COURT OF APPEAL FOR ONTARIO
C28509
COURT OF APPEAL FOR ONTARIO
CHARRON, MOLDAVER and MacPHERSON JJ.A.
B E T W E E N : )
) David M. Midanik
HER MAJESTY THE QUEEN ) for the appellant, Thompson
)
Respondent )
)
- and - ) Shaun Nakatsuru
) for the appellant, Wilmot
DAVID LAWTON THOMPSON )
)
Appellant )
)
) Roger A.S. Pinnock
) for the respondent
A N D B E T W E E N :
)
HER MAJESTY THE QUEEN )
)
Respondent )
)
- and - )
)
DEVON WILMOT )
)
Appellant )
) Heard: May 3, 2000
On appeal from conviction by Hawkins J., with a jury, dated May
9, 1997 and from sentence dated May 20, 1997 re Thompson and
September 15, 1997 re Wilmot
MOLDAVER and MacPHERSON JJ.A.:
1The appellants Thompson and Wilmot were jointly tried by a
judge and jury in connection with a series of offences arising
out of a home invasion robbery on March 10, 1995 in the City of
Scarborough. Each was found guilty of five counts of robbery,
five counts of unlawful confinement, one count of using a firearm
in the commission of an indictable offence, one count of wearing
a disguise with intent to commit an indictable offence and
various other firearms related offences. The jury was unable to
reach a verdict on a single count against Wilmot of pointing a
firearm and that charge was stayed at the request of the Crown.
At their respective sentence hearings, both men were tried by
judge alone and convicted on a further count of being in
possession of a firearm while prohibited from doing so pursuant
to an order under s. 100(1) of the Criminal Code.
2Thompson received a sentence totalling 12 years imprisonment
and Wilmot was sentenced to a total of 13 years and 8 months
imprisonment. Both men appeal from their convictions and
sentences.
OVERVIEW
3On March 10, 1995, three masked men, armed with guns, burst
into an apartment located at 1350 Danforth Avenue, Scarborough,
Ontario. The three occupants of the apartment were bound and
brutally beaten while the armed robbers ransacked the apartment
in search of money and drugs. The robbers repeatedly threatened
the occupants with death if they did not disclose the location of
money and drugs which they believed were hidden in the apartment.
During the course of the robbery, two friends of the occupants
had the misfortune of dropping by for a visit. They too were
bound, beaten and held at gun point while the robbery progressed.
The three armed men ultimately fled the apartment via the
stairwell and, after loading three bags of stolen property into
the trunk and back seat of a Nissan Maxima, they drove away.
4The Maxima, which had been under police surveillance that
evening, was followed and forcibly stopped a short time later
near Neilson Road and Highway 401. Thompson and a man named
Holley Agbeyaka were arrested in the motor vehicle. Wilmot fled
on foot following the take-down. He was chased by numerous
officers and arrested shortly thereafter.
5Of the three robbers, Agbeyaka was the only one who removed
his mask during the course of the robbery. He was positively
identified by the victims and entered pleas of guilty to 13
offences prior to the appellants’ trial. He was sentenced to a
term of imprisonment totalling 7-1/2 years.
6The central issue at trial was whether the Crown had
established beyond a reasonable doubt that Thompson and Wilmot
were the other two robbers. Both men testified and each denied
being present in the apartment at the time of the robbery.
7Thompson admitted to planning the robbery and driving to the
robbery scene in the Maxima with Agbeyaka and another
unidentified man. He claimed, however, that at the last moment,
after learning that other men, apart from the two he had
conspired with, were planning to take part in the robbery, he
decided not to participate. Accordingly, after he and the others
arrived at the scene in two cars, he went for a walk, only to
return a short time later when he realized that he had no money
to get home.
8When he arrived at the parking lot of the apartment
building, he saw the lights of the other vehicle, a Mazda, flash
on and off. He spoke to an occupant of that vehicle and then
proceeded to the stairwell of the building where he was met by
Agbeyaka and three other identified men coming down the stairs.
Thompson joined Agbeyaka and one of the others and the three got
into the Nissan and fled the scene. They were stopped a short
time later by the police.
9Thompson denied loading one of the bags of stolen property
into the Maxima. His evidence in this regard was contradicted by
Constable Mooney, a surveillance officer who was familiar with
Thompson and who identified him as one of the persons loading a
bag into the Maxima after the robbery. Constable Mooney also
testified that he followed the Maxima to the apartment building
on the evening in question and although he did not see the
occupants exit the vehicle, he kept the vehicle and the parking
lot under surveillance until the robbers returned. Contrary to
Thompson’s evidence, at no time during this interval did he see
Thompson return to the parking lot by himself, nor did he observe
Thompson speak to anyone in a Mazda or enter the apartment
building.
