R. v. Gagnon, 2000 CanLII 16863 (ON CA)

DATE: 20000915

DOCKETS: C24985 and C25069

COURT OF APPEAL FOR ONTARIO

CATZMAN, WEILER and LASKIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) David Finley, for the respondent

(Respondent) )

–and– )

YVON ROMÉO JOSEPH GAGNON and ) Marie T. Henein, for the appellant

ANDRÉ DONALD GAGNON ) Yvon Roméo Joseph Gagnon

(Appellants) ) David M. Tanovich and

) James Lockyer, for the appellant

) André Donald Gagnon

) Heard: May 17, 18 and 19, 2000

On appeal from the convictions imposed by The Honourable Mr. Justice Paul A. Dilks and a jury dated July 28, 1995 and on appeal from the sentences imposed by Dilks J. dated August 25, 1995.

WEILER J.A.:

Background

1Following a trial by judge and jury, the appellants, Yvon and André Gagnon, were convicted of one count of conspiracy to commit robbery on July 28, 1995. Yvon Gagnon was sentenced to 12 years imprisonment and André Gagnon to 8 years. In addition, the trial judge imposed a compensation order in excess of $1,000,000 on the appellants and another co-conspirator, Denis Lecompte. The appellants appeal their convictions and sentences in respect of the compensation order. In addition, André Gagnon appeals the length of his sentence of imprisonment. In sentencing the appellants, the trial judge made certain findings which provide a helpful context within which to discuss the issues:

On ... March 26, 1991, members of the conspiracy robbed at gunpoint a Brink's armoured car, which was in the course of picking up and delivering money and securities at Yorkdale Mall in Toronto. The sum of $361,000 was stolen; none has been recovered. The robbery was planned and reasonably sophisticated as was the escape route and the use of at least two sets of escape vehicles. Although I am not prepared to find on the evidence that any of these three offenders were present at the scene, it is clear that at least Yvon Gagnon took a large share of the proceeds, from which, during the spring and early summer of 1991 following the robbery, he made several large cash purchases.

The next robbery was at Lawrence Square in Toronto on November 19, 1991. This time it was a Loomis armoured car and $802,000 was taken, again without recovery. The proceeds would have been greater but for the ingenuity and bravery of the Loomis driver, who, despite the fact that one of the robbers had placed what appeared to be a bomb on the hood of his truck, drove his truck in such a way as to ram the getaway car causing the bandits to take early flight. I am satisfied on the evidence, that the two gunmen were Denis Lecompte and the unindicted co-conspirator Michel Gagnon, brother of Yvon and Andre Gagnon. The two gunmen wore disguises. As at the Yorkdale Mall, the guard was forced to the ground at gunpoint and was disarmed. The getaway cars were stolen vehicles; several cars were stolen by members of the conspiracy for robbery purposes.

In October of 1992, Yvon Gagnon, Andre Gagnon and Michel Gagnon all armed and in double-clothing drove from a rendezvous north of the City of Kingston into that city to a shopping mall with the intention of committing a similar armed car robbery. However, the armoured car was late and this, coupled with the fact that they were unable to get their car close enough, caused them to abort the attempt. A week later, Yvon Gagnon and Michel Gagnon went in for a dry-run but found that the police were there. The Kingston project was thereupon abandoned.

In early 1993, the gang planned a similar robbery at Billings Bridge Plaza in the City of Ottawa. To get what was described as “seed” money, they robbed at gunpoint on February 8, 1993 a Pharma Plus employee of the sum of $4,400 which she was taking to the bank at the Elmvale Plaza in Ottawa. Michel Gagnon was the bandit on that occasion. The Billings Bridge robbery took place about two weeks later but was thwarted by the police. Michel Gagnon and Robert Elder were captured by the police before the robbery could take place. Each of them was sentenced to a total of four years for conspiracy to commit robbery.

Each of the three offenders before me for sentence has played a different role in the conspiracy. Yvon Gagnon was the acknowledged leader. It was he who remained a member of the conspiracy from the beginning to the end. He planned the operations and with his brother Michel did the reconnoitering. He also tried to launder the Lawrence Square robbery proceeds but unfortunately he put the money into what turned out to be a losing venture. He participated in the Kingston attempts and was also involved in the planning of Elmvale and Billings Bridge. Andre Gagnon arranged for persons like Robert Elder and Brian Anderson to steal cars. He was part of the planning process and he also participated actively in the abortive Kingston run.

Denis Lecompte was an early member of the group. He assisted in the planning and was the gunman at Lawrence Square. He appears to have dropped out thereafter.

Issues

2The issues in this appeal can be grouped into three categories: issues relating to both Yvon Gagnon and André Gagnon; issues relating to Yvon Gagnon; and issues relating to André Gagnon.

3As argued by counsel the appellants raise the following common grounds of appeal with respect to conviction:

(i) that the trial judge erred in characterizing evidence as corroborative evidence of the testimony of the two accomplices, Robert Elder and Brian Anderson;

(ii) that the learned trial judge erred by permitting the jury to consider hearsay acts and declarations of co-conspirators when deciding whether the appellants were probable members of the conspiracy;

4The appellant Yvon Gagnon raises the following additional grounds of appeal:

(i) that the trial judge erred in refusing to edit Yvon Gagnon’s criminal record to exclude a 1982 conviction for manslaughter;

(ii) that the trial judge erred in charging the jury with respect to Yvon Gagnon’s purported threat to kill Robert Elder; and

(iii) that there is a serious possibility that lost portions of the transcript of trial proceedings would have revealed an error and/or deprived Yvon Gagnon of a ground of appeal.

5The appellant André Gagnon raises the following additional grounds of appeal:

(i) that the trial judge erred in admitting the in-court identification evidence of Brad Bradburn as its prejudicial effect outweighed its minimal probative value;

(ii) that the trial judge erred in not carefully instructing the jury to avoid finding the appellant André Gagnon guilty simply because of his relationship to Michel Gagnon and his membership in a motorcycle gang;

(iii) that the trial judge erred in not declaring a mistrial once a number of jurors saw André Gagnon in shackles outside of the courtroom; and

(iv) that the verdict is unreasonable or not supported by the evidence.

6With respect to sentence the appellants both submit that the trial judge erred in imposing a compensation order. In addition, the appellant André Gagnon submits that his eight year sentence was excessive in all the circumstances of the case.

7For the reasons that follow, I would dismiss the appeal of Yvon Gagnon relating to conviction and sentence. I would allow the appeal of André Gagnon relating to conviction on the basis that the trial judge did not instruct the jury to avoid finding André Gagnon guilty simply because of the evidence of bad character led against him by his co-accused, Yvon Gagnon.

I. The Conviction Appeals

A. Common Grounds

ISSUE I: Did the trial judge err in characterizing evidence as corroborative evidence of the testimony of the two accomplices, Robert Elder and Brian Anderson?

8The evidence of Robert Elder and Brian Anderson was central to the Crown’s case against the appellants. Unless their evidence was believed, the jury could not have convicted the appellants. The position of the defence at trial was that the evidence of Elder and Anderson should be disbelieved because they were accomplices and otherwise of unsavoury character. The trial judge appropriately exercised his discretion in accordance with R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.) and cautioned the jury about relying on their evidence unless the jury found corroboration for it.

9When a Vetrovec warning has been given, it is within the trial judge’s discretion to refer to the evidence that is capable of supporting the credibility of an unsavoury – or suspect – witness. In this case, the trial judge referred to certain items of evidence. The appellants submit, however, that the evidence to which the trial judge referred was not capable of confirming the testimony of Elder and Anderson that Yvon and André Gagnon were engaged in a conspiracy to commit robbery. As a result, the appellants submit that the trial judge erred in his charge to the jury and undermined the Vetrovec warning he had given.

10Before turning to the particulars of the trial judge’s charge to the jury, it is helpful to briefly review the law. In Vetrovec, supra, at p. 13 Dickson J. stated:

The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. This is because, as Wigmore said, the matter of credibility is an entire thing, not a separable one (ibid., p. 424):

…whatever restores our trust in him personally restores it as a whole; if we find that he is desiring and intending to tell a true story, we shall believe one part of his story as well as another; whenever, then, by any means, that trust is restored, our object is accomplished, and it cannot matter whether the efficient circumstance related to the accused’s identity or to any other matter. The important thing is, not how our trust is restored but whether it is restored at all: [Emphasis in original.]

11In Vetrovec, the Court explained that there is no magic in the word “corroboration”. What the jury is to look for is other evidence that tends to convince us the suspect witness is telling the truth.

General Submissions on the Law of Corroboration

12The appellants raise four general submissions regarding the applicable law. Firstly, the appellants submit that, in order for evidence to be legally corroborative, it must be more consistent with the truth (as opposed to the falsity) of the suspect witness’ evidence on a vital or inculpatory aspect of his evidence. In support of their submission, the appellants quote the following statement at paragraph 8 of their factum from R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), a case decided prior to Vetrovec:

[E]vidence to be corroborative must be more consistent with the truth than with the falsity of the accomplice’s evidence on the vital issue or issues, and if in the view of the jury the facts, even though independently proved, are equally consistent with the truth as with the falsity of the accomplice’s evidence on the vital issue or issues, they are not corroborative.

13The statement quoted by the appellants from McNamara was made in the context of the court’s elaboration of the Baskerville rule which, it is well-known, Vetrovec overruled. The complete text of the statement at p. 278 of McNamara, supra, is:

2. An elaboration of the Baskerville rule, where circumstantial evidence is relied upon as corroborative, is that evidence to be corroborative must be more consistent with the truth than with the falsity of the accomplice’s evidence on the vital issue or issues, and if in the view of the jury the facts, even though independently proved, are equally consistent with the truth as with the falsity of the accomplice’s evidence on the vital issue or issues, they are not corroborative: Thomas v. The Queen, supra; R. v. Nalon (1973), 1973 CanLII 1343 (ON CA), 14 C.C.C. (2d) 49; R. v. Boyce (1975), 1975 CanLII 569 (ON CA), 23 C.C.C. (2d) 16, 7 O.R. (2d) 561, 28 C.R.N.S. 336. Another and, perhaps, preferable way of stating the Baskerville rule, where circumstantial evidence is relied on as corroborative, is that corroboration is independent evidence which makes it probable that the accomplice’s testimony with respect to the vital issue or issues is true: Warkentin et al. v. The Queen, supra, at p. 15 C.C.C., p. 372 S.C.R.; R. v. Boyce, supra. [Emphasis added.]

The comment of Moldaver J.A. in R. v. Krugel (2000), 2000 CanLII 5660 (ON CA), 143 C.C.C. (3d) 367 at 394 (Ont. C.A.) that the appellants submission “is a misguided attempt to turn back the hands of time” is equally applicable here.

14Second, the appellants submit that the corroborative evidence must emanate independently of the suspect witness. This is not entirely accurate as the decision in Murphy v. The Queen (1976), 1976 CanLII 198 (SCC), 29 C.C.C. (2d) 417 (S.C.C.), another pre-Vetrovec decision, illustrates. In that case a charge of rape was involved. Section 142 of the Criminal Code, as it then existed, spoke of corroboration of the complainant’s evidence “in a material particular” by “evidence implicating the accused”.¹ The issue in the appeal was whether the trial judge erred in instructing the jury that the distraught condition of the complainant as observed by her cousin whom she called for help and by the police officer was capable of constituting corroboration as

against him and dismissed Murphy’s appeal. Evidence that is corroborative need not emanate entirely independently of the suspect witness.

15Third, the appellants submit that the proposed evidence should significantly support the inculpatory aspects of the suspect witness’ evidence. This submission is also misguided: the proposed evidence does not have to point to the accused’s guilt. So long as the supporting evidence satisfies the trier of fact that the suspect witness is telling the truth about salient matters in the time frame of the events in question, the jury is entitled to take this evidence into account in deciding whether the suspect witness’ description of events can safely be relied upon to find the accused guilty: R. v. McCaw, [1998] O.J. No. 730 (Ont. C.A.), application for leave to appeal dismissed, [1998] S.C.C.A. No. 173; R. v. Betker (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.), application for leave to appeal dismissed, [1997] S.C.C.A. No. 461; Krugel, supra. An example will serve to make the point. In Betker, supra, the issue was whether the complainant, who alleged incidents of sexual abuse by her father that were said to have occurred over 25 years earlier when she was very young, could recall what happened accurately. The complainant recalled disclosing her father’s abuse to her mother on a Saturday night after her father had bathed her. She stated that, in the course of bathing her, the accused inserted his finger into her vagina causing her to bleed. She said that she reported this to her mother and pointed out the blood on her panties. The complainant’s mother denied receiving any such disclosure but did confirm that when her daughter was about eight she complained one evening about being bathed by her father and said that she was too old for this. The appellant submitted that this evidence was, at best, neutral and incapable of confirming the testimony of the complainant. Moldaver J.A., for the court, rejected this submission. He held that, in the context of the case, the mother’s evidence was capable of restoring the jury’s faith, if need be, in the complainant’s ability to accurately recall particular events from her childhood. As stated by Moldaver J.A. in Krugel, supra, at p. 395:

In light of Vetrovec, there is only one question that must be asked in deciding whether evidence is capable of being confirmatory – does the evidence strengthen our belief that the suspect witness is telling the truth?

