight of this. My point is merely that the accumulated weight of the factors present here does not draw the noose tight enough, so to speak, to exclude another rational conclusion, which is that a person similar in appearance committed the offence. [47] Finally, there is my own ability as the trier of fact to review the video and photographic evidence and come to my own conclusions. Having reviewed the material, I do not find the evidence of sufficient clarity to allow me to compare it with any degree of confidence to the accused either as he appears in court or in the police photo of him that was included in Exhibit 2. The slight protrusion of his lower lip and the shape in which his goatee is trimmed are intriguing similarities but they do not have a degree of distinctiveness that I would feel comfortable resting a conviction on in themselves. [48] On the whole of the evidence, while I would have no difficulty being satisfied that Mr. Swain likely committed this robbery, I have a reasonable doubt that he did so based on the ultimate inability of the circumstantial evidence to exclude an alternative perpetrator. Accordingly, I find him not guilty. "Schultes J."