COURT OF APPEAL FOR ONTARIO

DATE: 20000210

DOCKET: C32894

CARTHY, CHARRON and SHARPE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

B. J. H.

Appellant

Irwin Koziebrocki, for the appellant

Feroza Bhabha, for the respondent

Heard: February 8, 2000

On appeal from his conviction by Mr. Justice L.T.G. Collins on

April 29, 1999

BY THE COURT:

[1] The appellant was convicted of the offence of robbery and

sentenced to eighteen months in closed custody. He appeals his

conviction on several grounds.

1. Failure to permit cross-examination of a non-accused

witness on the underlying facts of his criminal record

[2] The trial judge erred in ruling that the defence could not

cross-examine Mr. Johnson, the Crown’s main witness, on the

underlying facts of his criminal record: see R. v. Miller

(1998), 1998 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.); R. v. Davison, DeRosie

and MacArthur (1974), 1974 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.). However, we

agree with Crown counsel’s position, as set out in her factum,

that no substantial wrong or miscarriage of justice has resulted

from this error. Of particular significance is the fact that this

was a trial by judge alone and the record confirms the trial

judge’s appreciation for the relevance of Mr. Johnson’s criminal

record in the assessment of his credibility. Further, it would

appear from the record that the ruling had a minimal effect on

the overall conduct of the cross-examination.

2. Vetrovec warning

[3] The appellant submits that, although the trial judge

expressly and correctly instructed himself that a Vetrovec type

warning was appropriate in the circumstances of this case, he did

not properly apply the substance of the warning. Counsel for the

appellant noted a number of difficulties with respect to Mr.

Johnson’s evidence and argues that these matters should have been

adverted to by the trial judge. We are not persuaded that the

trial judge fell into error as alleged. Although his reasons

could have been more complete, we see no reason to conclude that

the trial judge did not advert to the obvious weaknesses in the

case. His repeated reference to the need for caution could only

be in reference to those difficulties.

3. Alibi

[4] In our view, the trial judge’s finding that the alibi

evidence did not negate the opportunity to commit this crime is

entirely supported by the evidence. We see no merit to this

ground of appeal.

4. Unreasonable verdict

[5] It was open to the trial judge to accept Mr. Johnson’s

evidence and to convict the appellant on this basis. It cannot be

said that the verdict is unreasonable.

[6] The appeal is dismissed.

(signed) "J. J. Carthy J.A."

(signed) "Louise Charron J.A."

(signed) "Robert Sharpe J.A."