16Fourth, the appellants submit that certain evidence given by the accomplices, that was either admitted or admitted and explained by the appellants, is “neutral” evidence and not capable of constituting corroboration. In McNamara, supra, at p. 277, the court stated:

A fact that is capable of being corroborative does not lose that quality because it is admitted, or admitted and explained. The Court in R. v. Boyce, supra, [1975] held that an explanation offered by the accused to account for an admitted fact capable of constituting corroboration, does not deprive the admitted fact of the character of being capable of constituting corroboration. The jury may reject the explanation, and it is for the jury to decide whether to accept the fact as corroboration.

Clearly then, potentially confirmatory evidence does not lose that quality simply because the accused person has provided a non-inculpatory explanation of the evidence. If the jury rejects that explanation, they may then decide to accept the evidence as confirmatory.

17The decision in McNamara, supra, also holds that since guilt may be established by circumstantial evidence, a number of circumstances collectively viewed may constitute corroboration notwithstanding that, viewed in isolation, each circumstance would be incapable of constituting corroboration.

18Having dealt with the appellants’ general submissions respecting the law, I shall now deal with the appellants’ submissions respecting specific portions of the judge’s charge concerning the evidence of the suspect witnesses, Elder and Anderson.

Specific Evidence the trial judge referred to as corroborative

19Elder admitted that he was a car thief, a liar, and a person with a lengthy criminal record. Elder’s evidence was that he stole the cars used in the robbery committed on November 19, 1991 at Lawrence Park and afterwards. He said that he stole the cars at the direction of Yvon or André Gagnon. He was caught red-handed at the Billings Bridge robbery with Michel Gagnon. In his first statement to the police, he inculpated other people but not the appellants. It was only after Elder was convicted of robbery and was about to be sentenced that he gave a statement to the police inculpating Yvon and André Gagnon. Elder was then sentenced to four years imprisonment.

20The appellants submit that the evidence to which the trial judge referred as being capable of confirming Elder’s evidence only confirmed that he stole cars and participated in robberies. It was not, according to the appellants, evidence independent of Elder that was capable of confirming an important aspect of his testimony that Yvon and André Gagnon were involved in the conspiracy.

21The appellants make the same argument in respect of Anderson’s evidence. Anderson was an admitted paid informant who was a cocaine addict. Without going into detail at this time, suffice it to say that he too had a lengthy criminal record and reason to lie. He was admitted to the witness protection program and received approximately $80,000 over the course of time for his assistance in this case. He was never charged in connection with a robbery that he admitted he had committed.

22Again, the appellants submit that the evidence referred to by the trial judge only confirmed that he disposed of a stolen car. It did not implicate him or the appellants in a conspiracy to commit robbery. As I have indicated, the confirmatory evidence need not implicate the appellant in the crimes. The evidence must simply tend to convince us that the suspect witness is telling the truth.

23In order to deal with the appellants’ submission, it is necessary to have regard to the trial judge’s charge as a whole and I will quote portions of it rather extensively.

24Early in his charge to the jury, the trial judge dealt with prior inconsistent statements. He pointed out that Robert Elder, his wife, Linda, and Brian Anderson had, on prior occasions, given statements that were inconsistent or contradictory of the evidence they gave at trial and he explained that the fact of an inconsistency went to the truthfulness or credibility of the witness. He also told the jury that a witness may be discredited in whole or in part by showing that, on a previous occasion, he or she has made an inconsistent statement. He then gave the jury several examples of inconsistencies:

I’m now going to give you several examples. Robert Elder … was asked about the statement that he made to the Ottawa police upon his arrest. He said he told them the truth about what happened in the circumstances around the Billings Bridge matter, but that he lied by leaving out any involvement on the part of Yvon Gagnon. He was reminded that at the preliminary hearing he had said, “We were not going to rob the bank or the truck.” He agreed that that was a lie that he’d told at the preliminary hearing and that he had told it under oath. He said by way of explanation, as you may recall, that he felt that he didn’t – that he wanted to keep some – he didn’t use this expression, but “cards up his sleeve” so he could keep some sort of information that he could use to trade. He said, as you recall, when he was describing the trip to Toronto with the two stolen cars, that he drove the Ford and that Denis Wolfe drove the Chev, and you may recall that he said he recalled that because Denis Wolfe wanted the tape deck which was in the Chev. He was reminded that at the preliminary hearing he had said that he, Robert Elder, had driven the Chev and it was Denis Wolfe who had driven the Ford.

In his cross-examination Brian Anderson said that he admitted that he had been feeding information to Sergeant Hansen – I hope I have the rank correctly – and said that he’d been doing so for more than ten years. He was reminded that at the preliminary hearing he had said that he had started doing that in 1976, which would make it about 19 years. You may or not think that is any inconsistency at all, or may, if you decide it is, necessarily, that it’s somewhat insignificant.

When he was cross-examined about his record and what he had done by way of assaults on his wife, he said in relation to an incident said to have happened, an assault that was withdrawn, involving his wife in 1989, that he didn’t slap her, and he was reminded that at the preliminary hearing he had said that he had slapped her. His answer to that was, “I guess I slapped her; there were a lot of charges she brought me up on. Sometimes I slapped her, sometimes I didn’t.”

You recall as well during cross-examination that he had said that in reference to the trips to William Hulko’s house at Sunbury, that the first time they had gone, they had gone first to Yvon’s house, and the second time they’d gone directly to Hulko’s place. He was reminded that at the preliminary hearing he’d said the opposite. It was also suggested to him, and he had to admit that he had gotten the two places mixed up – or the two events mixed up at the time of the preliminary.

He had also been reminded that he was confused as to when he had abandoned the Crown Victoria, and again that he had become mixed up in his statement to the police as to the occasion on which Andre Gagnon had gone in with the others to the Kingston shopping centre from Hulko’s. He also said that it – that he reported Andy in his statement to the police as having said that “someone else was going to do it, so we left.” He admitted that it couldn’t have been Andy, because only Michel and Yvon were in on that occasion. And again, he had to admit he was confused between the two occasions.

25The trial judge then discussed the criminal record of Elder and Anderson:

Evidence has been given that certain of the witnesses have criminal records. Robert Elder is one. He admitted in chief that he had a record, and he was cross-examined on it vigorously by Mr. Orr, as you recall. His record is filed as exhibit 60. I’m not going to go over it in detail with you because you will have it and be able to examine it in your jury room, but I did look it over, and while these figures might be slightly out, it gives you some idea that his record includes one conviction for break and enter with intent to commit an indictable offence, some 18 convictions for break, enter and committing theft, some 16 convictions for theft, six for possession of stolen vehicles, one for attempted theft, one for being unlawfully at large, one for escaping lawful custody, one for causing wilful damage, one for possessing a stolen credit card, one for fraud, and in connection with Billings Bridge, one for failure to comply with a recognizance, one for conspiracy to commit robbery and one for using a firearm during the commission of an offence.

Brian Anderson also admitted to a lengthy criminal record. …

His record goes back to 1968, when he was convicted of possession of an offensive weapon, which was a pen knife; 1970, robbery with violence – he said, “Yes, I put the boots to two guys” – 1974, attempted fraud, where he tried to cash someone else’s cheque; and the same year, possessing a weapon dangerous to the public peace – it was a sawed-off shotgun, he said he didn’t know it was in the car, but he pleaded guilty. It was under the passenger seat and he was the driver, and it was not his car. He was on parole at the time – 1978, conviction for theft; in 1982, he received 15 months for armed robbery and three months consecutive for theft, that was a convenience store robbery with a knife; in 1984, theft, some $400 from a restaurant where he worked, to buy drugs; in the same year, assault causing bodily harm, where he broke the jaw of a girl with whom he was living, when he said he found her in bed with a friend of his. Break – private mischief at the same time. And then in 1988, break, enter and theft, said he broke into some freezers and stole some turkeys; 1989, mischief, a window in Sault Ste. Marie; 1992 and 1993, theft convictions; 1984, possession of a weapon, while on probation – yes, while on probation; in 1989, threats, domestic matter and assault, a domestic matter; in 1990, assault causing bodily harm and possession of stolen property. He was also charged with other crimes that were dismissed or withdrawn.

26After reviewing the criminal records of Elder and Anderson, the trial judge told the jury that they could consider the record in assessing the credibility or truthfulness of a witness and that it was a circumstance they could take into consideration in weighing the trustworthiness of a witness. He also told them that crimes relating to dishonesty tended to bear more directly upon a witness’s credibility.

27The trial judge then charged the jury as follows:

Elder and Anderson both testified that they were involved with one or more of the accused in the commission of the offence charged. For the sake of what I’m about to say about their evidence, they may be called accomplices.

When two or more persons are involved in an unlawful enterprise, it often happens that one of them will shield himself or for reasons of spite or revenge or fear or hope of favour or for some other reason will try to put the blame on someone else. …

There is nothing whatever improper or unfair in the Crown calling the evidence of an accomplice or a person of unsavoury character. Indeed, the circumstances in which crimes are committed, particularly conspiracies, often imposes upon the prosecution a duty of calling such witnesses who are frequently the only persons who can give evidence on such matters.

Notwithstanding that, and while such evidence is certainly admissible in court proceedings, it is appropriate for the reasons which I have stated that I caution you to scrutinize their evidence with great care because it may be dangerous to convict on the unsupported testimony of such persons. It is dangerous because there is a risk of condemning an innocent person because of the often unreliability of such evidence. You might therefore examine the rest of the evidence to see if there is support there for an accomplice’s testimony or that of a person of unsavoury character.

In doing so, in looking at the evidence for support, I suggest you also look to the past dishonesty displayed by the accomplice or the person of unsavoury character. I’ve already referred you to the criminal records of Elder, Anderson … in that respect.

Dealing first with Robert Elder, he admitted that he used aliases with the police when confronted by the police and with respect to stolen cars. He admitted that he lied a lot, so much so that it almost became natural. He admitted that he lied under oath at the preliminary hearing when he said that they were not going to rob the Billings Bridge plaza. Again, I’ve already referred to that. He admitted that he lied to the police when he said he met Michel Gagnon at the elevator, said he really met him outside. He admitted that he lied to the police when he said that he got the bullets that he was found with off the register at Michel’s house. And on several other occasions as well, during the videotape evidence or statement that he gave, he said that he wanted to have a “pawn” – I think that was the word he used – to make sure that his family would be safe. He admitted trying to throttle a fellow inmate with the … telephone cord when he was in custody. He admitted that he was unlawfully at large for two and a half years using false identification. He admitted that he lied at the preliminary hearing about not having assaulted anyone, and you will recall his explanation was that he felt that it was none of anyone’s business and that he was therefore free to lie about it.

You might look for support for Robert Elder’s evidence in several quarters. First of all, there is the evidence of Warren Hughes. You’ll recall he was the former owner of the costume business know as Costume House on King Street West in Toronto and supported Robert Elder’s evidence that he bought the beards and spirit gum at Costume House by identifying the beards as consistent with beards that he sold at that time and more particularly identified the spirit gum as a product not only carried by his business, but that particular bottle was sold by him. Of course he wasn’t able, nor was he asked, to identify who the purchaser was, nor was there any suggestion that he was the one who looked after the purchaser at the time of the purchase.

You should also in that respect recall the police evidence, including the photographs, I think exhibits 58-A and –B, as showing Robert Elder arrested wearing a false beard. Elder’s evidence was that it was Yvon Gagnon who had put him up to buying those, and had given him the money for it, had pointed out the ad in the Yellow Pages of the Ottawa telephone directory, and I think there is a copy of that ad in evidence.

And I just caution you, of course, in this respect the support is not to corroborate Elder’s statement that it was Yvon who put it up [sic] [put him up to it], but simply that it provides support for his statement that he did buy it there.

Robert McNaught was the owner of the brown Marquis that was stolen from the parking garage of his Oshawa apartment building. And that supports Elder’s evidence that Elder did steal it. He described the parking garage in much the same way that Elder did. There can, I suggest, be little doubt but that it was Elder who stole it. The issue is whether he stole it for some other purpose or whether had he stole it for benefit of and upon the direction of Yvon Gagnon.

Yvon himself supports Robert Elder’s statement that Yvon gave him counterfeit money, Robert Elder said it was $300 to buy beards, Yvon Gagnon says it was $100 because Elder was short of cash and he felt sorry for him.

Jerome MacLean, again another owner of a car stolen as testified to by Elder, the Lincoln town car that Elder says was stolen for the Elmvale plaza robbery.

You will recall that Elder gave evidence – and I’ve adverted to it – that at Andy and Yvon’s behest, he stole a Ford LTD and Chev, navy blue Chev, and that he and Denis Wolfe each drove one of those stolen cars while Yvon and Andy followed in Yvon’s car. They drove to Toronto where he parked the two stolen cars at Yvon’s direction at a Sheraton Hotel near the 401. He described it as being near Keele Street, which I think the members of the jury will realize is in the west end of the 401 in Toronto. He also said, as you will recall, that Yvon decided that there should be a third car, and so he went out and stole a white Bonneville and parked it with the other car, that in each case, he’d drilled the ignition, and so that that wouldn’t become apparent to a casual passerby, he draped some sort of clothing or cloth over the steering wheel and ignition in each of those three cars.

There is some support for his evidence in that respect by Constable Sturgeon who, about a week later, found, at the Toronto Sheraton East, which he said was near Kennedy Road, three cars, but the three cars that Sturgeon reported finding were a Lincoln, a black Bonneville and a white Bonneville. Now, of those three cars only the white Bonneville seems to match exactly with Elder’s story. The question is whether the Lincoln is close enough to a Ford LTD and the navy blue Chev is close enough to a black Bonneville to suggest that they were both talking about the same cars. But I do point out to you that disparity, that none of counsel adverted to it. I’ve discussed it with them, they agreed that there was an apparent disparity in that respect.

