Her Majesty the Queen v. Perciballi et al. [Indexed as: R. v. Perciballi]

54 O.R. (3d) 346

[2001] O.J. No. 1712

Docket Nos. C34151, C30585, C29531 and C30643

Court of Appeal for Ontario

Doherty, Charron and MacPherson JJ.A.

May 8, 2001

Criminal law -- Evidence -- Hearsay -- Accused and co-accused tried jointly for robbery -- Accused allegedly participated in robbery by making one of two diversionary telephone calls to police -- Witness A testified that he made second of two calls -- Trial judge admitted statement by Witness B that co-accused had told him that accused had made one telephone call -- Trial judge instructed jury that it could only use that statement against co-accused and not against accused -- Trial judge erred in permitting Crown counsel to tell jury that they could use statement to assess Witness A's credibility -- That assessment necessarily involved assessment of truth of statement -- Statement improperly used to support evidence against accused -- Accused's appeal from conviction allowed.

Criminal law -- Interception of private communications -- Bias -- Mere fact that authorizing justice had earlier presided over unsuccessful bail review did not give rise to reasonable apprehension of bias which rendered authorization to intercept private communications invalid.

Criminal law -- Sentence -- Robbery -- Two masterminds of robbery of armed truck sentenced to ten years' imprisonment -- Compensation order for total missing proceeds in amount of $2.38 million made against each accused -- Sentence of one accused reduced by four months on appeal to take pre-trial custody into account -- Compensation orders affirmed.

Criminal law -- Trial -- Charge to jury -- Co-conspirators' exception to hearsay rule -- Trial judge did not err in not giving Carter instruction to jury where defence counsel had made tactical decision not to highlight evidence in question.

The four accused were convicted of the robbery of a Loomis armed truck. The Crown's case at trial was based primarily on the evidence of three unindicted accomplices, who testified in exchange for a grant of immunity. In addition, cellular phone records placed all of the accused within the vicinity of the robbery immediately before, during and after its commission, and established that they were constantly in touch with each other that evening. The operation was planned by Angelo Portante, a Loomis guard, and Perciballi, a police officer. Angelo's brother Antonio Portante was alleged to have made one of two diversionary telephone calls to the police at the time of the robbery. The second call was traced to the accomplice witness D. D testified that he had made just one call, and D's testimony was supported by a statement made by Angelo P. to C. Counsel for Antonio P. disputed the admissibility of this evidence, arguing that, while it was admissible against its maker, Angelo P., as an admission, it should not be admitted at the joint trial because of its highly prejudicial effect against the co-accused Antonio P. The trial judge ruled that the statement was admissible and instructed the jury in strong terms that the statement allegedly made by Angelo P. was not admissible against Antonio P. Crown counsel sought leave to make reference to the statement in his closing address as one of ten items of evidence which could be considered by the jury in support of D's testimony. The trial judge permitted him to do so. Crown counsel stated in his closing address that C's evidence that Angelo P. told him that Antonio P. had made a diversionary call could be looked at in assessing whether D was telling the truth about the fact that he only made one call.

Pelliccione impersonated a police officer and forced the Loomis truck driver out of his vehicle at gunpoint. He was not otherwise involved in the robbery. Angelo P. and Perciballi were each sentenced to ten years' imprisonment, and a compensation order for the total missing proceeds in the amount of $2.38 million was made against them. Pelliccione was sentenced to six years' imprisonment. Antonio P. received a conditional sentence. Angelo P. appealed against his conviction and sentence. He maintained that his conviction should be set aside because it was based in part on wiretap authorizations that were obtained unlawfully. He had applied unsuccessfully at trial to exclude the intercepted conversations on the ground that the authorizing justice had earlier presided over an unsuccessful bail review giving rise to a reasonable apprehension of bias which rendered the authorization invalid. Perciballi appealed against sentence only. Pelliccione and Antonio P. appealed against conviction only.

Held, Antonio P.'s appeal should be allowed; Angelo P.'s conviction appeal should be dismissed and his sentence appeal should be allowed; the appeals of Pelliccione and Perciballi should be dismissed.

Per Charron J.A. (MacPherson J.A. concurring): The fact that the authorizing justice had presided over an unsuccessful bail review brought on behalf of Angelo P. did not give rise to a reasonable apprehension of bias. The mere involvement of the authorizing justice in an earlier proceeding does not, without convincing evidence to the contrary, displace the presumption of judicial integrity and impartiality. Further, there is nothing inherent in the nature of the decision that has to be made on either application -- the bail review or the wiretap authorization -- that gives rise to a reasonable apprehension of bias where the same justice presides over both proceedings.

Pelliccione's defence at trial was that he was not involved in the crime and that it was a case of mistaken identity. The defence suggested that the actual culprit may have been the accomplice witness L. The case against Pelliccione rested mainly on the evidence of L, who knew Pelliccione and recognized him as the impostor police officer, the identification evidence of the driver and the wiretap evidence. As well, Pelliccione had been the best man at Angelo P.'s wedding, and another of the accomplice witnesses, Z, testified that some time before the robbery, Perciballi had told him that they had found someone to act as the gunman, and that person had been Angelo P.'s best man. Later, in cross-examination, he agreed with the suggestion that he did not know where or when the statement occurred. If Perciballi's statement to Z was made before the robbery, then Z's evidence was admissible pursuant to the co-conspirators' exception to the hearsay rule, in which the acts and declarations of alleged co-conspirators made in furtherance of the conspiracy are admissible against an accused. However, if Perciballi's statement to Z was made after the robbery, it would not have been made in furtherance of the conspiracy and would only be admissible against its maker. In the circumstances, the trial judge did not err in failing to give the jury a Carter instruction on the use of co- conspirators' evidence that the gunman was Angelo P.'s best man. The trial judge had sought assistance from counsel regarding the parameters of the Carter charge and specifically what statements counsel thought would be encompassed by the co- conspirators exception to the hearsay rule. Counsel for Pelliccione was concerned that the statement to Z was one of the very few statements made in the trial that might attract such an instruction, and did not wish to highlight the evidence in such a manner. The absence of the instruction was beneficial to Pelliccione. The effect of the instruction would have been that, had the jury been sat isfied that the necessary pre- conditions existed, they would have been entitled to use Perciballi's statement to Z as direct evidence that Pelliccione was the gunman. As matters stood, the evidence was not highlighted for the jury.

Crown counsel's address had the effect of negating the trial judge's instruction to the jury that Angelo P.'s statement to C that Antonio P. had made a diversionary call did not constitute evidence against Antonio P. The invitation to the jury to consider Angelo P.'s statement in their assessment of D's credibility necessarily involved an assessment of the truth of Angelo P.'s statement. If the jury determined that the statement was true, given the nature of the case against Antonio P., this would be determinative not only of D's testimony on that point but also of Antonio P.'s guilt. The use of Angelo P.'s statement to C to support the case against Antonio P. constituted an impermissible use of this evidence. The curative proviso could not be applied in the circumstances of this case. It could not be said that the verdict would necessarily have been the same if the jury had not been invited to consider this evidence in assessing D's credibility.

The trial judge erred in failing to take the time spent by Angelo P. in pre-trial custody into account in sentencing him. Angelo P.'s sentence was reduced to nine years and eight months. The compensation orders were affirmed.

APPEALS from convictions and sentences.

R. v. C. (B.) (1993), 12 O.R. (3d) 608, 80 C.C.C. (3d) 467 (C.A.) [Leave to appeal to S.C.C. refused, [1993] 3 S.C.R. viii, 83 C.C.C. (3d) vi], apld R. v. D. (S.) (1992), 10 O.R. (3d) 402 (C.A.); Vetrovec v. R., [1982] 1 S.C.R. 811, 136 D.L.R. (3d) 89, 41 N.R. 606, [1983] 1 W.W.R. 193, 67 C.C.C. (2d) 1, 27 C.R. (3d) 304, consd Per Doherty J.A. (dissenting): The trial judge did not err in refusing to tell the jury that the out-of-court statement made by Angelo P. could not confirm the veracity of the evidence given by D, in so far as his evidence could, if believed, support the Crown's case against Antonio P. The jury had to decide whether D was a credible witness and, in particular, whether his evidence that he made only one of the two diversionary phone calls could be believed, and whether, on the evidence properly admissible against Antonio P., the Crown had proved beyond a reasonable doubt that Antonio P. made one of the two phone calls. The jury knew that it could not use Angelo P.'s out-of-court statement to C as evidence against Antonio P. Even if the jury believed that Angelo P. had made the statement and that it was true, the jury knew that it was not evidence against Antonio P. and could not be used to find that Antonio P. made one of the phone calls. In the course of deciding whether the Crown had proved its c ase against Antonio P., the jury had to consider D's credibility. His evidence that he had made only one of the phone calls was admissible against Antonio P. If the jury accepted that part of D's evidence as credible, it could find as a fact that D had made only one call. This finding was a significant cog in the Crown's case against Antonio P. It was not, however, evidence that Antonio P. had made the other call. The Crown still had to prove, based on evidence admissible against Antonio P., that he had made the second phone call. To determine Antonio P.'s liability, the jury had to decide whether it could believe D's evidence that he made only one call. The jury had heard C's evidence that Angelo P. said that Antonio P. made one call. It was open to the jury to believe that evidence. If the jury believed that evidence, it would, as a simple matter of common sense, factor the acceptance of that evidence into its assessment of whether D was to be believed when he said that he had made only one call. To instruct the jury to ignore C's evidence in determining whether to accept D's evidence that he made only one call, would be to tell the jury to do the exact opposite of what their common sense would dictate. A jury cannot decide on the one hand that part of a witness' testimony is true when considering the case against one accused and then decide that the same testimony is false when considering the case against another accused. That does not mean that credibility assessments have the same impact on all accused. Having made that credibility determination and any findings of fact which flow from that determination, the jury must still determine whether, based on evidence which is admissible against each accused, the Crown has proved its case. A finding that D's evidence that he made one call was credible could support a finding that he made only one call. That finding was admissible against Antonio P. and the other accused. It remained, however, for the Crown to establish beyond a reasonable doubt based on evidence admissible against Antonio P. that he made the other call. Other cases referred to D.P.P. v. Kilbourne, [1973] 1 All E.R. 440, 117 Sol. Jo. 144, [1973] A.C. 729, [1973] 2 W.L.R. 254, 137 J.P. 193, 57 Cr. App. Rep. 381 (H.L.); Koufis v. The King, [1941] S.C.R. 481, 76 C.C.C. 161, [1941] 3 D.L.R. 657; R. v. Biegus (1999), 141 C.C.C. (3d) 245 (Ont. C.A.); R. v. Bulleyment (1979), 46 C.C.C. (2d) 429 (Ont. C.A.); R. v. Carter, [1982] 1 S.C.R. 938, 46 N.B.R. (2d) 142, 137 D.L.R. (3d) 385, 47 N.R. 289, 121 A.P.R. 142, 67 C.C.C. (2d) 568, 31 C.R. (3d) 97; R. v. Devgan (1999), 44 O.R. (3d) 161, 136 C.C.C. (3d) 238, 26 C.R. (5th) 307 (C.A.) [Leave to appeal to S.C.C. refused (2000), 254 N.R. 393n]; R. v. Gagnon (2000), 147 C.C.C. (3d) 193 (Ont. C.A.); R. v. Gaudet (1998), 40 O.R. (3d) 1, 125 C.C.C. (3d) 17 (C.A.); R. v. Krugel (2000), 143 C.C.C. (3d) 367, 31 C.R. (5th) 314 (Ont. C.A.); R. v. Lomage (1991), 2 O.R. (3d) 621, 44 O.A.C. 131 (C.A.); R. v. Phillips and Baker, [2001] O.J . No. 53 (C.A.); R. v. S. (R.D.), [1997] 3 S.C.R. 484, 161 N.S.R. (2d) 241, 151 D.L.R. (4th) 193, 218 N.R. 1, 477 A.P.R. 241, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. U. (F.J.), [1995] 3 S.C.R. 764, 128 D.L.R. (4th) 121, 186 N.R. 365, 101 C.C.C. (3d) 97, 42 C.R. (4th) 133, affg (1994), 90 C.C.C. (3d) 541, 32 C.R. (4th) 378 (Ont. C.A.); R. v. Winmill (1999), 42 O.R. (3d) 582, 131 C.C.C. (3d) 380 (C.A.); R. v. Zelensky, [1978] 2 S.C.R. 940, 86 D.L.R. (3d) 179, 41 C.C.C. (2d) 97, 21 N.R. 372, 2 C.R. (3d) 107, [1978] 3 W.W.R. 693 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 11(i), 24(2) Criminal Code, R.S.C. 1985, c. C-46, ss. 725 [as am. R.S.C. 1985 (1st Supp.), c. 27], 738, 741 [as am. S.C. 1995, c. 22, s. 6] Authorities referred to Layton, D., "U. (F.J.): Hearsay, Reliability and Prior Inconsistent Statements Made by Co-Accused" (1999) 41 Crim. Law Q. 345

Louie R. Genova, for appellant Perciballi. David E. Harris, for appellant Pelliccione. Philip Campbell, for appellant Antonio Portante. Leslie Pringle and Rachel Young, for appellant Angelo Portante. John McInnes and Susan Kyle, for respondent.