10Unlike Thompson, Wilmot maintained that he had no prior
knowledge of the robbery. On the night in question, he testified
that he was picked up by his friend Agbeyaka in the Maxima after
the robbery at a pre-arranged location on Trudel Avenue, a short
distance from the robbery scene. According to Wilmot, he and
Agbeyaka had made plans to attend some unspecified party that
night and Agbeyaka had told him to wait at a specific time and
place on Trudel Avenue to be picked up. Wilmot denied knowing
Thompson prior to the night in question and he claimed that when
he entered the Maxima, he did not know the identity of the third
person seated beside Agbeyaka.
11When the Maxima was stopped by a number of armed men, Wilmot
testified that he feared for his life and fled. He then heard
two shots and someone saying “police,” at which point he stopped,
laid down on his stomach and was arrested. Contrary to the
evidence of the police, he denied being in possession of a gun
and shooting at the police in an effort to make good his escape.
He maintained that a revolver found on the ground near the scene
of his arrest was planted by the police. He also disputed the
police evidence that he had stolen property on his person at the
time of his arrest.
12Wilmot’s testimony was contradicted in a number of material
respects by evidence led by the Crown. Apart from those already
mentioned, he was identified in several lawfully intercepted
conversations as the person speaking to Thompson and planning the
robbery. Moreover, Constable Mooney, who observed Wilmot shortly
after his arrest, testified that he had seen Wilmot in the Maxima
earlier that evening as the car proceeded to the robbery scene.
13There are other facts that are relevant to the appeal. We
find it convenient to set them out in the context of the specific
ground to which they relate.
CONVICTION APPEALS
14The appellants raise several common issues. Wilmot raises
two further issues that relate only to him.
Common Issues
- Did the trial judge err in refusing to grant the Corbett
applications brought by the appellants?
- Did the trial judge err in failing to instruct the jury
to treat the appellants separately and in failing to
adequately review the position of the appellants?
- Did the trial judge misdirect the jury on the liability
of the appellants as parties to the various offences?
- Did the trial judge fail to properly instruct the jury
on the frailties of eye witness identification evidence?
Wilmot Issues
- Did the trial judge err in failing to instruct the jury
on the use of hearsay statements made by co-conspirators
in furtherance of a common design?
- Did the trial judge misdirect the jury on the test to
be applied in determining whether Wilmot’s post-offence
conduct could be considered as circumstantial evidence
of guilt?
COMMON ISSUES
(1) The Corbett Issue
15At the time of trial, Thompson had the following criminal
record:
1989
Fail to comply with recognizance
1993
Robbery Use of a firearm during the commission of an indictable offence
16Prior to calling Thompson as a witness, his counsel [not Mr.
Midanik] brought a Corbett application in which he sought to
exclude the robbery and use of a firearm convictions or,
alternatively, the fail to comply and use of a firearm
convictions. In other words, it was his position that the jury
should be prevented from learning of the conviction for using a
firearm but permitted to learn of one or the other of the robbery
or failing to comply convictions.
17In support of his position, defence counsel maintained that
in view of the nature of the charges against Thompson, it was
necessary that the record be edited because its prejudicial
effect far exceeded whatever marginal probative value it might
have on the issue of credibility.
18Counsel for Wilmot [not Mr. Nakatsuru] brought a similar
application on behalf of his client. At the time of trial,
Wilmot’s record read as follows:
1988
Possession of a stolen credit card
1990
Assault
1990
Assault with intent to resist arrest
1991
Assault
1992
Robbery
1994
Aggravated assault (2 charges) Use of a firearm in the commission of an indictable offence
19Defence counsel sought to exclude the five emphasized
convictions for essentially the same reasons as Thompson. In
addition, given that Wilmot’s flight at the time of arrest had
resulted in a separate charge against him of pointing a firearm
at a police officer, he expressed particular concern about the
prejudicial effect of the 1990 conviction for assault with intent
to resist arrest and the 1994 conviction for using a firearm in
the commission of an indictable offence.
20The trial judge rejected both applications. In his ruling,
he treated the appellants as a unit and provided three reasons
for refusing to exercise his discretion in favour of editing the
records.
21First, he found that the convictions in issue were relevant
and recent and probative of the credibility of the appellants.
Second, he considered it significant that the appellants had
launched an attack on the credibility of the victims of the
robbery with a view to showing that they had downplayed the
nature and extent of their drug activities and falsely under-
reported the amount of money stolen. Third, the trial judge
placed considerable emphasis on the fact that the defence had
attacked the credibility of the police and had gone so far as to
accuse them of conspiring to commit perjury and subvert the
course of justice. In view of that, the trial judge was not
prepared to “have those who do the attacking protected by an
order which would prevent their offences from being brought to
the attention of the jury.”
22In his ruling, the trial judge did not ignore the risk of
prejudice to the appellants. He recognized that some of the
prior offences were “very similar” to the offences in issue and
that there was a danger that they “might be misused by the jury.”
