COURT OF APPEAL FOR ONTARIO
Rouleau, van Rensburg and Madsen JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Wei Hang Shi
Appellant
Dan Stein, for the appellant
Andrew Hotke, for the respondent
Heard: September 25, 2024
On appeal from the conviction entered by Justice Joseph Di Luca of the Superior Court of Justice on January 20, 2023, and from the sentence imposed on June 26, 2023.
van Rensburg J.A.:
1The appellant, along with two others, Kenron Matthews-Bishop and Roowens Marcelin, was convicted of robbery and acquitted of possession of a loaded gun. The appellant was sentenced to four years’ imprisonment less pretrial custody. He appeals his conviction, submitting that the trial judge erred in relying on certain evidence of Mr. Matthews-Bishop concerning the relationships between the accused, which he says was evidence that had been rejected and was manifestly unreliable. The appellant seeks leave to appeal his sentence, asserting that the trial judge failed to respect the principle of parity when he received a sentence that was six months longer than Mr. Matthews-Bishop’s sentence. The appellant also brings a motion to introduce as fresh evidence on the appeal agreed facts that, after sentencing, Mr. Matthews-Bishop’s DNA was identified on a loaded gun that was associated with the robbery, and that Mr. Marcelin’s DNA was identified on a glove that had been discarded near the scene of the crime.
2For the reasons that follow I would dismiss the conviction appeal, grant leave to appeal sentence but dismiss the sentence appeal, and dismiss the fresh evidence motion.
3As I will explain, I do not accept that the trial judge erred in his treatment of Mr. Matthews-Bishop’s evidence or in any way in convicting the appellant. Nor did the trial judge depart from the principle of parity in imposing what was a just and reasonable sentence on the appellant. I would not admit the fresh evidence, which is not exculpatory of the appellant, as it would not reasonably have affected the appellant’s conviction or sentence had the evidence been available at first instance.
A. Facts
Facts
4The charges arose out of a home invasion robbery that took place on July 25, 2020 in Markham, Ontario. Just before 2:00 a.m., intruders entered a large home that was divided into separate dwelling units. Two tenants occupied the main and upper floors of the residence. When the home invasion occurred the owner and her two young children were visiting her mother, who lived in the basement. The owner testified that she heard the sound of people running upstairs, and that two intruders came downstairs to the area where she was staying. She described them as being of medium height and build and, although they were wearing masks, she thought they were Black. One of the intruders was armed with what appeared to be a gun, and while pointing it in the owner’s face, he showed her a picture of one of the tenant’s on a cell phone. The intruders appeared to be looking for the tenant. The intruders used white plastic zip ties to tie up the owner and her mother, as well as the other tenant, who was brought downstairs.
5During the robbery the owner managed to call 911, and the police attended within minutes. An officer saw two men leaving through the front door of the house: a Black male and another male, later identified as Zongyu Li. The officer pursued both men, and arrested Mr. Li in a nearby backyard. Mr. Li had several cell phones, including one belonging to the main floor tenant. The arresting officer heard people jumping fences nearby. About 20 minutes later Mr. Matthews-Bishop was found hiding in the side yard of the house next door. He was carrying a cell phone with an “NGN Family” sticker on it.
6The police conducted an extensive search of the area using police dogs and a helicopter. Around 4:00 a.m., they apprehended the appellant and Mr. Marcelin, as the two were walking on a sidewalk about a kilometer and a half away from the target house. Both were wet, and their pants were muddy. Mr. Marcelin had a single blue, black and grey utility or gardening glove tucked into his pants.