I think the significant evidence there is Elder’s putting the cloth over the steering wheel, the components and Sturgeon supporting that statement by saying that when he found the cars that was their condition.

Again, it supports, just as the other support for Elder stealing the car, it doesn’t necessarily support his allegation that it was stolen with and at the direction of any of the accused.

Then we have Brian Mise, Douglas Salt, PC McDonald, PC Campbell, Wendy Huot would tend to support Mr. Elder’s evidence that a robbery took place on February 8, 1993 at Elmvale plaza and that a stolen New Yorker was used. Elder gave evidence of having stolen that and having used it. And that some $4,400 was realized out of that enterprise. Elder referred to it as “seed money” for the Billings Bridge attempt.

And further, that the descriptions given of the gunmen, Elder, as you recall, testified that he was the driver of the getaway car, the descriptions of the gunmen were not inconsistent with Michel Gagnon. Elder’s evidence that it was Michel who had actually gone in to the plaza and committed the robbery.

The police find the red Topaz getaway car. This is in relation to Billings Bridge. Elder said that he had stolen it and the brown Taurus which Elder said that he had stolen. The owners in each case confirm the stealing of those cars and not too long before the Billings Bridge episode.

Corporal Ouellette, who executed the search warrant of Andy’s house, found the composite clipping in a bowl on top of the fridge. The lawyer, Mr. Guertin, says that Andy brought that clipping in to him. All of that tends to support Elder’s testimony that Andy had the clipping in his possession.

With respect to Brian Anderson, bear in mind that he was getting, by his own admission, certain financial aid from the witness protection program. It was put to him that it was over $70,000. You will recall that he said that there were large expenses in relocating out West, that most of the money went to his wife from whom he became separated. You recall as well that he approached a reporter out West to express his dissatisfaction about the way he was being treated. And you also recall that he said that he had never thought of reward in connection with his evidence until Mr. Marko mentioned it at the preliminary hearing. I ask you, however, to recall Randy Brennan’s evidence that he and Mr. Hughes discussed the matter of the reward with Brian Anderson before the preliminary hearing.

Anderson also used aliases years ago. He told us of having robbed Johnny’s bar in Kingston at the – he said it was under duress from a gang and that he was told to do it as part of a sort of a gang ritual or initiation. And of course, he has never been charged in connection with that robbery. He’s a heavy – has been a heavy cocaine user.

So far as support is concerned, you’ll recall that he described abandoning the stolen Crown Victoria. Marion Love, the owner, confirmed the car had been stolen and took photographs of the recovery scene which are before you as exhibits. PC Perry of the OPP found the car where Anderson said he left it, all of which, would I suggest, seem to support his evidence that he did leave it there. The question is whether in so doing he was acting in concert with any of the accused.

He also gave evidence of Yvon and Michel going into Kingston from Hulko’s residence, and I suggest to you that the police surveillance evidence will confirm the presence of Yvon and Michel in Kingston that day. They, of course, indicated they were there for a possible counterfeit money drop and for no other purpose.

And again, just as in the case of Robert Elder, Corporal Ouellette’s evidence of finding the composite clipping on the top of the fridge and Mr. Guertin’s evidence in connection with that clipping all would support … Anderson’s evidence that Andy showed it to him.

Having been warned about the danger of convicting on the unsupported evidence of such persons, if you find it to be unsupported, that is, you may, after giving due consideration to my warning, find guilt if you see fit, providing you’re satisfied with the correctness of the evidence given by those witnesses. By the same token, however, just because you find any evidence to be supported does not mean that you will necessarily find an accused guilty, because, in any case, support or no support, you must still look at all the evidence, in the case of which this evidence is just a part, and ask yourselves on all the evidence whether the Crown has satisfied you beyond a reasonable doubt of the guilt of the accused in question. [Emphasis added.]

28I will now comment on the items of potentially confirmatory evidence referred to by the trial judge:

1. The fake beards and spirit gum

29Elder said he used a beard in the Billings Bridge robbery and that Yvon had told him to buy the beard at a particular store. The trial judge told the jury that this evidence did not corroborate Elder’s statement that it was Yvon who put him up to wearing a beard. It was only “support for his statement that he did buy it there.” A fake beard and spirit gum were found in the home of Yvon Gagnon. The store owner testified and said that he sold fake beards of this kind but, more importantly, the storeowner said he had sold the particular bottle of glue or spirit gum that was found in Yvon Gagnon’s home.

30In the trial judge’s review of the evidence concerning whether or not the appellants were probably members of a conspiracy, the trial judge told the jury:

I start then with Yvon Gagnon. You remember first what I said about Cathy Perri’s evidence, that Yvon looked like one of the bandits fleeing Yorkdale mall, that she had recognized him at the preliminary hearing but hadn’t been asked. I have cautioned you with respect to the reliability of that evidence.

You’ll recall the evidence as to the cash payments made by Yvon to his landlord of $4,250; to buy a car, some $2,700; to his dentist, two payments totalling $6,000; to buy a boat, $25,000; and to buy a Toyota, $7,000, a total of a little over $69,000, by my calculation.

You will recall that Yvon’s explanation as to the source of those funds is that they were from drug sales which he had been fortunate enough to make. I remind you of the search of Yvon’s house, at which ammunition, a false beard and spirit gum and the flak jacket were all found. Warren Hughes identified the spirit gum as coming from his former establishment in Toronto, Costume House, and you recall Robert Elder’s evidence in which he described purchasing those on the order of Yvon.

I also remind you of Yvon’s evidence as to the fact that the disguises he had gotten from Michel in order to possibly disguise himself to avoid detection in connection with his outstanding driving and drinking offence, that he tried the beard on and thought it looked ridiculous and then thought no more about it.

You will recall his evidence as well that the flak jacket was memorabilia, and that with respect to the ammunition, you’ll recall his evidence that shortly – about two weeks before Billings Bridge, he had sold Michel the gun. He had formerly gotten the gun, and he told us Michel persuaded him to sell it to him. Yvon said this in the context of trying to persuade Michel not to go ahead with his plans for Billings Bridge, and you may well wonder how selling Michel the gun about two weeks before was consistent with that frame of mind.

But what he says is that he sold – he gave him a certain amount of ammunition with it and kept the rest of the ammunition. [Emphasis added.]

31Elder’s evidence that he bought the beard he was wearing when apprehended at a particular store, considered in isolation, did not support an inference that it was Yvon Gagnon who “put him up to it”. The trial judge’s instructions cannot, however, be considered in isolation and detached from the balance of his charge. The trial judge instructed the jury to look for confirmatory evidence as to the existence of a conspiracy and the persons who were members of it. The trial judge then reviewed some of the direct evidence that indicated the appellants were members of the conspiracy. The jury could scarcely have failed to appreciate that they were being reminded of evidence that was independent from that of Elder which tended to show that Elder’s evidence of Yvon Gagnon’s involvement in the conspiracy was true. In oral argument, the appellants conceded the evidence respecting the fake beards and spirit gum was potentially confirmatory of the evidence of Elder.

2. The evidence of Elder concerning stealing cars for the robberies

a) The Lawrence Square robbery

32The Lawrence Square robbery in Toronto was committed on November 19, 1991. Elder’s evidence was that, in the fall of 1991, at the request of Yvon Gagnon, he stole two cars in Ottawa and left them for André Gagnon to pick up. He understood that the cars were to be used in a robbery. Then, Yvon Gagnon, Denis Lecompte, Denis Wolfe and himself drove to Toronto. Yvon Gagnon said he needed a third car for the robbery and Elder said that he stole a white Bonneville from a mall parking lot. All four of them then drove in Yvon’s car down Bathurst Street and along Queen Street West where Yvon pointed out a place where they had bought a gun for the robbery. He said that Yvon told him that they were going to rob an armoured car. A few days later, Elder said that Yvon then told him that the police had found the cars he had stolen. As a result, Yvon asked Elder to go to Oshawa and steal a brown Ford Marquis, which he did. Then Elder stole a white Buick Skylark and left it with the Marquis.

33The appellants submission is that, although the car owners testified that their cars were stolen and the police recovered certain stolen cars, this is only evidence that Elder stole cars and is not potentially confirmatory of Elder’s evidence as to the involvement of Yvon Gagnon or André Gagnon in the Lawrence Square robbery. The trial judge alerted the jury to the defence position.

34In relation to the brown car that was actually used in the robbery, the trial judge stated:

Robert McNaught was the owner of the brown Marquis that was stolen from the parking garage of his Oshawa apartment building. And that supports Elder’s evidence that Elder did steal it. He described the parking garage in much the same way that Elder did. There can, I suggest, be little doubt but that it was Elder who stole it. The issue is whether he stole it for some other purpose or whether he stole it for the benefit of and upon the direction of Yvon Gagnon.

35After reviewing the evidence of the police officer in relation to the first three cars that were stolen for the robbery and that were recovered by the police, he said:

Again, it supports…Elder stealing the car, it doesn’t necessarily support his allegation that it was stolen with and at the direction of any of the accused.

36The trial judge’s comments were accurate. He left the jury with the question they should have in their mind when considering the rest of the evidence. He did not undermine his earlier instructions to them to look for potentially confirmatory evidence. There was, in any event, independent evidence that the colour of the cars Elder said he stole, a brown car and a white car, were the colours of the cars used in connection with the Lawrence Square robbery. The trial judge outlined this evidence for the jury shortly afterwards in his charge, in reviewing the evidence of Thomas Scott. Scott was a student who, shortly after the robbery, was standing behind Bathurst Heights Secondary School. He testified he saw three guys get out of a brown car. One of them got into a smaller white car and drove away and the other two walked towards the subway. In addition, the cumulative effect of Elder’s evidence as to the timing of the thefts of the cars in relation to the timing of the Lawrence Square robbery as well as the condition of the cars after the robbery would have been evident to the jury although the trial judge did not specifically refer the jury to these aspects of the evidence. Surveillance evidence reviewed by the trial judge later in his charge showed Yvon and Michel Gagnon watching an armoured truck at Lawrence Square and going back and forth to the square more than once that day. Afterwards, Yvon and Michel drove to André’s home in Ottawa.

b) The Elmvale Plaza robbery

37The trial judge also referred to Elder’s evidence in relation to the robbery of the drugstore at the Elmvale Plaza on February 8, 1993. Elder said that he stole a New Yorker which was used as the getaway car and that he drove it. He implicated Yvon and Michel Gagnon in the robbery.

38The evidence of several witnesses named by the trial judge supported Elder’s evidence that such a robbery took place and that a stolen New Yorker was used in the robbery. The trial judge mentioned the eyewitness evidence concerning the description of one of the gunmen as “not inconsistent” with Michel. It was not inappropriate for the trial judge to refer to this individual item of evidence in the context of reviewing some of the circumstantial evidence in connection with the various robberies.

c) The evidence respecting the Billings Bridge robbery and the Topaz

39In relation to the Billings Bridge robbery on February 24, 1993, the trial judge reminded the jury that the police found the red Topaz getaway car that Elder said he had stolen for the robbery, as well as a brown Taurus. The owners of the respective cars confirmed that their cars had been stolen “not too long before the Billings Bridge episode.”

40The theft of these cars standing alone was not confirmatory evidence. The trial judge did not, however, tell the jury that they could use Elder’s evidence that he stole cars and participated in robberies in order to confirm the appellants’ participation in the robberies. In reviewing the evidence that was directly admissible against Yvon Gagnon, the trial judge referred to the fact that bullets found in Yvon Gagnon’s home matched those in the gun found on Michel at Billings Bridge. If the jury followed the trial judge’s instructions, the jury would have been aware of the link to Billings Bridge.

d) The Cataraqui Mall aborted robbery attempt

41Elder also testified with respect to an earlier aborted robbery attempt concerning the Cataraqui Mall in Kingston in October of 1992. He said that Yvon, André and Michel Gagnon planned to commit this robbery. Elder said that one of the cars he stole for the robbery was a gray-blue Crown Victoria.

42Brian Anderson, the other accomplice who testified, said that André Gagnon asked him if he wanted to make a lot of money by driving a safe car back from Sunbury, near Kingston, to Ottawa in the summer or fall of 1992. This would be following a Kingston armoured car hold-up and Anderson’s task was to drive “Andy Gagnon”, as he was sometimes called, back as a passenger. Anderson told the police that he was present when André, Yvon and Michel put on double clothes, drove to William Hulko’s residence, found the stolen Crown Victoria and the other car and went off to commit the robbery. André drove in the Crown Victoria and Yvon and Michel drove in a white Bonneville. About an hour to an hour-and-a-half later, both cars returned. All three brothers were distressed and angry saying that the truck was late and that the police were there. Anderson said that, when they returned to where he was waiting, he was asked to abandon the Crown Victoria because it was “too big”. He said that he did so on the way home near a boat launch. The evidence of the owner of the car and of the O.P.P. was that the car was found where Anderson said he had abandoned it. Approximately one week later, Anderson and André Gagnon returned to Hulko’s residence. Yvon and Michel decided to do a “dry run” back to the Kingston shopping centre without André who was still asleep. Police surveillance confirmed that, on October 27, 1992, Yvon Gagnon was seen in a white Bonneville near the Hulko residence. At about nine o’clock, a Loomis armoured car arrived at the Kingston shopping centre, Cataraqui Mall. One of the guards entered the mall and returned to load boxes on a cart. A civilian pointed out three Kingston police on the roof. The white Bonneville was seen at the shopping centre that morning, parked at the south-east corner of the mall. Michel Gagnon was observed running from the shopping centre and getting into the car.