Nonetheless, although he did not say so expressly, he was
obviously satisfied that any potential prejudice could be
overcome by a strong limiting instruction.
23To that end, in the course of his charge, the trial judge
provided the jury with the following sharp limiting instruction:
You’ve heard about both the criminal record of Mr.
Thompson and Mr. Wilmot. If an accused person chooses
not to testify, as they are perfectly entitled to do,
you do not hear about their criminal record unless it’s
relevant. It is only relevant on the question of
credibility. You are not – these criminal records that
each of these men have contain some offences like the one
with which they are presently charged. You are not to
say to yourself, “Well they have done this kind of thing
in the past, they probably did it again.” This is not
the reason why their criminal records are made available
to you. It goes only to the question of credibility.
And you may believe any witness in whole, in part, or
not at all.
24Counsel for Thompson submits that the reasons of the trial
judge for refusing his client’s application reveal two errors
which undermine the correctness of the ruling.
25First, he maintains that the third reason given by the trial
judge did not apply to Thompson. It was Wilmot, not Thompson,
who called the integrity of the police into question and it was
therefore wrong of the trial judge to tar Thompson with Wilmot’s
brush.
26Second, he submits that the trial judge mischaracterized the
cross-examination of the robbery victims by Thompson’s counsel as
“an attack on their credibility.” The line of questioning in
issue was merely designed to show an inconsistency in their
testimony and to suggest that more money was taken in the robbery
than was recovered. Put somewhat differently, if the jury
disbelieved the victims as to the amount of money taken, this
would lend credence to Thompson’s position that there were other
participants in the robbery who were not apprehended.
27Counsel for Wilmot adopts Thompson’s second submission and
submits that it applies with equal force to his client. He goes
further, however, and argues that even if the trial judge was
correct in characterizing the cross-examination of the victims as
an attack on their credibility, that was Thompson’s doing, not
his. Hence, he argues that the second of the three reasons given
by the trial judge for refusing to edit Wilmot’s record did not
apply to Wilmot and the trial judge erred in taking it into
account.
28In order to succeed on this ground of appeal, it is not
enough for the appellants to show that the trial judge may have
taken extraneous factors into account in arriving at his ultimate
conclusion. Rather, they must go further and satisfy us that he
came to the wrong conclusion. In this regard, while we
acknowledge that it would have been preferable had the trial
judge segregated the applications and dealt with each separately,
in the last analysis, we are not persuaded that he went wrong in
refusing to edit the records.
29In Wilmot’s case, the trial judge was on solid ground in
concluding that Wilmot’s direct attack on the integrity of the
police militated against the proposed editing. In the
circumstances, the trial judge’s refusal to edit his record did
not deprive Wilmot of his right to a fair trial. To the
contrary, in order to properly assess his serious allegations
against the police, the jury was entitled to know of his entire
criminal record. To do otherwise would have led to a serious
imbalance and resulted in an unfair trial from the Crown’s
perspective.
30Admittedly, the case for refusing to edit Thompson’s record
is less compelling. Nonetheless, we are satisfied that it was
open to the trial judge to conclude that his counsel’s attempt to
portray the victims as significant drug users and traffickers
amounted to an attack on their character and inferentially an
attack on their credibility as it related to the number of
participants in the robbery. In this sense, although it can
perhaps be said that their testimony did not conflict directly
with Thompson’s evidence, it did so indirectly. In the
circumstances, given the nature and purpose of the attack on the
character of the victims, we are not persuaded that the trial
judge erred in concluding that the jury was entitled to know of
Thompson’s entire criminal record.
31In any event, even if we are wrong in this, we would invoke
the proviso to cure the error. Contrary to the position taken by
defence counsel at trial, we think that at a minimum, the jury
was entitled to know of Thompson’s prior convictions for robbery
and failing to comply. By its nature, robbery is an offence
involving dishonesty and as such, it bore directly on Thompson’s
credibility. Likewise, the offence of failing to comply involves
a breach of trust and it too had a direct bearing on Thompson’s
credibility.
32The remaining offence of using a firearm in the commission
of an indictable offence falls into a different category. It
does not involve dishonesty and the trial judge could not have
been faulted had he chosen to exclude it. That said, in light of
the strong limiting instruction given to the jury and the
strength of the Crown’s case against Thompson, it is fanciful to
think that the jury would have come to a different conclusion had
the use of a firearm conviction been kept from them.
33Accordingly, this ground of appeal fails with respect to
both appellants.
(2) The Separate Verdicts Issue
34The appellants make two separate, but related, arguments on
this issue. First, they contend that the trial judge’s charge
did not bring home to the jury that they were required to decide
the case against each appellant separately. Second, the
appellants submit that the trial judge did not provide a fair and
sufficient review of the separate defences of the appellants. We
do not agree with either of these submissions.
