COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., FINLAYSON and LABROSSE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Feroza Bhabha, for the respondent
Respondent
- and -
JOHN WANG
Frank Addario and Andras Schreck,
for the appellant
Appellant
A N D B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
NORMAN SIU KEE LO
Appellant
Feroza Bhabha, for the respondent
Matthew T. McGarvey, for the appellant
Heard: March 21 and 22, 2001
The appellants appeal from their convictions imposed by Justice Gloria R. Klowak, sitting with a jury, dated October 26, 1996. The appellant John Wang further appeals the sentence of ten years imprisonment imposed by Justice Klowak on March 12, 1997.
I. Background
1The appellant John Wang was charged with five counts of robbery, six counts of unlawful confinement, three counts of using a firearm during the commission of an indictable offence and three counts of uttering threats, all arising out of three “home invasions”.
2The appellant Norman Siu Kee Lo was charged with two counts each of robbery and forcible confinement and one count each of dangerous driving and possession of property knowing it was obtained by crime, all arising from one of the home invasions.
3The appellants were tried together in the Ontario Court (General Division) at Newmarket before Justice Klowak and a jury, commencing on October 1, 1996. On October 26, 1996, Wang was convicted on all counts and, on March 12, 1997, he was sentenced to an aggregate of ten years imprisonment and a prohibition order for life under s. 100 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). On that same date, Lo was convicted of both counts of robbery, both counts of forcible confinement, and the one count of dangerous driving. He was acquitted of possession of property knowingly obtained by crime. On March 12, 1997, Lo was sentenced to an aggregate of thirty-three months imprisonment and a prohibition order for life under s. 100 of the Code.
4Wang appeals conviction and sentence. Lo appeals conviction alone.
II. Facts
5The offences giving rise to the convictions arose out of three home invasion robberies that took place in April of 1995. The first incident involved the household of Monique Friedman, who was at home alone when the robbery took place. The second robbery occurred at the residence of Mr. Khosro Javaheri, who was at home with his wife Zahra when the invasion began, and was joined shortly thereafter by his son Parham, who drove up during the robbery. The third household involved in the robberies was that occupied by Dr. Mohamed Jamil Dar and his wife Dr. Shahnaz Dar, their three daughters, and a babysitter named Saadia Naqvia.
6In each of the three robberies, a gang of young men who were armed with guns, and in the second robbery, a baseball bat and a sword, forced their way into the homes where they bound the victims, threatened them with death or bodily harm and stole large amounts of valuables.
7J.B., who was a young offender at the time of the offences, was involved in all three of the robberies. His fingerprints were found at the scene of the third robbery, as was a cellular phone registered in the name of Wang. J.B. pleaded guilty and was called as a Crown witness at this trial where he testified that Wang was involved in all three of the robberies and that Lo was involved in the second robbery.
8Neither Lo nor Wang testified in their respective defences. Further, neither appellant called any other defence evidence during the trial.
9On sentencing, J.B. was called as a witness by counsel for Wang, at which time J.B. attempted to downplay the roles played by both Wang and Lo in the robberies.
10The central issue at trial, particularly for Wang, was the credibility of J.B. In addition to direct evidence implicating Wang, the Crown relied on circumstantial evidence which included:
a) the cell phone registered in Wang’s name found at the scene of the last robbery;
b) Wang’s after the fact conduct (shaved head, false identification, hiding in closet);
c) the calls made to persons known to Wang using the phone card stolen from the scene of the first robbery; and
d) the discovery of bullets and ammunition clips in Wang’s residence at the time of his arrest.
11As against both appellants, the Crown relied on the general descriptions of the robbers provided by the victims. J.B. and his associates wore bandannas during the robberies. None of the victims was able to identify the appellants from photographic line-ups. However, the victim from the first robbery, Ms. Friedman, was able to provide some evidence in relation to the identity of the assailants.
12The very first description Ms. Friedman gave to the police even before a photo line-up was arranged was that of the robber who rang the door-bell at her home (not the person who entered the house holding a gun, referred to as “suspect #2”). She observed him through a peephole. She described this person as an oriental male, 5’9” tall, 18-19 years old, with a scar above his right eyebrow. He spoke English and did not have an accent. Ms. Friedman initially described this person as “suspect #1”. Following the initial descriptions Ms. Friedman gave to the police, she was subsequently unable to make any identification from the many photographs the police showed her. When showed individual photographs of Wang and J.B., she identified J.B. as the person who may have knocked on the door. She also noted that Wang was “possibly” the man with the gun.
13At the preliminary inquiry, Ms. Friedman, for the first time, indicated that suspect #2’s bandanna slipped while he and suspect #1 were tying her to the treadmill. While Ms. Friedman initially attributed the scar to suspect #1, at the preliminary inquiry and at trial, she transposed the scar to suspect #2, testifying that she was able to see suspect #2’s face and noticed his scar in the area of his temple. Ms. Friedman acknowledged on cross-examination that she had never described the man with the gun as having a scar until after she had seen Wang at the preliminary inquiry. She further admitted that prior to the preliminary inquiry, she had seen photographs of both Wang and J.B. which were published in the media prior to their arrest.