CHARRON J.A. (MACPHERSON J.A. concurring):--

A. Overview

[1] The four appellants were tried and convicted for their roles in the $3.1 million robbery of a Loomis armed truck on August 31, 1995. The "masterminds" of the operation were Angelo Portante, himself a Loomis guard at the time, and Piero Perciballi, an active duty police officer. They were each sentenced to ten years' imprisonment and a compensation order for the total missing proceeds in the amount of $2.38 million was made against them. Angelo Portante appeals against conviction and sentence, Perciballi against sentence only. Andre Pelliccione impersonated a police officer and forced the Loomis truck driver out of his vehicle at gunpoint. He was not otherwise involved in the planning of the robbery. He was sentenced to six years' imprisonment. He appeals against conviction only. Antonio Portante is alleged to have made one diversionary call to the police at the time of the robbery. He took no part in the planning of the robbery. He received a conditional sentence. He appeals against conviction only.

[2] The various appeals give rise to several issues. The matters which need to be discussed with respect to the individual appellants are as follows:

On the appeals against conviction:

(a) the admissibility of wiretap evidence obtained pursuant to an authorization granted by a justice who had earlier denied bail to one of the appellants (Angelo Portante and Andre Pelliccione);

(b) the effect of the failure to give the jury a "Carter" instruction on the use of hearsay statements given by co- conspirators (Pelliccione);

(c) the use of hearsay evidence, admissible only against a co- accused, to generally confirm the testimony of a witness at trial against an accused (Antonio Portante);

(d) the substantive use of hearsay evidence about a recanting witness's prior assertion by conduct (Antonio Portante);

On the appeals against sentence:

(e) the fitness of the ten-year sentence of imprisonment having regard to the principle of disparity (Angelo Portante); and

(f) the appropriateness of the compensation order for the full amount of the missing proceeds (Angelo Portante and Perciballi).

[3] Two further issues were raised. The first relates to certain comments made by Crown counsel about Pelliccione in his closing address and the second concerns the reasonableness of the verdict against Antonio Portante. We did not call on the respondent on these additional issues at the hearing of the appeal and I will only make a brief reference to those grounds later in this judgment. Neither has any merit.

[4] I would not give effect to the grounds of appeal mentioned in paras. (a), (b) and (f) but I find merit in the other grounds. Consequently, I would dismiss the appeals against conviction by Angelo Portante, Pelliccione and Perciballi. I would allow Angelo Portante's appeal against sentence only to the extent of reducing the term of imprisonment to reflect the time he spent in pre-trial custody. I would dismiss Perciballi's appeal against sentence. Finally, I would allow Antonio Portante's appeal against conviction and order a new trial. The following are my reasons.

B. The Evidence and the Issues at Trial

[5] The trial judge provided a succinct summary of the facts of this case in his reasons for sentencing as follows:

The jury has convicted four men for their roles in the $3.1 million robbery of a Loomis armed truck. . . . On August 31st, 1995, about ten minutes before midnight, the truck containing the money was parked in front of a Bank of Nova Scotia branch in an industrial area in the North end of 13 Division, one of the police divisions of Metropolitan Toronto. The driver who was unarmed, was waiting for two co- workers who were inside the branch. A man dressed as a police officer approached, making gestures suggesting there was something wrong. When the driver opened the door, the man forced him out of the truck at gunpoint, jumped behind the wheel and started to drive away. As he did so, the other two Loomis employees emerged from the bank. They saw what was happening and drew their guns. Fortunately, no shots were fired and no one was hurt.

Just minutes before the robbery two false emergency calls had been made to the police. The first caller said, and I quote, "There's a big brawl behind Kelsey's, there's, like, 50, 40 black people and they're fighting. They got baseball bats and I probably saw a gun." In response to a question by the police officer, the caller again confirmed that one of the persons had a gun. The fight location was at the opposite end of the police division from the robbery scene.

The second call, which came two minutes later, reported that two police officers with guns drawn were chasing two black males and needed assistance at the same location.

These calls achieved their intended purpose of diverting police far away from the robbery scene. Indeed, as the robbery was unfolding, at least four police cruisers were speeding to the south end of 13 Division, away from the crime scene to the location of the falsely reported near riot to help fellow police officers in trouble. When they got there they found nothing. One can imagine what might have happened if persons matching the descriptions given by the callers had been found in the area.

With the police focus and resources successfully diverted from the crime scene, the Loomis truck was driven to a predetermined nearby location. Within minutes, the money was transferred to a waiting van by two accomplices, then driven away to its destination in Woodbridge.

The masterminds of the crime were Angelo Portante and Piero Perciballi. Both men were in positions of trust. Angelo Portante was himself a Loomis guard. He was also a former auxiliary police officer and he owned his own security company. His friend, Piero Perciballi, was and is a Metropolitan Police constable. Together these two men conceived, planned, set in motion and supervised the execution of this robbery every step of the way.

Andre Pelliccione impersonated the police officer, forced the driver out of the van at gun point and drove it to the nearby exchange point. He was not involved in the planning of the robbery and was not in a position of trust. . . .

Antonio Portante is the younger brother of one of the two masterminds. He was by far the least involved in this crime. He made one of the two diversionary phone calls. He was not involved in the planning. He did not profit financially from the crime.

[6] The Crown's case was based primarily on the evidence of three unindicted accomplices, Sam DeFrancesca, Danny Zeoli, and Marc Leggieri, who testified in exchange for a grant of immunity. Also playing a major role in the case against the appellants was modern cellular phone technology. A series of cellular phone calls were made among the appellants on the night of the robbery. Cellular phone "towers" located around the Greater Toronto Area are capable of tracing the movements of cellular phone subscribers. In this case, the cellular phone records placed all the appellants within the vicinity of the robbery immediately before, during and after its commission, and established that they were constantly in touch with one another that evening. The admissibility of these records is not contested.

[7] It was not disputed at trial that Angelo Portante and Perciballi were involved in the theft of money from the Loomis truck on August 31, 1995. All accused argued at trial that if they were guilty of a crime it was theft, not robbery, because the crime was an "inside job". It was alleged by the defence that the Crown witness, Graeme Finnell, who was the driver of the Loomis truck on the night in question, was an "insider" and a party to the plan. The Crown maintained, however, that Finnell was indeed robbed at gunpoint. In addition, counsel for Angelo Portante suggested at trial that his involvement was under duress.

[8] The involvement of the main participants Angelo Portante and Piero Perciballi in the crime is no longer an issue on this appeal. Angelo Portante maintains, however, that his conviction should be set aside because it was based in part on wiretap interceptions obtained unlawfully. Perciballi does not appeal his conviction. Indeed, he admits in his factum that:

6. . . . [T]he Appellant oversaw the robbery as it occurred. He was involved in the planning and recruiting as well and was responsible for the diversionary tactics as well as the police uniform and involved in the distribution of money.

[9] What was primarily at issue in the trial was the identification of Pelliccione and Antonio Portante as participants in the robbery. Pelliccione's defence at trial was that he was not involved in the crime and that it was a case of mistaken identity. He argues on appeal that his conviction is unsafe as it was based in part on wiretap evidence obtained unlawfully and hearsay evidence and because of certain prejudicial references made by Crown counsel in his closing address.

[10] Antonio Portante was alleged at trial to have made one of the two telephone calls to the police to divert patrolling officers away from the location of the robbery. One of the unindicted accomplices, DeFrancesca, testified that he made just one of the calls. It was the defence's theory at trial that DeFrancesca had made both calls. The Crown relied on DeFrancesca's testimony in support of its theory that Antonio Portante had made one of the calls, as well as other circumstantial evidence implicating the appellant. Antonio Portante maintains that his conviction should be overturned because it is based in part on inadmissible hearsay. He submits further that the verdict was unreasonable.

[11] I will deal with the appeal of each appellant in turn.

C. Appeal by Angelo Portante

1. Admissibility of the wiretap evidence

[12] I do not find it necessary to describe in detail the nature of the wiretap evidence in order to dispose of this ground of appeal. Suffice it to say that the appellants acknowledge that the wiretap evidence solidified the case against Angelo Portante and that it was heavily relied upon in the Crown's case against Pelliccione. The appellants also state that the wiretap evidence was a key factor that enabled the police to obtain the cooperation of the accomplice witnesses.

[13] Angelo Portante submits that the authorization to intercept private communications was invalid on the ground of bias and that, consequently, the trial judge erred in failing to exclude the wiretap evidence obtained pursuant to it. He concedes that the material placed before the authorizing justice, Hamilton J., supported the granting of the authorization. This concession was also made at trial. The basis for challenging the admission of the evidence is the fact that the authorizing justice also presided over an unsuccessful bail review brought on behalf of Angelo Portante some five weeks earlier. It is submitted that these circumstances gave rise to a reasonable apprehension of bias.

[14] Although the appellant concedes that the issues on a bail review and on an application for authorization are different, he submits that the proceedings share a common predicate -- they both encompass as a central factor the strength of the evidence in support of the Crown's case. Because Hamilton J. had already expressed his legal opinion on this issue at the bail review, it is submitted that "[a]n appearance that the authorizing justice had prejudged the wiretap application was inescapable". The appellant further submits that Hamilton J. had heard "prejudicial evidence" on the bail review that was not part of the authorization package and that he had made "strong comments" about the strength of the case in his reasons for dismissing the bail review.

[15] The appellant argued at trial and on appeal that the authorization was invalid, that the resulting interceptions constituted an unreasonable seizure under s. 8 of the Charter, and that the evidence should have been excluded under s. 24(2).

[16] The trial judge dismissed the Charter application. In a brief ruling, he noted firstly that, based on the material before the authorizing justice, "granting the authorization was the only conclusion that a Judge acting judicially could have arrived at." He held further that the evidence satisfied him that the authorizing justice "acted appropriately, responsibly and fairly in all the circumstances".

[17] There is no allegation of actual bias in this case. The issue is one of reasonable apprehension of bias. The onus of demonstrating bias is on the person who alleges it. The Supreme Court of Canada recently affirmed the test for finding a reasonable apprehension of bias in R. v. S. (R.D.), [1997] 3 S.C.R. 484, 118 C.C.C. (3d) 353 at para. 111 [pp. 530-31 S.C.R.]. Cory J., in writing the majority judgment for the court, stated as follows:

The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at p. 394, [68 D.L.R. (3d) 716]:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude."

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.J.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34 [summarized 27 W.C.B. (2d) 199].

[Emphasis in original]

[18] Cory J. also stated that there is a presumption that judges will carry out their oath of office. He noted at para. 117 [p. 533 S.C.R.] that "[t]his is one of the reasons why the threshold for a successful allegation of perceived juridical bias is high. However, despite this high threshold, the presumption can be displaced with 'cogent evidence' that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias."

[19] The appellant argues firstly that the trial judge erred "in directing himself that because the correctness of the decision to grant the authorization was not attacked by the appellants, no apprehension of bias was present". He submits that where a reasonable apprehension of bias exists, it taints the judicial function and it cannot be cured by the correctness of the ultimate decision: see R. v. S. (R.D.), supra, at para. 100 [p. 526 S.C.R.].

[20] While the appellant is correct in his latter submission, I am not satisfied that the trial judge misapplied the test as contended. His reasons were brief. His comment on the correctness of the authorizing justice's decision must be considered in context. The trial judge referred to the appellants' concession on the sufficiency of the material in support of the authorization and then commented that, having reviewed the material himself, he was of the view that any judge would have inevitably arrived at the same conclusion. It should not be presumed from this observation that he viewed the correctness of the decision as determinative of the issue. It is clear from the trial judge's reasons that he went on to consider the entire circumstances before ruling that nothing improper had taken place and that no apprehension of partiality could arise from the proceedings. It is this conclusion that is subject to review by this court.

[21] In my view, there is no reason to interfere with the trial judge's decision on this Charter application. The mere prior involvement of the authorizing justice in an earlier proceeding does not, without convincing evidence to the contrary, displace the presumption of judicial integrity and impartiality. Hence, the bare allegation that Hamilton J. heard "prejudicial evidence" on the bail review that did not form part of the authorization package is meaningless. Trial judges routinely exclude evidence that they have heard on a voir dire, or hear confessions or guilty pleas by co-accused, and go on to preside over the trial of an accused.

[22] Further, there is nothing inherent in the nature of the decision that must be made on either application -- the bail review or the wiretap authorization -- that gives rise to a reasonable apprehension of bias where the same justice presides over both proceedings. Although it is necessary in each proceeding to make an assessment of the evidence presented by the prosecution, the tests are very different and their application does not require any determinative findings on the guilt or innocence of an accused person. The allegation of bias must be based, rather, on what actually transpired during the specific proceedings.

[23] In this respect, the appellant relies on "strong comments" made by Hamilton J. in his reasons for denying bail to Angelo Portante. These comments are described in the factum as follows:

On October 30, 1995, Mr. Justice Hamilton denied Mr. Portante bail on his bail review. In his ruling, he described the robbery as "mammoth", and referred to its "enormity". He noted that there was a police uniform used in the robbery and that Angelo Portante had worked as an auxiliary police officer. He inferred that Mr. Portante had access to the funds and was trying to launder money from the facts that Mr. Portante had about $13,000 in his possession on his arrest and that the Crown advised that Mr. Portante was trying to exchange $80,000 with an individual, with the possibility of more money to follow. Hamilton J. accepted that the family members who were the proposed sureties were law abiding, hard-working people, but stated that if Mr. Portante were indeed laundering money, then he must have "hoodwinked" them. Referring to the testimony of Detective Sergeant Wilson on the bail review to the effect that Mr. Pelliccione was suspected of being a biker and that Mr. Portante had wired him $1,000 in Montreal , Hamilton J. said "I don't practice in a vacuum. Obviously, everyone has heard about the biker problem in Montreal and what is going on there, and here is a connection between this young man, $3,000,000, and money being sent to a biker in Montreal who turns out to be his best man at Mr. Portante's wedding."