7The police identified two suspect vehicles near the target house: a white Mercedes G-Wagon that was parked on a nearby street and a Chevy Equinox that was in a parking lot across from the house. Security camera footage from neighborhood residences showed the G-Wagon arriving and four persons exiting the vehicle. The fingerprints of the appellant, Mr. Li, Mr. Marcelin and Mr. Matthews-Bishop were found inside and on the exterior of the G-Wagon. A cell phone with an “NGN Family” sticker on it, and a wallet containing ID for “Christian Edward”, a large quantity of cash, and a bank receipt for a $500 withdrawal earlier that day, were located in the pocket on the back of the driver’s seat. Another cell phone, also with an “NGN Family” sticker, was in the pocket on the back of the front passenger seat. Mr. Marcelin’s fingerprint was found inside the Equinox. There were several white plastic zip ties similar to those used in the robbery in various locations in the G‑Wagon and three were also found in the Equinox. A loaded handgun was found in a knapsack next to the Equinox.
B. The Trial Decision
8The appellant, Mr. Marcelin and Mr. Matthews-Bishop were tried together by judge alone on one count of robbery and one count of possession of a prohibited firearm with ammunition. Mr. Li had absconded before trial.
9There was no dispute as to the three co-accused and Mr. Li having all arrived together in the vicinity of the target house on the evening of the robbery. The central issue at trial was which, if any, of the accused had participated in the home invasion robbery. Mr. Marcelin and the appellant also sought to exclude various items of evidence based on alleged Charter violations. After hearing evidence and argument, the trial judge dismissed the Charter application, following which he heard defence evidence from Mr. Matthews-Bishop, the only defendant to testify at the trial.
10The trial judge gave detailed oral reasons for convicting the three accused of robbery and acquitting them of the firearm possession charge.
11The trial judge concluded that, given the timing of events, the fact that five black garbage bags containing items from the home were found in and around the house, and the variety of valuable items in the bags, at least four people, and possibly as many as six or more, were involved in the home invasion robbery.
12The trial judge had no difficulty concluding that Mr. Li was involved in the robbery (and indeed none of the accused attempted to argue the contrary). He was pursued by police and caught after he ran out the front door of the house, he had a cell phone belonging to the main floor tenant in his possession, and his fingerprint was on a black plastic bag containing clothing and other items near the rear patio door of the home.
13The trial judge also concluded, based on the presence and location of the vehicles, the security camera footage, and the fingerprint evidence, that there was no issue that the appellant, his co-accused and Mr. Li were all present at the scene when the robbery occurred.
14The trial judge considered Mr. Matthews-Bishop’s evidence that provided an innocent explanation for their presence. According to Mr. Matthews-Bishop, he and his long-time friend Mr. Marcelin met up at a plaza with the appellant. While Mr. Marcelin met the appellant for the first time that night, Mr. Matthews-Bishop had met him a few months before through a friend at school, and the appellant had helped him access luxury cars to use in his music videos. The three wanted to smoke marijuana, so the appellant called Mr. Li, who picked them up in a G-Wagon and drove them to the house in Markham. Neither Mr. Mathews-Bishop nor Mr. Marcelin had ever met Mr. Li before. Upon arrival, they saw four to six men wearing COVID masks and standing around the Equinox. Mr. Li appeared to know these men and went over to the group. He came back to the G-Wagon to say that he was going into the house, and then proceeded to cross the street with the other group, entering the backyard through a side gate. After waiting for some time, the appellant tried calling Mr. Li, who did not answer. Mr. Matthews-Bishop suggested that they go to the house to see what was happening, so they crossed the street and went into the backyard of the house through the open gate. According to Mr. Matthews-Bishop, almost immediately people started running from the back door of the house, yelling “police”. While the others scattered and jumped fences to get away, Mr. Matthews-Bishop hid behind an air conditioner in the side yard of the house next door, where he remained until he was found and arrested. Mr. Matthews-Bishop denied that he, Mr. Marcelin and the appellant knew anything about a robbery; rather, they were at the house to buy marijuana.
