COURT OF APPEAL FOR ONTARIO
Rosenberg, Feldman and Juriansz JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Duressa Hassen
Appellant
Christopher Hicks for the appellant
Greg Skerkowski for the respondent
Heard: September 4, 2008
On appeal from conviction by Justice Thomas Dunn of the Superior Court of Justice dated September 18, 2006.
ENDORSEMENT
1The appellant appeals his conviction by a court composed of Dunn J. and a jury on three counts of robbery and one count of using a firearm while committing an indictable offence. At the conclusion of the oral argument, we allowed the appeal and ordered a new trial, with reasons to follow. These are those reasons.
Introduction
2The Crown alleged that the appellant was one of five persons involved in the planning and execution of a home invasion of a drug dealer. Two of these people were in the home of the victim at the time that the three other masked intruders executed the robbery. The Crown alleged that the appellant was one of the three masked intruders who robbed the drug dealer and two of his friends. The main Crown witness was an accomplice, Gharbi-Hamel, who was in the victim’s home at the time of the robbery. The trial judge gave the jury a Vetrovec [R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.)] warning regarding Gharbi-Hamel’s evidence and told the jury that they should look for confirmation of his evidence before relying on it. By the time of the trial Gharbi-Hamel and three other men had pleaded guilty to various offences for their roles in the robbery.
3The appellant raises three grounds of appeal.
The Use of Fernandes’ Identification Evidence
4The appellant submits that the trial judge erred in his instructions to the jury respecting the evidence of a witness, Fernandes, who was in the apartment at the time of the robbery. Mr. Fernandes had a confrontation with the robbers after they left the apartment. He described that confrontation to the police following the robbery and testified at the preliminary hearing. At the trial he testified that during this confrontation the mask slipped off one of the robbers and this man was the appellant, who he pointed out in the prisoner’s box. He testified that he recognized the appellant as that robber when he saw him entering the courthouse the day before he testified. Fernandes did not know the appellant before the robbery but had seen him at the preliminary hearing. The trial was the first occasion that Fernandes testified that the perpetrator’s mask had slipped and that he had seen his face. He had made no mention of this in his statement to the police.
5The trial judge gave a standard caution regard the frailty of eye-witness identification evidence focusing on the evidence of Gharbi-Hamel, but also pointing out that Gharbi-Hamel recognized the appellant since he worked with the appellant and had been involved in planning the robbery. The trial judge did not mention Fernandes in this context, nor did he identify the circumstances surrounding his late identification of the appellant and relate them to the cautions regarding eye-witness identification evidence.
6The trial judge later reviewed Fernandes’ evidence but did not characterize the circumstances of his late recognition of the appellant as frailties in his evidence, and left it to the jury to “conclude what weight to give to Mr. Fernandes’ evidence”. He gave them no caution regarding the value of in-dock identification. The trial judge had earlier told the jury that they could use Fernandes’ identification of the appellant as confirmation of the evidence of Gharbi-Hamel.
7We agree with the appellant that the trial judge erred in law in his charge to the jury regarding their treatment of the evidence of Fernandes. The trial judge should have given them an instruction that Fernandes’ in-dock identification, standing alone, has virtually no value. The trial judge should have identified the specific frailties of Fernandes’ identification of the appellant in the context of the charge on eye-witness identification. Finally, Fernandes’ evidence should not have been left to the jury as capable of confirming the evidence of Gharbi-Hamel. As was said in Vetrovec at p. 13, the trier of fact wants “some other piece of evidence which tends to convince us that [the accomplice] is telling the truth”. Given the substantial frailties of Fernandes’ eye-witness identification, that part of his testimony was not capable of confirming Gharbi-Hamel’s testimony implicating the appellant. We note that in a somewhat similar case, R. v. Wang (2001), 2001 CanLII 20933 (ON CA), 153 C.C.C. (3d) 321 at para. 36, this court held that such evidence is capable of constituting confirmation. Wang, however, was decided before R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (S.C.C.) where the court explained the limited value of in-dock identification and the limited purpose for which that evidence can be adduced.
8Because this evidence was the only piece of confirmatory evidence that spoke to the guilt of the appellant, we cannot say that the verdict would necessarily have been the same had these errors not been made. On this ground alone, the judgment must be set aside and a new trial ordered.
Admissibility of the Guilty Pleas of the Accomplices
9The second ground of appeal relates to the admission into evidence of the fact that three other men implicated by Gharbi-Hamel pled guilty to the robbery. The trial judge left the guilty pleas as evidence capable of confirming his testimony. This evidence was inadmissible hearsay, which the trial judge allowed the jury to use for the truth of its contents, i.e. that the other men implicated by Gharbi-Hamel were in fact perpetrators. See R. v. Berry (1957), 1957 CanLII 505 (ON CA), 118 C.C.C. 55 (Ont. C.A.). However, since other admissible evidence was led regarding the guilt of two of the three, the prejudice from this error was minimal and if this were the only error we would have applied the proviso in s. 686(1)(b)(iii) of the Criminal Code.
Answer to the Jury’s Question
10The third ground of appeal is that the trial judge failed to adequately answer one of the jury’s questions regarding whether the appellant could be guilty of robbery if he was only involved in planning the crime. The trial judge told the jury that planning could be sufficient for guilt in certain circumstances, but that the Crown’s case was that the appellant was a full participant in the robbery. Given our disposition of the appeal on the first ground of appeal it is not strictly necessary to deal with this ground of appeal. However, since the issue could arise on the new trial we would make this observation.
11The only evidence of the appellant’s participation in the planning of the robbery came from Gharbi-Hamel. His testimony as to what the appellant did or said during this planning was so vague that it would not have been possible for a trier of fact to find that he aided or abetted the robbery on this basis. On this record, the trial judge should have told the jury that they could not convict the appellant solely on the basis of planning and that they had to find that he actually participated in the execution of the robbery.
Disposition
12The appeal is allowed, the convictions set aside and a new trial is ordered.
Signed: “M. Rosenberg J.A.”
“K. Feldman J.A.”
“R.G. Juriansz J.A.”
