DATE: 20011106 DOCKET:C29346

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – LORI MORIN (Appellant)

BEFORE:

DOHERTY, SHARPE AND SIMMONS JJ.A.

COUNSEL:

Felicity Hawthorn

For the appellant

Feroza Bhabha

For the respondent

HEARD:

October 16, 2001

On appeal from her conviction by Justice C. Doyle, sitting with a jury, on February 27, 1997, and from the sentence imposed on May 14, 1997.

E N D O R S E M E N T

[1] On July 19, 1994 Loomis Armoured Car Services discovered that a bag containing $120,000 in cash was missing from one of its trucks. The appellant was convicted of theft and possession of stolen property on February 27, 1997. She was subsequently sentenced to twelve months imprisonment. She appeals against conviction, and sentence.

[2] We would dismiss the appeal.

[3] The appellant was originally charged in the same indictment as Angele Brisson[^1]. Ms. Brisson was the driver of the Loomis truck on the morning of July 19, 1994. She and two other Loomis employees were replenishing automated banking machines along a twenty three-stop route, from cash bags pre-packed for each individual stop. The missing bag was intended for the 10th stop along the route.

[4] The appellant was a former Loomis employee, and therefore familiar with company procedures. She and Ms. Brisson were common-law partners in July 1994. The theory of the Crown was that Ms. Brisson either handed the missing bag to the appellant, or threw it into a bush for later recovery by the appellant, at the second stop along the route, while the two other crew members replenished the bank machines at that location.

[5] The Crown’s case against the appellant was presented in three parts. In the first part, Loomis employees testified about money packing procedures and the chain of events leading to loading the truck driven by Ms. Brisson on July 19, 1994. In the second part, the Crown adduced cell phone records, records from the appellant's health club, and other evidence designed to establish the appellant’s whereabouts on the morning in question. In the third part, the Crown led evidence of the appellant’s spending patterns and lifestyle, both before and after the offence. The third part of the Crown’s case included evidence from a Mr. Catellier, who rented a room from the appellant for several months in the early part of 1996, after she was charged with these offences.

[6] In addition to his observations of the appellant’s house and sources of income, Mr. Catellier testified about the appellant’s responses to questions he asked her about the offence. He said that while the appellant never admitted anything, she did not deny any involvement either. Mr. Catellier felt the appellant was playing a game with him. She would not agree with his suggestions, but she would laugh or blush at his questions. If he went off the track in his comments about how things proceeded, she would bring him back on track. Mr. Catellier also mentioned a photograph he saw of the appellant and Ms. Brisson, pictured seated, with a 16 - 20 inch stack of cash between them.

[7] The appellant raised seven issues on the conviction appeal. Six arose out of the instructions to the jury. The seventh challenges the trial judge’s ruling granting a short adjournment when Mr. Catellier emerged as a Crown witness after the trial started.

[8] The ground of appeal arising out of the trial judge’s ruling after the Crown advised that Mr. Catellier would be a witness requires little analysis. In the circumstances an adjournment to allow counsel to consider the disclosure provided concerning Mr. Catellier’s evidence, and to reassess its case was the appropriate remedy. This was not a case for a stay or even a mistrial. The length of the adjournment was primarily a matter for the trial judge. We cannot say that the length of the adjournment granted was inadequate and compromised the appellant’s right to make full answer and defense.

[9] We called on the Crown only with respect to three of the issues arising out of the charge to the jury. A fourth issue arose in argument. These reasons address only those four issues.

Failure to Give a Vetrovec[^2] Warning

[10] We agree that a caution to the jury about the risks involved in relying on Mr. Catellier’s evidence was warranted in light of the following circumstances:

• he has an extensive criminal record;
• he and the appellant parted on bad terms;
• he contacted Loomis about obtaining a reward in exchange for information about the offences while still residing at the appellant’s home; and
• although he initially denied any knowledge about the offences, he ultimately made a statement to police after being arrested, and later released, on an outstanding warrant on an unrelated charge.