43In his review of the evidence that could support the testimony of the suspect witnesses, the trial judge did not refer to Elder’s evidence concerning the theft of the Crown Victoria. In relation to the evidence of Brian Anderson, the trial judge told the members of the jury that they could consider the evidence of the owner of the Crown Victoria and the evidence of the O.P.P. officer who found the car where Anderson said he left it. The trial judge then added: “The question is whether in so doing he (Brian Anderson) was acting in concert with any of the accused.” Again, the trial judge told the jury the correct question they should ask themselves in relation to Anderson’s evidence. Following this, the trial judge referred to Anderson’s evidence and said: “I suggest to you that the police surveillance evidence will confirm the presence of Yvon and Michel in Kingston that day.” The trial judge also pointed out that Yvon and Michel had themselves confirmed they were at the mall for a possible counterfeit money drop.

44The appellants submit that inasmuch as Yvon and Michel Gagnon admit being at the mall, albeit for a different purpose, the evidence cannot be used as confirmatory of Anderson’s evidence. The evidence is said to be neutral. It was for the jury to decide whether or not to accept the explanation proffered. If they rejected it, the surveillance evidence was potentially confirmatory of Anderson’s evidence.

45The evidence that Elder received counterfeit money from Yvon Gagnon was not disputed by Yvon Gagnon. Yvon Gagnon’s explanation for giving Elder the money was that it was a “loan”. Depending on the jury’s view of the evidence, this evidence was also potentially confirmatory of Elder’s testimony because of the timing when it was given to Elder – shortly after a robbery.

e) The clipping showing a composite sketch of the suspect in the Lawrence Square robbery

46Both Elder and Anderson testified that, following the Lawrence Square robbery, André Gagnon showed them a newspaper clipping of a composite sketch that had been made of a suspect and that he kept it in the kitchen at his house. It was the position of the Crown that Michel Gagnon had participated in that robbery and not André. André and Michel were twins, although not identical twins. A lawyer testified André thought the composite looked like him and was upset about it and wanted to sue the Star for publishing it. The police found the sketch in the kitchen when they searched the home of André Gagnon. The appellants concede that this was also independent evidence that was potentially confirmatory of the evidence of Elder and Anderson. They submit the composite did not, however, confirm the evidence of Elder and Anderson on a “material particular.” It did not have to, nor did the trial judge say it did. He told the jury that, “just as in the case of Robert Elder, Corporal Ouellette’s evidence of finding the composite clipping on the top of the fridge …would support Robert Anderson’s evidence that Andy showed it to him.” The evidence confirmed an association between Elder, Anderson and André Gagnon.

47Overall the trial judge’s charge to the jury concerning the frailties of the evidence of Elder and Anderson was fair and balanced. Evidence which in isolation was not confirmatory of the participation of Yvon and André Gagnon was identified as such by the trial judge. The trial judge did not suggest that this evidence could be used to bolster the credibility of Elder and Anderson in general. He told them instead the bigger question they should be asking themselves was whether Elder and Anderson were acting at the request of the appellants. In addition, the evidence reviewed by the trial judge as capable of constituting some confirmation for the evidence of Elder and Anderson was, on the whole, potentially confirmatory. The trial judge did not directly refer the jury to other much stronger evidence that was capable of confirming the evidence of Elder and Anderson in relation to Yvon Gagnon at that point in his charge. If, however, the jury did as the trial judge directed and looked at all of the evidence, “of which this evidence is just a part”, they could not help but be aware of the link to other important items of independent evidence that was potentially confirmatory of the evidence of Elder and Anderson in relation to Yvon Gagnon and, to a lesser extent, André Gagnon.

48To summarize, Vetrovec, supra, overruled Baskerville, supra, which stood for the proposition that evidence to be corroborative must be more consistent with the truth than falsity of the accomplice’s evidence. Put another way, the rule in Baskerville was that corroboration is independent evidence that makes it probable the accomplice’s testimony is true. Corroborative evidence need not emanate independently of the suspect witness: Murphy, supra. The evidence need only satisfy the trier of fact that the witness is telling the truth about a salient matter in the time frame in question; it need not point specifically to the guilt of the accused: McCaw, supra. Evidence given by an accomplice that is contradicted or explained by an accused may still constitute corroborative evidence; it is for the jury to decide whether the evidence, in fact, is corroborative. McNamara, supra, at 278. Finally, although a piece of evidence viewed in isolation may not constitute corroboration, a number of pieces of evidence viewed collectively may constitute corroboration.

49Applying this law to the facts of this case, the appellants’ submissions must be dismissed.

ISSUE II. Did the trial judge err by permitting the jury to consider hearsay acts and declarations of co-conspirators when deciding whether the appellants were probable members of the conspiracy?

50In R. v. Carter (1982), 1982 CanLII 35 (SCC), 67 C.C.C. (2d) 568, the Supreme Court of Canada set out the following three-tiered approach to apply in conspiracy cases:

Considering all the evidence, the trier of fact must conclude beyond a reasonable doubt that the conspiracy charged in the indictment existed. This determination is independent of any consideration as to whether an indicted or unindicted conspirator is actually a member of the conspiracy charged.

Once the trier of fact is satisfied beyond a reasonable doubt that the conspiracy charged existed, the trier of fact must determine, exclusively on the basis of “evidence directly receivable against the accused”, whether the accused was probably a member of the conspiracy. The trier of fact is not to consider co-conspirator hearsay evidence at this stage of deliberations.

If the trier of fact concludes that an accused was probably a member of the conspiracy, the trier of fact must determine whether the Crown has proven that accused’s membership in the conspiracy beyond a reasonable doubt. At this stage of deliberations, the trier of fact is entitled to consider hearsay acts and declarations of co-conspirators made in furtherance of the objects of the conspiracy. The trier of fact must be cautioned that the mere fact that the conclusion has been reached that an accused is probably a member of a conspiracy does not make a conviction automatic.

51No objection is taken with respect to the trial judge’s charge to the jury in respect of the first and third stages of the approach to conspiracy. The objection is with respect to the second stage of the analysis in which the trial judge told the jury that they could consider, “all the evidence as a background against which to interpret the acts and declarations of the person in question.” The appellants concede that the jury was entitled to consider the evidence in a contextual background. The decision of this court in R. v. Filiault and Kane (1982), 1981 CanLII 3165 (ON CA), 63 C.C.C. (2d) 321; aff’d (1985), 15 C.C.C. (3d) 352 (S.C.C.) makes this clear. The appellants submit, however, “…the hearsay declarations of an alleged co-conspirator cannot form part of the evidence which a trier of fact is permitted to consider as context or background to interpret the acts or declarations of an accused.” This submission is incorrect in law as facts and decision in Filiault and Kane illustrate. On a particular date in front of his residence, Kane handed a package to Filiault who handed the package to Power, the alleged co‑conspirator. Power, under virtually continuous surveillance, then drove to a restaurant and handed a package containing drugs to an undercover officer. The package contained one ounce of methamphetamine. At the conclusion of the Crown’s case, the trial judge granted a directed verdict of acquittal. He took the view that he could not consider Power’s delivery of the drugs to the undercover officer in deciding whether the accused was probably a member of the conspiracy because it was a hearsay act of a co-conspirator. In allowing the Crown’s appeal, the court held that the exchange of packages between Filiault and Kane could be considered against the background of the evidence of Power’s subsequent actions in giving the package to the undercover officer. Otherwise, the evidence of the exchange would be meaningless. Martin J.A. stated in Filiault and Kane, supra, at p. 326:

R. v. Baron and Wertman, supra, merely emphasizes a basic principle that a person can only become a participant in a conspiracy as a result of his own acts or declarations, that is, by his own conduct or utterances….The decision in that case does not say that a defendant’s conduct or utterances must be viewed in isolation, divorced from the context in which they occurred or that they cannot be interpreted against the picture provided by the acts of the alleged co-conspirators. [Emphasis added.]

In order to give meaning to the accused’s own acts and utterances it is permissible to consider them against the context of the acts of others which may be hearsay.

52The appellants further submit that the trial judge did not make it clear to the jury what evidence they could and could not consider at this stage of the conspiracy and that his instructions were confusing and contradictory. The appellants argue that the trial judge’s charge is defective because he did not define “background” or “direct evidence” and did not make it clear that hearsay could not be considered as evidence directly admissible against the accused at this stage.

53The trial judge instructed the jury with respect to the second tier of the Carter test as follows:

If you find a conspiracy existed, then the second stage of your deliberation is to examine each of the persons named in the indictment, and in this case there are five, individually, to see if the Crown has proved that particular person is probably a part of the conspiracy. You may consider all the evidence as a background against which to interpret the acts and declarations of the person in question, but at this stage you will only consider the acts and declarations of the person you are considering, only his words and deeds, to see if the Crown has proved that he is probably a co-conspirator. The acts and deeds of others are not direct evidence of a particular person’s participation in the conspiracy at this stage.

You will only use the person’s own acts and deeds in considering whether he is probably one of the conspirators, but you may use the other evidence as a background for interpreting the words and deeds of the person being considered.

If you conclude, with respect to any of the five persons, that the Crown has not proved probable participation in the conspiracy, then you will acquit that person if he is one of the accused, and you will banish from your mind in any event any evidence regarding him in your consideration of the other accused. [Emphasis added.]

54Later in his charge, the trial judge provided similar instructions to the jury in the following language:

I come now to stage two. This is the stage where you will examine each of the five persons whose names appear in the indictment, and I remind you that they are the three accused. And, in addition, Denis Wolfe and Michel Gagnon are the other two whose names appear there, and you will examine each of those five persons to see if the Crown has proved that particular person is probably a part of the conspiracy.

You may, in so doing, consider all the evidence as a background against which to interpret the acts and declarations of the person in question. But at this stage you will only consider the acts and declarations of the person you are considering. Only his words and deeds should be looked at to see if the crown has proved that he is probably a co-conspirator. When I say probably, that means that the Crown does not have to prove that participation or membership beyond a reasonable doubt. You just have to find that he is more probably a conspirator than not. As someone said, 51 per cent will do the trick.

The acts and deeds of others, and declarations as well, are not evidence of a particular person’s participation in the conspiracy at this stage. You will only use the person’s own acts and deeds in considering whether he is probably one of the conspirators, but you may use the other evidence as a background for interpreting words and deeds of the person being considered.

If you conclude that any one of the five persons, that the Crown has not proved possible participation in the conspiracy in, if that person happens to be an accused, you will acquit him, and in any event you will banish from your mind any evidence regarding that person in your consideration of the other persons. [Emphasis added.]

55The trial judge then proceeded to go through the evidence in detail and to point out to the jury the evidence of the direct words and deeds of each of the five persons that Crown alleged had participated in the conspiracy. The trial judge began with a review of the evidence they could consider against Yvon Gagnon. In each case, the trial judge referred to Yvon’s explanation where he had given one. The trial judge also reminded the jury that Yvon did not have to give an explanation.

56The trial judge began by reminding the jury of the evidence of a witness who, at trial, had identified Yvon as one of the bandits fleeing Yorkdale Mall. He repeated his earlier caution that her evidence was unreliable in that the partial license number she provided of the getaway car was one of twenty cars in Ontario, including one belonging to Yvon’s mother. The trial judge then reviewed the evidence as to the cash payments Yvon made to his landlord, to his dentist, and to purchase two cars, and a boat. The total amount of the cash payments was $69,000. The trial judge recalled for the jury the police search of Yvon’s house, in which ammunition was found which matched cartridges found on Michel and Robert Elder at Billings Bridge, as well as the finding of a false beard, spirit gum and flak jacket. He reminded the jury of the fact that the spirit gum was identified by the owner of the store as having been purchased from his store and also of Robert Elder’s evidence that he had purchased spirit gum and false beards at that very store at the request of Yvon Gagnon. The trial judge also referred to the evidence concerning the stolen cars, the surveillance evidence showing Yvon with Michel at Billings Bridge plaza watching while an armoured car was there on December 10, the evidence of Anderson that Yvon had gone into Kingston and come back frustrated and angry, the evidence of the police officer that he saw Yvon exist a white Bonneville at a shopping centre parking lot at Brockville and get into what turned out to be a stolen Ford van. In addition, there was the evidence that Yvon Gagnon had invested large amounts of cash into hovercrafts and the evidence of the representative from Revenue Canada who testified Yvon filed no tax returns and reported no income for the years in question.

57The trial judge then referred to the evidence of Linda Elder, the wife of Robert Elder, and, in doing so, referred to one piece of evidence that was hearsay. He stated:

I remind you as well of the evidence of Linda Elder that when Michel paid Robert, he told Robert that Yvon would – had said that he would talk to him later. [Emphasis added.]

58The trial judge continued reviewing the evidence of Linda Elder to the effect that before the Billings Bridge robbery Yvon would come over almost every day to see Robert. Robert also testified to this effect. She said she would have to leave if they stayed inside and sometimes they would go to the basement to confer. She also testified that Yvon took her to get Robert’s mother’s car at Carleton University and told her that the keys were in the ashtray, that Elder had told her to meet him and, if that arrangement fell through, Yvon was to pick up the car. The trial judge concluded his review of the evidence concerning Yvon Gagnon by reference to some further surveillance evidence.