14At the time of the offences, J.B. was 5’10” tall and did not have any scars on his face. Danny Trieu, identified by J.B. as having been involved in the robberies (he died sometime between the second and third robberies), was 19 years old and 5’8” tall. Mr. J.B. did not mention that Trieu had any special identifying features such as a scar. At the time of trial, the appellant Wang was 5’8” tall. He had a scar above his left eyebrow and does not have an accent. Sometime after his arrest, but before the preliminary inquiry, Wang had acquired a large new scar on his nose. Ms. Friedman made no reference to the new scar as an identifying feature she had observed when the bandanna slipped off.
15Unlike Wang, Lo was alleged to have been a party to only the second of the three home invasion robberies, the Javaheri robbery. J.B., who was also a party to that robbery, testified at trial that Lo drove him, Wang and Trieu (who were armed individually with a baseball bat, a semi-automatic gun and a large sword) to the residence. As the three robbers emerged from the house, the Javaheris’ son, Parham, arrived home by car. Lo, who had backed up and was parked in a neighbour’s driveway with the headlights turned off but the brake lights on, started to drive away when Parham Javaheri began to pursue the three men who had just left his home. The three assailants who were on foot never made it into Lo's car. They dispersed and ran away from the scene of the crime. A car chase ensued but the three robbers and Lo all managed to elude Javaheri. During the high-speed chase between Parham Javaheri and Lo, Javaheri was able to note Lo's licence plate, that he later provided to the police.
16In addition to the direct evidence presented by the Crown to support its contention that Lo was the designated driver for the Javaheri robbery, there was also substantial circumstantial evidence inculpating him, including evidence of consciousness of guilt. While Lo did not testify in his own defence, he gave a statement to the police in which he admitted being at the scene, but claimed that he was an unfortunate victim of circumstance. He claimed that he was looking for a party at a friend’s home when he turned onto the wrong street and the situation described above unfolded. According to Lo, it was mere coincidence that he happened to know two of the robbers emerging from the residence. He attributed his flight from the scene to panic at being chased by Parham Javaheri.
17When Lo was arrested the day after the robbery, he had $520 in cash on him. He first blurted out that the money belonged to his sister. He then suggested that he won it at different casinos.
III. Wang’s appeal against conviction
i. Issues
18The following issues are raised on Wang’s conviction appeal:
(1) the trial judge erred by failing to exclude the identification evidence;
(2) the trial judge erred in her instructions on the frailties of identification evidence;
(3) the trial judge erred in her instructions on the potentially confirmatory evidence respecting the evidence of J.B.;
(4) the trial judge erred by allowing the Crown’s application under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5; and
(5) the trial judge erred by allowing the Crown to adduce evidence of prior criminal conduct by the appellant Wang.
ii. Analysis
19I do not propose to deal with issues (4) and (5). Both concern rulings that were made in the proper exercise of the trial judge’s discretion in the unique circumstances of this case. I see no error in the manner in which the trial judge dealt with these issues.
20I will deal with a sixth issue raised by Wang in a supplementary factum, which relates to the proper instruction to a jury on reasonable doubt following the Supreme Court of Canada’s decision in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.
Issues #1 and #2: Identification evidence
21It is apparent that the appellants and the respondent Crown approach this case from different ends of the spectrum. The appellants regarded this matter as an identification case simpliciter, where the evidence of the identity of the appellants and the extent of their participation in the robberies is so fraught with difficulties that it should not have been admitted in evidence, nor found capable of supporting convictions.
22It is my opinion that counsel for Wang has put the theory of the Crown in a different light than did the Crown itself. He states that the Crown’s theory is that Wang, who had previously been involved in some minor criminal activity with J.B., was involved in each of these robberies. In support of its theory, submitted the appellant, the Crown relied on four groups of evidence: (1) identification evidence of the victims; (2) the testimony of J.B.; (3) a cellular telephone registered to Wang, which was found at the scene of one of the robberies; and (4) “after the fact” conduct by Wang.
23It is the appellant Wang’s position that none of this evidence, alone or cumulatively, came close to establishing proof beyond a reasonable doubt because: (1) none of the victims was able to pick Wang or Lo out of a photo line-up and they could only identify Wang for the first time at the preliminary inquiry, after his picture had been published in a newspaper; (2) J.B. was an admitted perjurer who had agreed to testify against the appellants in exchange for the Crown’s withdrawal of an application to have him transferred to adult court; (3) J.B. had admitted that the cellular telephone, although registered to Wang, had been in his possession; and (4) the “after the fact” conduct of Wang was explainable by other circumstances.