15The trial judge observed that Mr. Matthews-Bishop was a “terrible witness” who “lied to the court”. He noted that Mr. Matthews-Bishop’s claim to have never been in the presence of a G-Wagon was contradicted by a cell phone photo of him and Mr. Marcelin posing in front of what was likely the same G-Wagon a few days earlier (both were wearing “NGN Family” t-shirts1), and that Mr. Matthews-Bishop only admitted that he knew Christian Edward (whose ID was found in the G‑Wagon), after he was confronted on cross-examination with social media excerpts establishing a connection. The trial judge also found Mr. Matthews-Bishop’s version of events to be implausible, including that the other individuals that he claimed had committed the robbery with Mr. Li all managed to escape, while only the four in the G-Wagon were apprehended in various locations following an extensive police search. He considered it significant that Mr. Marcelin’s fingerprint was found in the Equinox that had ostensibly been used by the other people Mr. Li met up with.
16The trial judge stated that he rejected the exculpatory portions of Mr. Matthews-Bishop’s evidence, and that such evidence was so obviously and manifestly incredible that it did not leave him with any reasonable doubt about the three accused’s involvement in the robbery. He also noted that there were portions of Mr. Matthews-Bishop’s evidence that he accepted: that, at a minimum, the four were in the G-Wagon as it arrived in the area of the target house (which was corroborated by the presence of fingerprints from all four individuals in or on the vehicle), that Mr. Li entered the house, and that at some point, the three accused also entered through the side gate of the residence into the backyard placing them in the immediate vicinity of the residence at the exact time of the robbery.
17After rejecting Mr. Matthews-Bishop’s exculpatory explanation for the presence of Mr. Li and the three accused at the target house, the trial judge considered whether the Crown had established beyond a reasonable doubt, based on evidence that was largely circumstantial, the participation of each accused in the robbery.
18The trial judge observed that the presence of two vehicles at the scene of the robbery, each containing white plastic zip ties that were similar to those used to tie up the victims, created a very strong inference that the robbery was planned and coordinated. The trial judge referred to Mr. Marcelin and the appellant’s location and appearance when they were arrested, stating that an obvious inference was that they fled and went into hiding after leaving the backyard of the target house, and in so doing, managed to get wet and muddy. He noted that Mr. Marcelin was in possession of a single distinctive glove which was of the same type, style and colour as other gloves located during the police search around the house and along a road close to where Mr. Marcelin and the appellant were arrested.
19The trial judge concluded that the only reasonable inference was that Mr. Marcelin was involved in the robbery. This was based on the totality of the evidence including his connection to both vehicles, his presence at the scene of the robbery at a time approximate to the robbery, his flight from the scene, and his physical presentation upon arrest, including the presence of one glove matching other gloves that must have been dropped by the intruders as they fled.
20As for the appellant, the trial judge concluded that the only reasonable inference based on the totality of the evidence was that he was also one of the intruders in the residence: he was found wet and muddy walking alongside Mr. Marcelin two hours after the robbery, he was present in the G-Wagon, and he was present at the residence at the exact time of the robbery. The trial judge also considered the possibility that Mr. Li somehow managed to be involved in a robbery with Mr. Marcelin without the appellant’s knowledge, despite having just met Mr. Marcelin for the first time that evening. The trial judge found that this was not a reasonable possibility, but a “fanciful suggestion”.
21Finally, the trial judge concluded that Mr. Matthews-Bishop was involved in the robbery, based on his arrival with the others at the house at the time of the robbery, that he was found hiding in the yard of the house next door, and the fact that the white plastic zip ties in the G-Wagon would have been obvious to him in the back seat where he said he was sitting.
22The trial judge also noted that the limitations in the police investigation (their failure to investigate the ownership of the two vehicles and to search the seized cell phones and their limited investigation of others potentially involved, including the person whose identification was found in the G-Wagon) did not cause him to question any of his findings in relation to the accused.
23With respect to the firearm possession charge, the trial judge was not convinced that the gun found near the Equinox had been used in the robbery or that any of the accused were in possession of it. Nor was he persuaded that the item brandished in the basement during the robbery was a real firearm; he concluded that it could as easily have been an imitation firearm.
24Accordingly, the appellant and his co-accused were convicted of robbery and acquitted on the firearm possession charge.