[24] There is nothing to suggest that these references were anything but fair comments on the evidence presented on the bail hearing. Hamilton J.'s decision involved minimal, if any, assessment of credibility and his comments, in my view, do not reveal any set views that would give an appearance that he would have prejudged the subsequent wiretap application as alleged.

[25] In my view, no reasonable person informed of all the circumstances would perceive a reasonable apprehension of bias in this case and the trial judge was correct in dismissing this motion. I would not give effect to this ground of appeal. As this is the only ground of appeal against conviction for Angelo Portante, I would dismiss his appeal and confirm his conviction.

2. Disparity of sentence as between the appellant and Perciballi

[26] Perciballi and Angelo Portante were each sentenced to ten years' imprisonment. Counsel for Angelo Portante submits that the trial judge erred in failing to differentiate between the two participants in two respects. First, it is argued that the breach of public trust by Perciballi as a police officer was more shocking than Angelo Portante's breach of his employer's trust and that, consequently, Angelo Portante's sentence should have been lower than Perciballi's. Second, it is submitted that a different sentence should have been imposed on each accused to reflect the fact that Angelo Portante spent more time in pre-trial custody than Perciballi.

[27] The first argument was made at trial, and it was rejected by the trial judge. In sentencing the appellant, the trial judge concluded that "in all the circumstances of this case there should be no difference in the sentence imposed upon the two masterminds, Piero Perciballi and Angelo Portante." The trial judge elaborated on each appellant's role in his reasons for sentence and made it clear that, in his view, they were equal participants deserving of the same punishment. His views on this issue were perhaps most succinctly stated during the course of submissions of counsel when he stated:

I will tell you how I see this. I see that each of these two men brought particular knowledge and abilities to this plan. They needed each other. Angelo Portante knew the inside working of Loomis and your client, as a police officer, knew how the police were likely to react and was in a position to provide the police uniform and to give advice on how the police would react to a robbery call, how to get away from the scene and avoid detection. I infer that it was your client that came up with the idea of the diversionary calls. So to me any effort to distinguish their respective roles would really not be very helpful I would think.

[28] The trial judge's decision to treat these two accused as equal participants was entirely reasonable and supported by the evidence. I would not give effect to this first argument.

[29] However, I do find merit in the appellant's submission on pre-trial custody. Although Angelo Portante's counsel urged the trial judge to take into account his pre-trial custody, the trial judge made no mention of it in his reasons for sentence. It is agreed that if Mr. Portante were given credit for this pre-trial custody on the basis of the often-used "two-for-one" practice, his sentence would have been reduced by six months. This court inquired at the hearing whether Perciballi served any pre-trial custody and was advised that he did for about one month. It is not clear whether this information was brought before the trial judge.

[30] In keeping with and in deference to the trial judge's clear intention to treat these two accused equally, the sentence should be adjusted to reflect the differential in pre- trial custody. The failure to do so was likely an oversight. Consequently, I would allow Angelo Portante's appeal against sentence and reduce his sentence by four months.

3. The compensation order

[31] The trial judge made a compensation order in the amount of $2.3 million against Angelo Portante and Perciballi jointly and severally. Both appellants appeal from this order. They both argue that:

(a) it was inappropriate additional punishment in light of the extremely severe term of imprisonment;

(b) it amounted to a life sentence of debt without consideration of each accused's ability to pay;

(c) it was unfair in its assignment of the full amount of the loss to each accused having regard to their respective shares in the proceeds; and

(d) it was unreasonable in all the circumstances of the case.

[32] The Crown at trial sought compensation orders against Angelo Portante, Perciballi and Pelliccione. The trial judge decided the issue as follows:

There remains the issue of whether I should make an order for compensation under Section 725(1) of the Criminal Code. I am well aware that such orders should only be made with restraint and caution and only in the clearest of cases. I have given this matter most anxious consideration. I have concluded that in the case of Angelo Portante and Piero Perciballi, there is simply no principled basis to refuse the order sought by the Crown. Accordingly, I order that Angelo Portante and Piero Perciballi, as architects of this crime, jointly and separately [sic] pay compensation to Loomis in the amount of $2,381,398, the amount of unrecovered money stolen in the robbery. With respect to Andre Pelliccione, I have given the issue of the appropriateness of a compensation order for him careful consideration. I have concluded that such an order would not be appropriate in his case. That is the disposition of this court.

[33] Section 725 of the Criminal Code, R.S.C. 1983, c. C-46 which was in force at the time the robbery was committed on August 31, 1995, was subsequently amended on September 3, 1996. The provisions of the former s. 725 are now reflected in two differently worded sections, s. 738 and s. 741. The sentence was imposed on April 3, 1998, after the new section was in force. In circumstances such as these, the appellants are entitled to the benefit of the lesser punishment under s. 11(i) of the Charter. However, it is my view that nothing on this appeal turns on the different wording of the new provisions. I note further that no reference was made to this amendment by any of the parties at trial or on appeal. I set out both the former and the present versions for ease of reference.

Former version:

725(1) A court that convicts or discharges under section 736 an accused of an offence may, on the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence.

(2) Where an amount that is ordered to be paid under subsection (1) is not paid forthwith, the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in that court in civil proceedings.

[As am.]

Present version:

738(1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;

741(1) Where an amount that is ordered to be paid under section 738 or 739 is not paid forthwith, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

[34] The following principles set out in the case law apply equally to either version. The Supreme Court of Canada in R. v. Zelensky, [1978] 2 S.C.R. 940, 86 D.L.R. (3d) 179 held that a court's power to make a compensation order as part of the sentencing process is discretionary. This court in R. v. Devgan (1999), 44 O.R. (3d) 161, 136 C.C.C. (3d) 238 (C.A.) set out in convenient form the objectives and factors that come into play in the exercise of this discretion and I find it useful to refer to this summary (at pp. 168-69 O.R.):

In Zelensky, Laskin C.J.C. identified certain objectives and factors that relate to the application of s. 725(1). These considerations have been expanded upon in subsequent cases. Below, I have consolidated these objectives and factors, all of which are relevant to the issue of what constitutes a proper exercise of discretion for the purpose of s. 725(1):

1. An order for compensation should be made with restraint and caution.

2. The concept of compensation is essential to the sentencing process:

(i) it emphasizes the sanction imposed upon the offender;

(ii) it makes the accused responsible for making restitution to the victim;

(iii) it prevents the accused from profiting from crime; and

(iv) it provides a convenient, rapid and inexpensive means of recovery for the victim.

3. A sentencing judge should consider:

(i) the purpose of the aggrieved person in invoking s. 725(1);

(ii) whether civil proceedings have been initiated and are being pursued; and

(iii) the means of the offender.

4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.

5. A compensation order is not the appropriate mechanism to unravel involved commercial transactions.

6. A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.

7. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made.

8. Any serious contest on legal or factual issues should signal a denial of recourse to an order.

9. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered.

10. A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy.

For a discussion of these factors, see R. v. Zelensky, at pp. 960-63 S.C.R., pp. 111-13 C.C.C.; R. v. Fitzgibbon at pp. 1012-14 S.C.R., pp. 454-55 C.C.C.; London Life Insurance Co. v. Zavitz, at p. 270; R. v. Scherer (1984), 16 C.C.C. (3d) 30 at pp. 37-38, 5 O.A.C. 297; R. v. Salituro (1990), 56 C.C.C. (3d) 350 at pp. 372-73, 78 C.R. (3d) 68 (Ont. C.A.); R. v. Horne (1996), 34 O.R. (3d) 142 (Gen. Div.) at pp. 148-49; and R. v. Carter, at pp. 75-76.

It is in light of these considerations that an exercise of discretion under s. 725(1) must be assessed. None of these considerations by themselves are determinative of whether a compensation order should be granted. The weight to be given to individual considerations will depend on the circumstances of each case. Nor is the preceding list intended to be exhaustive. Indeed, other relevant considerations may arise in future cases.

I appreciate that a reviewing court should not lightly interfere with the exercise of discretion necessarily involved in imposing a sentence. As made clear by the Supreme Court of Canada in R. v. Shropshire, [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193, the appropriate standard of review in this context is one of reasonableness. This court should therefore only interfere with the trial judge's exercise of discretion in granting the compensation orders under s. 725(1) if the trial judge applied wrong principles or if the sentence was excessive or inadequate: see, also, R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327.

[35] In considering those principles, I see no reason to interfere with the trial judge's conclusion that "there is simply no principled basis to refuse the order sought by the Crown" in the case of either Angelo Portante or Perciballi. The arguments made by the appellants are unconvincing. I will address each in turn.

[36] The term of imprisonment imposed on each accused was not "extremely severe" as contended, thereby rendering the total sentence, including the compensation order, unfit. The sentence remains within the appropriate range and is not subject to appellate review on this basis.

[37] The submission that the trial judge failed to consider the appellants' ability to pay is unfounded. The record reveals that submissions were made on this point and therefore the trial judge was well aware of their personal circumstances. This court should not presume that the trial judge failed to take this factor into account simply because no express mention is made about it in his reasons. An ability to pay is only one of many factors to be considered in the exercise of the discretion. It is not a precondition for the making of the order. Furthermore, the appellants' plea in this respect sounds hollow considering that much of the money remained unaccounted for at the end of the trial and that neither appellant offered any explanation on its whereabouts.

[38] It is also argued that the order is simply "crushing". In my view, the "crushing" amount of the order is merely a reflection of the gravity of the offence and, in the circumstances of this case, where a loss of this magnitude was both foreseen and planned, the order creates no unfairness. Counsel for each appellant concedes that, following the conviction, a civil judgment in the same amount could have been obtained by Loomis without difficulty. There is no principled basis to force the victim into bringing a civil action where liability is clear and the amount readily ascertainable.

[39] Finally, the assignment of the full value of the loss to both appellants jointly and severally creates no unfairness, as contended. It is entirely appropriate where the loss results from a joint venture. See R. v. Gaudet (1998), 40 O.R. (3d) 1, 125 C.C.C. (3d) 17 (C.A.) and R. v. Gagnon (2000), 147 C.C.C. (3d) 193 (Ont. C.A.), a decision of this court released September 15, 2000. The case relied on by the appellant, R. v. Biegus (1999), 141 C.C.C. (3d) 245 (Ont. C.A.) presented unusual features and can be distinguished from the present case. In Biegus, the orders were made in separate proceedings against several co-perpetrators. The appellant had not participated in all of the thefts that were the basis of the compensation orders, and there was evidence regarding the division of the money and what had become of the appellants' share of the money. The court was of the view that the effect of the orders in Biegus created a potential unfairness to the accused and an unclear legal situation. As stated earlier, there is no unfairness in this case, and no confusion as to the legal effect of the order. The only source of confusion in this case is the manner in which the appellants distributed the proceeds of their crime. It is of no concern to the court in making the order.

[40] In all the circumstances, I am of the view that the order was reasonable and I would not give effect to this ground of appeal.

D. Appeal by Piero Perciballi

[41] Perciballi appeals against sentence only on the sole ground that the trial judge erred in the imposition of a compensation order. His arguments mirrored those presented on behalf of Angelo Portante and they have been considered together with that appeal. For the reasons already stated, I would dismiss his appeal against sentence.

E. Appeal by Andre Pelliccione

[42] As stated in the trial judge's summary of the facts, Pelliccione impersonated a police officer, forced the driver of the Loomis van out at gunpoint and drove it to the nearby exchange point. He was not otherwise involved in the planning of the robbery. His defence at trial was that he was not involved in the crime and that it was a case of mistaken identity. The defence suggested that the actual culprit may well have been the accomplice witness Marc Leggieri. Leggieri had initially agreed to be the police impersonator/gunman but he had then backed out. The case against Pelliccione rested mainly on the evidence of Leggieri who knew Pelliccione and recognized him as the impostor police officer just before the robbery was committed, the identification evidence of the driver of the Loomis van and the wiretap evidence. There was also evidence that Pelliccione had been the "best man" at Angelo Portante's wedding and that the impostor policeman at the robbery was Angelo's best man. The evidence linking the best man to the robbery forms the subject-matter of one of the grounds of appeal and it will be described in greater detail later in these reasons. Pelliccione appeals only against conviction and raises three grounds of appeal.

1. Admissibility of the wiretap evidence

[43] Pelliccione relies on the same argument made in support of Angelo Portante's trial on the admissibility of the wiretap evidence. For the reasons given earlier in reference to that appeal, I would not give effect to this ground of appeal.