24The position of the Crown, which I accept, is that this is not an identification case in the traditional sense. Indeed, the Crown concedes that if it were, the identification evidence, standing alone, would not support a conviction in the case of either of the appellants. According to the Crown, and in my opinion, this is a direct evidence case.
25It is conceded that J.B. was present at all three home invasions and it is his testimony that is central to the Crown’s case. There is no issue as to his ability to identify his accomplices. He knew both Wang and Lo, and if he is to be believed, he accompanied Wang on all three home invasions and persuaded Lo to act as the look-out and driver of the get-away car for one of the robberies. Given the trial testimony of J.B., the issue in this case is the credibility of J.B., an admitted accomplice and a person of unsavoury character. The trial judge accepted this approach and properly concentrated on giving the jury an appropriate warning (as per R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811) and drawing its attention to the evidence that was capable of supporting the reliability of J.B.’s testimony.
26In my opinion, the appellants are over-reaching with respect to the first issue as to whether the trial judge erred in failing to exclude the identification evidence. However frail the identification evidence, it was open for the jury to consider this evidence and decide how, if at all, to make use of it. The issue in this case was one of weight, not one of admissibility.
27I take particular exception to the insistence by the appellants that there should have been a full voire dire of the identification evidence before the jury could be permitted to hear it. I think that the trial judge was correct in accepting counsels’ statements as officers of the court as to what the witnesses in question would say and disposing of the objections in the following ruling:
I am not prepared to find that [the impugned testimony] is equal to no evidence, counsel, and secondly, I find that having a voire dire to determine whether there is anything else that affects that evidence, such as credibility or inability to recognize people from photographs, etcetera, any explanations or other explanations, that that’s a wholly improper procedure to embark upon. And if we embarked on that type of procedure where evidence with respect to any essential element was involved, we would have two parallel trials within each judge and jury trial. One by the judge and potentially another one by the jury. And that would be with respect to each essential element, and I don’t find that that’s an appropriate procedure at all.
28Counsel for the appellant Wang relied on fragments of case law to support the proposition that identification evidence, as with all evidence, is not admissible unless its probative effect outweighs its prejudicial effect. He relied on R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.), where Sopinka J. stated at p. 411 that expert evidence, like all other evidence, is subject to the rule that evidence that is otherwise logically relevant may be excluded if its probative value is overborne by its prejudicial effect. Counsel also referred to R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 147 C.C.C. (3d) 193 (Ont. C.A.) where Weiler J.A. stated at p. 237:
It 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 Canadian Charter of Rights and Freedoms (hereinafter, "Charter"), to ensure a fair trial: R. v. Harrer (1995), 1995 CanLII 70 (SCC), 42 C.R. (4th) 269 at 282, 101 C.C.C. (3d) 193 (S.C.C.). Identification cases are no exception: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.) at p. 498. …
29Harrer, supra, was a case in which the Crown had relied upon a statement made by the accused to U.S. authorities, who had not advised her as to her right to counsel under our Charter. The majority of the Supreme Court of Canada upheld the admissibility of the statement but in the course of his reasons, La Forest J. made comments of a general nature to the effect that if the circumstances were such that the admissibility of evidence would lead to an unfair trial, the trial judge could exclude the evidence under s. 24(1) of the Charter.
30Doherty J.A. in Tat, supra, was dealing with the admissibility of prior descriptions given and prior identifications made by the identifying witness. Accordingly, he was dealing with the role of prior self-serving statements in the entire identification process which culminated in an in-dock identification. Similarly, in endnote 4 at p. 532, separately relied upon by counsel, Doherty J.A. was again referring to evidence of prior identification when he stated that the trial judge had the discretion to exclude such evidence where its prejudicial effect outweighs its probative value.
31The real value of Tat, supra, to this case lies in the analysis by Doherty J.A. at pp. 515-16, wherein he reasons that convictions based on identification evidence are particularly well suited to review under s. 686(1)(a)(i) of the Code. Concerns about the reasonableness of such verdicts are particularly high when the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed, or there is no other evidence tending to confirm or support the identification evidence.
32Gagnon, supra, like Tat, supra, was an appeal from what was alleged to have been an unreasonable verdict. The test in Gagnon, supra, was put by Weiler J.A. at p. 238:
… 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 on the evidence. [Authorities not reproduced.]
33Accordingly, in the case at bar, the admissibility of the identification evidence should not have been an issue at trial. All the concerns about changes of position by the witnesses, contradictory evidence, conflicting out of court identifications, and witness tainting were matters properly left for the jury: see Labrosse J. A. in R. v. Buric (1996), 1996 CanLII 1525 (ON CA), 106 C.C.C. (3d) 97 (Ont. C.A.) at 112, aff’d 1997 CanLII 380 (SCC), [1997] 1 S.C.R. 535.