59The jury was sent out to begin its deliberations on Thursday July 27, 1995 at 12:33 p.m. Following objections to the charge, the jury returned at 4:31 p.m. that day and was given further instructions by the trial judge. At this time, the trial judge corrected the error he had made with respect to Linda Elder’s evidence. He told them:

I also recall telling you that when you were examining, in the second stage of the scrutiny, that is the probable membership, when you were considering the probable membership of Yvon Gagnon, you could if you wished, use the evidence of Linda Elder to the effect that Michel had told her that Yvon would be in touch with her husband. I should not have done that; that was quite wrong. You are – you are not to use any statements or actions by Michel with respect to consideration of Yvon’s probable membership in the conspiracy.

The jury then resumed their deliberations at 4:55 p.m. on July 27, and returned with their verdict on the following day, July 28, at 5:19 p.m.

60The argument that the jury would not know what evidence to consider and might consider hearsay as part of the evidence against an accused at the second stage, also arose in R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 at 268-269, (Ont. C.A.): leave to appeal refused, [1997] S.C.C.A. No. 248. In that case, the trial judge charged the jury that they could only consider “direct” evidence against each of the appellants at the second stage of their deliberations. The appellant Sennet submitted that the trial judge erred in failing to charge the jury on the meaning of the terms “direct evidence” and “directly admissible evidence”. He contended that the jury should have been told instead that they could only consider the appellant’s own acts and declarations at this stage. The court stated at pp. 267-269:

It is of course always preferable to avoid legalese and to use common words and expressions that may be easily understood by a lay jury. Counsel for Sennet is quite correct in his submission that the expressions “direct evidence” and “directly admissible evidence” in and of themselves are not likely to be of any real significance to a lay jury. A jury would more likely understand the suggested direction that “they may only consider the appellant’s own acts and declarations at this stage.” The trial judge would have to carefully point out, however, that they need not consider these acts and declarations in isolation. It is often necessary and permissible to consider other evidence in order to put these acts and declarations in their proper context; otherwise, the direct evidence would sometimes be meaningless.

The court then concluded:

No particular formula is required so long as on the whole of the instructions it is clear that the jury would not have misapprehended what evidence they could consider in deciding whether either appellant was probably a member of the alleged conspiracy. Had the trial judge given no further instruction on this issue beyond the passage referred to above, we would agree that the direction would have been unclear and inadequate. But after giving the above-noted instruction, the trial judge proceeded to go through the evidence in detail to point out to the jury the evidence they could properly consider with respect to each appellant at this second stage of their deliberations. In our view, this was the proper approach as it illustrated quite clearly to the jury what meant by “direct evidence” and “directly admissible evidence”.

61In the case before us, although the trial judge also used the phrase “direct evidence” and did not define the phrase, he used it interchangeably with the word “only” as in “only” the acts and declarations of the person you are considering, “only” his words and deeds. In addition, after this instruction the trial judge proceeded to go through the evidence in detail to point out to the jury the evidence they could consider with respect to each appellant.

62I also disagree with the submission that the recharge, when considered with the judge’s charge as a whole, did not make it clear to the jury the kind of evidence they could not consider at the second stage for three reasons. First, the instruction in the recharge was very clear. It removed from the jury’s consideration the only evidence of hearsay to which the judge referred in his review of the evidence for the jury’s consideration at this stage. Second, the trial judge did not simply tell the jury to use the all of the evidence as background. He said they could consider “all of the evidence as a background against which to interpret the acts and declarations of the person in question.” [Emphasis added.] Given the trial judge’s instructions to consider only his words and deeds, at this stage in reference to each accused, the jury would have understood that they were to take a contextual approach to the evidence. The members of the jury were entitled to consider the hearsay acts of alleged co-conspirators to give meaning to the evidence of the appellants’ own acts and declarations. Third, the trial judge’s instructions on the second phase must be contrasted with his instructions on the third phase. The jury were told that at this third stage that they could consider the evidence which he had reviewed for them in stage two. As well, he said, the jury could consider the acts and declarations of others provided that such acts and declarations were done in furtherance of the conspiracy. This is the first time the jury was told this. The implication is that they could not consider “the acts and declarations of others” prior to this stage. The trial judge then gave the jury a clear example of such evidence and explained the difference between an act done in furtherance of the conspiracy and one that was not. Having regard to the charge, including the recharge, as a whole, the jury would not have been left in any doubt as to the evidence that they could and could not consider at this stage.

63In connection with this ground of appeal, the appellants submit in their factum that the trial judge’s alleged error in his charge concerning stage two of the conspiracy was compounded by his failure to provide the jury with the caution that finding an accused to be a probable member of a conspiracy did not mean that the jury should automatically find the accused to have been a member beyond a reasonable doubt. The respondent acknowledges that the trial judge did not caution the jury in accordance with Carter, supra, at pp. 575-576. No objection was raised by defence counsel at trial as to the lack of a Carter instruction. While the lack of objection is not determinative, as Lamer C.J.C. stated, it “says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection”: R. v. Jacquard (1997), 1997 CanLII 374 (SCC), 113 C.C.C. (3d) 1 at 19 (S.C.C.).

64The trial judge clearly told the jury that there were three stages to a conspiracy and differentiated the different stages for the jurors. In addition, at the end of phase three the trial judge charged the jury in accordance with R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). He told the jury, in part, that even if they did not have a reasonable doubt as to the evidence in favour of an accused and rejected his evidence as untrue, they must still determine whether the Crown had convinced them of the accused’s guilt beyond a reasonable doubt. If the jury decided that the appellants were probably members of a conspiracy, they would have rejected the evidence in the appellants’ favour. In telling the jury that they must still determine whether the Crown had convinced them of the guilt of an accused beyond a reasonable doubt, the judge in effect told the jury that a conviction at the end of the second stage was not automatic. They could only convict if the Crown proved its case beyond a reasonable doubt. The trial judge also told the jury “… just because you find any evidence to be supported does not mean that you will find an accused guilty …” and that they must satisfy themselves as to the guilt of an accused beyond a reasonable doubt.

65As a general proposition, no charge should be subjected to a standard of perfection. As a further and related general proposition, a trial judge need not adhere to formalistic verbal formulas. This “functional approach” to appellate scrutiny of a trial judge’s charge was recently reviewed by this court in R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 at 554-55 (Ont. C.A.). Doherty J.A. wrote:

In Jacquard, Lamer, C.J.C., stressed that a functional approach must be taken when assessing the adequacy of jury instructions. I take this to mean that instructions must be tested against their ability to fulfil the purposes for which they are given and not by reference to whether any particular approach or formula has been used. By the end of the instructions, whatever approach is used, the jury must understand:

• the factual issues which had to be resolved;

• the law to be applied to those issues and the evidence;

• the position of the parties; and

• the evidence relevant to the positions of the parties on the various issues.

66The trial judge’s charge sufficiently met these requirements and the second common ground of appeal is therefore dismissed.

B. Additional Grounds raised by Yvon Gagnon

ISSUE I. Did the trial judge err in refusing to edit Yvon Gagnon’s criminal record with the result that his 1982 conviction for manslaughter was not excluded?

67Yvon Gagnon’s criminal record dated from between 1971 to 1994. In his charge to the jury, the trial judge reviewed Yvon Gagnon’s criminal record as follows:

He was convicted in 1969 of auto theft, received 13 days; in 1971, possession of property obtained by crime, received a fine. Eight months later, convicted of the same offence and received a fine; in 1973, carrying a concealed weapon, received four months; in 1976 possession of a narcotic, for which he received a fine; and in the same year, one month later, six charges of possession of property obtained by crime, for which he received a total of six months and two years probation. In 1982 he was convicted of manslaughter and received a sentence of seven years; in 1987, possession of property obtained by crime, for which he was found guilty; and in 1990, 1991, 1992, 1993 he was convicted of various drinking and driving offences for which he received either fines or short sentences; and finally in 1994, convicted of possession of a narcotic, again for which he was fined.

68Prior to Yvon Gagnon’s criminal record being introduced at trial pursuant to s.12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, his counsel brought an application to exclude his 1982 conviction for manslaughter and asked the trial judge to exercise his discretion to edit the record based on the appellant’s right to a fair trial and in reliance on R. v. Corbett (1988), 1988 CanLII 80 (SCC), 41 C.C.C. (3d) 385 (S.C.C.). The factors to be considered by a trial judge in determining whether the prejudicial effect of a previous conviction is outweighed by its probative value are: the temporal remoteness of the previous conviction in relation to the current charge; the importance of the prior conviction within the context of the accused’s entire criminal record; the nature of the previous conviction (convictions for offences of dishonesty having greater probative value); the similarity of the previous conviction in relation to the charge facing the accused in the sense that the greater the similarity the greater the prejudice; and the conduct of the defence at trial, particularly where an accused has attacked the credibility of a Crown witness: Corbett, supra, at pp. 436-438.

69The trial judge ruled as follows:

Counsel has submitted that manslaughter contains an element of violence, as does the present offence which is conspiracy to commit robbery and, therefore, the jury might well think that his client is disposed to violence and convict on that basis. It would seem to me that the connection is somewhat tenuous, and to remove this serious conviction in the middle of an otherwise very minor record would be to give the jury a completely false impression. I have no doubt but that proper limiting instructions can be given to the jury in this regard. The application made on behalf of Yvon Gagnon is dismissed. [Emphasis added.]

70The appellant stresses that consideration of the first factor, remoteness in time, pointed towards exclusion of the manslaughter conviction as the conviction occurred thirteen years before the charges before the court. It is further submitted that the manslaughter conviction bears a similarity to the offence of conspiracy to commit robbery because robbery involves an element of violence. As to the importance of the conviction within the context of the accused’s criminal record, the appellant disputes the trial judge’s conclusion that the jury would have had the misimpression that the appellant’s record consisted of convictions for relatively minor offences if the manslaughter conviction was excluded. The nature of the conviction, it is submitted, is of limited probative value to the accused’s credibility because it is not a conviction for an offence of dishonesty. On the other hand, the convictions in relation to crimes of dishonesty, that is the convictions for theft and for possession of stolen property, would have been before the jury. As a result, the appellant submits that the trial judge erred in principle in deciding that the probative value of Yvon Gagnon’s conviction for manslaughter outweighed the prejudicial effect of placing this conviction before the jury.

71The appellant has not shown that the trial judge applied the wrong test or failed to weigh the appropriate factors in the exercise of his discretion. Rather, the error is alleged to be in the weight assigned by the trial judge to the factors he weighed.

72In dealing with the Corbett application, the trial judge referred to the decision of this court in R. v. Saroya (1994), 1994 CanLII 955 (ON CA), 76 O.A.C. 25 (C.A.). In that case, the court considered whether a conviction for attempted murder should have been excluded at the appellant’s trial for assault. The court found that the trial judge misstated the appropriate test and in light of that it was incumbent on the appellate court to decide on the admissibility of the record. The court stated at p. 28:

A conviction for attempted murder cannot be dismissed as having little probative value on the credibility of the witness. Although it is not a so-called offence of dishonesty, which may be probative of deception, attempted murder is such a serious offence that, in itself, it may be taken to indicate that the prospect of a conviction for perjury is unlikely to keep the witness in line. More significantly, it would be open to a jury to find, on all the relevant evidence, that the witness is unlikely to have more respect for the truth than he has shown for human life.

73The court in Saroya, supra, then balanced the probative value of the attempted murder conviction against the prejudicial effect of its similarity to the crime of assault and in doing so also took into consideration the fact that this was the appellant’s sole prior conviction. In the end, the court concluded that the deletion from the appellant’s record would leave the jury with incomplete information as to the appellant’s credibility and concluded that the criminal record was admissible.

74As in Saroya, supra, the trial judge was of the opinion that the deletion of the commission of this serious crime from the appellant’s record would leave the jury with a misimpression as they weighed his credibility. A conviction for manslaughter, like a conviction for attempted murder, is a very serious offence that, as quoted above, may indicate that the prospect of a conviction for perjury is unlikely to deter the witness from lying under oath. I cannot say the trial judge inappropriately weighed the various factors he was required to consider. No objection was taken at trial to the judge’s instruction to the jury as to the limited use they could make of the record. Again, while not being determinative of the issue, the fact that there was no objection gives some indication of the overall accuracy of the charge to the jury and the gravity of the alleged error. I would dismiss this ground of appeal.

ISSUE II. Did the trial judge err in charging the jury with respect to Yvon Gagnon’s purported threat to kill Robert Elder?

75During cross-examination of the accomplice Robert Elder by Yvon Gagnon’s defence counsel, Elder testified that he placed himself in protective custody following his conviction for the Billings Bridge robbery due to the fact that he learned from Denis Lecompte, another alleged co-conspirator, that Yvon Gagnon was going to kill him. During pre-trial proceedings, the trial judge had canvassed the possibility that the jury might learn of the other accomplice Anderson’s fear for his safety and ruled that if the evidence was elicited in cross-examination he would not exclude it because, in his opinion, it was relevant to the motive of the accomplices for testifying and thus to their credibility. Later, when the parties were making submissions regarding proposed restrictions on Crown counsel’s re-examination of Elder, the trial judge curtailed Elder’s evidence. He ruled that Crown counsel could not introduce evidence as to why Elder feared for his safety. He also said that he would instruct the jury to consider the evidence of the threat only in the light of explaining Elder’s reliance on the witness protection program “and specifically tell them that they may not, in any event, infer anything as to the character of any accused from that evidence.” The record does not indicate that the trial judge delivered any such warning to the jury at the time. When Yvon Gagnon testified, defence counsel, who is not counsel on this appeal, did not canvass this particular area of Elder’s evidence with him. When the judge charged the jury he did not cover the alleged threat to Elder in his charge and, as a result, did not deliver any instruction respecting the limited use the jury could make of that evidence. Counsel did not request any such instruction afterwards.