[11] The trial judge did not frame his comments to the jury in terms of a standard unsavoury witness warning, however, he did point out the circumstances creating a need for caution in assessing Mr. Catellier’s evidence. In particular, the trial judge reviewed the evidence concerning both Mr. Catellier’s contact with Loomis and his subsequent dealings with the police. He pointed out that negotiations for a reward fell apart after Mr. Catellier was told he would have to testify. He reviewed Mr. Catellier’s extensive criminal record in great detail. He reminded the jury that the appellant had denied “that she ever played a game with Catellier”, and pointed out that it was a question of pure credibility. Finally, he told the jury that they “had to look at [Catellier’s evidence] very carefully”.

[12] There was no objection at trial to the trial judge’s instructions to the jury concerning Mr. Catellier’s evidence. Mr. Catellier was neither an accomplice nor a jailhouse informant. In the circumstances, we are satisfied that the trial judge adequately conveyed to the jury the need for caution in assessing his evidence.

The Trial Judge Failed to Adequately Convey the Defence Position that the Money May Never Have Been Put On the Truck

[13] Although the primary position of the defence was that the Crown had not proven that the appellant was involved in a theft that may have occurred at the second stop along Ms. Brisson’s route, the defence also relied on evidence of lax procedures on the part of Loomis vault employees [particularly Mr. Toombers], involved in storing cash bags and turning them over to truck crew members and of the specific crew member [Mr. Hodges] alleged to have loaded the missing cash bag onto the truck on July 19, 1994. In reviewing the defence position, the trial judge said the following in his initial charge:

Now you start with something that you do know happened, that is the theft. There is a bag that was stolen. I don’t think there is any question about that, and both counsel have not denied that a theft took place, or not tried to influence you by saying that there was no such thing. You start with those things that are, first of all, well known, and when you think the bag disappears, when, first of all, you ask yourselves, I think, when you think that the bag disappeared. Was it at Jockvale or was it prior, when Hodges was going down to the back of his truck and opening it up, I suppose there would be a moment there where someone might have walked by and picked it up, but, Hodges has said they wouldn’t have time to do it. He said that emphatically…he had further insisted, he was adamant about the fact that there were 23 bags that he had put into the truck … Now, it wouldn’t have happened, I think, in the cash cage or in the vault because there were too many signatures involved and I think you have to pretty well accept the evidence of both [of the Loomis employees] … Now, Hodges … was observed in the video there taking up each bag … there is evidence that he had put these bags in just as they came out of the vault, itself. In any event, he had signed for 23, and he has said that he had counted 23, and that they had gone in the truck. So, you have to determine when, is this the proper time at Jockvale that this theft took place, and of course if it isn’t, then if somebody else had taken it, or if there is evidence of that, and there isn’t, there doesn’t appear to be any evidence of anyone else taking it, but, if there had been evidence or was evidence…[emphasis added]

[14] Defence counsel objected to this aspect of the charge. She submitted that the trial judge had effectively “obliterated” the defence theory that “the bag could have gone missing even before Hodges took his custody of those bags”, including the manner in which Mr. Toombers transferred the bags to Mr. Hodges without counting them, and the fact that there had been evidence that the bags had not been recounted in the vault the night before. Defence counsel asserted that it was open for the jury to reject Mr. Hodges’ evidence that he had counted the bags properly before putting them on the truck.

[15] The trial judge explained that he was under the impression that the defence had agreed that the bag had gone into the truck. Counsel clarified that although she had agreed there was nothing she “could do about the cash cage people”, she had not conceded with respect to the vault. The trial judge re-charged the jury as follows:

Now, we go back to, I think I said that Mr. Hodges, it shouldn’t go back beyond him with respect to the bag being missing, but Mr. Toombers said he hadn’t counted them or anything. He just handed them over, and there was some comparison in the evidence that the same thing happened the week before … what happened the week before has nothing to do with this trial … because we are talking about theft here that appears to have taken place. The other [incident] was just a lost bag and was found. So, those are two different matters. Mr. Hodges on that point was heard to say, I wish I had made a good count, but at other times, he did mention that there were 23 bags that went into the truck, that he had counted them.