C. The Sentencing Decision
The Sentencing Decision
25The Crown sought sentences of six years’ imprisonment less pre-trial custody for both Mr. Marcelin and the appellant, and five and a half years for Mr. Matthews-Bishop. The defence sought two to three years for Mr. Marcelin and the appellant and two years for Mr. Matthews-Bishop. The submissions assumed that Mr. Matthews-Bishop was less morally responsible than his co-accused; the trial judge agreed.
26The trial judge imposed sentences of four years on Mr. Marcelin and the appellant and a sentence of three and a half years on Mr. Matthews-Bishop. He outlined the various aggravating circumstances, including the serious circumstances of the home invasion offence. He concluded that, based on the owner’s description of the intruders, Mr. Marcelin might have entered the basement, that the appellant was not in the basement, and that Mr. Matthews-Bishop might not have entered the house, but acted as a look-out.
27The trial judge identified the mitigating circumstances: all of the accused were young and had rehabilitative potential, each had positive family or community support, and none had a prior criminal record. The trial judge found in respect of Mr. Marcelin and Mr. Matthews-Bishop that there was significant mitigating value to their acceptance of responsibility and demonstration of remorse, and he considered their sentences in the context of their personal backgrounds as young Black males. He accepted that all three accused were on restrictive bail conditions and that the appellant was also entitled to some mitigation for the harsh conditions under which he served his pre-trial custody (after he had been re-arrested on other charges and incarcerated while on bail before the other charges were stayed). In arriving at the sentences, the trial judge accounted for the mitigating effect of Duncan and Downes factors on the appellant, but he noted that in the absence of evidence on the specific impact of the bail conditions, the degree of mitigation was modest at best.
D. Fresh Evidence
Fresh Evidence
28The appellant seeks to introduce fresh evidence on the appeal, consisting of an agreed statement of facts confirming that, after the DNA of the appellant and his co-accused was loaded to the national DNA databank following their sentencing, it was determined that (1) Mr. Matthews-Bishop’s DNA was identified on the firearm that was found beside the Equinox; and (2) Mr. Marcelin’s DNA was identified on a glove that was found near the target house.
29As I will explain, in addressing the issues on each of the conviction and sentence appeals, the fresh evidence fails the fourth part of the Palmer test for admissibility: the evidence would not have affected the appellant’s verdict of guilt or his sentence, had it been available at first instance.
E. The Conviction appeal
The Conviction Appeal
30The appellant raises two related issues on his conviction appeal, both concerning the trial judge’s treatment of the evidence of Mr. Matthews-Bishop. First, he contends that the trial judge erred in basing his conviction on evidence about the relationships between the accused that he had rejected as manifestly incredible, and that he expressly disbelieved. Second, he asserts that the trial judge failed to caution himself with respect to relying on the evidence of an unreliable and unsavoury witness, and failed to look for independent, verifiable evidence to support the evidence of Mr. Matthews-Bishop that he relied on in convicting the appellant. I am not persuaded that the trial judge made either error.
(i) The trial judge did not err in assessing the circumstantial evidence of the appellant’s guilt
The trial judge did not err in assessing the circumstantial evidence of the appellant’s guilt
31The only direct evidence of the relationship amongst the co-accused and Mr. Li was given by Mr. Matthews-Bishop. He explained how he and Mr. Marcelin knew each other (they grew up in the same neighbourhood, went to the same school and were friends for many years); how he knew the appellant (they were introduced by someone he went to school with, had known each other for about three months and the appellant knew people who could supply luxury vehicles for his rap videos); and that the appellant had never met Mr. Marcelin before. Mr. Matthews-Bishop testified that the appellant knew Mr. Li, but that he and Mr. Marcelin had met Mr. Li for the first time that night. The appellant introduced Mr. Li as someone who would help them find some marijuana. This evidence set the stage for Mr. Matthews-Bishop’s exculpatory narrative, which also could have served to provide an alternative innocent explanation for the appellant’s presence at the target house at the time of the robbery: that he, Mr. Matthews-Bishop and Mr. Marcelin went there with the intention of purchasing marijuana, and that none of them knew Mr. Li would commit a robbery.