76On the afternoon of July 28, 1995, the jury asked the following question during their deliberations:

Your honour, we require clarification on: In the evidence, what connection is there between Robert Elder and Denis Lecompte? That is to say, when/how did they meet, also is there any evidence that Denis Lecompte and Robert Elder had conversations/meetings/encounters?

77The trial judge heard submissions of counsel as to the answer he should give, including the submission that he not tell the jury the content of the conversation at the detention centre, which had already been given in evidence. In the course of these submissions, one of the counsel commented:

Your honour is not disposed to repeating the warning…

The trial judge replied:

Yes. I’m going to remind them this comes from Robert Elder’s testimony, and there is no other evidence on these matters.

The trial judge then charged the jury:

First of all, let me tell you that in answer to your question, and I’ve gone over this suggested answer with counsel and have received their submissions.

Robert Elder, at the first of his testimony, said that he had known Denis Lecompte since about the year 1990. There is no evidence of how or where or under what circumstances they met.

The second part of your question was whether there were any conversations, meetings or encounters between the two. And what I have to ask you is whether you simply want to know if there were such things, or whether you want to know, if there were, what was said.

A Juror:

I believe the group perhaps wanted to know if there was evidence as to what was said – what was said and if there were –

The Court:

You want to be reminded of what was said, or are they just content to know there were just discussions?

A Juror:

I think we would like to know what was said.

The Court:

All right. Very well. I thought that was probably what you wanted, but I wasn’t sure because of the way the question was phrased.

There is evidence from Robert Elder of meetings and encounters, discussions with Denis Lecompte, and before I outline that to you, let me remind you that evidence of such discussions comes only from Robert Elder, and except for a reference that I’ll make to his wife Linda, there is no other evidence of these discussions, meetings or encounters.

He said that, first of all, that Denis Lecompte was one of those who met at Robert’s place preparatory to driving to Toronto with the two stolen cars – Denis came in the third car, not a stolen car – that at Toronto, according to Robert Elder, Denis was part of a discussion about getting a third stolen car. He wasn’t part of a discussion as to whether another gun was needed for an upcoming robbery. Robert said that in the detention centre Denis had told him that he had put the bomb on the armoured car and that the ramming had reduced the take.

Elder also said that at the centre Denis had told him that Yvon would kill him-kill him, Robert.

I direct you that you are not to use that evidence against Yvon Gagnon in any way.

It is evidence that you may use when deciding whether or not Denis Lecompte was part of the conspiracy, and it is, I say to you, evidence that is capable of going towards Denis’ membership in the conspiracy.

Linda Elder told us that Denis would come over from time to time at some time or times prior to the Lawrence Square robbery, and he would come over with others to see Robert and that she would be told to leave the house, or that if she wasn’t told to leave the house, all those there, including Denis, would retire to the basement for their discussion and that she didn’t overhear what they were discussing and wasn’t a part of their discussion at all.

I don’t think there is anything more I can say on the matter. We’ve looked through the evidence and that is what we’ve been able to find, and I hope that will be of some assistance to you. [Emphasis added.]

78The jury exited at 4:27 p.m. and returned with their verdict at 5:19 p.m.

79Despite counsel’s reference to rewarning the jury, for the purpose of this discussion, I will take it that the trial judge did not warn the jury of the limited use they could make of the evidence of the threat at the time Elder gave his response in cross-examination. Given the jury’s specific request to know the content of any conversations that allegedly took place between Elder and Lecompte, the trial judge had no choice but to answer the question, including repeating the alleged threat because it was already in evidence. At the same time, the trial judge clearly instructed the jury that they could not use the evidence of the threat against Yvon Gagnon. The law presumes that juries will make proper use of such statements when a limiting instruction is given: See e.g. R. v. McLeod (1983), 1983 CanLII 3605 (ON CA), 6 C.C.C. (3d) 29 (Ont. C.A.). Although Lecompte’s words to Elder were not said in furtherance of the conspiracy, the statement was admissible on the basis it was relevant to Elder’s motive for testifying against the accused. Elder’s motive for testifying was a consideration for the jury in assessing his credibility. Thus, in referring to the threat, the trial judge did not err by referring to inadmissible evidence. This ground of appeal is dismissed.

ISSUE III. Is there a serious possibility that lost portions of the transcript of the trial proceedings would have revealed an error and/or deprived Yvon Gagnon of a ground of appeal?

80This ground of appeal may be disposed of summarily. We did not call upon the Crown to respond to it. The combination of the notes of the assistant Crown attorney and the trial judge indicate that at one point, Sgt. Charles Perry, the detective in charge of the case, testified to the effect that he believed that the appellant, Yvon Gagnon, was guilty. Counsel for Yvon Gagnon objected on the basis that it bolstered the credibility of one of the accomplices who testified against the appellants and usurped the function of the jury. The trial judge dismissed counsel’s application for a mistrial and his notes indicate that he cautioned the jury. The trial judge’s decision whether or not to declare a mistrial is a discretionary one and, as a general rule, appellate courts show deference to such decisions. The evidence was but one brief comment in lengthy proceedings and, in view of the fact that the police had laid charges, not a surprising one. The notes of the assistant Crown attorney and of the trial judge suffice to show that the missing transcript did not deprive the appellant of a ground of appeal. The appellant, Yvon Gagnon, suffered no prejudice from the lost portions of the transcript.

81I would dismiss the conviction appeal of Yvon Gagnon.

C. Grounds of appeal raised only by André Gagnon

ISSUE I. Should the in-court identification evidence of André Gagnon by Brad Bradburn have been excluded by the trial judge because its prejudicial effect outweighed its probative value?

82Brad Bradburn, a former police officer, testified that he saw two men watching an armoured car at the corner of Lawrence and Caledonia in a suspicious way. He saw one of them use a cellular phone as soon as the armoured car left. Bradburn said that he observed the first man for a period of 30 to 60 seconds and the second man for a shorter period of time. The timing of his observations was just before the Lawrence Square robbery occurred. The next day, when he heard about the robbery, he went to the police and gave a description to the police of both the persons he had seen. Based on his description, a police artist made a composite sketch of the taller man whom Bradburn said was 5’10” or 5’11”. Bradburn described the second man as being shorter, heavy set with bushy, curly, dark hair, puffy cheeks, a blunt nose and broad face. Bradburn later saw the composite of the first man in a newspaper article about the Lawrence Square robbery as well as a second composite. He thought the second composite was similar to the shorter man.

83On April 11, 1994, Bradburn was shown a police photographic line-up containing a photograph of Denis Wolfe, whose photo he picked out as “real close” to the taller man he had seen. Bradburn’s identification of Wolfe was supported by another independent witness, Thomas Scott, who also picked out Wolfe’s picture as one of three persons he saw get out of a brown car behind Bathurst Heights Secondary school after the robbery. Bradburn was shown a second police photographic line-up containing André Gagnon’s picture. He was unable to pick out anyone resembling the shorter man.

84Bradburn did not identify André Gagnon at the preliminary inquiry. He did identify Wolfe at the preliminary inquiry.

85Just prior to giving evidence at trial, Bradburn notified the police that André Gagnon appeared to be “similar” to the second or shorter man he had seen on the day of the robbery. However, he was still unable to positively identify André Gagnon as being the second man. According to Bradburn, his observations of André Gagnon’s “mannerisms” at the preliminary inquiry led him to believe that André Gagnon was similar to the second man he saw at the corner of Lawrence and Caledonia. He said that he did not say anything about this at the preliminary inquiry because nobody asked him to. Bradburn admitted that he would say anything to help the police.

86A lawyer testified that André Gagnon told him the sketch looked like him and consulted him about suing the Star for publishing it. The lawyer convinced André Gagnon that the sketch did not look like him and that he had no case against the Star.

87It was not the Crown’s position that André Gagnon actually committed the Lawrence Square robbery. It was the Crown’s position that Michel Gagnon, André’s fraternal twin brother, was the person who participated in the robbery together with Yvon Gagnon.

88The defence applied to exclude Bradburn’s evidence on the ground that its prejudicial effect outweighed its probative value. The trial judge declined to exclude the evidence. The appellant submits that the trial judge did not appreciate that he had a discretion to exclude the evidence and that he erred in not doing so.

89It is now clear that a trial judge enjoys a general discretion to exclude evidence on the basis of the trial judge’s duty, now enshrined in s.11(d) of the Charter of Rights and Freedoms (hereinafter, “Charter”), to ensure a fair trial: R. v. Harrer (1995), 1995 CanLII 70 (SCC), 42 C.R. (4^th) 269 at 282 (S.C.C.). Identification cases are no exception: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 at 498 (Ont. C.A.). In deciding whether the admission of the evidence would render the trial unfair, the trial judge should engage in a balancing exercise, balancing the probative value of the evidence against its prejudicial effect. Prejudice in this context means the danger that the jury will use the evidence for an improper purpose despite the judge’s instructions to the contrary: See R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 at 346 (Ont. H.C.J.).

90The decision in Harrer, supra, was not rendered until October 1995, so it is not surprising that, in July 1995, the trial judge declined to exclude the evidence. Prior to the decision in Harrer, McLachlin J., for the majority, had held that the basic tenet governing the admissibility of evidence generally was dependent upon whether the probative effect of the evidence outweighed the prejudice caused to the accused by its admission: R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 at 391 (S.C.C.). The trial judge discussed Seaboyer and concluded that, to constitute prejudice, the introduction of the evidence must contain an element of unfairness as opposed to simply tending to show the accused was guilty of the crime charged. No case to which he was referred had held identification evidence inadmissible. The trial judge followed the reasoning of Doherty J. in R. v. Roberts and Able, a judgment of the Ontario High Court of Justice, released June 1989:

… who, when dealing with fragile identification evidence cited Mezzo v. The Queen (supra) as authority for the proposition that “the fragility of identification evidence is not, alone, a basis for keeping that evidence from the trier of fact.”

The trial judge was of the opinion that this was not a case where the witness had made a positive identification in court with very little if any distinguishing characteristics. Accordingly he ruled the evidence admissible.

91The trial judge was correct that the generally accepted state of the law is that, where evidence is tainted, either because identification was suggested by the accused’s presence in the prisoner’s box or as a result of inappropriate police procedures, the evidence is not thereby rendered inadmissible. Rather, the evidence of tainting is a factor going to the weight of the evidence which is exclusively the province of the jury. See Mezzo v. The Queen (1986), 1986 CanLII 16 (SCC), 27 C.C.C. (3d) 97 (S.C.C.); R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 at 458 (Ont. C.A.); R. v. Buric (1996), 1996 CanLII 1525 (ON CA), 106 C.C.C. (3d) 97 at 112 (Ont. C.A.) per Labrosse J.A., whose reasons were affirmed at (1997), 1997 CanLII 380 (SCC), 114 C.C.C. (3d) 95 (S.C.C.). (Laskin J.A. in dissent and in reliance on Harrer, supra, would have upheld the trial judge’s decision to exclude the evidence on the basis that improper police procedures raised an issue of trial fairness.) An accused could, of course, apply to have the evidence excluded on the basis that it has been improperly obtained under s.24 (2) of the Charter: Miaponoose, supra. Section 24(2) would not, however, be of assistance respecting an in court identification as it cannot be said that in those circumstances the evidence was improperly obtained. In Harrer, however, Lamer C.J.C., for the majority, at 82, held that, in order to invoke the court’s discretion respecting an issue of trial fairness under s.11(d), it is not necessary to resort to s.24(2) or, for that matter, s.24(1) of the Charter.

92The decision in Harrer, supra, may have the effect of pre-empting the need for an appeal based solely on an in-court identification if the trial judge exercises his or her discretion to exclude the evidence on the basis that its probative value is overborne by its prejudicial effect. A conviction based on in-court identification evidence alone is unsafe and will likely result in an acquittal on appeal on the basis that the verdict is unreasonable and cannot be supported by the evidence. See R. v. Smith (1952), 1952 CanLII 116 (ON CA), 103 C.C.C. 58 (Ont. C.A.); R. v. Izzard (1990), 1990 CanLII 11055 (ON CA), 54 C.C.C. (3d) 252 (Ont. C.A.); R. v. Reitsma (1998), 1998 CanLII 825 (SCC), 125 C.C.C. (3d) 1 (S.C.C.). It is not always easy for a trial judge to know when to exercise his or her role as the guardian of a fair trial and when the judge is trespassing on the exclusive prerogative of the jury to weigh the evidence. Similarly, in reviewing the trial judge’s decision on appeal, reasonable people can and do differ. To assist in this review, some further discussion of the law of identification evidence may be helpful.

93In Miaponoose, supra, Charron J.A., at p. 450-451, helpfully summarized the frailties of identification evidence, many of which had been articulated in the Law Reform Commission of Canada Study Paper (1983) on “Pretrial Eyewitness Identification Procedures”. I will not repeat them here. An identification of an accused person as the perpetrator that is made for the first time when the accused is in the prisoner’s dock poses frailties over and above the normal frailties attached to identification evidence: R. v. Williams (1982), 1982 CanLII 3729 (ON CA), 66 C.C.C. (2d) 234 at 253 (Ont. C.A.). The accused is often the only person in the prisoner’s dock or one of a few dissimilar looking persons and so the identification made is suggested to the witness. The identification is thus subject to the frailty that the witness, although honest, may be mistaken, and therefore the identification may be unreliable. Where, as here, the witness did not know the accused and where the witness’ opportunity to observe the perpetrator was brief, concern as to the reliability of the identification made in court is heightened.

