COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
John Michael Massel
Appellant
John Michael Massel, in person
Leslie Maunder, duty counsel
Allison Wheeler, for the respondent
Heard: April 21, 2009
On appeal from the conviction entered on January 21, 2008 and the sentence imposed on August 15, 2008 by Justice J. Cavarzan of the Superior Court of Justice.
ENDORSEMENT
1The appellant was convicted of robbery and sentenced to 10 years imprisonment. He appeals both his conviction and sentence.
2Regarding the conviction appeal, the appellant argues that the trial judge erred in his ruling on the appellant’s Corbett1 application. As to sentence, the appellant submits that the sentence he received after conviction was harsh and excessive.
The conviction appeal
3The essence of this appeal is in connection with the trial judge’s ruling on the appellant’s Corbett application. Here he makes two basic submissions. First, he argues that the trial judge’s ruling on the application was confusing, at least to the defence, and in this way caused trial unfairness.
4Second, he contends that the trial judge erred by admitting evidence of the appellant’s 28 year old conviction for manslaughter into evidence on the basis that the defence, during cross-examination of Crown witnesses, attacked their character and not simply their reliability or credibility. He says that the prejudice of this conviction is outweighed by its probative value, and if not for this error, the evidence of this conviction would have been excluded.
5We disagree with both submissions.
6As to the first submission, the trial judge’s ruling, although brief, was not confusing. If it was confusing to the appellant, or to his defence counsel, there was certainly no notice of that at the time the ruling was pronounced. This cannot be said to amount to an error by the trial judge.
7On the second argument, the appellant submits that the trial judge erroneously found that when defence counsel challenged the arresting officer’s credibility, she went further and attacked his character. Our reading of the proceedings reveals support for the trial judge’s finding, and accordingly, we would not interfere with his conclusion.
8On our review of the record, the trial judge was aware of the proper legal test for Corbett applications and applied it correctly. Trial judges are accorded a high degree of deference by this court on these applications and the appellant has not demonstrated any reason for us to interfere. As a result, the appeal against conviction is dismissed.
The sentence appeal
9Crown counsel fairly concedes that the 10 year term of imprisonment imposed for this offence and this offender was outside the range. She submits that a fit and proper sentence would be 5 years imprisonment. We agree with this concession.
10Therefore, we would grant the appellant leave to appeal his sentence. We would allow the appeal and set aside the sentence of 10 years imprisonment and substitute a term of 5 years.
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
“H.S. LaForme J.A.”