Her Majesty the Queen v. Harriott, 2002 ONCA 23588

Her Majesty the Queen v. Harriott [Indexed as: R. v. Harriott]

58 O.R. (3d) 1

[2002] O.J. No. 387

Docket No. C33886

Court of Appeal for Ontario

Doherty, Charron and MacPherson JJ.A.

February 7, 2002

• An appeal from the following judgment of the Ontario Court of Appeal to the Supreme Court of Canada (McLachlin C.J., Gonthier, Iacobucci, Major and Bastarache JJ.) was dismissed February 11, 2003, Iacobucci and Major JJ. dissenting. Full text of the SCC judgment is available at 2003 SCC 5, [2003] S.C.J. No. 4. S.C.C. File No. 29118. S.C.C. Bulleting, 2003, p. 263.

Criminal law -- Sentence -- Robbery -- Higher sentence imposed following re-trial on home invasion robbery and related offences -- Accused with lengthy criminal record sentenced to four years' imprisonment at first trial -- New trial ordered -- Trial judge at second trial imposing eight years' imprisonment in addition to 19 months already served -- Second trial judge did not err in concluding that original sentence inadequate -- Sentence imposed within appropriate range -- Appeal from sentence dismissed.

Criminal law -- Trial -- Charge to jury -- Alibi -- Accused alleging that trial judge failed to adequately relate alibi evidence to principle of reasonable doubt -- Trial judge's instructions adequate and evidence of witness supporting alibi having limited probative value -- Review of evidence favourable to accused as trial judge failed to instruct jury that they could infer alibi concocted given admission by ex-girlfriend that she lied about alibi during first trial at accused's request -- No objection by defence counsel -- Appeal dismissed.

Criminal law -- Trial -- Charge to jury -- "Vetrovec" warning -- Young offender accomplice and ex-girlfriend implicating accused in home invasion robbery -- Accomplice promised lighter sentence for cooperating with police -- Ex-girlfriend admitting committed perjury at first trial by providing false alibi at accused's request -- Trial judge instructing jury that it could treat these witnesses' evidence with caution if it wished -- Evidence fairly reviewed -- No objection by defence counsel -- "Vetrovec" caution not inadequate -- Appeal from conviction dismissed.

In 1996, the accused was convicted of six offences arising out of a home invasion robbery: two counts of robbery, two counts of forcible confinement, one count of possession of a weapon for the purpose of committing an indictable offence and one count of wearing a disguise to commit an indictable offence. He was sentenced to four years' imprisonment. A young offender, H, was arrested after the robbery. He testified that he was told by the police that he would receive a lighter sentence if he cooperated. He identified the accused as his co- offender. He pleaded guilty and received a disposition of four months' closed custody and 10 months' open custody followed by two years' probation. The accused's girlfriend, V, testified at trial that the accused was with her in their apartment at the time of the robbery. His landlord also testified that he saw the accused in his apartment around 8:30 a.m. on the morning of the robbery. The timing of the robbery could not be fixed precisely, but it apparently started around 9 a.m. or shortly thereafter. The convictions were overturned on appeal and a new trial was ordered. V had married another man and testified as a Crown witness at the second trial, implicating the accused in the robbery and testifying that the alibi she provided at the first trial was untrue and that it was given at the behest of the accused. The accused's landlord was suffering from depression and was unwilling to appear as a witness at the second trial. His testimony at the first trial was read in as part of the defence case. The accused testified and denied any involvement in the robbery. The accused was convicted on all six counts. The trial judge determined that the sentence at the first trial was inadequate. He sentenced the accused to a total of eight years' imprisonment in addition to the 19 months and 10 days the accused had spent in custody after the first trial. The accused appealed from the conviction and the sentence.

Held, the appeal should be dismissed.

Per MacPherson J.A. (Charron J.A. concurring): The trial judge made only one specific reference to the accused's landlord's testimony, stating that, if the landlord was to be believed when he said that he saw the accused at his residence at 8:30, the accused could not have been at the robbery scene. He told the jury that if they believed and accepted the accused's evidence that he was at home with V all day, after they had considered it along with all of the other evidence, then they had to return a verdict of not guilty. The trial judge did not err by failing to provide the jury with a sufficient instruction about the accused's alibi defence. In particular, he did not err in failing to relate the alibi evidence to the principle of reasonable doubt. The trial judge's reference to "all of the other evidence" included the landlord's evidence, to which the trial judge later made specific reference. The landlord's evidence did not play a central role in the theory of the defence at trial. The timing i ssue arising from the landlord's evidence was of limited probative value to the defence. Defence counsel did not object to the charge to the jury regarding alibi. The accused was not prejudiced by the trial judge's failure to instruct the jury on the inference that could be drawn from the evidence of concoction in the particular circumstances of this case.