35With respect to the first submission, it is true that, at
the conclusion of his charge when he reviewed the 20 counts in
the indictment, the trial judge joined the appellants in his
explanation for the first 19 counts, and treated Wilmot
separately in count 20 because he alone was charged with pointing
a firearm. That said, taking into account the evidence and the
judge’s charge as a whole, it would have been clear to the jury
that Wilmot and Thompson were advancing entirely different
defences to the charges. The essence of Wilmot’s defence was
that he played no role in the planning or execution of the
robbery. Rather, he got in the getaway car only after the
robbery had taken place. Thompson’s defence was that, although
he had helped plan the robbery and had even driven to the robbery
location, he did not participate in it.
36The two defences converged on a single factual assertion.
Both appellants testified that they did not participate in the
robbery inside the apartment. This was the crucial factual point
in the trial. The trial judge recognized this and instructed the
jury:
You obviously have to be satisfied beyond a reasonable
doubt as to who the people in the apartment committing
the robbery were.
37When this explicit instruction is coupled with the very
different evidence from the appellants about why they were not in
the apartment, it would have been apparent to the jury that they
had to reach separate verdicts for each accused with respect to
the joint counts in the indictment.
38Moreover, we note that near the end of his charge, and after
his review of the indictment, the trial judge provided the jury
with the important instruction from R. v. W.(D.) (1991), 63
C.C.C. (3d) 397 at 409 (S.C.C.):
First, if you believe the evidence of the accused,
obviously you must acquit. Second, if you do not
believe the evidence of the accused but you are
left in reasonable doubt by it, you must acquit.
And third, even if you are not left in reasonable
doubt by the evidence of the accused you must ask
yourselves whether, on the basis of the evidence
which you do accept, you are convinced beyond a
reasonable doubt by that evidence of the guilt of
the accused.
Bearing in mind the distinctly different testimony of the
appellants, this passage from W. (D.) would have reinforced for
the jury the need to consider each accused separately.
39Turning to the appellants’ second submission on this issue,
in our view, the trial judge provided the jury with a concise and
fair summary of the defences advanced by each appellant.
40Wilmot’s defence was straightforward. He did not plan the
robbery. He only got in the car after the robbery had taken
place and with no knowledge that it had taken place. He fled
from the vehicle when he saw armed men approaching.
41Thompson’s defence was different, but equally simple. He
admitted planning the robbery with several other people and he
admitted travelling with others to the scene of the robbery.
However, he did not participate in the robbery because of the
late addition of other potential robbers whom he did not know
well or at all. Moreover, he was found in the getaway vehicle
only because he did not have money, so he waited for Agbeyaka to
return so that he could get a ride somewhere.
42The trial judge communicated these different positions of
the appellants to the jury in separate portions of his charge.
Moreover, he did so in concise, clear and entirely fair language.
(3) The Parties Issue
43The appellants contend that the trial judge erred by placing
s. 21(2) of the Criminal Code before the jury. Section 21(2)
provides:
21(2) Where two or more persons form an intention
in common to carry out an unlawful purpose and to
assist each other therein and any one of them, in
carrying out the common purpose, commits an offence,
each of them who knew or ought to have known that
the commission of the offence would be a probable
consequence of carrying out the common purpose is a
party to that offence.
44The appellants submit that the crucial issue for the jury
was whether the appellants were among the three robbers inside
the apartment and that a charge with the ‘common intention’
component of s. 21(2) might have confused the jury. The
confusion could arise, for example, if the jury was led to
believe that an earlier intention, perhaps as revealed in the
intercepted telephone conversations, was a basis upon which they
could find guilt.
45We agree that the trial judge should not have placed s.
21(2) before the jury in the circumstances of this case.
However, we do not think that his very brief reference to this
provision caused any harm. That is because, immediately after
reading s. 21(2) to the jury, the trial judge said this:
You obviously have to be satisfied beyond a reasonable
doubt as to who the people in the apartment committing
the robbery were. What you don’t have to do is to try
to recreate in your mind every single moment of that
roughly forty-five minutes or half an hour or however
long it was. You don’t have to know who was in what
bedroom at what moment, who was carrying which gun,
who hit whom and who took what from whom.
This explicit instruction, and indeed many other portions of the
jury charge, would have left the jury with no doubt as to the
crucial issue facing them – were the appellants inside the
apartment committing the robbery? As the trial judge pointed
out, if they were, it was unnecessary for the jury to determine
their precise activities.
(4) The Identification Issue
46The appellants submit that the trial judge failed to
properly instruct the jury with respect to the frailties of
identification evidence. Although the appellants’ legal
submissions are similar, the factual contexts that give rise to
the submissions are quite different.
(a) The Gallivan identification
47Thompson’s concern relates to the trial judge’s decision to
admit, pursuant to s. 715 of the Criminal Code, Barry Gallivan’s
testimony from the preliminary inquiry. Gallivan, who was inside
the apartment during the robbery, provided an in-dock
identification of Thompson as one of the perpetrators. Thompson
submits that this component of Gallivan's testimony from the
preliminary inquiry should not have been admitted at the trial.
