DATE: 20010312

DOCKET: C33231

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. DALBERT ALLISON-MCLEISH (Applicant/Appellant)

BEFORE: CATZMAN, WEILER and ROSENBERG JJ.A.

COUNSEL: Sam Scratch, for the appellant

Grace Choi, for the respondent

HEARD: March 5, 2001

On appeal from his conviction by Justice William J. Morrison, sitting with a jury, on October 19, 1998 and from the sentence imposed on December 17, 1998

E N D O R S E M E N T

[1] The appellant appeals against his conviction for robbery and from the sentence of three and one-half years’ imprisonment following a trial before Morrison J. and a jury. Despite the very able submissions by Mr. Scratch on behalf of the appellant, we did not find it necessary to call upon Crown counsel to respond to either the conviction or sentence appeal. We indicated that the appeal would be dismissed with reasons to follow.

The Conviction Appeal

[2] In the early morning hours of March 20, 1998, two men robbed the clerk at a Mac’s convenience store. The robbery was captured on the store’s security video camera. One of the men was Karim Blair. He became the principal Crown witness at the appellant’s trial. He identified the other man as the appellant. This other man was armed with a sawed-off shotgun or rifle and struck the owner several times in the head. Blair testified that the robbery was the appellant’s idea and that he planned the robbery.

[3] When he testified at the appellant’s trial, Blair had not yet been tried and although he offered various altruistic reasons for testifying, he also made it clear that he was hoping for leniency from the Crown or the court at his trial, scheduled some six months after the appellant’s trial. Blair had made a number of prior inconsistent statements to the authorities and others and some of his evidence was inconsistent with the evidence of Kerith Lewis, another acquaintance of the appellant’s and a Crown witness.

[4] This was obviously a case for a strong Vetrovec (R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.)) warning. The trial judge gave such a warning but the appellant argues that the warning was deficient in these respects:

(1) The trial judge did not indicate as part of the Vetrovec warning that one reason for the warning was Blair’s interest in testifying to obtain leniency at his own trial.

(2) The trial judge erroneously pointed to evidence about the presence of the gun in the appellant’s bedroom as confirmatory of Blair’s testimony.

(3) The trial judge did not point out, as part of the Vetrovec warning, that there were a number of important pieces of evidence that were inconsistent with Blair’s evidence.

[5] In our view, the Vetrovec warning was adequate. The trial judge dealt with the frailties in Blair’s evidence in considerable detail over approximately eleven pages of the charge to the jury. Most of that review dealt expressly with the Vetrovec warning and the reasons for the need for caution in approaching Blair’s evidence. The trial judge told the jury that Blair’s possible motive for testifying was an important factor affecting his reliability and credibility. The jury could not have failed to understand that Blair’s motive for testifying was one of the reasons for approaching his evidence with caution.

[6] In referring to evidence that could be confirmatory of Blair’s evidence, the trial judge mistakenly stated that both Lewis and Blair testified to seeing the disassembled sawn-off gun on the appellant’s bed. In fact, only Lewis saw the gun at that time. Blair claimed that he only saw the gun outside the store, as they were about to go in. No objection was taken to this part of the charge by defence counsel at trial (not Mr. Scratch). In our view, no prejudice was occasioned by this mistake. The important point was Lewis’s testimony about the gun, which was potentially confirmatory of Blair’s testimony. The trial judge also gave the jury a simple example of the type of evidence that was not capable of confirming Blair’s testimony as to the appellant’s involvement in the robbery.

[7] We are also satisfied that the trial judge adequately drew to the jury’s attention the inconsistencies between Blair’s testimony and some of the other evidence in the case. As we have indicated, the trial judge reviewed the evidence in detail and, in our view, sufficiently to alert the jury to these inconsistencies. While it might have been better for the trial judge to have succinctly summarized those inconsistencies as part of the Vetrovec warning, the charge taken as a whole was adequate.

[8] The appellant submits that the trial judge erred in admitting a portion of Lewis’s testimony and in failing to give a limiting instruction concerning that evidence. Lewis testified that some time after Blair returned to the appellant’s bedroom, Blair said, “We did Mac’s”. According to Lewis, the appellant was present at the time, but asleep. At least one other person was present. The appellant submits that this evidence was inadmissible hearsay and highly prejudicial. Since the appellant was asleep at the time, the evidence was obviously not admissible against the appellant for its truth as an adoptive admission. See R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.) at 538. No objection was taken at trial to the admission of this evidence. We think it likely that this was a tactical decision since the theory of the defence was that someone else in the house, other than the appellant, and who was present in the appellant’s bedroom accompanied Blair in the robbery. In any event, no prejudice was occasioned by admission of the evidence. Blair did not identify the appellant in the statement as the person with whom he committed the robbery. At worst, Lewis’s testimony was recitation of a prior consistent statement by Blair and was probably admissible, albeit not for its truth, to rebut the allegation of recent fabrication made by the defence.

[9] We are also satisfied that the failure to give a limiting instruction did not occasion any prejudice to the appellant. Crown counsel made only a brief and confusing reference to this evidence in his jury address, and the trial judge made no reference at all to it in the charge. No objection was taken to the charge to the jury in this respect. In any event, there was absolutely no doubt that Blair’s statement to Lewis that “We did Mac’s” was true. The robbery was captured on videotape and Blair admitted he was one of the two perpetrators. The statement in no way either assisted or undermined the Crown or defence case on the central issue of whether Blair did the robbery with the appellant.

[10] Finally, the appellant submits that the trial judge erred in failing to leave the defence of intoxication to the jury. The defence did not ask that intoxication be left to the jury and raised no objection to the charge on that issue. While there was evidence that the appellant and Blair had been drinking and smoking marihuana, there was no evidence that the appellant lacked the capacity to form the specific intent to steal. We are also of the view that there was no air of reality to the suggestion that the appellant did not have the intent to steal because of intoxication. In the hours prior to the robbery, it was the appellant who first suggested the robbery. He brought the sawn-off firearm along with him for the purpose of the robbery and gave Blair the plan, however simple, for its execution. The manner in which the robbery was committed as testified to by the victim, by Blair, and as demonstrated in the video belies any lack of intent on the part of the appellant.

[11] We would not give effect to any of the grounds of appeal from conviction.

The Sentence Appeal

[12] The trial judge was of the view that a sentence of five years’ imprisonment was appropriate. He imposed a sentence of three and one-half years’ imprisonment after giving the appellant credit for nine months of pre-trial custody. In imposing the sentence the trial judge held that the four-year minimum under s. 344(a) of the Criminal Code applied, because a firearm had been used in the commission of the offence. The appellant submits that the trial judge erred in principle because there was insufficient evidence that the weapon used by the appellant was a firearm. Police never found the weapon itself. However, the appellant admitted to Blair that it was a firearm but claimed it was unloaded at the time of the robbery. In our view, the trial judge was entitled to act on this admission.

[13] In our view the sentence was not excessive. This was an armed robbery of a vulnerable victim late at night. The appellant used gratuitous violence on a compliant victim. Although he had no adult record, the appellant had three prior convictions as a young offender. The trial judge was entitled to consider that general deterrence was the paramount consideration.

Disposition

[14] Accordingly, the appeal from conviction is dismissed. Leave to appeal sentence is granted but the appeal from sentence is dismissed.

Signed: “M.A. Catzman J.A.”

“K.M. Weiler J.A.”

“M. Rosenberg J.A.”