2. The failure to give the jury a "Carter" instruction on the use of co-conspirators' evidence that the gunman was Angelo's best man

[44] It was not in dispute at trial that Pelliccione was Angelo's best man at his wedding. Crown counsel in her factum notes three witnesses who made reference in the course of their testimony to Angelo's best man -- Angelo Coiro, Sam Pollari and Antonio Bandiera. Coiro testified that he met Pelliccione at a barbecue at Angelo Portante's residence in early to mid-June 1995, some two-and-a-half months before the robbery, and on that occasion, either Angelo Portante or Pelliccione himself told him that Pelliccione had been the best man at Portante's wedding. Pollari testified that he knew both men and that Pelliccione was Angelo's best man at his wedding. Bandiera testified that he recalled Tony [Portante] receiving calls from Angelo's best man who was in Montreal. The link to the robbery came from the testimony of one of the accomplices, Danny Zeoli.

[45] Zeoli testified that, some time before the robbery and after Leggieri backed out as the gunman, he was told by Perciballi that they had found someone else to take over the role of gunman, that the person was coming in from Italy and that he was Angelo's best man. In cross-examination, the timing of this conversation was explored further. At one point, Zeoli elaborated and said that he was told that the new gunman was going to return to Italy the night of the robbery which supports the fact that the statement was made before the robbery. Also in cross-examination, he stated that he had been told this a couple of days or so before the robbery, but then he ended his evidence on this point by agreeing with the suggestion that he did not know where or when the statement occurred.

[46] The appellant does not dispute that Perciballi's statement to Zeoli could be used as evidence against him if it was made in furtherance of the conspiracy. The evidence would be admissible pursuant to the well-established co-conspirators' exception to the hearsay rule whereby the acts and declarations of alleged co-conspirators made in furtherance of the conspiracy are admissible against an accused. However, the appellant submits that it is not clear from Zeoli's cross- examination whether this conversation took place before or after the robbery. If Perciballi's statement to Zeoli was made after the robbery, it would not have been made in furtherance of the conspiracy and would only be admissible against its maker. The appellant Pelliccione therefore takes the position that it was incumbent upon the trial judge to instruct the jury accordingly and that his failure to do so constitutes a reversible error. He also submits that, if this instruction had been given to the jury, it could have potentially applied to other evidence in the trial which would have had to be excluded. He notes for example Coiro's evidence that Pelliccione was in fact best man at Angelo Portante's wedding may have been itself hearsay as Coiro testified that this statement came from either Pelliccione or from Angelo Portante. If the jury found that the statement came from Angelo Portante and it was not made in furtherance of the conspiracy, it would only have been admissible against its maker.

[47] This instruction is commonly referred to as a Koufis or a Carter charge to the jury in reference to the principles set out in the cases of Koufis v. The King, [1941] S.C.R. 481, 76 C.C.C. 161 and R. v. Carter, [1982] 1 S.C.R. 938, 67 C.C.C. (2d) 568. Had this instruction been given to the jury, they would have been instructed that:

(a) they must consider whether on all the evidence they are satisfied beyond a reasonable doubt that the alleged common unlawful design in fact existed;

(b) if they conclude that the alleged common unlawful design existed, they must decide whether, based upon evidence of an accused's own acts or declarations, the accused was probably a participant in the common unlawful design; and

(c) if they are satisfied based only on the accused's own acts and words that he was probably a member of the conspiracy, they can consider the acts and words made in furtherance of the conspiracy by other persons whom they have found to be probable members as evidence against the accused.

[48] It would also have been incumbent upon the trial judge in giving a Koufis/Carter instruction to point out to the jury the evidence directly admissible against the accused on the threshold issue of membership of the accused in the conspiracy. With respect to Pelliccione, this review of the evidence would have included not only Leggieri's direct testimony implicating him but also the cellular telephone records and intercepted telephone conversations.

[49] The manner in which the trial judge proposed to deal with this evidence in his charge to the jury was the subject of considerable discussion during the day-long pre-charge conference that preceded the closing addresses of counsel. The trial judge sought assistance from counsel regarding the parameters of the Koufis/Carter charge in the present case and specifically what statements counsel thought would be encompassed by the co-conspirators' exception to the hearsay rule. During the pre-charge conference, all parties agreed that it may be preferable to determine which items of evidence might attract this type of charge and deal with them individually rather than having a global Carter instruction. The statement to Zeoli was specifically discussed. Crown counsel was of the view that a Koufis instruction was required with respect to this statement but counsel for Pelliccione was strenuously opposed to the suggestion. Defence counsel appeared to be mainly concerned by the fact that this was one of the very few statements made in the trial that may have attracted such an instruction and he did not wish to highlight the evidence in such a manner. Further, counsel for Pelliccione was of the view that the statement was simply "narrative" and not made in furtherance of the common design.

[50] The trial judge noted defence counsel's objection in the following terms: "If I don't say that [the Carter instruction], I would have thought arguably that that would be unfair to the accused. If you're imploring me not to say that to the jury, I am prepared to consider it." Ultimately, the trial judge determined that the best way to proceed was to assess how the matter was dealt with by counsel in their addresses, and then make a decision regarding the context of the charge on this aspect of the evidence. Crown counsel in his address relied upon Zeoli's evidence as confirmation of Leggieri's testimony. Defence counsel took the position that the evidence could not be relied upon at all because Zeoli admitted he had no independent recollection of Perciballi saying anything, let alone when and where the conversations took place. The only reference to this evidence in the charge to the jury was as follows:

Mr. Scutt [Crown counsel] suggests that the evidence [Leggieri's] is confirmed, by the evidence from Zeoli that Perciballi told him that the fake cop was Angelo's best man . . . .

[51] No objection was made to the charge with respect to the manner in which this evidence was placed before the jury and no further request was made to the trial judge that he revisit the Koufis/Carter issue.

[52] Later during the course of their deliberations, the jury asked the following questions in respect of this issue:

Our concern is identification of "Angelo's best man" as fake cop. One, in Leggieri's testimony, what was the information received from Piero Perciballi about "Angelo's best man"?

[Two], was there a comment from Angelo Portante to Angelo Coiro after August 31st at Portante's barn about "Andrea" or "best man" and "robbery"? If yes, what was the information received by Coiro?

[Three], answers to one and two would be hearsay, is it acceptable to use this information to evaluate other circumstantial evidence?

[53] There was no reference in Leggieri's testimony to Pelliccione being Angelo's best man. In answer to the first question, the Crown submitted that it appeared as though the jury may have been confusing Zeoli's evidence with Leggieri's evidence and that it would be appropriate to tell the jury that while Mr. Leggieri gave no such evidence, there was evidence to that effect by some other witnesses. In answer to the second question, the Crown asked the trial judge to review the conversation between Angelo and Coiro referred to by the jury even though it did not contain reference to Pelliccione or to the best man. Counsel for Pelliccione did not wish reference to be made to Zeoli because "he [Zeoli] had no idea whether the conversation took place before or after [the robbery] and has no idea whether it was himself or whether he picked it up from somebody else". He submitted "The jury hasn't asked about Zeoli. I trust they felt he was totally incredible."

[54] The trial judge acceded to defence counsel's request stating "in the circumstances, it seems to me it would be appropriate to simply answer the questions that the jury has asked and to err on the side of fairness to the accused." He therefore told the jury that the answer to their first two questions was that there was no such evidence. Because there was no such evidence, he advised the jury there was no need to answer question number three. The jury returned with a verdict two days later.

[55] Counsel for Pelliccione submits that the jury's questions indicate that they were concerned with this evidence and that this provides further support for the contention that the jury may well have used inadmissible hearsay to convict.

[56] Crown counsel submits that the absence of the instruction was beneficial to the appellant. The effect of the instruction would have been that, had the jury been satisfied that the necessary pre-conditions existed, they would have been entitled to use Perciballi's statement to Zeoli as direct evidence that Pelliccione was the gunman. As matters stood, the evidence was not highlighted for the jury and they were simply left with the general notion that the Crown relied on it to support Leggieri's testimony. Crown counsel further submits that, as a result of the answers given to the jury's questions, they were left with the impression that there was no evidence of Angelo's best man being the fake cop. Consequently, the trial judge essentially removed the "best man as gunman" evidence from the jury's consideration. Finally, Crown counsel argues that defence counsel at trial made tactical decisions in his submissions to the trial judge in an effort to prevent this evidence from being highlighted to the jury and that these tactical decisions ought to be given significant weight by this court in its determination as to whether the trial judge was in error in acceding to defence counsel's requests.

[57] I agree with Crown counsel's submissions on this issue. In my view, the appellant likely benefited from the absence of the Koufis/Carter instruction and from the trial judge's answers to the jury's questions. His counsel at trial was certainly of that view and there is no suggestion of incompetence or inadvertence on the part of trial counsel. To the contrary, the record demonstrates that these were deliberate tactical positions that were strongly urged upon the trial judge. I find the following remarks by Finlayson J.A. in R. v. Lomage (1991), 2 O.R. (3d) 621, 44 O.A.C. 131 (C.A.) at para. 17 [p. 629 O.R.] relevant on this issue:

I accept that our courts have taken a somewhat paternalistic approach to the trial of an accused person, and certainly the failure to object to a material error has never stood in the way of the court remedying what it perceives to be an injustice. However, we must never forget that ours is an adversarial system and the role of defence counsel is every bit as important as that of any other party to the proceedings, including that of the judge. When we minimize the failure of counsel to object to evidence which he clearly saw as being to his client's advantage, we diminish the role of defence counsel. Defence counsel assumes a great deal of responsibility in a criminal case and when he makes a decision, both he and his client must live with it. It is no function of this court to play the role of what in football terminology is called a "Monday morning quarterback" when it comes to trial tactics employed by counsel. If we were to do so, it would have the effect of placing an unhelpful burden on the trial judge. Instead of being able to rely on the competence of counsel who must know more about the case than the trial judge, we would effectively be saying that the trial court has an overriding responsibility to vet tactical decisions of counsel and, where necessary, to vary or reverse them. Such overweening paternalism denigrates the adversary system.

[58] There would be even greater denigration of the adversarial system if this court were to accede to the appellant's request in this case where the position taken on appeal is the exact reverse to that taken at trial. The appellant now seeks to adopt the position taken by Crown counsel at trial. I see no merit to this ground of appeal.

3. Crown counsel's address to the jury

[59] Pelliccione's final ground of appeal relates to the following statement made by Crown counsel in his address to the jury which, it is argued, amounts to an impermissible comment on the appellant's failure to testify:

Mr. Leggieri is not going to again pick out Mr. Pelliccione. For all he knows Mr. Pelliccione could have been sitting at home with his whole family around him the night of the robbery. Mr. Pelliccione could have been at a bar with a whole bunch of his friends to say this is where Pelliccione was at midnight, there's no way he could have been at the robbery. Again, Mr. Leggieri, the reason he says Pelliccione is because that's who it is. He knows it was him, he knows there's not going to be any alibi, he's [sic] knows that the police aren't going to come back to him and say, well, look, Leggieri, we checked out this story about Pelliccione and we have all these people who says he was nowhere near the robbery scene. Marc Leggieri is not worried about that happening because he knows that Pelliccione was in fact at the robbery scene.

[60] I see no merit to this contention. Crown counsel was simply enumerating for the jury one of many reasons why they should believe Leggieri when he fingered Pelliccione as the gunman. This comment is not in any way tantamount to an adverse comment on the failure of the accused to testify. The focus of the comment was Leggieri's credibility and the reasons why the defence theory did not add up. In this context there was no risk that the jury would have perceived a shift in the burden of proof.

[61] For these reasons, I would dismiss Pelliccione's appeal against conviction.

F. Appeal by Antonio Portante

[62] It was the Crown's position at trial that Antonio Portante participated in the offence by making one of the two telephone calls to the police to divert patrolling officers away from the location of the robbery. The first call was made to the emergency line, at "911". The caller claimed to see a brawl behind a Kelsey's restaurant at the corner of Martingrove and Dixon Roads in Toronto. The reported fight involved 40 or 50 black people armed with baseball bats and perhaps a gun. Within two minutes, a second telephone call was made to the police reporting further trouble at the same intersection. This call was made to the non-emergency line at 324-2222. The caller claimed that he had seen police officers pursuing two black suspects.

[63] The second call, to 324-2222, was traced to Sam DeFrancesca's cellular telephone. DeFrancesca testified at trial and conceded that he made this call. He denied making the other one. The first call, to 911, was traced to a public telephone outside a donut store at the intersection of Martingrove and Dixon Roads. An expert in voice identification compared the tapes of the two calls with samples of DeFrancesca's voice and concluded that it was probable that DeFrancesca had made the 324-2222 call and "far more likely" that the same person had made the disputed 911 call to the police than someone else. The defence relied heavily on the expert evidence at trial. The trial judge instructed the jury in clear terms that the expert opinion alone was capable of raising a reasonable doubt on whether Antonio Portante made the 911 call.

[64] However, the expert testimony was not without some frailties and, despite the expert's conclusions, it was the Crown's position at trial that the 911 call was placed by the appellant. In support of this contention, the Crown relied mainly on DeFrancesca's testimony that he had made just one call, on the testimony of one Antonio Bandiera who stated he was with the appellant at the donut shop at Martingrove and Dixon Roads at the relevant time, and on cellular telephone records showing calls between Bandiera's cellular telephone and the robbers, again in the relevant time frame.

[65] At issue on this appeal are two items of evidence that supported the Crown's case against Antonio Portante. The first item, a statement made by Angelo Portante to the witness Antonio Coiro, supported DeFrancesca's testimony that he made just the one call, and the second item, a police officer's testimony, contradicted Bandiera who denied any knowledge of the call that was made from the public telephone booth at Martingrove and Dixon Roads.