His alternative submission is that if this testimony was properly
admitted, the trial judge’s instruction about its potential
frailties was inadequate.
48We do not agree with either submission. At the appeal
hearing, Thompson conceded (properly, in our view) that the
conditions in s. 715 for the admission at trial of Gallivan’s
testimony at the preliminary inquiry had been established.
However, Thompson contends that the component of Gallivan’s
testimony wherein he provided an in-dock identification of
Thompson should have been excluded by the trial judge.
Thompson’s argument on this point is stated succinctly in his
factum, at paragraphs 60 and 61:
- It is further submitted that as a matter of law,
in-dock identification evidence is never admissible
under s. 715 of the Criminal Code where the jury is
unable to properly assess the evidence which is being
read in. Where the exact circumstances surrounding
the in-dock identification cannot be recreated for the
jury, particularly the appearance of the accused, the
reliability of the said evidence is lacking under the
principled analysis of Smith, Khan, K.G.B.
- It is submitted that the preliminary inquiry
evidence with regard to in-dock identification can only
be read in under s. 715 of the Criminal Code where there
is some evidence before the court, whether by way of
viva voce evidence or exhibits, which provide a
description of the accused at the preliminary inquiry,
other persons in courtroom etc. This would allow the
jury to properly assess the weight to be given to the
identification evidence which is being read in at trial,
and be able to judge the reliability of that evidence
for themselves.
49There are two problems with this argument. The first is
that there is no principled basis for a rule of absolute
exclusion of in-dock identification evidence in a s. 715 context.
In R. v. Potvin (1989), 1989 130 (SCC), 47 C.C.C. (3d) 289 (S.C.C.), Wilson J.
cautioned that s. 715 should be respected. Referring to the
predecessor to s. 715, she said, at pp. 304-05:
It is my view that the word “may” in s. 643(1) is
directed not to the parties but to the trial judge.
I believe it confers on him or her a discretion not
to allow the previous testimony to be admitted in
circumstances where its admission would operate
unfairly to the accused. I hasten to add, however,
that such circumstances will be relatively rare and
that the discretion to prevent unfairness is not a
blanket authority to undermine the object of
s. 643(1) by excluding evidence of previous testimony
as a matter of course. [Emphasis added.]
50In light of this passage, the general rule should be that in-
dock evidence, like other evidence, should be admitted if the
conditions of s. 715 are met. Once admitted, the trial judge
should take care to treat it the same way he would if the in-dock
identification evidence was being tendered through a live witness
at the trial.
51The second problem with Thompson’s argument on this point is
that Gallivan was thoroughly cross-examined at the preliminary
inquiry. He was questioned about his initial description to the
police, the similarity of Thompson to that description, the photo
line-ups which he examined, the fact that he did not identify
Thompson from those line-ups, the similarity in appearance
between the photos and Thompson, and between a third person and
Thompson, and whether he would have been in a better position to
identify Thompson during the line-ups or at the preliminary
inquiry. Moreover, the jury was shown all of the exhibits from
the preliminary inquiry, including the photo line-ups that
Gallivan viewed. The extensive cross-examination of Gallivan at
the preliminary inquiry coupled with the opportunity to review
the exhibits from the preliminary inquiry would have provided the
jury with a sound foundation for assessing Gallivan’s in-dock
identification.
52Thompson’s alternative argument is that the trial judge’s
instructions about Gallivan’s evidence were inadequate. It is
true that, in his initial charge, the trial judge said nothing
about the frailties of identification evidence. Indeed, he did
not refer to Gallivan’s testimony at the preliminary inquiry.
However, he accepted counsel’s objection to his charge and, in
the recharge, referred to the potential frailties of Gallivan’s
identification, including the fact that Gallivan did not identify
Thompson from the photo line-ups. He then concluded his recharge
on this point with this statement:
As Mr. Silverstein pointed out, that is a classic case
of a dock identification, which is of practically no
value unless there is other evidence to corroborate it.
This was an accurate statement of the law and, in our view, it
adequately alerted the jury to the frailties of Gallivan’s in-
dock identification.
(b) The Mooney identification
53Wilmot’s concern relates to the identification evidence of
Constable Richard Mooney who engaged in surveillance of the
vehicle used by the perpetrators before, during and after the
robbery. He identified Agbeyaka as the driver and Thompson as
the front seat passenger. He knew both of them from previous
experience. He said that there was a third man, whom he did not
know, in the back seat as the vehicle proceeded to the apartment.
After the robbery, Mooney identified the same three men in the
car as it left the parking lot. A few minutes later, he
participated in the forcible stop of the car. He assisted in the
arrest of Thompson and Agbeyaka. The man in the rear seat fled.
When that individual – Wilmot – was arrested, Mooney identified
him as the man he had seen in the car before and after the
robbery.