32As noted above the trial judge first found that Mr. Matthews-Bishop was caught in obvious lies, and he rejected the exculpatory portions of his testimony as lacking credibility. The trial judge then turned to the third step of the W.D. analysis and considered whether the Crown had proven, beyond a reasonable doubt, the guilt of each accused. After finding that Mr. Marcelin, along with Mr. Li, was involved in the robbery, the trial judge reviewed the circumstantial evidence against the appellant, and he rejected the alternative innocent explanation for his presence at the house, stating:
[The appellant] was a friend of Mr. Li, and he had just met Mr. Marcelin for the first time that evening. I consider the possibility that Mr. Li, who was clearly involved in the robbery, somehow managed to participate in a robbery with Mr. Marcelin, whom he had just met while somehow leaving Mr. Shi in the dark about the objective of the trip to Markham. In my view, that is not a reasonable possibility, it is a fanciful suggestion. On the whole of the evidence, I am satisfied that Mr. Shi was also one of the intruders in the residence. It is the only reasonable inference based on the totality of the evidence.
33The appellant submits that two aspects of this passage are symptomatic of an error in the trial judge’s reasoning when he rejected the suggestion that the appellant, although present at the scene of the robbery, had been unaware of and had no involvement in the robbery: first, his description of Mr. Li and the appellant as friends, and second, his statement that Mr. Marcelin and Mr. Li had “just met”. The appellant argues that, since the only evidence of the parties’ relationships came from Mr. Matthews-Bishop, the trial judge erred by basing his conviction on evidence that he had already rejected.
34In my view, the appellant mischaracterizes the trial judge’s reasoning. First, the trial judge rejected the “exculpatory portions of Mr. Matthews-Bishop’s evidence”, not his entire testimony. The fact that the appellant and Mr. Li were friends was not in dispute at trial, and it was not part of Mr. Matthews-Bishop’s exculpatory narrative. Rather, it explained how the three co-accused connected with Mr. Li on the night of the robbery and arrived in his vehicle in the neighborhood of the target house.
35Second, when read in context, I do not view the trial judge’s statement in this passage that Mr. Marcelin and Mr. Li “just met” as contradicting his earlier rejection of Mr. Matthews-Bishop’s evidence that he and Mr. Marcelin had met Mr. Li for the first time on the day of the robbery. In describing Mr. Li and Mr. Marcelin as having “just met”, the trial judge was contrasting their relationship, one of recent acquaintance, to the relationship of Mr. Li and the appellant, one of friends. Had the trial judge intended to say that this was the first time that Mr. Marcelin and Mr. Li had met, he would have said so, as he did with respect to Mr. Marcelin and the appellant, who “had just met…for the first time that evening”. The trial judge rejected as fanciful the possibility that Mr. Li would have participated in the robbery with a recent acquaintance while leaving his friend in the dark.
36In any event, the impugned passage played only a minor role in the trial judge’s reasoning. The trial judge referred to ample other circumstantial evidence of the appellant’s participation in the robbery. He noted that the three accused were present at the scene at the time of the robbery, having been driven there by Mr. Li, who (as he had determined earlier in his reasons) was without question involved in the robbery, and that the three dispersed when the police arrived. The presence of the appellant’s fingerprint confirmed that he had arrived there as a passenger in the G-Wagon, and the trial judge accepted that the CCTV surveillance showed the three accused and Mr. Li exiting the vehicle. The trial judge noted that the white zip ties in the vehicle were visible to the occupants of the vehicle and were evidence of a planned and coordinated robbery. Contradicting the suggestion that there were a number of other unknown people involved, no one other than the three accused and Mr. Li were found during the extensive police search. The appellant’s location and appearance at the time of his arrest, in the company of Mr. Marcelin, who was carrying a glove that was implicated in the robbery, suggested that he too had fled the scene after participating in the robbery. Read in context, I see no error in the trial judge’s conclusion that the only reasonable inference based on the totality of the evidence was that the appellant was one of the intruders in the residence.
