COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. MICHAEL NELSON (Applicant/Appellant)
BEFORE: DOHERTY, ROSENBERG and MOLDAVER JJ.A.
COUNSEL: Sam Scratch for the appellant John McInnes for the respondent
HEARD: May 24, 2001
On appeal from the conviction imposed by Justice D.G. Humphrey, sitting with a jury, dated February 26, 1999 and the sentence imposed on March 24, 1999.
E N D O R S E M E N T
1The appellant was convicted of robbery and several other offences arising out of the same events. The Crown alleged that the appellant, while masked, gained entry to the apartment of Debbie Edwards and attacked and terrorized Ms. Edwards and a friend over the course of several hours. The appellant was sentenced to 8 years in the penitentiary. He appealed his conviction and sentence.
2At the conclusion of oral argument, the court dismissed the conviction appeal and varied the sentence from 8 years to 7 years. These are the reasons for that disposition.
The Conviction Appeal
(a) The undisclosed alibi
3The Crown’s case rested primarily on the evidence of Ms. Edwards. She knew the appellant. She testified that although the intruder was masked and she was pepper sprayed by the intruder, she was able to identify the appellant as the intruder. She gave several reasons for that identification and was cross-examined extensively on those reasons. There was also independent evidence capable of confirming Ms. Edwards’ identification of the appellant as her attacker.
4The appellant testified that during the time period when the attack occurred, he was in his apartment cooking and also spent some time in another apartment visiting friends. Both apartments were in the same building as Ms. Edwards’ apartment. According to the appellant’s testimony, his uncle’s girlfriend who lived with the appellant and his uncle was at home in the apartment with the appellant during the relevant time. Also, according to the appellant, two young women were with him in the other apartment. The appellant provided the name of one of these two women.
5When arrested shortly after the event, the appellant had told the police that he was at home when Ms. Edwards was attacked. He offered no further details as to his whereabouts and made no reference to his uncle’s girlfriend or the two women in the other apartment. These details first emerged during the appellant’s cross-examination.
6Counsel for the appellant forcefully submitted that the Crown improperly invited the jury to draw an adverse inference from the defence’s failure to call witnesses who could, according to the appellant’s testimony, account for his whereabouts at the time of the attack on Ms. Edwards and her friend. Counsel further argued that even if the inference could be drawn, the trial judge erred in failing to instruct the jury as to the limited nature of that inference and the caution to be exercised before drawing that inference.
7On appeal the Crown characterized this as a case of an undisclosed alibi. He argued that the appellant’s failure to reveal the identity of witnesses, who could confirm his whereabouts, until cross-examination amounted to a failure to give timely notice of the essential details of an alibi and invited an instruction as to the adverse inference which could be drawn from the failure to give that timely notice: R. v. Cleghorn (1995), 1995 CanLII 63 (SCC), 100 C.C.C. (3d) 393, per Iacobucci J. for the majority, at p. 397, per Major J. in dissent, at p. 407.
8We accept the Crown’s submission. The appellant’s defence was that he was elsewhere when the crime was committed. In short, he advanced an alibi: R. v. Hill (1995), 1995 CanLII 271 (ON CA), 102 C.C.C. (3d) 469 at 478-9 (Ont. C.A.). The appellant’s failure to disclose to the prosecution until cross-examination, the identity of those who according to him could confirm his whereabouts denied the prosecution the opportunity to effectively investigate the alibi. In these circumstances, the trial judge should have told the jury that the failure to make timely disclosure of the witnesses referred to in the appellant’s cross-examination was a factor to be considered in determining what weight should be given to the appellant’s evidence that he was elsewhere when the crime was committed: R. v. Hill, supra, at 477-78; R. v. Chambers (1990), 1990 CanLII 47 (SCC), 59 C.C.C. (3d) 321 at 343 (S.C.C.).
9Neither trial counsel nor the trial judge treated this as an alibi case. Crown counsel made a submission to the jury that it should consider the appellant’s failure to call certain witnesses in assessing the appellant’s credibility. Crown counsel could have told the jury that the trial judge would tell them that they could consider the appellant’s failure to disclose the names of the witnesses in a timely fashion when assessing the veracity of the appellant’s evidence as to his whereabouts. The submission made by Crown counsel was no more effective than that which the Crown could have made had it approached the case as one involving an undisclosed alibi.