1. Angelo Portante's statement to Coiro

[66] At some point during the trial, the question arose as to the admissibility of a statement made by Angelo Portante that his brother [the appellant Antonio Portante] had made a call to divert the police from the location of the robbery. This statement was allegedly made to a witness, Antonio Coiro, sometime after the robbery. There was no dispute at trial that this statement was admissible against its maker, Angelo Portante, as an admission under the well-recognized hearsay exception. The Crown relied on the statement to show Angelo Portante's knowledge about how the robbery had gone down. Counsel for Antonio Portante, however, disputed the admissibility of this evidence, arguing that, although admissible against Angelo Portante, the statement should not be admitted at the joint trial because of its highly prejudicial effect against the co-accused Antonio Portante.

[67] The trial judge dismissed Antonio Portante's motion. He held that, although the possible prejudice to Antonio Portante was a concern, the probative value of the evidence outweighed its prejudicial effect and any danger of misusing this evidence against Antonio Portante could be removed by a strongly worded limiting instruction to the jury. The appellant applied for a severance of his trial after this ruling. His motion for a severance was also denied.

[68] The evidence was therefore introduced at the joint trial and, immediately after the jury heard the evidence, the trial judge instructed the jury in clear and strong terms that the statement allegedly made by Angelo Portante was not admissible against Antonio Portante. It was only admissible against Angelo Portante, if the jury accepted that it was made.

[69] The appellant does not take issue with the trial judge's ruling on the admissibility of this evidence on his appeal. He initially appealed against the ruling on the motion for severance but that ground of appeal was abandoned at the hearing. What is at issue on this appeal is the reference made by Crown counsel to this evidence in his closing address, indicating to the jury that they could consider Angelo Portante's statement to Coiro in their assessment of DeFrancesca's credibility. The question becomes whether this constituted a permissible use of the evidence or whether it offended the rule against hearsay.

[70] This issue was canvassed at trial at the conclusion of the evidence. Crown counsel sought leave to make reference to this statement in his closing address as one of ten items of evidence which could be considered by the jury in support of DeFrancesca's testimony. Counsel for the appellant was opposed to the Crown addressing the jury in this fashion arguing that, since this evidence was inadmissible against Antonio Portante, it was impermissible and highly prejudicial for the Crown to tell the jury that they could nonetheless use it indirectly to support the Crown's case against his client.

[71] The trial judge ultimately ruled against the defence's objection. He noted that DeFrancesca's credibility was very much at issue in the trial and that he intended to give a strong caution in his charge against relying on the testimony of accomplices. In view of this anticipated caution, the context in which the Crown intended to make reference to this evidence simply as one of ten items to consider in assessing DeFrancesca's credibility, and the instruction given during the course of the trial that this statement did not constitute evidence against Antonio Portante, the trial judge saw no reason to direct Crown counsel not to make the intended reference.

[72] Crown counsel referred to this item of evidence in accordance with the trial judge's ruling. The submission was made in the portion of the address which dealt specifically with the evidence against the appellant Antonio Portante. Crown counsel said:

So when looking at Mr. DeFrancesca, you can look to the fact that everything that he's told the police so far has been confirmed. You can look to the evidence of Mr. Coiro, who indicated that Angelo Portante had told him after the robbery that Tony Portante had made a diversionary call. And you may recall that His Honour indicated that that is not evidence against Tony Portante, the fact of what his brother said, and I want to repeat that now as well. I do not need to rely on that information to prove that Tony made the phone call but it is evidence you can look at in assessing Mr. DeFrancesca's testimony as to whether he's telling the truth about the fact that he only made one call.

(Emphasis added)

[73] In his charge, the trial judge gave the jury a strong caution against accepting the evidence of accomplices such as DeFrancesca. In reviewing the Crown's theory against Antonio Portante, he made a brief reference to the fact that "the Crown relies on the testimony as well of Sam DeFrancesca that you have heard where he said he only made one phone call, the 324 phone call." No specific reference was made to Coiro's testimony.

[74] The question raised by this ground of appeal is whether the statement of a co-accused, introduced in a joint trial against its maker, can be used to support evidence against another accused in the trial.

[75] As indicated earlier, there is no dispute that the evidence of Angelo Portante's statement that his brother had made a call to divert the police was properly admissible against Angelo Portante. It is also common ground between the parties that this statement was not admissible against Antonio Portante. The statement, made after the robbery, was not in furtherance of the conspiracy and could not be admitted under the co-conspirators exception to the hearsay rule. Nor did it fall within any other recognized exceptions to the rule. The appellant submits that Crown counsel's address had the effect of negating the trial judge's instruction to the jury that Angelo's statement did not constitute evidence against Antonio. The jury was invited to do indirectly what they were told they could not do directly. The Crown takes the position that the statement could be considered by the jury as confirmatory evidence of DeFrancesca's testimony because such use did not require the jury to assess the truth of Angelo's statement and hence it did not infringe the rule against hearsay. Alternatively, Crown counsel argues that, in the context in which this was done, no substantial wrong or miscarriage of justice resulted.

[76] In my view, the use of Angelo Portante's statement to support the case against Antonio Portante constituted an impermissible use of this evidence. It infringed basic principles of evidence. The governing principles were fully canvassed and the same issue was determined by our court in R. v. C. (B.) (1993), 12 O.R. (3d) 608, 80 C.C.C. (3d) 467 (C.A.), leave refused (1993), 83 C.C.C. (3d) vi (S.C.C.). Unfortunately, counsel did not provide the trial judge with any case law in support of their respective positions on this point.

[77] In C.B., the appellant was tried on a charge of sexual assault jointly with one co-accused. The complainant alleged that the appellant had inserted a foreign object into her vagina. This allegation was supported by a statement of the co- accused admitted at trial. The co-accused in his testimony recanted the statement. The trial judge rejected the co- accused's recantation, accepted his statement for the truth of its contents against him and convicted him. An issue arose from the fact that the trial judge, in convicting the appellant, relied in part on the co-accused's statement. He stated that the statement given by the co-accused confirmed much of the complainant's testimony and, in particular, confirmed the events involving the use of the foreign object. On appeal from the appellant's conviction, this court held that the trial judge erred in relying on the co-accused's statement and ordered a new trial.

[78] The judgment of the court was delivered by Finlayson J.A. and his analysis on this issue is entirely germane to this case. I therefore reproduce much of it here (pp. 614-16 O.R., pp. 472-74 C.C.C.):

I think it is necessary to go back to first principles. The tension that exists in this case is between the desirability of having confirmatory evidence that makes more reliable the evidence of the complainant, and the long-standing prohibition in criminal cases against the admission into evidence of the confession of one co-accused against his fellow accused. An out-of-court confession is admissible against the accused who made the statement because it is a statement against interest and falls within that recognized exception to the hearsay rule. However, the statement remains hearsay against the co-accused and the trial judge is under a heavy burden to instruct the jury as to the limited use it can make of it. In McFall v. The Queen (1979), 48 C.C.C. (2d) 225, 100 D.L.R. (3d) 403, [1980] 1 S.C.R. 321, Estey J. stated at p. 240]:

This burden is discharged only by the clearest instruction to the jury that only the statement made by the accused himself is admissible against him, and his statement in turn is inadmissible against his co-accused. There is in these circumstances a constant risk because any instruction short of the foregoing will jeopardize and may destroy any chance of a fair and proper trial.

This rule as to the restricted use of confessions is so closely observed that where a statement is to be tendered by the Crown against one co-accused that has the potential to be strongly prejudicial against a co-accused, the Supreme Court of Canada has held that the better course is to hold a separate trial of each: see Guimond v. The Queen (1979), 44 C.C.C. (2d) 481, 94 D.L.R. (3d) 1, [1979] 1 S.C.R. 960].

The Crown now submits that this long-standing rule has been modified by the Supreme Court of Canada in Vetrovec v. R., [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1, when it relaxed the rule relating to corroboration. Corroboration is evidence which confirms a witness's testimony making the testimony more likely to be true. In R. v. Baskerville, [1916] 2 K.B. 658, 86 L.J.K.B. 28, the Court of Criminal Appeal in England gave corroboration a more technical meaning. It required that such evidence be: (a) independent; (b) evidence that a crime has been committed, and (c) evidence that the accused committed the crime.

While most statutory requirements of corroboration have been eliminated, there remained a common law requirement that a jury be warned against the dangers of convicting without corroboration in three instances where the prosecution's case consisted of: (a) the evidence of an accomplice; (b) the evidence of a sworn but still young child, or (c) the evidence of a witness with a "disreputable" reputation.

In Vetrovec, the Supreme Court of Canada discarded the technical meaning of corroboration adopted in Baskerville in favour of the more common meaning of the word, i.e., that it is evidence tending to confirm other evidence. The operative word is still "evidence", however. Hearsay is not evidence, and where it is admitted as evidence as an exception to the hearsay rule solely against one co-accused, it does not become evidence against the other. It is difficult to see how this change in the law with respect to corroboration affects the rule regarding the restricted use of confessions which are hearsay.

In Vetrovec, an accomplice gave testimony regarding the appellants' involvement in drug trafficking. The court questioned why corroboration should be required for the testimony of all accomplices, as a class of witnesses. Instead the court suggested that common sense be used to determine in which cases a common law warning is necessary. The court's analysis suggested that the same approach be used in cases involving young children and, by implication, in cases involving "disreputable" witnesses.

Dickson J., in delivering the judgment of the court, made reference to R. v. Murphy, [1977] 2 S.C.R. 603, 29 C.C.C. (2d) 417, where the principal issue in a rape case was whether the complainant's distraught condition was corroboration of her testimony against Butt as well as Murphy. Both the complainant's cousin and a police officer testified as to her distraught condition. Murphy testified that he had intercourse with her but that she consented. Butt testified that he had no sexual contact with her. The question, as put by Dickson J. in Vetrovec at p. 827 S.C.R., p. 14 C.C.C. was: "[h]ow, then, could the hysterical condition corroborate the complainant's testimony as against Butt?". He resolved the problem by stating at p. 828 S.C.R., p. 15 C.C.C.:

Evidence implicating the accused is a possible but not a necessary element for corroboration. Here, even though there was no evidence implicating Butt, there was evidence confirming the story of the complainant and thus it was safe to convict. The important question, as Wigmore pointed out, is not how our trust is restored, but whether it is restored at all.

In the case on appeal, the co-appellants did not adopt in the witness box their earlier statements to the police. Therefore, those statements were made out of court and if they were offered to establish that they were true, they were hearsay. While counsel for the Crown acknowledged that admissions made by a party are exceptions to the hearsay rule and can only be used against the person who made them, she argued that the trial judge properly used the statements of each appellant to confirm the evidence of the complainant. As authority for this submission, she referred to Vetrovec, supra, and R. v. D. (S.) (1992), 10 O.R. (3d) 402, [58 O.A.C. 2, 17 W.C.B. (2d) 193 (Ont. C.A.)]. In particular, she picked up on Dickson J.'s reference to [Wigmore] and submitted that the approach now is to determine if the complainant is worthy of credit. In making this submission, she overlooked the significance of the word "evidence". We do not look everywhere and anywhere for confirmation. We look to evidence. Evidence used to confirm a complainant's evidence against [B.C.] must still be admissible against [B.C.].

(Emphasis added)

[79] Finlayson J.A. went on to distinguish the earlier decision of this court relied upon by the Crown, R. v. D. (S.) (1992), 10 O.R. (3d) 402 (C.A.). An issue arose again on the hearing of this appeal whether the reasoning in D. (S.) should govern rather than Finlayson J.A.'s analysis in C. (B.). In my view, on principles of stare decisis alone, this court's decision in C. (B.), as the most recent and more comprehensive judgment on this issue, clearly governs. Furthermore, I agree with Finlayson J.A. that the earlier decision in D. (S.) can be distinguished on the basis that there was other evidence to confirm the complainant's evidence in that case. For convenience, I reproduce Finlayson J.A.'s analysis on this point (pp. 616-17 O.R., pp. 474-76 C.C.C.):

The facts in D. (S.), supra, are similar to those in the case on appeal; however, some facts are distinguishable. There was other evidence, in the form of a tape recording, to confirm the complainant's lack of consent to at least some of the actions which formed a basis of the charges. Therefore, the evidence supported her credibility generally. Additionally, two of the accused testified and provided confirmatory evidence. The problem arose out of the trial judge's treatment of the out-of-court statements of the six accused. While the trial judge acknowledged that the out-of- court statement of one accused could not be admitted against another accused, he instructed himself in a hypothetical way that such statements could be used to confirm a complainant's evidence. The Court of Appeal upheld the trial judge's decision stating at pp. 407-08:

The trial judge clearly convicted the appellants on the basis of his belief of the complainant's evidence. He did not found the conviction of one appellant upon the statement of another appellant. Moreover, while it is not necessary to review them in detail, the statement of each appellant contains an admission of some fact which tends to support the credibility of the complainant on the crucial issue of absence of consent.