(ii) The trial judge did not err by failing to caution himself about Mr. Matthews-Bishop’s evidence
The trial judge did not err by failing to caution himself about Mr. Matthews-Bishop’s evidence
37As his second submission on the conviction appeal, the appellant, relying on R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328 and R. v. Roks, 2011 ONCA 526, 281 O.A.C. 235, contends that the trial judge erred in law in accepting the relationship evidence without first cautioning himself about Mr. Matthews-Bishop’s evidence, and then only relying on such evidence if it was corroborated by independent evidence. In making this argument, the appellant asserts that there was no evidence that the appellant and Mr. Li were friends, and which portrayed Mr. Li as the “brains” behind the robbery, other than evidence that was provided by Mr. Matthews-Bishop. He says that, without independent verification, this evidence was improperly relied on by the trial judge in convicting the appellant.
38The general rule is that, before relying on the evidence of an unsavoury witness to convict an accused, jurors are to be given a “Vetrovec” caution, including the direction that they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth about the guilt of the accused: Roks, at para. 65; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 37; and Kehler, at paras. 17-19. It is about whether the witness can be trusted in their assertion that the accused is the person who committed the offence: Roks, at para. 65.
39I disagree with the premise of the appellant’s argument on this point, which is that the trial judge relied on Mr. Matthews-Bishop’s evidence about the appellant’s association with Mr. Li, which was inculpatory of the appellant. Contrary to the appellant’s submission on appeal, Mr. Matthews-Bishop did not suggest that Mr. Li was the “brains” behind the robbery and that, based on his connection to Mr. Li, the appellant was likely involved with the robbery. Rather, Mr. Matthews-Bishop’s evidence was equally exculpatory of all three accused. He maintained that none of them were aware of any intention to commit a robbery. In other words, his evidence about Mr. Li and the appellant’s prior association did not implicate the appellant.
40Even if the appellant’s argument is taken at its highest, that Mr. Matthews-Bishop was a Vetrovec witness whose evidence should not have been relied on by the trial judge at all in convicting the appellant without the appropriate self-instruction, I would reject this argument.
41As this court has repeatedly emphasized, there is no need to import the requirement of a Vetrovec caution, which is designed to alert juries to the danger of relying on the evidence of certain witnesses, into a trial judge’s reasons for judgment: judges know the risks inherent in relying on such witnesses: see e.g., R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 24; R. v. Pelletier, 2012 ONCA 566, 295 O.A.C. 200, at para. 65. As in Pelletier, the trial judge in this case was well aware of the need for caution in assessing Mr. Matthews-Bishop’s evidence. He was entitled to accept parts of it, including the specific relationship evidence that the appellant impugns, even in the absence of confirmatory evidence. And in any event, no rule of law requires confirmatory evidence before any part of the evidence of an unsavoury witness is accepted: Pelletier, at paras. 72-73.
42Accordingly, I would not give effect to this ground of appeal. The trial judge did not err in his treatment of the “relationship” evidence provided by Mr. Matthews-Bishop in finding the appellant guilty of the offence of robbery.
(iii) The fresh evidence would not undermine the appellant’s conviction
The fresh evidence would not undermine the appellant’s conviction
43Finally, on his conviction appeal the appellant relies on the fresh evidence tying Mr. Matthews-Bishop’s DNA to the gun in the backpack beside the Equinox. He submits that this evidence suggests that this co-accused played a more central role in the robbery, and that if this evidence had been presented at trial, the trial judge would have “even more strongly” rejected Mr. Matthews-Bishop’s testimony.