54In his charge, the trial judge referred briefly to Mooney’s
identification of Thompson, Agbeyaka and Wilmot as the three
occupants of the car both before and after the robbery. He did
not instruct the jury about the frailties of identification
evidence. Wilmot contends that this was an error.
55We begin by noting that Wilmot’s trial counsel made no
objection to this component of the trial judge’s charge. In this
case, that is an important factor. After the initial jury
charge, Thompson’s counsel objected to the way the trial judge
had dealt with identification evidence. His focus was on
Gallivan’s testimony because it placed Thompson inside the
apartment during the robbery. He was not concerned with Mooney’s
testimony because Thompson admitted to being in the car before
and after the robbery. However, during his discussion with
Thompson’s counsel, the trial judge said this:
As far as the I.D., I intend to review the fact that
only Mr. Gallivan made an identification of Mr.
Thompson, and that his failure to do so in the two
photo line-ups – I don’t intend to talk in any broad
way about the frailties of eyewitness identification,
because it would then be, in fairness, necessary to
point out that a number of police officers were able
to – claimed to have been able to identify Agbeyaka
and Thompson in the automobile, both before and after
the event, and that they were certainly right in so
far as being able to identify them in the automobile
before and after the event, because it’s not even in
issue that they were in the automobile before and
after the event.
56After this observation, Thompson’s counsel made a further
submission about Gallivan’s identification. Wilmot’s counsel was
silent. In our view, the Crown is correct in its submission that
once the trial judge made his intended recharge explicitly clear,
“the only reasonable inference to be drawn is that counsel for
Mr. Wilmot agreed with the learned trial Judge’s assessment that
such an instruction might prove to be a two-edged sword, and
concluded, for strategic reasons, that such an instruction ought
not to be given.” In short, a comprehensive and fair review of
Mooney’s identification evidence, and that of other police
officers, might have hurt rather than helped Wilmot’s case.
Hence, unless specifically requested by Wilmot’s counsel, the
trial judge did not intend to include such a review at the
crucial moment of a recharge to the jury. In these
circumstances, we cannot fault the trial judge’s assessment or
decision.
57There is a second reason why we do not agree with Wilmot’s
submission on the identification issue. The case law makes it
clear that the jury should be instructed about the need for
caution when dealing with identification evidence “[w]here the
prosecution’s case depends substantially upon the accuracy of
eyewitness identification”: see R. v. Wristen (1999), 47 O.R.
(3d) 66 at 80 (C.A.).
58The present appeal is not one of those cases. Mooney’s
identification evidence respecting Wilmot was a very small part
of the case against him. We agree with the trial judge that this
case “involves to quite a degree circumstantial evidence.” And
the circumstantial evidence against Wilmot was strong.
59There was a great deal of wiretap evidence admitted at the
trial. Much of it related to the planning of a robbery. During
a call on March 8, 1995, Thompson spoke to a man he called Devon
(Wilmot’s first name) who told him that he had a week-end pass
for the date of the planned robbery (Wilmot testified that he was
living in a halfway house). In several conversations two days
later, the day of the robbery, Thompson spoke to a man he
referred to by the nickname of “Flip”, “Fliprock”, “Flip artist”
and “Flip rock star”. These conversations occurred at 1:32,1:43,
5:07, 6:04, 7:47 and 8:17 p.m. The robbery took place at
approximately 9:30 p.m.
60Sharon Lewis, a civilian employee of the Metropolitan Police
Service, testified as an expert witness in the translation of
Jamaican patois into English. She stated that the subject matter
of the conversations was a planned robbery and that the person
Thompson called “Devon” in the March 8 call was the same person
(i.e. their voices were identical) as “Flip” in the many calls on
March 10. Sergeant Wilson testified that he had been familiar
with Wilmot for three to four years prior to his arrest and that,
through these dealings, he had learned that Wilmot’s nickname was
“Flippy”. Wilmot denied that he had ever been known by that
name. Counsel for Wilmot argues that Sergeant Wilson’s testimony
was inadmissible hearsay because the officer obtained this
information from others. We see no merit to this argument. No
objection was made to the admissibility of Sergeant Wilson’s
testimony at trial and, in our view rightly so. The evidence was
admissible as proof of the fact that Wilmot was referred to as
“Flippy” by some persons who knew him. The strong inference from
this evidence is that Wilmot was deeply involved in planning a
robbery, right up to about an hour before the robbery took place.
61Furthermore, the evidence of events surrounding the robbery
also supported the inference that the person arrested after he
fled the car (Wilmot) was also in the car before and immediately
after the robbery. All of the evidence was that there were three
men in the car as it proceeded to the apartment and, shortly
after, as the car left the parking lot at the apartment building.
Thompson refused to state whether a third person entered the car
after the robbery. Although the car stopped on Trudel Avenue,
the location where Wilmot said he entered the car, there was a
great deal of evidence that no one entered or exited the car
during this stop.