Counsel for the Crown referred us to the trial judgment in D. (S.) and to the trial judge's instruction to himself. After stating the conventional rule that one accused's statement is not admissible against another accused, the trial judge stated:

In a hypothetical situation, if the complainant swears that B held a knife to her throat while A had intercourse with her and that the rape was thereby accomplished, it may be, as here, that the court would be unwilling to convict based solely on her assertion. If A then confessed the rape was accomplished in [the] very manner, A's confession is not admissible against B. However, A's confession, if believed, is capable of confirming or corroborating, to use a loaded word, the complainant's evidence. The court may then convict B, based not on the confession but on the confirmed evidence of the complainant.

The above appears to be an inaccurate paraphrase of an illustration given by Dickson J. in Vetrovec at pp. 826-27 S.C.R., p. 14 C.C.C.:

The point can be illustrated with the following simple example. The accomplice, "A", testifies against the accused "B" and "C". There is evidence implicating "B" in the crime, but no evidence implicating "C". Nevertheless, since the supporting evidence relates to a vital issue in the case (the guilt of one of the accused) it bolsters the credibility of "A" and increases the probability that he is telling the truth. We therefore believe his story and convict both "B" and "C".

[Emphasis is Finlayson J.A.'s.]

The Court of Appeal did state, by way of obiter, that the trial judge's hypothetical in D. (S.) was in accord with that illustration. However, this quotation from Vetrovec, clearly dealt with the testimony of an accomplice. The question of hearsay was not in issue. It is difficult to see how Vetrovec could be authority for a widening of one of the hearsay exceptions to include statements made by one accused to implicate another. The trial judge's distinction between admitting evidence directly against a co-appellant and admitting evidence simply to confirm a complainant's allegations is untenable.

[80] Finally, this court in C. (B.) concluded that the out- of-court statement of the co-accused did not fit any of the traditional hearsay exceptions nor would it meet the criteria of necessity and flexibility under the flexible approach adopted in more recent cases. Again, the court's analysis on this point is entirely apposite to this case [at p. 617 O.R.]:

The out-of-court statement in the case on appeal does not fit in any of the traditional hearsay exceptions. Moreover, the flexible approach adopted by the Supreme Court of Canada in recent cases such as R. v. Khan, [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92; R. v. Smith, [1992] 2 S.C.R. 915, 75 C.C.C. (3d) 257, and R. v. B. (K.G.), unreported, released February 25, 1993 [since reported 79 C.C.C. (3d) 257, 18 W.C.B. (2d) 588], would not support the admission of such a statement as proof of the truth of the contents thereof. The new approach emphasizes necessity and reliability as well as fairness to the accused. Assuming such evidence could be shown to be necessary, which is doubtful in the present case since the Crown could have severed the charges against the two young offenders and made K. a compellable witness against B., it is obvious that the out-of-court statement of one accused implicating another is not reliable. An accused could have many personal reasons for wanting to im plicate another, particularly when he is first arrested. Therefore, such a statement must be tested through cross-examination and should not be admitted as a hearsay exception unless in compliance with the principles set forth in R. v. B. (K.G.).

[81] Since writing this judgment, I have had the opportunity of reading the dissenting reasons of my colleague, Doherty J.A. on this issue. Despite their usual clarity and persuasive force, I respectfully disagree with his conclusion that Vetrovec v. R., [1982] 1 S.C.R. 811, 136 D.L.R. (3d) 89 is determinative of the exact issue that concerns us in this case and that it decides the issue in accordance with the decision of our court in D. (S.) rather than the subsequent decision in C. (B.).

[82] As I read my colleague's reasons, he bases his conclusion on the finding in Vetrovec that the out-of-court statements, made to an undercover officer by the accused Gaja and showing Gaja to be a drug dealer, could be used to corroborate an accomplice's testimony implicating both Gaja and the co-accused Vetrovec. My colleague acknowledges that Gaja's out-of-court statements were potentially admissible as substantive evidence against Vetrovec under the co- conspirator's exception to the hearsay rule and that the same cannot be said of Angelo's statement to Coiro, as against Antonio. My colleague, however, points out that the potential admissibility of Gaja's statements against Vetrovec played no role in the reasons of Dickson J. for determining that those statements could be considered in assessing the accomplice's credibility at large. He therefore concludes that the confirmatory value of those statements with regard to Vetrovec did not turn on any preliminary finding that the statements of Gaja were admissible against Vetrovec.

[83] I am unable to reach the same conclusion. In my view, the reasons in Vetrovec are silent on the question of the admissibility of the confirmatory evidence because that question was not in issue. There was no suggestion in Vetrovec that Gaja's statements to the undercover officer constituted inadmissible evidence as against Vetrovec. In and of themselves, the statements may have been of no probative value as against Vetrovec because they did not implicate him, but there is no indication that the evidence was inadmissible or subject to any limited use as against him. It is my view that if one of Gaja's statements had been a post-offence confession, implicating Vetrovec and admitted at trial as against Gaja only, the potential use of the corroborative value of that statement as against Vetrovec would have given rise to different considerations and would have been the subject of comment by the Supreme Court.

[84] There is no doubt in this case that the statement made by Angelo to Coiro is confirmatory of DeFrancesco's testimony as defined in Vetrovec. Angelo's statement that his brother Antonio made a diversionary call to the police on the night of the robbery strengthens the belief that DeFrancesco's testimony is truthful when he says that he, DeFrancesco, only made one of the two calls. The statement must nonetheless be excluded from consideration in the case as against Antonio, not because it lacks corroborative value from a logical or a common sense standpoint, but for the same policy considerations that define the scope of admissibility of an accused's out-of-court statement and limit its use as against its maker only. The underlying principle is one of fairness to the party who cannot cross-examine the maker of the statement. While the maker can hardly complain about the inability to cross-examine himself, the same cannot be said of the co-accused.

[85] Hence, I do not agree with my colleague that the analysis of this court in C. (B.) constitutes a departure from the approach in Vetrovec. Nor, in my view, does it conflict with any of the other decisions referred to by my colleague Doherty J.A. There is no question that the corroborative nature of any item of evidence is determined according to the approach in Vetrovec. Evidence that tends to confirm other evidence is corroborative in nature. This does not mean however that the admissibility or use of that evidence may not be limited by other applicable rules of evidence.

[86] The same result as in C. (B.) follows in this case. Coiro's testimony about a statement made to him by Angelo Portante was evidence of the most common form that gives rise to hearsay concerns. The fundamental concern behind the rule against hearsay is the unavailability of the declarant for cross-examination. Because the declarant, Angelo Portante, was not a witness at trial, the appellant Antonio Portante could not test the reliability of his statement through cross- examination. Did Angelo know that Antonio had made a call based on personal observations? Did he get this information from Antonio himself? Or from a third party who may have heard it from a fourth? Did he get this information from DeFrancesca? Indeed, if the latter was the source of the information, Angelo's statement could not in any way be said to be confirmatory of DeFrancesca's testimony. This reflection brings us to a consideration of the use to which the evidence is sought to be put, which lies at the crux of the definition of hearsay. The Supreme Court of Canada in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 190 D.L.R. (4th) 591, a decision released after the hearing of this appeal on September 29, 2000, reiterated this basic principle of evidence at para. 162 [pp. 229-30 S.C.R.]:

[H]earsay evidence is defined not by the nature of the evidence per se, but by the use to which the evidence is sought to be put: namely, to prove that what is asserted is true. When the out-of-court statement is offered for its truth, the inability to cross-examine or "test" the source of the evidence in court under oath or solemn affirmation as to the truth of the assertion undermines its reliability: see I. Younger, An Irreverent Introduction to Hearsay (1977), an address to the American Bar Association Annual Meeting, Atlanta, Georgia, August 11, 1976. In short, the essential defining features of hearsay are the purpose for which the evidence is adduced, and the absence of a meaningful opportunity to cross-examine the declarant in court under oath or solemn affirmation as to the truth of its contents.

(Emphasis added)

[87] Although Crown counsel in oral argument sought to sustain the use to which the statement was put in this case as a "non-hearsay" use, that is, one that does not rely on the truth of its contents, I am not persuaded by this argument. I also think that this submission runs contrary to the reasoning of the Supreme Court in R. v. U. (F.J.), [1995] 3 S.C.R. 764, 101 C.C.C. (3d) 97.

[88] In my view, the invitation to the jury to consider Angelo Portante's statement in their assessment of DeFrancesca's credibility necessarily involved an assessment of the truth of Angelo's statement. If Angelo's statement that Antonio made the call was true, it indeed confirmed DeFrancesca's testimony that he only made one call and did not make the other one. If Angelo's statement was false, of course it provided no confirmatory value. Crown counsel suggested that the jury could find confirmation of DeFrancesca's testimony in the fact that Angelo stated that "a person" made a call without having to consider whether that person was Antonio. In fact, Crown counsel conceded that the jury could not consider the truth of that part of the statement that implicated Antonio. In my view, this is a distinction without a difference. Even following the Crown's approach, the jury would have to assess whether Angelo's statement that "a person" made a call was true (presumably a person other than DeFrancesca) before the evidence would have any confirmatory value. The inquiry would still involve an assessment of the truth of Angelo's statement.

[89] The reasoning that the jury was invited to make in this case is not unlike that in U. (F.J.) where the Supreme Court found that it necessarily entailed a consideration of the truth of the out-of-court statement. In U. (F.J.), the appellant was charged with sexual offences on his daughter. The complainant gave a statement to the police alleging that she had repeatedly been sexually assaulted by her father. The appellant was then interviewed and, in his statement, confirmed many of his daughter's allegations. At trial, both the complainant and the appellant recanted their earlier statements. In these circumstances, either out-of-court statement, if admitted for the truth of its contents, constituted hearsay. The appellant's statement, as an admission, was admissible as an exception to the hearsay rule and could be considered for the truth of its contents. The complainant's prior inconsistent statement did not fall within any exception to the hearsay rule. The trial judge nonetheless instructed the jury that they could compare the complainant's out-of-court statement with the accused's statement to assist them in their deliberations. A question arose whether such use offended the rule against hearsay. A majority of this court held that it did not. Houlden J.A. dissented. The Supreme Court of Canada agreed with Houlden J.A. in his conclusion ((1994), 90 C.C.C. (3d) 541 at p. 544, 32 C.R. (4th) 378 (C.A.)):

By using the statement in that fashion, the prior inconsistent statement of the complainant is, in effect, being used to prove the truth of what is contained in the complainant's statement.

[90] The Supreme Court, however, found that the statement was otherwise admissible for the truth of its contents according to the principles set out in R. v. B. (K.G.) and therefore that no substantial wrong was occasioned by the absence of the appropriate instruction. In this case, no suggestion is made that the evidence about Angelo Portante's statement could meet the criteria in B. (K.G.), or the Smith/Khan criteria of necessity and reliability.

[91] In my view, the curative proviso cannot be applied in the circumstances of this case. I am not satisfied that the verdict would necessarily be the same if the jury had not been invited to consider this evidence in assessing DeFrancesca's credibility. DeFrancesca's testimony formed a crucial part of the Crown's case against Antonio Portante. Given the expert opinion evidence, the issue whether DeFrancesca had himself made the 911 call contrary to his evidence was a very live one. In assessing his credibility, the jury was invited to consider Angelo's statement that Antonio made the call. In doing so, the jury necessarily had to consider the truth of Angelo's statement. If they determined that Angelo's statement was true, given the nature of the case against the appellant, this would be determinative not only of DeFrancesca's testimony on this point but of the guilt of the appellant. I would therefore give effect to this ground of appeal.

2. Police officer's testimony on Bandiera's conduct

[92] Antonio Bandiera, a friend of the appellant, testified that he was with the appellant on the night of the robbery and that he drove him to the corner of Martingrove and Dixon Roads where they stopped to have a coffee at the donut shop. As stated earlier, the 911 call to the police was traced back to one of the public telephones at that location. This testimony therefore placed the appellant at the relevant location at the time in question. Bandiera testified, however, that the appellant did not direct him to that corner, and that he did not see the appellant make a telephone call from the pay telephones.

[93] Bandiera was an unreliable witness and the Crown was permitted at trial to cross-examine him at large on prior inconsistent statements about many aspects of his evidence. Of particular relevance here, Bandiera did not adopt his prior accounts about events at the donut shop on August 31, 1995 in which he said that the appellant had used a pay telephone. He stated that he had lied both to the police and in his prior sworn testimony.

[94] Cst. Mike Carbone testified that Bandiera was interviewed by the police in October 1996. After the interview was complete, Bandiera drove with him in a police cruiser to the donut shop at Martingrove and Dixon Roads. There, Bandiera pointed out two pay telephones from the seven phones around the donut shop and adjacent gas station. The 911 call had originated from one of these telephones. Bandiera testified that he did accompany an officer to the donut shop, but denied that he had pointed out anything.

[95] No objection was made to Cst. Carbone's evidence at trial. In the prosecution's address to the jury, it was summarized as follows:

Then we have Bandiera pointing out to P.C. Carbone, the police officer, who went with him and asked Bandiera to point out the donut shop and point out the phone if he could. And P.C. Carbone says that Bandiera pointed to one of the two phones at some side of the donut shop and it was one of those two phones that in fact made the 911 call. So, again, how does Bandiera know to point out that particular phone, there are seven phones at this donut shop. Bandiera knows the right donut shop, he knows the right phone, and he knows that because he saw Tony Portante make the call to 911 on August 31st.

[96] This approach to the evidence was reiterated by the trial judge in the charge to the jury:

The Crown reminds you that Mr. Bandiera pointed out two pay phones to P.C. Carbone and that there were seven pay phones in the area.