34In the case under appeal, the trial judge fully cautioned the jury about the frailties of the identification evidence. The Dars did not identify any of the perpetrators and neither did Mrs. Javaheri. Mr. Javaheri did purport to make an in-dock identification of the appellant, but candidly admitted that his identification was based on a photograph of the appellant he saw in the media after the offence, rather than on his recollection. Accordingly, the jury was instructed to give “no weight” to his identification. That left only Ms. Friedman, who made an in-dock identification at the preliminary inquiry. The trial judge gave the jury the following caution about Ms. Friedman’s in-dock identification evidence:
One of the other things that you can consider, is did the eye-witness identify John Wang for the first time when Mr. Wang was in the witness box in the courtroom, for example, at the preliminary hearing. If so, then you may consider the possibility that they identified Mr. Wang because he was the one sitting in the witness box.
In this case, you may find there are weaknesses in the Crown evidence of identification arising out of the publication of the photographs of the accused prior to identification.
Now, you will remember that there is a lot of evidence in this case about photo line-up identification of Mr. Wang. One of the first things you should consider is whether anything which was done might have suggested to any of the eye-witnesses that Mr. Wang was a suspect in this case prior to their viewing photographs.
The evidence of Monique Friedman in the first robbery leaps to mind, because after she was shown many groups of photographs, she agreed she was shown three individual photographs and told that they were suspects. She picked out the photograph of Mr. J.B. and Mr. Wang…[Y]ou may consider that Monique Friedman, being shown an individual photograph of Mr. Wang and told that he is a suspect, is not a fair procedure and consequently give that particular identification no weight.
… I urge you to consider carefully what I have said to you about the evidence of eye-witnesses, because you cannot return a verdict of guilty based on eye-witness evidence alone, unless you are satisfied beyond a reasonable doubt that the eye-witness correctly identified the accused as the person who committed the offence. [emphasis in original]
35Following her caution regarding the frailties of identification evidence, the trial judge, in reviewing all of Ms. Friedman’s evidence on the issue of identification, again urged the jury to proceed with caution and highlighted the problematic aspects of her photo and in-dock identifications.
36Accordingly, there was no error on the part of the trial judge in allowing the identification evidence to be admitted as part of the narrative evidence of some of the victims of the robberies as to both what occurred and what part each of the robbers played in the robberies. It must be remembered that while the identification evidence was so weak that the trial judge instructed the jury to give it little weight, if any, it still served as at least partial confirmation of the evidence of J.B., who did identify the two appellants and described their involvement in the robberies.
37J.B.’s evidence was that both Wang and Lo were parties to the second robbery: Lo was the get-away driver and Wang was one of the two other people, aside from J.B., who entered the house carrying a sword. Mr. Javaheri’s evidence about the number of people who entered the home and the weapons they used, as well as his observations and those of his son about a car (later discovered to have been rented to Lo) were all capable of confirming J.B.’s evidence, even though their testimony standing alone did not directly implicate the appellants in that robbery.
38Similarly, J.B. implicated Wang in the third robbery. He testified that the Dars were tied up, but he could not recall which of the other two robbers upstairs were responsible for that act. There were four robbers in total, though other than Wang, J.B. could not remember the exact identity of the others. J.B. denied tying the Dars up himself, and since one robber was in the basement, this leaves two others upstairs. Of the two upstairs, one was Caucasian, leaving only one Asian robber upstairs, aside from J.B. Dr. Jamil Dar described the Asian robber who tied him up as being 16-19 years old, 5' 8" tall, and wearing a cream coloured knitted sweater. This description fits the general description of Wang, who upon his arrest was described as wearing a creamy white/off-white knitted sweater. J.B. stated that he carried a gun during the robbery and Dr. Dar’s description of the man with the gun -- hair parted in the middle, long on top, short on sides -- generally fits the description of J.B. Therefore, like the evidence given by Parham Javaheri, Dr. Dar’s evidence was capable of confirming the evidence given by J.B.
39Accordingly, I would not give effect to the grounds of appeal relating to the admissibility of the identification evidence or the instruction to the jury as to its frailties.
Issue #3: Confirmatory evidence
40As to the third issue, there is no complaint about the Vetrovic warning itself, but it is suggested that the trial judge erred in her instruction as to what could amount to confirmatory evidence. As was noted by this court in R. v. Krugel (2000), 2000 CanLII 5660 (ON CA), 143 C.C.C. (3d) 367 (Ont. C.A.) at 394-395, a common sense approach must be taken to the evidence of suspect witnesses. Part of that approach involves doing away with the notion that corroboration can only be found in evidence that directly implicates the accused in a material particular. In light of the Supreme Court’s decision in Vetrovec, supra, the only question that must be asked in deciding whether evidence is capable of being confirmatory is: does the evidence strengthen our belief that the suspect witness is telling the truth? In this regard, the trial judge said:
. . . Look carefully to see if there is other evidence which you can consider to be credible and reliable which would serve to confirm or support [J.B.’s] evidence in a material particular.