94An out-of-court description of the suspect given by a witness to the police, particularly a description that contains a distinctive personal characteristic, is admissible in court as a means of assisting the jury to assess what weight should be given to the identification that has been made in court: Tat, supra. Similarly, a videotape or photograph of a suspect in the vicinity at the time the crime was committed is also admissible provided that the accuracy and fairness of what the videotape or photograph purports to depict is established: R. v. Maloney (No. 2) (1976), 1976 CanLII 1372 (ON SC), 29 C.C.C. (2d) 431 (Ont. Co. Ct.) LeSage, Co. Ct. J. as cited in R. v. Brown, [1999] O.J. No. 4864 (Gen. Div.) on the voir dire relating to the admissibility of the tape from the surveillance camera showing the homicide and robberies at the Just Desserts Café in Toronto. In these cases, there is a means for the jury to measure the accuracy or reliability of the identification made in court. As stated by Trafford J. in Brown, supra, there is an articulable basis for the jury to discount the frailties of the identification evidence. Because the jury will be able to weigh the evidence and to engage in a reasoning process respecting its admission or rejection, the admission of the evidence will not be unfair to the accused.

95The appellant submits that there is no articulable basis by which the jury could assess the identification Bradburn made in court of André Gagnon and that, consequently, the trial judge ought to have excluded his evidence. I disagree. The jury could consider the out-of-court description given by Bradburn to the police of the second man. In addition, the evidence reviewed by the trial judge in his charge to the jury immediately after he mentioned Bradburn’s evidence indicates that there were still photographs and security videos taken at the relevant time of two suspects at the Lawrence Square plaza. The trial judge told the jury:

Then you saw evidence at some length of what the security cameras at the Lawrence Square showed. You will have the videotapes, and a machine if you wish to have it played for you – there will be an operator to do that at your disposal – but the most important thing is that there are still photographs made from the tapes which I suggest you will find more meaningful.

Those photographs seem to show two men waiting separately on the inside of the mall near – in the front lobby and near the front door.

96The jury would have had an articulable basis on which to assess the in court identification of Bradburn.

97The appellant seeks support for his position that the prejudicial effect of the evidence outweighed its probative value by drawing upon the position of Crown counsel as taken before the jury that it was André’s brother, Michel, who was a participant in the Lawrence Square robbery. This does not mean, of course, that André could not have been in the vicinity providing assistance as to the movements of the armoured vehicle. It is trite law that a jury may accept or reject any theory advanced by counsel, after being properly charged on the evidence. As put by this court in R. v. McLaughlin (1974), 1974 CanLII 748 (ON CA), 15 C.C.C. (2d) 562 at 568 (Ont. C.A.):

The jury is concerned with the evidence rather than with the theories advanced by the Crown or the defence. It is not obliged to view the evidence in the same manner as the Crown or the defence, both of whom often advance theories which are not adopted by the jury. The ultimate duty of the jury is to examine the evidence and to reach a conclusion as to the direction in which they deem the evidence to point. Their rejection of a theory advanced by the Crown does not vitiate their verdict.

98The Crown’s position that André Gagnon had not committed the robbery was not necessarily incompatible with Bradburn’s evidence that he was in the vicinity at the corner of Lawrence and Caledonia watching the armoured car, nor was it binding on the jury.

99Contrary to the appellant’s submission, the trial judge was alive to the issue of trial fairness. The trial judge decided to exercise his discretion not to exclude the in-court identification evidence of André but to let the jury weigh it. There was an articulable basis by which the jury could weigh Bradburn’s evidence. The trial judge did not err in principle in the manner in which he exercised his discretion.

100The appellant also submitted, in oral argument, that it was necessary for the trial judge to tell the jury that Bradburn’s in court identification was subject to special frailty.

101The trial judge’s charge to the jury on the subject of the frailties of identification evidence was complete. In addition, after discussing Bradburn’s evidence, the trial judge also referred to the evidence of Constable Hoogerdyk, who insisted that André Gagnon was one of two passengers in a car he investigated for a minor traffic accident on December 2, 1998. Surveillance evidence indicated that the persons in the car were Michel Gagnon and Yvon Gagnon. Yvon also admitted to being in the area. Yet, the police officer insisted that the passenger in the car was André and that Michel was the driver. The trial judge referred to this as “an excellent example of the weaknesses of identification evidence.” He also warned the jury that, in his opinion, the identification evidence of Bradburn was of such poor quality in all the circumstances they should scrutinize it carefully before relying on it. The trial judge’s charge to the jury adequately brought home to the jury the dangers with respect to Bradburn’s evidence.

102For all of the above reasons, I would dismiss this ground of appeal.

ISSUE II. Did the trial judge err in not instructing the jury to avoid finding the appellant André Gagnon guilty simply because of his relationship to his brothers and because of their membership in a motorcycle gang?

103This ground of appeal was raised in the factum with respect to both appellants but was argued only in relation to André Gagnon.

104In his testimony, Yvon Gagnon admitted to a criminal lifestyle as an explanation and defence to some of the evidence adduced by the Crown. The trial judge cautioned the jury in relation to Yvon Gagnon’s evidence that the jurors were not to conclude that, because he had been convicted of other crimes, he was disposed or had the propensity to commit the crimes with which he was charged. The trial judge also told the jury that they were entitled to take Yvon Gagnon’s criminal record into account in assessing his credibility as a witness. He added, however, “you are not to condemn him for his lifestyle or conclude he is a bad person and that therefore he is likely to have committed the offence with which he is now charged.” The decision not to pursue this ground of appeal as it relates to Yvon Gagnon was eminently reasonable.

105The appellant, André Gagnon submits that the jury may have been tempted to conclude that, because his brother Michel Gagnon was clearly implicated in the robberies, having been caught red-handed at Billings Bridge, the jury might find André guilty by association. The appellant submits that the trial judge should have given the jury an instruction that they could not infer that the appellant was, because of his relationship to Michel, of ill-repute and, therefore, likely to have been a member of the conspiracy. In support of his submission, the appellant relies on the following passage in R. v. Cotroni (1979), 1979 CanLII 38 (SCC), 45 C.C.C. (2d) 1 at 17 (S.C.C.):

…It can, however, be said that the indictment for conspiracy is a formidable weapon in the armoury of the prosecutor. According to the cases, it permits a vague definition of the offence; broader standards of admissibility of evidence apply; it may provide the solution to prosecutorial problems as to situs and jurisdiction ... But the very looseness generally allowed for specifying the offence, for receiving proof, and generally in the conduct of the trial, imposes upon a trial Judge an added duty to ensure against the possibility of improper transference of guilt from one accused to another. There is, I have no doubt, a subconscious tendency upon the part of jurors in a conspiracy case to regard all co-conspirators alike and ignore the fact that guilt is something individual and personal.

106The trial judge told the jury that they must assess the guilt of each accused separately. The trial judge also reviewed for the jury the evidence they could use to determine whether each of the appellants was probably a member of the conspiracy in phase two of the conspiracy inquiry and, in doing so, addressed many of the concerns raised in Cotroni, supra. I do not agree that the trial judge ought to have given a blanket limiting instruction that the jury could not draw any inference respecting André because of Michel’s participation in the Billings Bridge robbery. Such an instruction would not have been correct in law because, in relation to phase three of the conspiracy inquiry, the jury was entitled to consider the acts of Michel in furtherance of the conspiracy in order to decide if the Crown had proven beyond a reasonable doubt that André was a member of the conspiracy. The American decisions relied on by the appellant do not deal with the charge of conspiracy and, as such, are of little significance to this issue.

107There was a reference in the evidence to André providing Anderson, who is a cocaine addict, with cocaine. This evidence was not so significant that it would have invited the jury to infer the appellant’s guilt.

108The jury was also told that André was involved in the trafficking of counterfeit money. Yvon Gagnon testified that he was involved in trafficking counterfeit money in order to explain some of the surveillance evidence that placed him at various malls. In essence, Yvon Gagnon’s defence was that the Crown had charged him with the wrong offence and he was not guilty of conspiracy to commit robbery. Although André Gagnon did not testify, if the jury accepted that André was involved in trafficking counterfeit money, as opposed to robbery, it would be a defence to the conspiracy charge.

109Unfortunately, other serious evidence of bad character was placed before the jury as a result of the questions by counsel for Yvon Gagnon. The evidence was that: (i) André Gagnon had encouraged his son to commit robberies and his son had been arrested for a string of robberies; (ii) André Gagnon was associated with the Outlaw motorcycle gang; and (iii) the Outlaws had forced the accomplice, Anderson, to commit a robbery and had provided him with the gun.

110The evidence in the above paragraph causes concern because it is propensity evidence relating to the offence with which André Gagnon was charged. However, an accused person is permitted to lead propensity evidence against a co-accused. As stated by Catzman J.A. in R. v. Marks (2000), 2000 CanLII 4096 (ON CA), 145 C.C.C. (3d) 569 at 574 (Ont. C.A.):

Unlike the Crown, an accused person is permitted to lead propensity evidence against his co-accused and, in such a case, the usual instruction [that the jurors may not infer from such evidence that the accused is guilty because he is the sort of person likely to commit the offence for which he is being tried] has limited application: R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 132 C.C.C, (3d) 262 (Ont. C.A.), at 279. Where an accused leads evidence of his co-accused’s propensity for violence, a proper balance of the competing interests requires that the jury be told how it can use the evidence in considering the case of the accused and how it cannot use the evidence in considering the case of the co-accused: R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.).

111The evidence of bad character respecting André Gagnon emerged in cross-examination by defence counsel for Yvon Gagnon. The trial judge did not have the benefit of this court’s decisions in Marks, supra, and R. v. Diu (2000), 2000 CanLII 4535 (ON CA), 144 C.C.C. (3d) 481 at 526-528 (Ont. C.A.) requiring him to tell the jury how it could use the evidence in considering the case of Yvon Gagnon and how it could not use the evidence in considering the case of André Gagnon.

112The position of the defence, that was common to all co-accused, was that Elder and Anderson were chronic liars and that they could not be believed. The only relevance of bad character evidence led by co-accused Yvon respecting his co-accused André was to raise a reasonable doubt as to Yvon’s guilt by suggesting that André had the propensity to commit the offence. Such a “cut-throat” defence is appropriate with respect to some offences. Given that the charge here was conspiracy, a charge that involves the commission of an offence by more than one person, bad character evidence respecting André Gagnon could hardly raise a reasonable doubt with respect to Yvon Gagnon’s guilt. By leading evidence of bad character, Yvon might also have wanted to imply that he lacked the propensity to commit the offence with which he was charged. However, it would be difficult for that to be the case here because Yvon Gagnon’s criminal record, which had been placed in evidence, indicated he had prior convictions for possession of property obtained by crime and a prior conviction for a violent offence, namely, manslaughter. In these circumstances, the omission of the trial judge to instruct the jurors on how they might consider evidence of André’s disposition in deciding whether it had a reasonable doubt that Yvon had committed the crime is of no consequence.

113While the omission of the trial judge to instruct the jury as to how they could use the evidence is not of any consequence in this case, the omission to instruct the jury as to how they could not use the evidence is a serious one. The trial judge did not instruct the members of the jury that they must not use the evidence of André Gagnon’s disposition to find him guilty. The Crown directed this court’s attention to the fact that counsel for André Gagnon at trial (not counsel on this appeal) did not request a limiting instruction concerning the use of the evidence pertaining to André Gagnon’s bad character and did not object to the charge on this basis afterwards. The Crown also submitted that the members of the jury heard the trial judge’s warning that they must not use Yvon Gagnon’s prior convictions as evidence that he had committed the crime with which he was now charged. The Crown submitted that the jury would apply the same rationale to the bad character evidence concerning André Gagnon. I cannot agree. André Gagnon did not testify and his criminal record, if any, was not before the jury. Because André Gagnon did not testify, the evidence of bad character pertaining to him was not rebutted or explained. This made it all the more important that a limiting instruction be given by the trial judge. My concern in this case is heightened by the fact that the source of the bad character evidence was Anderson, a suspect witness, and the fact that there is a paucity of evidence confirming André Gagnon’s participation in the conspiracy. The jury should have been told that, if they accepted the bad character evidence of André Gagnon, they were not to use that evidence as propensity evidence to infer that André Gagnon was the sort of person who would be involved in a conspiracy to commit robbery. They could not use that evidence at all in deciding whether the Crown had proven its case against him: Diu, supra, at p. 527.

114In the absence of any instruction as to how the jury could not use the propensity evidence, I am concerned that the jury might have thought they were free to use it in considering whether André Gagnon was guilty of the charge he was facing.

115If the jury considered the propensity evidence in determining André Gagnon’s guilt, he would not have received a fair trial. As Doherty J.A. said in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 at 480 (Ont. C.A.):

Propensity reasoning also imperils the overall fairness of the criminal trial process. It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is. The criminal law’s reluctance to permit inferences based on propensity reasoning reflects its commitment to this fundamental tenet.

116My concern that André Gagnon may not have received a fair trial leads me to conclude that his conviction appeal must be allowed.

ISSUE III. Did the trial judge err in not declaring a mistrial after the jury saw André Gagnon in shackles outside the courtroom?