[97] No limiting instructions were given about the use that could be made of this evidence and no objection was made to the charge on this matter.

[98] The appellant submits that Bandiera's pointing to a telephone is an assertion by conduct. It is tantamount to Bandiera having made an assertion about the telephone and that is the precise inference that the Crown urged the jury to draw. It is therefore submitted that, since Bandiera did not adopt this out-of-court assertion, Cst. Carbone's evidence constitutes inadmissible hearsay if admitted for the truth of its contents. It is submitted that, at most, this evidence could be considered as proof of a prior inconsistent statement which could be used in assessing Bandiera's credibility and that it was incumbent upon the trial judge to give the jury the appropriate limiting instruction.

[99] In my view, the appellant is correct in his submissions. However, if this were the only ground of appeal, I would not give effect to it for the following reasons. This evidence was admissible, albeit for a limited purpose. No objection was made at trial. The trial judge gave extensive general instructions on the assessment of credibility of witnesses, including the use of prior inconsistent statements with appropriate examples taken from the evidence. Although the evidence was not identified as tantamount to a prior inconsistent statement for the jury, it was obvious from a logical point of view that it contradicted Bandiera's denial in the witness stand and that it therefore affected his credibility. There was a substantial body of evidence that otherwise placed the appellant at the place and time in question. I am satisfied that no substantial wrong resulted from this non-direction.

3. Unreasonable verdict

[100] Finally, the appellant submits that the evidence could not reasonably support a verdict of guilt and that, consequently, this court should enter an acquittal rather than order a new trial. I see no merit to this ground of appeal. The verdict is one that a properly instructed jury acting judicially could reasonably have reached.

G. Disposition

[101] For these reasons, I would allow the appeal against conviction for Antonio Portante and order a new trial. I would dismiss Angelo Portante's appeal against conviction, grant leave to appeal the sentence and allow the appeal only to the extent of reducing the term of imprisonment to one of nine years and eight months. I would dismiss the appeals of Andre Pelliccione and Piero Perciballi.

DOHERTY J.A. (dissenting):--

I

[102] I have had the pleasure and advantage of reading the reasons of my colleague, Charron J.A. I agree with those reasons in all respects, save one. I do not think that the trial judge erred in refusing to tell the jury that the out-of- court statement made by Angelo Portante could not confirm the veracity of the evidence given by the accomplice, Sam DeFrancesca, in so far as his evidence could, if believed, support the Crown's case against the appellant, Antonio Portante. I would hold that the evidence of the out-of-court statement made by Angelo Portante, if believed, and considered in combination with other evidence, could assist the jury in determining whether DeFrancesca's evidence, including the parts which furthered the Crown's case against the appellant, was credible and worthy of belief. I would dismiss Antonio Portante's appeal.

II

[103] Charron J.A. has set out the relevant evidence and outlined the pertinent parts of the trial proceedings. I will replough that ground only to the extent necessary to develop my position.

[104] In furtherance of the scheme to rob an armoured car, two phone calls were made to the police to divert them from the area where the robbery was to take place. Sam DeFrancesca testified for the Crown and admitted that he made one of the calls. The Crown alleged that Antonio Portante made the other call. The Crown relied on evidence placing Antonio Portante at the location from which the call was made at the time it was made, and on certain after-the-fact conduct of Antonio Portante. That conduct, although not connecting Antonio directly to either of the diversionary phone calls, could support the inference that he was involved in the robbery.

[105] At trial, Antonio Portante contended that while the evidence indicated that he became aware of the robbery after it occurred, it could not establish that he had any actual involvement in the robbery, and specifically, could not establish that he made one of the diversionary phone calls. He placed considerable reliance on the evidence of a Crown expert who had examined tape recordings of both phone calls. That expert testified that DeFrancesca had likely made the first call and that it was more likely than not that the two calls had been made by the same person.

[106] DeFrancesca did not testify that Antonio Portante made the other diversionary phone call or otherwise directly implicate Antonio Portante in the robbery. It was, however, crucial to the Crown's case against Antonio Portante that the jury accept DeFrancesca's evidence that he had made only one of the two diversionary phone calls. On the Crown's theory, if the jury did not accept that part of DeFrancesca's evidence, it could not convict Antonio Portante.

[107] DeFrancesca was an accomplice in the robbery. The trial judge gave a strong "Vetrovec" warning, cautioning the jury against relying on DeFrancesca's evidence and instructing the jury to look for other evidence which, if accepted, could confirm the truthfulness of DeFrancesca's evidence.

[108] In the course of the trial, a witness named Angelo Coiro testified that about a week after the robbery, Angelo Portante told him that his brother, the appellant Antonio, had made a diversionary phone call to the police. The Crown offered this statement as evidence against only Angelo Portante. The appellant tried unsuccessfully to exclude this evidence. After the evidence was admitted, he moved, unsuccessfully, for severance.

[109] The trial judge gave the following direction to the jury immediately after Coiro testified:

Angelo's statement about the diversionary call that he says was made by his brother Tony [Antonio] is admissible against Angelo only and not against Tony Portante.

Now, let me put that another way just to help make it clear to you. Mr. Coiro's evidence as to what was said by Angelo Portante to him, to Mr. Coiro, is evidence against Angelo only and not Tony. Indeed Mr. Scutt and Ms. Bhabha, for the Crown, agree that Mr. Coiro's evidence does not affect Tony Portante at all. I repeat, ladies and gentlemen, there is nothing in the testimony of Mr. Coiro that amounts to any evidence against Tony Portante.

[110] After the evidence was complete, counsel made extensive submissions concerning the contents of the trial judge's instructions to the jury. Crown counsel advised the trial judge that in anticipation of a "Vetrovec" warning, he intended, during his closing address, to suggest some ten pieces of evidence which could confirm DeFrancesca's veracity. One of those pieces of evidence was Coiro's testimony that Angelo Portante had said his brother made a diversionary call. The Crown took the position that as a matter of common sense, if this evidence was believed, it made DeFrancesca's evidence that he had made only one call more credible.

[111] Counsel for Antonio Portante opposed any suggestion that DeFrancesca's evidence that he made only one call could be confirmed by Angelo Portante's alleged out-of-court statement to Coiro. Counsel submitted that in so far as Antonio Portante was concerned, that statement had no evidentiary value and could not be used by the jury in any way when considering the case against Antonio Portante.

[112] Counsel maintained that if the jury came to believe DeFrancesca's testimony that he made only one call, it would inevitably find that Antonio Portante made the second call. Counsel submitted that in this context an instruction to the jury that it could use the out-of-court statement made by Angelo Portante to confirm DeFrancesca's evidence that he made only one call, amounted to an instruction to the jury that it could use Angelo Portante's out-of-court statement against Antonio Portante. Counsel contended that the argument advanced by the Crown invited the jury to do indirectly what it could not do directly.

[113] The trial judge ruled that the Crown could argue that Angelo's alleged statement that his brother had made one of the calls could, along with other pieces of evidence, support the veracity of DeFrancesca. Crown counsel said to the jury:

So when looking at Mr. DeFrancesca, you can look to the fact that everything that he's told the police so far has been confirmed. You can look to the evidence of Mr. Coiro, who indicated that Angelo Portante had told him after the robbery that Tony Portante had made a diversionary call. And you may recall that His Honour indicated that that is not evidence against Tony Portante, the fact of what his brother said, and I want to repeat that now as well. I don't need to rely on that information to prove that Tony made the phone call but it is evidence that you can look at in assessing Mr. DeFrancesca's credibility as to whether he's telling you the truth about the fact that he only made the one call. . . .

(Emphasis added)

[114] In his instructions to the jury, the trial judge avoided a detailed cataloguing of the evidence that was potentially confirmatory of the evidence given by DeFrancesca and the other accomplices. After referring to the evidence of various telephone calls as potentially confirmatory, the trial judge went on to say:

There is, of course, a good deal of other evidence in the form of statements attributed to the accused, the testimony of other witnesses and the various exhibits which have been received at this trial, which, depending on the view that you take of this evidence, is capable of confirming the testimony of the accomplices. But the important thing for you to remember is you should be very cautious in relying on people like . . . DeFrancesca . . . and you should look for other evidence that is capable of confirming what they say.

(Emphasis added)

[115] In his instructions, the trial judge did not repeat his earlier caution that the evidence of what Angelo Portante allegedly said to Coiro was not admissible against Antonio Portante. The trial judge had told counsel that he proposed to repeat that caution, and to combine it with an instruction to the jury that the evidence could be used in assessing DeFrancesca's credibility. Counsel for the appellant indicated that if the limiting instruction was to be combined with the proposed instruction relating to DeFrancesca's credibility, he preferred that the trial judge say nothing about the evidence of the alleged statement made by Angelo Portante to Coiro. The judge accepted this submission and did not specifically refer either to the limited use of that evidence or to its potential relevance in the assessment of DeFrancesca's credibility.

III

[116] Two features of the criminal trial process intersect at this ground of appeal: the admissibility of evidence to prove a fact in issue, and the assessment of credibility. The former is a question of law for the trial judge, the latter is a question of fact and is quintessentially a matter for the jury. While admissibility is governed by rules and principles which can be complex and legalistic, credibility assessments turn on common sense and an understanding of the human condition. We trust juries to assess credibility because we respect the combined common sense and understanding of human nature that twelve members of a jury bring to bear on questions of credibility. Judicial instructions as to the assessment of credibility that run contrary to common sense undermine the function of the jury in the criminal trial process. Such instructions will either be ignored, in which case the process becomes dishonest, or they will be applied, thereby detracting from the very strengths which are said to make th e jury a bulwark of our criminal justice system.

[117] In virtually every criminal trial, the jury must assess the credibility of each witness. The jury must decide whether it believes all, part or none of what a particular witness has said. The jury must also determine whether the Crown has proved its case against each accused based on evidence which is properly admissible against each accused.

[118] In this case, the jury had to decide whether:

-- DeFrancesca was a credible witness and, in particular whether his evidence that he made only one of the two diversionary phone calls should be believed; and

-- on the evidence properly admissible against the appellant, the Crown had proved beyond a reasonable doubt that the appellant made one of the two phone calls.

[119] The jury knew that it could not use Angelo's out-of- court statement to Coiro as evidence against the appellant. Even if the jury believed that Angelo had made the statement and that it was true, the jury knew that it was not evidence against the appellant and could not be used to find that the appellant made one of the phone calls.

[120] In the course of deciding whether the Crown had proved its case against the appellant, the jury had to consider DeFrancesca's credibility. His evidence that he had made only one of the phone calls was admissible against the appellant. If the jury accepted that part of DeFrancesca's evidence as credible, it could find as a fact that DeFrancesca had made only one call. This finding was a significant cog in the Crown's case against the appellant. It was not, however, evidence that the appellant had made the other call. The Crown still had to prove based on evidence admissible against the appellant that he had made the second phone call.

[121] The Crown argued that the jury should find DeFrancesca credible and worthy of belief despite his status as an accomplice because his evidence was consistent with several other pieces of evidence that the Crown contended were credible. In short, the Crown argued that DeFrancesca was credible because his evidence was consistent with other credible evidence. This argument is hardly novel and is reflective of the common sense notion that a witness's credibility is enhanced if his or her testimony on a material matter is consistent with other evidence that the jury finds credible. Juries are routinely told as part of the general instruction on credibility assessment that they should consider whether a witness's evidence is consistent with the evidence of other credible witnesses. The Crown's argument amounted to nothing more.

[122] To determine the appellant's liability, the jury had to decide whether it could believe DeFrancesca's evidence that he had made only one call. The jury had heard Coiro's evidence that the appellant said his brother made one call. It was open to the jury to believe that evidence. If the jury believed that evidence, it would, as a simple matter of common sense, factor the acceptance of that evidence into its assessment of whether DeFrancesca was to be believed when he said that he had made only one call. To instruct the jury to ignore Coiro's evidence in determining whether to accept DeFrancesca's evidence that he made only one call, would be to tell the jury to do the exact opposite of what their common sense would dictate. Test the matter this way. Suppose Angelo's out-of-court statement was to the effect that one person had made both calls. Could it be argued that the jury should ignore that evidence, even if believed, when deciding whether it should find as a fact that DeFrancesca had made only one call? To hold that the jury should ignore such evidence is to invite the conviction of an accused despite the jury's acceptance of evidence which is entirely inconsistent with the guilt of that accused.

[123] As I understand my colleague's reasons, she would require the jury to assess the credibility of DeFrancesca's evidence that he made only one call as against each accused separately. In making these individual assessments of credibility, the jury could look only to other evidence which was admissible against each accused. On this approach, the jury could reach different conclusions as to the veracity of DeFrancesca's assertion that he made one call as regards each accused. For example, in so far as the case against Angelo was concerned, the jury might find as a fact that the appellant made one call, but in so far as the case against the appellant was concerned, the jury might find that DeFrancesca made both calls.

[124] An instruction to a jury that it could make different findings as to the veracity of the same piece of evidence as against different accused could only bewilder a jury. Certainly, such an instruction seems far removed from a direction which calls upon the jury to apply its common sense to the assessment of the credibility of witnesses and the veracity of specific pieces of evidence.