In other words, you should examine all other evidence in this case to see if there is evidence which supports, confirms, or agrees with the important parts of J.B.’s evidence and makes you more confident that his testimony is true. It is then up to you to consider whether or not that supporting evidence, and the evidence of a similar nature does in fact support or confirm his testimony.
Please remember you are not legally required to find such support before you rely on the testimony of J.B., however, I have instructed you that it is dangerous for you to rely on his evidence unless you do. Please remember that you can believe all of his evidence, the same as any other witness, part of it, the same as any other witness, or none of it, the same as any other witness.
Please remember that the major importance to the Crown’s case of Mr. J.B.’s testimony, was to identify John Wang as an accomplice in all three robberies, and Norman Lo as an accomplice in the second robbery. When you are considering supporting evidence, it should be evidence that would serve to confirm Mr. J.B.’s evidence in a material particular, but need not be supportive directly of the identity of Mr. Wang and Mr. Lo as accomplices. What you are looking for, is evidence that you accept that supports any of Mr. J.B.’s testimony in a material respect, to help you decide whether you believe some of his testimony, all of it or none of it.
41Counsel for the appellant Wang takes particular exception to one item that he says was put to the jury as capable of being confirmatory of J.B.'s testimony. In this regard, counsel pointed to the following passage of the trial judge’s charge:
Some examples are as follows. You can consider that [J.B.’s] version of the events is supported in large part by the testimony of each of the victims involved in each of the robberies. You will also consider the testimony that the agreed statement of fact, prepared by the Crown for the purposes of Mr. J.B. pleading guilty, was provided to Mr. J.B. for reading and signature, and through his counsel he was provided with the disclosure of the Crown’s evidence prior to testifying at the preliminary hearing and, or course, prior to testifying before you.
42Counsel for the appellant Wang concentrated on the reference to considering the agreed statement of fact as confirmatory of the evidence of J.B. However, when this passage is read in context, it appears to me that the trial judge was correct in asserting, as she did in response to an objection from the defence, that she was being helpful to the defence by instructing the jury in this manner. The trial judge was simply reminding the jury that before J.B. pleaded guilty and before he testified, he had seen the full case for the Crown under its disclosure obligations and was in a position to tailor his evidence accordingly. Both during the trial and in her charge, the trial judge repeatedly instructed the jury that prior statements, including prior testimony, were not evidence unless adopted at trial. In addition, shortly before the impugned passage, the trial judge instructed the jury specifically about the use they could make of the agreed statement:
You will recall that I instructed you during the trial when J.B. was being asked questions about the agreed statement of fact which he, through his lawyer, and the Crown, entered into for the purposes of his guilty plea in Youth Court. You may consider the agreed statement of fact with respect to J.B.’s credibility and reliability, but I instruct you that you should only do so with respect to any inconsistencies in matters within the personal knowledge of J.B.
43Accordingly, I would not give effect to the objections relating to the Vetrovec warning or the instruction with respect to what could amount to confirmatory evidence.
44In deciding on the grounds of appeal raised in the original factum of Wang, I note that the appellants did not testify in their own defence, nor did they call any defence evidence. While an accused's failure to testify is not an independent piece of evidence that can be placed on the evidentiary scale, the absence of an explanation can be a feature of the trial which can assist the triers of fact in determining what reasonable inferences can be drawn from the evidence adduced. Furthermore, the appellants' failure to testify can also be a consideration by this court in determining whether the convictions based on the evidence are reasonable and whether any error of law could have resulted in a substantial wrong or miscarriage of justice. See: R. v. Noble (1997), 114 C.C.C. (3d) 285 (S.C.C.) at 426-432; R. v. Johnson (1993), 1993 CanLII 3376 (ON CA), 79 C.C.C. (3d) 42 (Ont. C.A.) at 47-51; R. v. Gagnon, supra, at 250, para. 132; and R. v. Boss (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.) at 541-542.