117Inasmuch as I have already decided that the appeal must be allowed, it is not, strictly speaking, necessary to address this ground of appeal. However, because this is one of the grounds of appeal raised as part of the submissions that the verdict in unreasonable, it is advisable to deal with it and I do so now.

118The appellants submit that the trial judge erred in not granting a mistrial once a number of jurors saw André Gagnon in shackles outside of the courtroom. The trial lasted from May 15, 1995 to July 28, 1995. At the commencement of trial, André Gagnon was on bail. On July 11, 1995, the Crown successfully applied to revoke André Gagnon’s bail. During the afternoon of July 24, 1995, the court officer did not check to see if the hallway was clear prior to bringing André Gagnon into the courtroom in shackles. As a result, two jurors, who were let into the hallway at the same time on the way to the courtroom, saw André Gagnon shackled. André Gagnon’s trial counsel brought an application for a mistrial which the trial judge dismissed. The trial judge decided that any prejudice caused by the jurors seeing André Gagnon in shackles could be corrected by a limiting instruction and gave such an instruction. Counsel then resumed their closing addresses. In dismissing the application for a mistrial, the trial judge took into consideration the fact that the lengthy proceedings were within just a few days of their conclusion. He also commented that it was apparent to the jury before then that André Gagnon was no longer out of custody. The position of trial counsel and of appellate counsel is that no amount of limiting instruction could ensure that André Gagnon received a fair trial.

119The trial judge had the unique advantage of presiding over the proceedings and was in the best position to gauge any claims of prejudice arising from the incident. The trial judge’s caution was clear. He pointed out that the fact André Gagnon was in custody should play no part whatever in their deliberations and that they should not draw from that fact any unfavourable inference towards him or the other accused who was in custody. I would agree with the trial judge’s conclusion that any prejudice to André Gagnon that was created because the jury saw him in shackles could be overcome by the limiting instruction.

ISSUE IV. Is the verdict unreasonable?

120André Gagnon submits that the verdict is unreasonable. This argument must be addressed as, if the verdict is unreasonable, André Gagnon would be entitled to an acquittal as opposed to a new trial. In considering this ground of appeal, this court is required, pursuant to s.686 (1)(a)(i) of the Criminal Code, to review the trial record and, to a limited extent, to weigh the trial evidence. See R. v. Yebes (1987), 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417 (S.C.C.); R. v Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.). In Biniaris, supra, Arbour J.A. held, at para. 38, that where an appellate court has a “lurking doubt”, based on its own review of the evidence, that the conclusion reached by the jury was reached in a non-judicial manner, this doubt is a useful trigger for thorough appellate scrutiny. In such a case, the appellate court must proceed further with its analysis. In this case, I will proceed on the basis that such further analysis is required. The reason is, as emphasized by the appellant, the paucity of evidence confirming participation of André Gagnon in the conspiracy.

121The evidence of André Gagnon’s participation in the conspiracy consists of the following. Elder testified that André Gagnon asked him to steal cars for the various robberies and that he did so. In his review of the surveillance evidence, the trial judge noted that Yvon and Michel arrived at the Yorkdale Mall and that, moments later, a Brinks car arrived. After lingering at the Yorkdale Mall, they drove to the Bayview Village Plaza parking lot. Then, both returned to Yorkdale. After this, they drove to the plaza at the corner of Bathurst and Lawrence, then to a plaza at Keele and Lawrence and back to Lawrence Square. They then drove to a bridge over the Allen expressway, where they stopped at the subway stop and looked towards Lawrence Square, where a Loomis truck was parked at the main doors of Lawrence Square. They drove back to Lawrence Square and parked in the driveway facing west towards the armoured car and about 150 yards away from it, for about 10 minutes. When the armoured car left, going west on Lawrence, they left, going east on Lawrence. They drove to Ottawa where they parked at the townhouse complex at 1060 Ramsay Crescent and entered Unit 111, which was the residence of André Gagnon. Michel and Yvon left about 10 minutes later in the Bonneville. Three males and two children left in a Subaru. According to Anderson, André owned a Subaru. The vehicles went in convoy for a ways and then split up.

122Brad Bradburn testified that he saw two persons at the corner of Lawrence and Caledonia just prior to the Lawrence Square robbery and he described both men to the police. Based on his description, the police artist drew a composite of the taller man. The newspaper article about the robbery also showed two composites. Bradburn thought the second composite looked like the shorter man he had seen. Bradburn testified at trial that one of the persons he had seen at Lawrence and Caledonia was “similar” to André Gagnon and that he based this conclusion on André’s mannerisms, his way of walking and moving his hands. Due to the previously discussed frailties in Bradburn’s identification, the trial judge cautioned the jury with respect to his evidence.

123In his examination in chief, Elder testified that, after the Lawrence Square robbery, André showed him the clipping from the newspaper about the robbery and said: “It is done”. Elder, Anderson and a lawyer all testified that André Gagnon showed them the newspaper clipping of the composite of the suspect and that he was concerned that the suspect looked like him. The Crown asked the jury to draw an inference of guilt from André’s conduct respecting the newspaper clipping. The trial judge instructed the jury that the inference of consciousness of guilt was so tenuous that it would be unsafe to draw it in light of all the circumstances. He added that, despite his warning, they could still draw that inference but “only if your are satisfied that it is the only reasonable inference to draw.” The trial judge also cautioned the jury there was no evidence to suggest that André was present at the scene of the Lawrence Square robbery.

124Anderson testified that the three brothers – Yvon, Michel and André – were planning a robbery in Kingston which was frustrated. He was asked to dispose of the New Yorker. He said that, after he had disposed of the New Yorker, André picked him up. Anderson also testified that both Michel and André told him Yvon was using funds from an armoured car robbery to invest in a Hovercraft business. Independent evidence confirmed Yvon’s investment in the Hovercraft business.

125Linda Elder testified that, just prior to the Billings Bridge matter, Yvon, Andy (as André is also called) and Denis Lecompte would come over to see her husband and she would have to leave, or they would go down to the basement to discuss things. The trial judge cautioned the jury, most particularly with respect to the evidence of Anderson and Elder, and he also told the jury that Linda Elder was an accomplice as well.

126Having regard to the paucity of confirmatory evidence respecting André Gagnon’s participation in the conspiracy, the appellant has submitted that the verdict is unreasonable. The simple answer to the appellant’s submission is that there does not have to be confirmatory evidence in relation to André Gagnon for the verdict to be reasonable.

127The point can be illustrated with the following simple example given by Dickson J. at p. 14 of Vetrovec, supra:

The accomplice, “A”, testifies against the accused, “B” and “C”. There is evidence implicating “B” in the crime, but no evidence implicating “C”. Nevertheless, since the supporting evidence relates to a vital issue in the case (the guilt of one of the accused), it bolsters the credibility of “A” and increases the probability that he is telling the truth. We, therefore, believe his story and convict both “B” and “C”.

128The example given applies to this case. Elder testified against both Yvon and André. There was evidence implicating Yvon in the conspiracy but little or no evidence implicating André. Nevertheless, since the supporting evidence of the false beard, spirit gum, bullets, spending and surveillance related to the vital issue of Yvon’s guilt, it bolstered the credibility of Elder and increased the probability that he was telling the truth. The jurors were, therefore, entitled to believe his evidence in relation to André as well as Yvon and to convict both of them. Viewed in this light, and together with the evidence of Linda Elder and Anderson, the verdict was not unreasonable.

129As further support for my conclusion, I would rely on the comments of Wilson J. in R. v. B.(G.) (1990), 1990 CanLII 113 (SCC), 56 C.C.C. (3d) 161 at 170 (S.C.C.) that the Supreme Court’s decision in Vetrovec, supra, as well as amendments to the Criminal Code repealing the requirement of corroboration in relation to what was formerly the charge of rape and the evidence of children are “… evidence of the decline in importance of the need for corroboration due to the recognition that the trier of fact is competent to weigh the evidence and credibility of all witnesses.” Twelve properly instructed jurors could convict André Gagnon despite the paucity of confirmatory evidence.

130The appellant also submitted that, even if the individual grounds of appeal raised in relation to André Gagnon did not succeed, the cumulative effect of these grounds of appeal should lead us to conclude that the verdict rests on such shaky ground that it would be unsafe to maintain it. Although I recognize this possibility, I would not give effect to this argument in this case. In Biniaris, supra, at p. 25, the Supreme Court of Canada stressed:

… the importance of explicitness in the articulation of the reasons that support a finding that a verdict is unreasonable or cannot be supported by the evidence. Particularly since this amounts to a question of law that may give rise to an appeal, either as of right or by leave, the judicial process requires clarity and transparency as well as accessibility to the legal reasoning of the court of appeal.

131Considering the cumulative effect of these grounds of appeal, I am unable to articulate reasons that would support a conclusion that the verdict is not supported by the evidence or that it is unreasonable.

132Finally, as I have noted, André Gagnon did not testify. By mentioning this fact, I do not mean to suggest that a verdict that might otherwise have been unreasonable is, because of the accused’s silence, able to withstand the scrutiny mandated by s.686(1)(a)( i) of the Criminal Code. It does, however, mean that, in the face of the evidence of Elder and Anderson implicating him, there was no explanation from André Gagnon.

133I would dismiss this ground of appeal. As I have indicated, I would order a new trial with respect to André Gagnon.

II. The Sentence Appeals

A. André Gagnon’s sentence appeal

134Inasmuch as there must be a new trial, the application for leave to appeal sentence is moot.

B. The appeal concerning the compensation order of Yvon Gagnon

135At the sentencing hearing, the Crown requested that compensation orders for the full amount of the loss suffered by the armoured car companies’ three victims be imposed and that each appellant be jointly and severally liable on each of the compensation orders. Neither the Crown nor the defence made any submissions relating to the means of the appellants to pay the compensation orders. The trial judge imposed compensation orders sought by the Crown, stating:

In addition I am making a compensation order under the provisions of section 725 of the Code for payment to Brink’s Armoured Car Services of $361,000 and for payment to Loomis Armoured Car Services of $802,000 and in respect of which I make an order for the forfeiture under section 491.1 of the Code forfeiting Exhibits 117 and 118, sums of money totaling $2,753 to apply on the Loomis compensation order reducing the sum to $799,248. The third compensation order I make is in favour of Pharma Plus, for $4,400. The first two orders, namely those with respect to Brink’s and Loomis will be charged against all three offenders jointly and severally. The Pharma Plus order will not being [sic] charged against Mr. Lecompte as the evidence indicates that he had nothing to do with that matter.

136Yvon Gagnon submits that the trial judge erred in imposing compensation orders without any inquiry into his means to pay the order.

137It would have been abundantly evident to the trial judge from the trial proceedings that Yvon Gagnon had no means to pay these orders nor was he likely to have any. While ability to pay is a factor that must be taken into account, a court is not, however, required to be satisfied of an offender’s ability to pay before imposing a compensation order: R. v. Biegus (1999), 1999 CanLII 3815 (ON CA), 141 C.C.C. (3d) 245 (Ont. C.A.); R. v. Fitzgibbon (1990), 1990 CanLII 102 (SCC), 55 C.C.C. (3d) 449 (S.C.C.). There was no recovery of the funds stolen. Although some of the stolen money was traced as having been spent, there has been no disclosure as to what happened to the bulk of it.

138The damages in this case were readily ascertainable. There was no valid basis for requiring these claims to be litigated in civil actions. A compensation order of this magnitude also serves the goal of general deterrence in sentencing. While the size of the order may not, as the appellants submit, assist the interests of rehabilitation, the interests of the victims are paramount in this situation: Fitzgibbon, supra.

139I would also not accede to Yvon Gagnon’s submission to divide the compensation order. The essence of a conspiracy is that it is a joint enterprise and allocation would not be appropriate. In R. v. Gaudet (1998), 1998 CanLII 5017 (ON CA), 125 C.C.C. (3d) 17 at 41 (Ont. C.A.), the loss was $9 million and a compensation order of $1 million was made by the trial judge. This court held that the loss was minimized because it had been divided up amongst the three appellants. The court commented that it was inappropriate for counsel to minimize the loss by dividing it among the perpetrators of the crime. The court stated: “In our view such allocation is not appropriate; each is jointly and separately liable for the whole amount.”

140The different roles played by the appellants were reflected in the differential between the sentences of imprisonment.

141I would therefore dismiss the appeal from the compensation order.

142For the above reasons, I would dismiss the appeal with respect to Yvon Gagnon. I would allow the appeal in relation to André Gagnon, set aside the conviction and order a new trial.

Signed: “Karen M. Weiler J.A.”

“I agree: M.A. Catzman J.A.”

LASKIN J.A.:

143I agree with the disposition of the two appeals proposed by Weiler J.A. I also agree with her analysis of the issues raised by Yvon Gagnon.

144On André Gagnon’s appeal, I am dubious whether the evidence referred to by the trial judge in his charge was capable of supporting the evidence of Elder and Anderson that André Gagnon participated in the bank robberies. Nonetheless, I agree with Weiler J.A. that, in the light of the passage from Vetrovec quoted at para. 127 of her reasons, it cannot be said that the conviction of André Gagnon was unreasonable.

145I also agree with Weiler J.A. that André Gagnon is entitled to a new trial because of the trial judge’s failure to properly instruct the jury on the evidence of bad character. It is therefore unnecessary to deal with the other issues raised by André Gagnon and I express no opinion on them.

Footnotes

1. 1Criminal Code, R.S.C. 1985, c. C-46 (hereinafter, “Criminal Code”). Section 274 of the Criminal Code now mandates that corroboration is not required for a conviction for set offences and that a judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.