10The trial judge said nothing about the failure of the appellant to call the witnesses referred to by the Crown. He also made no reference to the appellant’s failure to make timely disclosure of the identity of those persons who according to the appellant could vouch for his whereabouts at the relevant time. The absence of an instruction as to the potential impact of the appellant’s failure to make timely disclosure benefitted the appellant. From the appellant’s vantage point, the trial judge put the case to the jury on a better basis than the appellant was entitled to as a matter of law. The appellant can demonstrate no prejudice flowing from Crown counsel’s submissions concerning the failure to call certain witnesses, or from the trial judge’s failure to address those submissions in his instructions to the jury.
(b) Count 9
11The Crown acknowledges that the trial judge should have given the jury more detailed instructions on count 9 in the indictment. That count alleged that the appellant assaulted Ms. Edwards’ friend and caused her bodily harm. Crown counsel concedes that the jury could have concluded that the appellant assaulted the friend, but did not cause her bodily harm. The trial judge gave only the tersest of instructions on this count.
12Crown counsel submits that while there was evidence to support a conviction for assault causing bodily harm, justice would not be served by a new trial on that count alone. He submits that the court should substitute a conviction for assault. We agree with that position and pursuant to s. 686(3) of the Criminal Code, would set aside the conviction for assault causing bodily harm on count 9 and substitute a conviction for assault.
13The sentence imposed on count 9 (3 years) was concurrent to the much longer sentence imposed on the robbery charge. We would not vary the sentence imposed on count 9.
The Sentence Appeal
14The appellant received a total sentence of 8 years. He had spent some 10 months in custody prior to sentencing. Assuming the usual two for one credit given for pre-trial custody, the appellant’s sentence was equivalent to a sentence of 9 years and 8 months.
15Although the appellant is a young man (21 years old) and has only a minor criminal record, a lengthy penitentiary term was fully warranted. The appellant assaulted, terrorized and humiliated Ms. Edwards over a prolonged period of time. His attack was premeditated and marked by repeated and egregious acts of gratuitous violence. The appellant also confined and assaulted Ms. Edwards’ friend. To make a bad situation even worse, the attack occurred in Ms. Edwards’ home. No doubt, she will live with the terror of that afternoon for the rest of her life.
16In his reasons for sentence the trial judge said:
So there is absolutely zero remorse; not only zero remorse, complete defiance of the criminal justice system by attempting to perpetrate a completely perjurious defence on the jury. Fortunately, they were not fooled and rejected the accused’s evidence.
17The trial judge continued with this theme when he came to the appellant’s pre-trial custody:
I take into consideration that he has done nine months dead time – ten months pre-trial custody – I also bear in mind that the reason he was in custody for ten months was to enable him to mount this perjurious defence that he has put forward.
18In our view, the trial judge erred in principle in disregarding the pre-trial custody based on his assessment of the nature of the defence mounted by the appellant. Quite simply, there is no connection between the reason credit is given for pre-trial custody and the trial judge’s conclusion that an accused has advanced a “perjurious defence”. It seems to us that the trial judge felt that the appellant’s sentence should be increased because he had advanced a “perjurious defence”. Sentences cannot be increased to express disapproval of the conduct of the defence.
19Having found that the trial judge erred in principle, this court must consider the appropriateness of the sentence imposed afresh. We are in substantial agreement with the trial judge’s assessment of the appropriate sentence. A sentence closely approaching 9 years was entirely appropriate in this case. Giving the appellant credit of 20 months for his pre-trial custody, we think that 7 years in an appropriate disposition.
(c) Disposition
20As indicated at the end of oral argument, a conviction for assault is substituted on count 9 and the conviction appeal is dismissed. Leave to appeal sentence is granted and the appeal is allowed by varying the 8 year sentence imposed on the robbery charge to a sentence of 7 years. In all other respects, the sentences imposed at trial stand.
“Doherty J.A.”
“M. Rosenberg J.A.”
“M.J. Moldaver J.A.”