Supplementary Issue: Charge relating to reasonable doubt
45It is my opinion that the instructions the trial judge gave on reasonable doubt were adequate in the context of the charge as a whole. The instructions complied in substance with R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. What distinguishes this case from Starr, supra, is that the trial judge did not equate the criminal standard with words used in the everyday, ordinary sense. Nor did the trial judge link the definition of reasonable doubt with ordinary decisions made in everyday life. In any event, Lifchus, supra, and Starr, supra, constitute only refinements in the relevant law and not “magical incantations” regarding the exact words to be spoken when defining reasonable doubt. As was stated in R. v. Beauchamp (2000), 2000 SCC 54, 149 C.C.C. (3d) 58 (S.C.C.) at p. 64:
In R. v. Starr, 2000 SCC 40, 147 C.C.C. (3d) 449, 190 D.L.R. (4th) 591, and R. v. Russell, 2000 SCC 55 [post, p. 66], and R. v. Avetysan, 2000 SCC 56 [post, p. 77], released concurrently herewith, the principles set out by this Court in Lifchus, supra, on the appropriate manner of instructing a jury on the reasonable doubt standard were applied. As noted in Starr, Avetysan, and Russell, the criterion, in reviewing a trial judge's instructions to the jury, remains one of "substantial compliance" with the principles set out in Lifchus (Starr, supra, at paras. 238 and 243). An appellate court must assess whether "the essential elements of a fair and accurate instruction on reasonable doubt are present and have been properly explained" (Starr, supra, at para. 233), such that there is no reasonable likelihood that the jury misapprehended the proper burden and standard of proof. …
46The principal objection of counsel for Wang was that the trial judge failed to distinguish between the criminal standard of proof and the civil standard. However, it is my opinion that the caution with which the trial judge instructed the jury to approach the evidence, coupled with her instructions regarding the presumption of innocence, would certainly have conveyed to the jury the high standard of proof required to convict. In any event, as the respondent Crown notes, while the trial judge did not compare and contrast the different standards in the burden of proof as between the criminal and civil contexts, defence counsel amply made this point clear.
47Following Starr, supra, it would have been preferable for the jury to have received all of its instructions on the law, and, in particular, on the issue of reasonable doubt, from the trial judge. However, in this case, the jury was adequately equipped to apply the correct burden of proof, based on the instructions received from the judge’s charge, in combination with defence counsel’s submissions. For example, counsel for the appellant Wang was last to address the jury and explained the difference between the two burdens of proof in the following language:
This is not a civil trial like O.J.’s going through now to determine how much money he’s going to pay back to the family if the jury finds he’s responsible for the death. That’s a balance of probabilities. This is a criminal trial with dire consequences to all parties no matter which way you decide. So therefore, it’s proof beyond a reasonable doubt as Her Honour will define it for you.
… If the Crown has proved its case beyond a reasonable doubt, if the evidence gets to that high standard, then you convict. If the evidence does not reach that high standard, you acquit. It’s as simple as that. It’s not an issue of saying, “Well, he might be guilty or probably guilty”, that’s not how you approach it. Has the Crown prove (sic) its case beyond a reasonable doubt. If not, not guilty. So your job is to determine guilt or not guilt on that standard.
48Accordingly, I do not believe that the trial judge erred in her charge on reasonable doubt and I would not give effect to this last ground of appeal.
49In summary, Wang’s appeal against conviction is dismissed on all grounds.
IV. Lo’s appeal against conviction
i. Issues
50The following issues are raised on Lo’s conviction appeal:
(1) the trial judge erred in her instructions regarding potential confirmatory evidence respecting the evidence of J.B.;
(2) the trial judge erred in her instructions to the jury by failing to instruct them to consider separately the evidence admissible against each accused and to arrive independently at a verdict against each;
(3) the trial judge erred in instructing the jury that they could make the “permissible” inference of knowledge based on the natural and probable consequences of an act;
(4) the trial judge erred in failing to leave the defence of necessity to the jury on the count of dangerous driving;
(5) there was a miscarriage of justice as demonstrated by “fresh evidence” admissible on appeal; and
(6) there was a failure to properly instruct the jury as to reasonable doubt in accordance with R. v. Starr, supra.
ii. Analysis
51I have dealt with issues (1) and (6) in the Wang appeal. Issues (2) and (3) were not pressed and are without merit. As to issue (4), in the absence of any defence testimony, there is no air of reality to the suggestion that the dangerous driving by the appellant Lo of the get-away car justified leaving the defence of necessity to the jury.
Issue #5: Fresh evidence application of Lo
52Although the appellant Low associated himself with the submissions of the appellant Wang with respect to a number of issues, before this court, Low presented an application for the introduction of fresh evidence that related to him alone.
53As indicated above, the Crown witness J.B. was called by the Crown to give evidence on the issue of guilt, but was also called by the appellant Wang as a witness on sentencing. On the sentencing hearing, J.B. played down the involvement of both Wang and Lo in the home invasions. As regarding Lo, he said that Lo did not know that J.B. and the others were going to do the things that occurred at the Javaheri residence during the second home invasion. He also said that Lo was merely the driver and was used to get the assailants to the Javaheri residence, and that they expected him to wait for them at the scene. According to J.B., they had not discussed with Lo anything that was to happen in the robbery.
54Low’s trial counsel submitted an affidavit in which he deposed to the fact that the testimony of J.B. on sentencing was a revelation to him. J.B. had refused to speak to defence counsel before the trial and the Crown had only delivered a copy of his “agreed statement of facts” from his guilty plea. Trial counsel was satisfied that the witness was determined to maintain his plea bargain arrangements at all costs. Counsel regarded him as “an extremely dangerous witness” who was clearly capable of saying anything that he perceived to be in his own interests. He was afraid to cross-examine him when called as a Crown witness because he did not know what answers he would receive. When J.B. minimally implicated Lo in his testimony in chief, defence counsel intentionally avoided cross-examining him as to the state of Lo’s knowledge of what his passengers intended to do at the Javaheri residence. Instead he, in his words, “strongly challenged his credibility and suggested he would implicate another person to save himself”.