[16] The trial judge’s reference, in the re-charge, to Mr. Hodges having said he wished he had made a good count, was actually an erroneous reference to a comment made by Mr. Toombers in his evidence.

[17] Although the trial judge did not review the evidence concerning pre-loading procedures in detail in the re-charge, he did effectively re-open the question of whether the bags were properly counted before they went onto the truck, and therefore left with the jury the question of whether the theft could have occurred prior to loading. Defence counsel made no further objection in relation to the re-charge. We must accordingly assume that defence counsel was satisfied that, even if not perfectly conveyed, the trial judge adequately conveyed the defence position to the jury. Appellate counsel’s assertion, that at trial the defence contested the chain of custody of the missing bag from the cash cage onward, is not borne out by the record. We would not give effect to this ground of appeal.

The Trial Judge Erred in his Instructions to the Jury on Reasonable Doubt and Failed to Correct his Instructions When He Responded to a Question From the Jury on Reasonable Doubt

[18] The appellant makes a general submission that the trial judge’s charge on reasonable doubt “is weak”, and also says that when responding to a question from the jury, a trial judge’s charge should be “full, comprehensive, and accurate, including repeating the definition of reasonable doubt already used in the main charge”.

[19] The trial judge said the following about reasonable doubt:

Now, the matter of reasonable doubt, that is the definition, and reasonable doubt is such a doubt that reasonable and honest Jurors may entertain after they have heard and carefully and conscientiously considered the facts of the case. It is a real doubt, a genuine doubt, an honest doubt, and a sensible doubt, and it is one that is founded on reason which arises from the evidence, or from the lack of evidence, one or the other, evidence or lack of evidence, through which a Juror possesses a good reason for entertaining.

Now, it is not a mathematical certainty, like, two plus two equals four, but, in any event, if you have such a reasonable doubt, then the accused is entitled to an acquittal. I have to tell you, however, that it cannot be a doubt which is based on a stretch of the imagination in order to allow a member of this Jury to avoid his or her plain duty. You might feel that you can impose a verdict of guilty on someone and you create a stretch of the imagination based on what you think is a reasonable doubt, but where a reasonable doubt really doesn’t exist. So, it can’t be that kind of a doubt.

Now, on the other hand, after you have carefully and conscientiously considered the evidence, reviewed the facts and so forth, there remains an abiding assurance of her guilt and of course, your solemn duty would be to bring in a verdict of guilty on that occasion. There used to be a question of moral certainty, but, we don’t do that anymore.

[20] In responding to a question from the jury: “[p]lease review the process by which one determines reasonable doubt”, the trial judge explained that “reasonable doubt is not a process but it is a state of mind…” He reiterated the burden of proof and, other than referring to mathematical certainty, substantially repeated both his instructions on reasonable doubt and the W.(D.)[^3] instruction.

[21] As is pointed out in this court’s recent decision of R. v. Carriere[^4], released October 30, 2001, the trial judge said two things, which, after R. v. Lifchus[^5], he should not have said. The trial judge should not have told the jury that a reasonable doubt is a doubt for which they can ascribe a reason. Further, he should not have referred to the “timid juror”, who finds reasonable doubt as a means of avoiding his or her duty. Finally, the trial judge failed to mention one matter he ought to have addressed, namely that proof beyond a reasonable doubt involves more than proof of probable guilt, and is much closer to certainty than to probable guilt.

[22] In our view, for the reasons set out in Carriere, none of the enumerated defects should be viewed as fatal. Rather, the task of an appellate court reviewing a pre-Lifchus charge is to determine whether the charge, read as a whole, gives rise to a reasonable likelihood that the jury misapprehended the correct standard of proof: R. v. Avetysan, 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at para 12.