62For these reasons, we would not give effect to Wilmot’s
submission that the trial judge erred in the way he dealt with
Constable Mooney’s identification evidence in his charge.
WILMOT ISSUES
(5) The Co-conspirator’s Rule
63Counsel for Wilmot contends that the trial judge erred in
failing to instruct the jury on the use of hearsay statements
made in furtherance of the common design in accordance with R. v.
Carter (1982), 1982 35 (SCC), 67 C.C.C. (2d) 568 (S.C.C.). He argues that the
application of the rule could potentially have served to exclude
some of the wiretap conversations from consideration by the jury
in determining the guilt or innocence of his client.
64In our view, there was overwhelming evidence of the
conspiracy to commit a robbery and substantial direct evidence of
Wilmot’s membership in it. The application of the co-
conspirator’s rule to the evidence in this case would have
unnecessarily complicated the task for the jury and, in the
result, would not have affected the verdict. It is noteworthy
that this issue was not raised by counsel at trial. In the
circumstances, we are of the view that it was not necessary to
charge the jury as contended. Hence, we would not give effect to
this ground of appeal.
(6) Post-Offence Conduct
65Wilmot’s flight from the scene of arrest resulted in the
following instruction from the trial judge on the use the jury
could make of that evidence:
I should take a moment to digress from the facts and
add another element of law in here, the question of
flight. It is open to you – you don’t have to – it
is open to you to consider the flight as some evidence
of consciousness of guilt on the part of Mr. Wilmot.
As I say, you may draw that inference. You are not
required to do so. You have Mr. Wilmot’s explanation
as to why he fled, that he was being approached by
someone he had no idea was a police officer, this
person had a weapon, and that is why Mr. Wilmot said
that he fled.
If you are satisfied that is a reasonable explanation
for his flight, then you would of course draw no
adverse inference whatever from his flight.
66At trial, defence counsel raised no objection to this
instruction. On appeal, Wilmot’s counsel submits that it
contains no less than five errors.
67We do not propose to list the various complaints because,
for the most part, they relate to issues that have been clarified
and refined since the charge by subsequent authorities of this
court and the Supreme Court of Canada. (See R. v. Peavoy (1997),
1997 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.) and R. v. White (1998), 125
C.C.C. (3d) 385 (S.C.C.)) In the circumstances of this case, we
are not persuaded that the trial judge’s failure to instruct the
jury in accordance with these refinements occasioned any
prejudice to the appellant.
68The only issue of concern is whether the trial judge erred
in directing the jury that they should draw no adverse inference
against Wilmot if they were satisfied that his explanation for
fleeing was “reasonable.”
69Counsel for Wilmot submits, correctly in our view, that it
was wrong to leave the jury with the impression that Wilmot’s
reason for fleeing had to be reasonable. All that was required
was that his explanation be innocent. (See R. v. Peavoy, supra,
at 238) In the circumstances, however, we are satisfied that the
error was harmless and occasioned no prejudice to Wilmot.
70On its face, Wilmot’s explanation for fleeing was both
innocent and reasonable. He claimed that he feared for his life
when suddenly, out of the blue, after the car in which he had
been driving collided with another vehicle, he found himself
outside the vehicle facing a complete stranger who was
approaching him with a gun. When asked what his reaction was
when he saw the man with the gun, he stated:
Instinct just came to my mind and my feet says, “Run”,
and I ran; I just wanted to get away from there. I
just ran because I didn’t know what they were involved
with or whatever. I see a man coming with a gun and I
just ran. My feet just say “Run” and wherever my feet
was taking me I was going because I was running at top
speed.
71In the face of this evidence, we are at a loss to know how
the jury could find that his explanation for fleeing, though
innocent, was nonetheless unreasonable. Looked at this way, it
is unrealistic to think that the impugned instruction could have
occasioned any prejudice to Wilmot. Accordingly, we would not
give effect to this ground of appeal.
SENTENCE APPEALS
72Wilmot received a total sentence of 13 years, 8 months
imprisonment. Thompson, on the other hand, received a total
sentence of 12 years imprisonment.
73In Wilmot’s case, the trial judge was of the view that a 15
year sentence was warranted. The sentence imposed reflects a
reduction, calculated on a one for one basis, for the time spent
by Wilmot in pretrial custody.
74In Thompson’s case, the trial judge concluded that a
sentence totalling 12 years was called for. At the time of
sentencing, Thompson had spent approximately 25 months in
pretrial custody serving out the remnant of an earlier sentence.
In view of this, the trial judge concluded that he was not
entitled to any credit for time served. Accordingly, the 12 year
sentence reflects no adjustment for pretrial custody.