55Counsel for Lo at trial was very experienced and no issue is taken in this court as to his overall competence. Rather, it is suggested that his decision not to cross-examine J.B. was sound given his state of knowledge at the time and that it is possible for competent trial strategies to inadvertently lead to a miscarriage of justice through no fault of the accused or his counsel. Alternatively, it is contented that Lo’s counsel’s reluctance to fully question J.B. when he had the opportunity may have been an incompetent choice. It is further submitted that it is not necessary to determine whether the decision was competent or not, if, in the end, it resulted in a miscarriage of justice through no fault of the appellant himself. On this point, counsel relied on R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520.
56The test for fresh evidence is governed by the four criteria set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, as follows: (i) due diligence; (ii) relevance on a decisive issue; (iii) credibility; and (iv) impact on the verdict.
57The Crown on appeal does not take issue with the first factor. With respect to the third factor, the Crown submits that the evidence is somewhat equivocal. The Crown submits that the fresh evidence fails to satisfy criteria (ii) and (iv).
58In my opinion, the concession of the Crown that the appellant has met the first criterion, due diligence, is unacceptable on the face of this record. The due diligence criterion will be met where the evidence was not led due to the incompetence of counsel. A finding of incompetence requires the appellant to establish, first, that counsel’s acts or omissions constituted incompetence and, second, that a miscarriage of justice resulted: see R. v. G.D.B., supra.
59The appellant has implicitly acknowledged that it has failed to establish the necessary ingredient of incompetence of counsel by urging on this court that such a finding is unnecessary where there has been a miscarriage of justice. It is my opinion that trial counsel’s decision not to fully question J.B. was not an incompetent choice.
60Despite the self-doubts of trial counsel, he may have made the correct choice in simply attacking the credibility of the witness J.B. at large. I do not think the jury would have been impressed by such a transparent attempt by J.B. to ingratiate himself with his old comrades by trying to downplay their roles in the robberies even assuming trial counsel was wrong in his assessment that J.B. would not jeopardise his plea bargain by appearing to change his testimony at the jury stage of the trial.
61More importantly, J.B.’s post-trial account of why Lo was driving him and two other robbers to the scene of the crime makes nonsense of Lo’s out of court statement that he was at the scene by accident and was supposed to be at a party somewhere else. If Lo, through his counsel, were to acknowledge the minimalist role suggested of him later by J.B., he would be admitting that he lied to the police about being at the scene of the home invasion by accident. Further, had such a strategy been adopted, Lo would also have been asking his counsel to assume the monumental task of attempting to persuade the jury that Lo was an innocent dupe who had simply been asked to drive three persons in a small car he had rented to a specific residence late at night. This act of persuasion would have had to have be done in the face of extremely suspicious circumstances such as: Lo’s passengers were armed with a baseball bat, a semi-automatic gun and a sword that Lo himself described as "big", with a "huge blade"; Lo parked his vehicle six doors west of the residence where the robbery occurred instead of waiting at the curb or in the driveway; Lo turned the car’s headlights off, but left the car engine running; and Lo immediately chose to flee from the scene when he saw Parham Javaheri approaching, instead of waiting for his friends whom he knew needed a ride.
62It is therefore my opinion that the element of incompetence going to due diligence is not present in the case at bar. Further, although Major J. in G.D.B., supra, noted that the due diligence criterion is not essential to a successful appeal based on fresh evidence, and that this factor must yield in circumstances where its rigid application would result in a miscarriage of justice, I do not believe that this is the case here. Having reviewed the facts and evidence presented at trial, as well as the submissions made before this court regarding the potential for a miscarriage of justice, I am not satisfied that such a danger exists in this matter.
63Accordingly, I would not admit the fresh evidence nor give effect to issue (5) as a ground of appeal.
64Accordingly, Lo’s appeal against conviction is dismissed on all grounds.
V. Wang’s appeal against sentence
65J.B. testified at the sentencing hearing. According to J.B., Wang’s involvement in the first robbery was as a “watch-out man” only. He had not been involved in the planning of the robbery. J.B. testified that Wang had carried a sword during the second robbery, but had not had any physical contact with the victims and had not been involved in planning the robbery. Similarly, Wang had acted only as a “watch-out man” at the third robbery.
66Wang was 19 years old at the time of sentencing. Richard Wang, the appellant’s older brother, who is employed as an actuary by S & P Data Corporation, testified that his brother was a polite and well-behaved child until 1989 or 1990, at which time his parents separated. The appellant had a hard time dealing with this event, and as a result, he became angry and began to perform poorly in school.