[23] As was pointed out in Carriere, although the trial judge did not distinguish the criminal standard of proof from the civil standard, he said nothing that would have misled the jury into thinking that they should use the same standard for decision-making as individuals use on a day-to-day basis. The trial judge’s use of language such as “carefully and conscientiously”, and “solemn duty”, would have conveyed to the jury the significance of the occasion, and the degree of care involved in the decision they were making. Further, the trial judge’s reference to “an abiding assurance of guilt” would have been a clear indication of the high standard of proof required.

[24] As in Carriere, the accused testified, and the trial judge told the jury that, even if they did not believe her evidence, they must acquit if left with a reasonable doubt by the totality of the evidence, including the evidence of the accused. This aspect of the W.(D.) instruction makes it clear that a criminal case is not to be decided based on the jury’s perception of who is probably telling the truth. Rather, an acquittal is required if the jury is left in a state of reasonable doubt by the accused’s evidence.

[25] Having assessed the charge as a whole, we see no reasonable likelihood that the jury misapprehended the correct standard of proof in this case. Moreover, we are satisfied that the trial judge’s response to the jury’s question was full and substantially complete. No objection was made at trial either to this aspect of the original charge, or to his response to the jury’s question. We would not give effect to this ground of appeal.

The Trial Judge did not Instruct the Jury on the Use of Out-of-Court Statements Made by a Witness

[26] Mr. Catellier testified that the appellant never acknowledged to him that she committed the offences. He was cross-examined by defence counsel about a statement he made to the police in which he said that both the appellant and Brisson admitted responsibility for the offences. The trial judge referred to this evidence of an out-of-court statement in his charge, however he did not instruct the jury about the use that can be made of such evidence. Specifically, the trial judge did not instruct the jury that, unless adopted by the witness while testifying, evidence of an out-of-court statement cannot be used for the purpose of proving the truth of its contents.

[27] The appellant did not raise this issue on appeal. We note that it was the defence that adduced the evidence of Mr. Catellier’s out-of-court statement, and that neither the Crown, nor the defence, invited the jury to treat it as proof of the truth of its content. Although we consider that it would have been preferable for the trial judge to have instructed the jury concerning the use that may be made of evidence of out-of-court statements, the failure to do so does not amount to reversible error in these circumstances.

Sentence Appeal

[28] The appellant submits the trial judge erred in failing to impose a conditional sentence for the following reasons:

• she had no prior record;
• she was previously of good character;
• she was sentenced to a term of imprisonment of less than two years;
• the community would not be endangered;
• a conditional sentence would not be contrary to the principles set out in sections 718 to 718.2 of the Criminal Code; and
• Ms. Brisson received a twelve-month conditional sentence.

[29] We disagree. The offences committed by the appellant are extremely serious and amounted to a breach of trust. Although the appellant no longer worked for Loomis at the time of the offences, her co-accused did. The offenders used their knowledge of Loomis’ practises, and the co-accused’s position at Loomis, to perpetrate a significant crime, motivated entirely by greed. The offences placed other Loomis employees under a cloud of suspicion. None of the stolen funds have been recovered.

[30] In our view, the trial judge would have been justified in imposing a significantly longer sentence, even on a first offender. A twelve-month conditional sentence would be unfit. Given that fact, the principle of disparity does not mandate intervention by this court.

Conclusion

[31] For these reasons, the appeal against conviction is dismissed. Leave to appeal sentence is granted, however the appeal against sentence is dismissed.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”

[^1]: The charges against the appellant were severed when Ms. Brisson encountered problems retaining counsel. The appellant’s trial preceded that of Ms. Brisson.

[^2]: R. v. Vetrovec (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.)

[^3]: R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)

[^4]: An appeal involving similar, if not identical, jury instructions given by the same trial judge.

[^5]: (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.)