[125] A jury may believe certain evidence, may disbelieve it, or may be unable to decide whether the evidence is true. It makes that determination once. In my view, a jury cannot decide on the one hand that part of a witness's testimony is true when considering the case against one accused and then decide that the same testimony is false when considering the case against another accused. That does not mean that credibility assessments have the same impact on all accused. Having made that credibility determination and any findings of fact which flow from that determination, the jury must still determine whether, based on evidence which is admissible against each accused, the Crown has proved its case. As set out above, a finding that DeFrancesca's evidence that he made one call was credible could support a finding that he made only one call. That finding was admissible against the appellant and the other accused. It remained, however, for the Crown to establish beyond a reasonable doubt based on evidence adm issible against the appellant that he made the other call.

IV

[126] As Charron J.A. observes, this issue is not a matter of first impression. Therefore it remains to be determined whether the case law compels the conclusion that despite the dictates of a common sense approach to credibility assessment, the jury had to be told that when considering the appellant's culpability, it should ignore its assessment of the credibility of Coiro's evidence when determining the credibility of DeFrancesca's assertion that he made only one call.

[127] This precise issue has been before this court on two prior occasions. In R. v. D. (S.) (1992), 10 O.R. (3d) 402 (C.A.), a panel of this court unanimously held that an out- of-court statement made by one co-accused could be used to confirm the evidence of a witness as to the involvement of another accused in the offence. A little over six months later, a different panel of this court unanimously came to the opposite conclusion in R. v. C. (B.) (1993), 12 O.R. (3d) 608, 80 C.C.C. (3d) 467 (C.A.), leave to appeal refused, [1993] 3 S.C.R. viii, holding that the use of an out-of-court statement made by one co-accused to confirm a witness's evidence as to the involvement of another accused in the offence amounted to an impermissible use of hearsay evidence. In R. v. D. (S.), supra, this court relied on Vetrovec v. R., [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1. In R. v. C. (B.), supra, this court considered R. v. D. (S.), supra but concluded that its reliance on Vetrovec v. R., supra, was misplaced.

[128] The decisions in R. v. D. (S.), supra, and R. v. C. (B.), supra, are irreconcilable. I would be inclined to follow the more recent decision were it a matter of choosing between two competing authorities of this court. However, in my view, Vetrovec v. R., supra, which is of course binding on this court, is determinative of the exact issue canvassed in the two authorities from this court. As I read Vetrovec v. R., supra, it not only supports the reasoning in R. v. D. (S.), supra, but also specifically holds that an out-of-court statement made by a co-accused can be confirmatory of a witness's evidence implicating another accused in the alleged offence. Vetrovec v. R., supra, decides the exact issue raised in the two previous authorities of this court and in this case. It does so in a manner that accords with R. v. D. (S.), supra, and in accordance with what I regard as the common sense approach to credibility assessments.

[129] In Vetrovec v. R., supra, Vetrovec, a co-accused named Gaja and seven other persons were charged with conspiracy to traffic in heroin. A witness, Langvand, testified that at the behest of, and with the assistance of Vetrovec, Gaja and others, he couriered heroin into Canada through the United States from Hong Kong. The Crown contended that this transaction was in furtherance of a broader plan to traffic in heroin.

[130] Langvand was an accomplice. The trial judge told the jury that while it could convict on the testimony of Langvand, it was dangerous to do so without corroboration of his evidence. The trial judge proceeded to define corroboration and to outline to the jury the evidence which was capable of corroborating Langvand's evidence. In doing so, as authority required, the trial judge referred separately to evidence which could implicate Vetrovec and evidence which could implicate Gaja. Included in the latter category were certain statements allegedly made by Gaja to an undercover officer. These out-of- court statements were made about a year after Langvand's trip from Hong Kong to Canada. In the statements, Gaja identified himself as the person behind earlier heroin transactions with the undercover officer and discussed possible future transactions with the undercover officer.

[131] Counsel for Vetrovec and Gaja argued that most of the evidence referred to by the trial judge as potentially corroborative, including Gaja's out-of-court statements, could not corroborate the accomplice's evidence as the evidence did not relate to the events described by the accomplice. Dickson J. for a unanimous court rejected that submission. In doing so, he reformulated the law of corroboration and advocated a return to the "common sense" approach to corroboration which eschewed the technicalities and subtleties that had enveloped the concept and made it all but unintelligible. He said, at p. 826 S.C.R., pp. 13-14 C.C.C.:

The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. This is because, as Wigmore said, the matter of credibility is an entire thing, not a separable one [ibid., p. 424]:

. . . whatever restores our trust in him personally restores it as a whole; if we find that he is desiring and intending to tell a true story, we shall believe one part of his story as well as another; whenever, then, by any means, that trust is restored, our object is accomplished, and it cannot matter whether the efficient circumstance related to the accused's identity or to any other matter. The important thing is, not how our trust is restored, but whether it is restored at all . . .

(Emphasis added)

[132] Later, at p. 830 S.C.R., pp. 16-17 C.C.C., to re- enforce the same point, Dickson J. adopted the words of Lord Reid in D.P.P. v. Kilbourne, [1973] 1 All E.R. 440, 117 Sol. Jo. 144 (H.L.):

There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.

(Emphasis added)

[133] Having reformulated the approach to be taken to the search for evidence capable of supporting the credibility of a witness, Dickson J. applied this new formulation to the facts of the case. He began by saying, at p. 832 S.C.R., p. 18 C.C.C.:

I return to the facts of the present case. In light of my earlier comments, it would have been sufficient for the trial judge simply to have instructed the jury that they should view the testimony of Langvand with great caution, and that it would be wise to look for other supporting evidence before convicting the appellants. However, since the trial judge outlined for the jury items of evidence he considered capable of corroborating Langvand's testimony, it is necessary to examine this evidence to ensure that the appellants were not prejudiced by the instruction. The question that must be kept in mind is: does this supporting evidence strengthen our belief that Langvand is telling the truth?

(Emphasis added)

[134] After reference to the "supporting evidence" applicable to Gaja and the evidence applicable to Vetrovec, Dickson J. wrote, at p. 833 S.C.R., p. 19 C.C.C.:

All of this incriminating evidence, when considered together, strongly strengthens the belief that Langvand was telling the truth regarding the participation of Vetrovec and Gaja. It rebuts any suggestion that he is falsely implicating innocent individuals. The fact that this supporting evidence does not directly relate to the other overt acts testified to by Langvand is irrelevant. The evidence is capable of inducing a rational belief that Langvand is telling the truth and is for that reason corroborative. . . .

(Emphasis added)

[135] His reference to "all of this incriminating evidence, when considered together" included Gaja's out-of-court statements to the undercover officer. These statements, if believed, showed Gaja to be a drug dealer. The accomplice had testified that Gaja was a drug dealer. The statements, if believed, confirmed an important part of the accomplice's evidence. As a matter of common sense, if those statements were believed, they provided a measure of confidence in the truth of the accomplice's testimony. That confidence could extend not just to the accomplice's evidence as it implicated Gaja, but also to his entire evidence, including his description of Vetrovec as a drug dealer.

[136] It could be argued that the out-of-court statements made by Gaja are distinguishable from Angelo's statement to Coiro in that Gaja's statements were potentially admissible as substantive evidence against Vetrovec. They were admissible against Vetrovec if on the balance of probabilities based on evidence directly admissible against him, he was found to be a member of the conspiracy, and if the statements made by Gaja were in furtherance of the conspiracy. The statement allegedly made by Angelo to Coiro was not potentially admissible against the appellant as it was not capable of being viewed as made in furtherance of the scheme to rob the armoured car.

[137] As I read the reasons of Dickson J., the potential admissibility of Gaja's statements against Vetrovec played no role in his determination that those statements could be considered in assessing the accomplice's credibility at large. Dickson J. made no reference to the potential admissibility of Gaja's statements against Vetrovec and certainly did not suggest that his analysis of the confirmatory value of those statements with regard to Vetrovec turned in any way on a preliminary finding that the statements of Gaja were admissible against Vetrovec.

[138] An example used by Dickson J. to explain his approach to confirmatory evidence in the course of his reasons in Vetrovec v. R., supra, also demonstrates that evidence which is not admissible against a particular accused may still confirm a witness's evidence implicating that accused in an offence. Dickson J. wrote, at pp. 826-27 S.C.R., p. 14 C.C.C.:

The point can be illustrated with the following simple example. The accomplice, "A", testifies against the accused "B" and "C". There is evidence implicating "B" in the crime, but no evidence implicating "C". Nevertheless, since the supporting evidence relates to a vital issue in the case (the guilt of one of the accused) it bolsters the credibility of "A" and increases the probability that he is telling the truth. We therefore believe his story and convict both "B" and "C".

[139] The above example would encompass a case in which the only evidence confirming the evidence of the accomplice was a confession made by "B". Although the confession could only implicate B, it could according to Dickson J., still confirm the accomplice's evidence in its totality. If believed, it would increase the probability that the accomplice was telling the truth as to B's involvement, an important part of his evidence. That confirmatory evidence could lead the jury to believe the accomplice's entire story, including his evidence regarding the involvement of the other accused "C".

[140] R. v. C. (B.), supra, and R. v. D. (S.), supra, both considered the example posited by Dickson J., but drew different conclusions from it. The court in R. v. D. (S.), supra, concluded that the example supported the trial judge's conclusion that a statement given by one accused could be used to confirm a complainant's evidence against all accused. In holding that R. v. D. (S.), supra, misinterpreted Vetrovec, the court in R. v. C. (B.), supra, said at p. 617 O.R., pp. 475-76 C.C.C.:

However, this quotation from Vetrovec, clearly dealt with the testimony of an accomplice. The question of hearsay was not in issue. It is difficult to see how Vetrovec could be authority for a widening of one of the hearsay exceptions to include statements made by one accused to implicate another. The trial judge's distinction between admitting evidence directly against a co-appellant and admitting evidence simply to confirm a complainant's allegations is untenable.

[Emphasis in original]

[141] With respect, I think the above passage from R. v. C. (B.), supra, misunderstands the example used in Vetrovec v. R., supra. The example posits a case in which the accomplice's evidence implicates two accused, but the potentially confirmatory evidence implicates only one of the accused. The evidence may implicate only one of the accused because it is admissible against only that accused. In my view, the example provided in Vetrovec v. R., supra, clearly contemplates a case in which hearsay evidence admissible against only one of two accused could be confirmatory of an accomplice's evidence in its totality. According to Vetrovec v. R., supra, if the hearsay evidence has that confirmatory effect, it can confirm the entirety of the accomplice's evidence, including his evidence against the other accused.

[142] I would add that I do not read Vetrovec v. R., supra, as authority for "a widening of one of the hearsay exceptions". It has nothing to do with the admissibility of evidence and the hearsay rule, but is directed to the assessment of credibility and in particular, the assessment of the veracity of evidence given by witnesses whose credibility is suspect. That is of course the same issue raised by this ground of appeal.

[143] The example provided by Dickson J. can be applied to the facts of this case. DeFrancesca's evidence that he made one call was admissible against all of the accused. Coiro's evidence implicated only Angelo because it was admissible against only Angelo. If believed, however, Coiro's evidence supported DeFrancesca's evidence on a vital issue, Angelo's involvement in the plot to rob the armoured car. Since it supported DeFrancesca's evidence on a vital issue, it could (not must) increase the probability that DeFrancesca was telling the truth when he said that he had made only one call. With that assurance, the jury could accept that part of DeFrancesca's evidence, find as a fact that he had made only one call and use that fact in its determination of whether the Crown had proved its case against the appellant.

[144] My conclusion that Vetrovec v. R., supra, specifically addressed the use of out-of-court statements made by one accused as confirmatory of a witness's evidence at large is fortified by the approving reference in Vetrovec v. R., supra, at p. 833 S.C.R., p. 19 C.C.C. to this court's decision in R. v. Bulleyment (1979), 46 C.C.C. (2d) 429 (Ont. C.A.). Like Vetrovec v. R., supra, that case involved a large scale drug conspiracy. The Crown's case rested in part on the evidence of an accomplice named Williams. The trial judge instructed the jury that it would be dangerous to convict on Williams' evidence alone and instructed it to look for corroboration of Williams' evidence. He also outlined several pieces of evidence which were potentially corroborative. The potentially corroborative evidence included an out-of-court statement made by a co-conspirator and certain notes in a journal kept by Bulleyment's co-accused, a man named O'Donoghue . For present purposes, O'Donoghue's notes are no different than an out-of- court statement made by O'Donoghue.

[145] Martin J.A. rejected several arguments advanced on behalf of Bulleyment to the effect that none of this evidence was potentially corroborative. I need not go through those arguments. After rejecting those arguments, Martin J.A. said, at p. 448 C.C.C.:

In my view, the jury were entitled to conclude that all of the items mentioned by the trial Judge, viewed cumulatively, were capable of affording corroboration, and it is not realistic to think that they would view either of the impugned items in isolation from the other items of evidence, notwithstanding the trial Judge did not instruct the jury expressly to consider the items cumulatively.

(Emphasis added)

[146] As in Vetrovec v. R., supra, there was no suggestion in R. v. Bulleyment, supra, that the out-of-court statements made by co-conspirators and co-accused could not be used as confirmatory of the accomplice's evidence as regards Bulleyment unless those statements were first found to be admissible against Bulleyment.

[147] Counsel for the appellant also relied on [R. v. U. (F.J.)](https://www.can