67Dr. Graham Turrall, a psychologist, assessed the appellant prior to sentencing. He did not find him to be suffering from any major mental illness, but did find the appellant to have psychological difficulties related to family problems which had led the appellant to rely on a peer group whose beliefs were antisocial. The appellant was described as being somewhat narcissistic, with significant levels of anxiety that he attempted to mask by pretending to be manipulative and egocentric. According to Dr. Turrall, the appellant was likely to respond positively to a structured environment, but was likely to re-offend without structured intervention. It was Dr. Turrall’s belief that the type of treatment required by the appellant is generally unavailable in federal penitentiaries until the inmate approaches his release date. Dr. Turrall believed the appellant to have a significant capacity for empathy.
68Fresh evidence was admitted on the appeal. In an affidavit, the appellant Wang states that after his arrest in May of 1995, he was in custody for one week. He was released on bail and stayed on bail until the jury found him guilty in October of 1996. After sentencing, he remained in custody for ten months until August 28, 1997, at which time Labrosse J.A. released him pending appeal.
69As a condition of his release, he was obliged to live at home, report weekly to the York Regional Police and observe a curfew from 8:00 p.m. to 6:00 a.m. While on interim release, he has completed a grade 12 English credit through Albert Campbell Collegiate Secondary School, that he began through correspondence while in custody. He has also completed a computer programming course and has made inquiries about entering university as a mature student. He wishes to pursue his studies and become a paramedic.
70At the time of his arrest, the appellant had been employed for about four months at S & P Data. After his release on bail, he returned to work full time at S & P. He left this job two years ago and obtained a job with his current employer, Titan Energy Services Inc. Since obtaining his present employment, he has received several promotions and a salary increase.
71Counsel for Wang submitted that the sentence of ten years imposed on the appellant, a 19-year-old with a minor record, was outside of the range of sentences ordinarily imposed for similar offences and similar offenders, and also failed to give sufficient regard to the appellant’s age and relative lack of criminal antecedents.
72In R. v. Hachez (1995), 1995 CanLII 1109 (ON CA), 101 C.C.C. (3d) 31 (Ont. C.A.) [also cited sub nom R. v. Hieronymi], this court held that a ten year sentence imposed for two home invasion robberies that were not unlike those in the case at bar was “at the high end of the range of what is appropriate” in a case where the offender had a lengthy criminal record with 14 prior convictions. It was submitted that an identical sentence imposed on a 19-year-old with a very minor record is outside of the appropriate range.
73The trial judge was aware of this court’s judgment in Hachez, supra, but held that the high end of the range set by this court in that case may now be “woefully inadequate in stemming the emerging popularity of terrorizing people in their own homes.” Before this court, counsel submitted that there is no jurisprudence from this court suggesting that the range identified in Hachez, supra, was incorrect or is now inadequate, and that absent such authority, the trial judge was bound by the range set by this court.
74The facts in the home invasion robbery case of R. v. Ferreira, [1995] O.J. No. 287 (Gen. Div.), a judgment relied upon by the trial judge, were similar to those in the case at bar. In that case, Goodearle J. imposed a sentence of twelve years imprisonment on a first offender. After the appellant Wang was sentenced, this court reduced the sentence in Ferreira, supra, to five years (the endorsement of the Court of Appeal states the original sentence was ten years), holding that the appropriate range for this type of offence is between five and eight years: [1997] O.J. No. 799 (C.A.). This court held that the trial judge in Ferreira, supra, had overemphasized the principle of general deterrence and had failed to give sufficient weight to the appellant’s background and first offender status. Counsel submitted that similar errors were committed in the case at bar.
75It is unfortunate that this appeal has taken so long to be heard, but the appellant Wang cannot be held accountable for that. The effect of the delay combined with the strict terms of his interim release means that he has effectively been under house arrest for almost four years. To his credit, he has made good use of his time and appears to have turned his life around. I agree with counsel for the appellant that the trial judge was in error in ignoring the range of sentences available for this type of offence. Having regard to his age at the time of the offence, and giving due regard to attempts at rehabilitation, I think that the appropriate sentence is five years.
76Accordingly, leave to appeal sentence is granted and the appeal is allowed to the extent of reducing Wang’s sentence from ten years to five.
77Since the trial judge had sentenced the appellant individually on each count in each home invasion, and this included three convictions for use of a firearm in the commission of an offence involving a mandatory sentence, it is now not a simple task to adjust the sentences meted out in order to arrive at the total sentence that I believe is appropriate. Accordingly, I would ask counsel to confer and determine how the adjustment can best be made. If necessary, I can be spoken to further on this matter.
Released: APR 23 2001 Signed: “G.D. Finlayson J.A.”
RRM “I agree R.R. McMurtry C.J.O.”
“I agree J.M. Labrosse J.A.”
