COURT OF APPEAL FOR ONTARIO
Lauwers, Trotter and Fairburn JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Gary Garrell
Appellant
Jessica Zita, for the appellant
Catherine Weiler, for the respondent
Heard and released orally: February 10, 2020
On appeal from the conviction entered on February 16, 2018 and the sentence imposed on May 14, 2018 by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury.
REASONS FOR DECISION
1This is an appeal from conviction for one count of robbery involving a home invasion where one of the home occupants was shot. One of the robbers pleaded guilty to the offence, at which time he gave evidence of the appellant’s role in the offence. At trial, that individual testified and gave a more exculpatory version of events. The facts on the guilty plea were admitted for the truth of their contents.
2The trial judge properly gave a Vetrovec instruction: R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811. Given the exculpatory nature of the witness’s trial evidence and the inculpatory nature of the agreed upon facts at the guilty plea, the appellant says that a “mixed witness” Vetrovec instruction should have been given: R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 125, 126.
3We are satisfied that, when read as a whole, the charge adequately conveyed to the jury that they were to look for independent confirmatory evidence only in relation to the inculpatory aspects of the witness’s evidence. Although not a mixed witness instruction, the trial judge was clear that his Vetrovec instruction only applied to that evidence that supported the Crown’s case. The absence of any defence objection at trial demonstrates the adequacy of the charge when read as a whole.
4The appellant also objects to the absence of a W.(D.) instruction, specifically in relation to the exculpatory aspects of the same Vetrovec witness: R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. Again, when read as a whole, the charge properly reflects all concerns underlying a W.(D.) instruction, and there was no objection to the charge on this basis at trial.
5The appellant also seeks leave to appeal sentence. The primary complaint concerns the process used to reach the findings of fact that were not inherent in the jury’s verdict, specifically the appellant’s knowledge relating to whether a firearm was to be used during the robbery.
6Consistent with what had been discussed with counsel ahead of time, the trial judge conveyed his finding of fact on this point to counsel by email. All were content with this manner of proceeding given that full submissions had been previously made on a directed verdict application. We note that the trial judge properly expressed his reasons for the finding of fact disputed by the appellant in his reasons for sentence.
7In light of all these circumstances, we do not accede to this submission and see no error.
8Finally, the respondent concedes that the appellant should be credited 90 days of pre-sentence custody to be removed for the custodial disposition imposed. We agree.
9The conviction appeal is dismissed. Leave to appeal sentence is granted. The sentence appeal is granted only to the extent of crediting 90 days pre-sentence custody, reducing the appellant’s custodial term by 90 days.
“P. Lauwers J.A.”
“G.T. Trotter J.A.”
“Fairburn J.A.”