75Before setting out the grounds of appeal raised by the
appellants, we observe that the third participant in the robbery,
Mr. Agbeyaka, received a total sentence of 7-1/2 years
imprisonment following his pleas of guilty to five counts of
robbery, five counts of unlawful confinement, one count of
wearing a disguise with intent, one count of using a firearm in
the commission of an indictable offence, and one count of
possessing a firearm while prohibited. Apart from his pleas of
guilty, the Crown did not suggest that Agbeyaka’s participation
in the robbery differed from that of the appellants. Moreover,
it is conceded that Agbeyaka’s criminal record was both extensive
and serious.
Wilmot Issues
76Wilmot raises the following grounds of appeal:
- the sentence of 13 years and 8 months was manifestly
excessive and well beyond the range of sentences imposed in
similar circumstances;
- the trial judge erred in sentencing him to a longer
term of imprisonment than Thompson;
- the trial judge erred in failing to credit him on a two
for one basis for time spent in pretrial custody; and
- the trial judge erred in imposing a sentence that was
double the sentence imposed on Agbeyaka.
77We see no merit in the first two grounds.
78The nature and gravity of the crimes called for a stiff
penitentiary sentence and while the sentence under review may
have been at the high end of the range, we are not persuaded that
it represents a marked departure from sentences imposed in like
cases.
79Nor are we persuaded that the trial judge erred in imposing
a longer sentence on Wilmot than Thompson. The trial judge
concluded that Wilmot deserved a longer sentence because his
criminal record was more serious and extensive than Thompson’s.
In our view, the trial judge was justified in making that
distinction.
80We take a different view, however, of the third and fourth
grounds.
81The trial judge gave no reasons for only crediting Wilmot
with the actual amount of time served in pretrial custody (14
months). The record indicates that Wilmot served the 14 months
at the Toronto Jail, despite his request that he be transferred
to a federal institution. Accordingly, in addition to losing the
benefit of the remission mechanisms contained in the Corrections
and Conditional Release Act, S.C. 1992, c. 20, he was deprived of
the opportunity to engage in education, retraining or other
rehabilitative programs. In the circumstances, absent cogent
reasons, of which there are none, we think that Wilmot should
have received credit on a two for one basis (28 months) for the
time served in pretrial custody.
82Turning to the fourth ground, it is acknowledged that as a
result of his guilty pleas, Agbeyaka was entitled to receive a
lower sentence than Wilmot. That said, in assessing the weight
to be given to Agbeyaka’s pleas, it must be remembered that,
unlike Wilmot and Thompson, Agbeyaka removed his mask at the
scene of the robbery and several of the victims were able to
positively identify him. As a result, he undoubtedly realized
that his chances of success at trial were slim. Apart from
pleading guilty, Agbeyaka’s record was similar to that of Wilmot
and his degree of participation in the robbery was the same. In
the circumstances, we think that the trial judge erred in
imposing a sentence on Wilmot that was effectively double the
sentence given to Agbeyaka.
83In light of these two errors, we have concluded that
Wilmot’s sentence must be reduced. Giving him credit for 28
months pretrial custody and an appropriate reduction to reflect
the unwarranted disparity between his sentence and the sentence
imposed on Agbeyaka, we would grant leave to appeal and lower his
sentence to one of 11 years imprisonment. To give effect to
this, we would vary the sentences of 10 years concurrent imposed
on counts 1 to 10 and 12 and 14, to 8 years concurrent, and make
the 8 month sentence on count 19 concurrent instead of
consecutive. In all other respects, the sentences imposed at
trial remain the same.
Thompson Issues
84Thompson raises the following grounds of appeal:
(a) the sentence of 12 years was manifestly excessive and well
beyond the range of sentences imposed in similar circumstances;
(b) the trial judge erred in failing to give him any credit for
time served; and
(c) the trial judge erred in imposing a sentence that was
substantially higher than the sentence imposed on Agbeyaka.
85We see no merit in the first two grounds. Although the 12
year sentence may have been at the high end of the range, we are
not persuaded that it represents a marked departure from
sentences imposed in like cases. As for the second ground, we
agree with the reasons of the trial judge for refusing to credit
Thompson with any time served in pretrial custody.
86We take a different view, however, of the third ground. We
have already explained why we believe that the sentence imposed
on Wilmot was unduly long in comparison to the sentence imposed
on Agbeyaka. Those reasons apply with equal force to Thompson.
87It follows that Thompson is entitled to have his sentence
reduced to reflect the unwarranted disparity between his sentence
and the sentence imposed on Agbeyaka. Accordingly, we would
grant leave to appeal and lower his sentence to one of 10 years
imprisonment. To give effect to this, we would vary the
sentences of 9 years concurrent, imposed on counts 1 to 10 and
12, 14 and 17, to 7 years concurrent. In all other respects, the
sentences imposed at trial remain the same.
“M.J. Moldaver J.A.
“J.C. MacPherson J.A.”
“I agree: Louise Charron J.A.”
Released: June 19, 2000