44I do not agree. The trial judge rejected, in the strongest terms, the exculpatory parts of Mr. Matthews-Bishop’s testimony. There is nothing in the fresh evidence that would have caused the trial judge to have also rejected the relationship evidence, whose acceptance the appellant challenges on this appeal.
45The fresh evidence that links Mr. Matthews-Bishop to the firearm that was found in a backpack beside the Equinox and Mr. Marcelin to a glove that was found near the house, is not in any way exculpatory of the appellant, nor does it undermine the guilty verdict. If anything, this evidence would have strengthened the Crown’s case against all the accused, by helping to rule out the suggestion that several unknown persons were involved in the robbery.
46I agree with the Crown that the appellant has not demonstrated that the evidence would reasonably have affected the verdict at trial if it had been available. As such, I would not admit the fresh evidence on the conviction appeal.
F. The Sentence Appeal
The Sentence Appeal
47The issue on the sentence appeal is whether the trial judge respected the principle of parity in imposing a sentence on the appellant that was six months longer than the sentence Mr. Matthews-Bishop received.
48The appellant acknowledges that his own sentence was at the low end of the range for a home invasion robbery; yet he contends that Mr. Matthews-Bishop’s sentence of three and a half years could lead to a reasonable apprehension that his co-accused was treated more favourably for irrelevant reasons. In particular the appellant says that the only distinction made by the trial judge was that Mr. Matthews-Bishop had a lower level of culpability, a conclusion that was unsupported by the evidence. The appellant also relies on the fresh evidence that DNA from Mr. Matthews-Bishop was matched to the firearm found by the police in a backpack beside the Equinox.
49I do not agree with the appellant’s submissions.
50The principle of parity as expressed in s. 718.2(b) of the Criminal Code requires a sentencing judge to consider that a sentence should be similar to other sentences imposed on similar offenders for similar offences committed in similar circumstances. This does not require equal sentences for all those involved in a joint venture; rather, it requires that the different sentences imposed be understandable when examined together: R v. Willimott, 2015 ONCA 272, at para. 7, citing R. v. Flowers, 2010 ONCA 129, 258 O.A.C. 97, at para. 10.
51I agree with the Crown that the trial judge accounted for the different sentences imposed on the appellant and Mr. Matthews-Bishop. He explained why he considered Mr. Matthews-Bishop to have been less morally culpable than the other accused. The trial judge stated that he was not persuaded beyond a reasonable doubt that Mr. Matthews-Bishop had entered the house, and that he may have remained outside the house acting as a look-out. This was based on where he was found (nearby in the side yard of the house next door) and the fact that he did not match the owner’s description of either person who was involved in threatening and tying up the victims in the basement.
52There were also important mitigating factors that applied to Mr. Matthews-Bishop: his acceptance of responsibility and demonstration of remorse and the Morris factors bearing on moral blameworthiness. The trial judge also considered that Mr. Matthews-Bishop was the youngest of the three accused.
53The appellant also relies on the fresh evidence to argue that Mr. Matthews-Bishop should have been punished more severely for his involvement in the robbery because he was not in fact less morally culpable than his co-accused.
54The fact that, in light of what is now known, Mr. Matthews-Bishop may have received an unduly light sentence does not entitle the appellant to an automatic reduction in his sentence: see Flowers, at para. 10. As in R. v. O’Loughlin, 2017 ONCA 89, the fact that a co-accused received a lighter sentence than might have been would not offend the parity principle. Had the evidence about Mr. Matthews-Bishop’s connection to the loaded gun been available at first instance, he might well have received a higher sentence, but it does not follow that the appellant would have received a lesser sentence. I would accordingly dismiss the fresh evidence motion on the sentence appeal.
G. Conclusion and Disposition
Conclusion and Disposition
55For these reasons I would dismiss the conviction appeal, dismiss the fresh evidence motion, and while I would grant leave to appeal sentence, I would dismiss the sentence appeal.
Released: February 20, 2025 "P.R."
"K. van Rensburg J.A."
"I agree. Paul Rouleau J.A."
"I agree. L. Madsen J.A."