The trial judge's Vetrovec warning to the jury in respect of the evidence of H and V was not inadequate. The trial judge instructed the jury that it was open to them to conclude, if they wished to do so, that H was a disreputable person at the time of the robbery, and it was open to them to bear in mind that the evidence of such a person, before it is acted upon, should be treated with great care and great caution. He stated that the same thing applied to V. It was within the trial judge's discretion to instruct the jury in this manner. It was significant that defence counsel at trial did not object to the Vetrovec warning. Although the ultimate responsibility for deciding whether, and in what form, to make a Vetrovec warning rests with the trial judge, trial counsel is in a particularly good position to assess whether, from the perspective of the accused, the trial judge has given an inadequate warning. The absence of an objection, especially on such a well-known matter, shoul d be regarded as a strong sign that the language employed by the trial judge was appropriate, at least from the perspective of the accused. That was especially so in the circumstances of this case, where defence counsel made several objections to the contents of the jury charge, but said nothing about a Vetrovec warning.

The trial judge pointed out the many potential frailties in the identification evidence of the complainants and provided the jury with a sound instruction on the law relating to the issue of identification.

The accused's ex-girlfriend testified that she was afraid of him because he physically abused her. The trial judge gave a strong caution to the jury against making an improper use of the accused's criminal record, but did not discuss the abuse described by V. He mentioned the evidence of abuse in only a tangential way as an explanation for why she had lied during previous court appearances. The trial judge's caution about the improper use of the accused's criminal record, coupled with this restrained use of the evidence relating to abusive conduct, was sufficient to remove from the jury any notion that they could use the evidence of prior bad acts committed by the accused as evidence of his guilt in relation to the robbery charges. Moreover, defence counsel did not object to this component of the jury charge.

When an accused is sentenced following a second trial, the trial judge should first determine if the sentence imposed at the first trial was unfit, or if new factors had emerged, and then impose an appropriate sentence. Between the first and second trials, the Ontario Court of Appeal had upheld sentences of eight years' and nine years' imprisonment, in addition to a credit of 18 months for pre-trial custody, in a home invasion robbery case with facts not dissimilar to those in this case. That case was brought to the attention of the trial judge. In light of that case, it could not be said that the trial judge erred in concluding that the original four-year sentence was inadequate. He was entitled to increase the sentence. His determination that the horrible circumstances of the home invasion robbery, the accused's previous criminal record, and the devastating effects of the robbery on the complainants warranted a sentence of 10 years' imprisonment (from which he deducted about five months) was supportable.

Per Doherty J.A. (dissenting): The trial judge's instruction on the accused's alibi was inadequate. His statement that, if the landlord was to be believed when he said he saw the accused at his house at 8:30, the accused could not have been at the robbery scene, did not properly state the legal effect of the landlord's evidence. That evidence had value even if it was not believed, as long as it was not rejected. The trial judge was required to specifically relate the burden of proof to the alibi defence. He should have told the jury that the accused was under no obligation to prove that defence, but that if his evidence, or the landlord's evidence, or their evidence taken in combination, left the jury with a reasonable doubt as to the accused's whereabouts at the time of the robbery, he was entitled to be acquitted.

The trial judge treated the Vetrovec warning as optional and not mandatory and left it to the jury to decide whether to apply that warning. A Vetrovec caution was mandatory insofar as H was concerned. The trial judge erred in leaving it to the jury to decide whether to proceed with caution in considering H's evidence. The trial judge further depreciated the value to the defence of even the optional caution he gave to the jury by suggesting that H's status as a disreputable person, and hence a witness whose evidence should be viewed with caution, may have somehow evaporated in the four years between the robbery and H's testimony. The passage of time had no effect on the reasons underlying the need for the caution. The trial judge told the jury that the same optional caution he had given them in respect of H's evidence also applied to the evidence of V. Where a crucial witness for the Crown has committed perjury on several previous occasions, it is essential that the trial judge tell the j ury in the clearest terms that it is dangerous to act on the unconfirmed evidence of that witness. The trial judge's instructions stressed the excuses offered for the witness' perjury, but did not provide a clear caution with respect to accepting her evidence in the light of her perjury.

APPEAL by an accused from a conviction for robbery and other offences and from a sentence.

R. v. Parrington (1985), 9 O.A.C. 76, 20 C.C.C. (3d) 184 (C.A.); R. v. Soares, [1998] O.J. No. 3274 (C.A.), consd Other cases referred to R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, 111 D.L.R. (4th) 48, 162 N.R. 280, 87 C.C.C. (3d) 289, 27 C.R. (4th) 1; R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481, 9 C.R. (5th) 38 (C.A.); R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, 13 O.R. (3d) 452n, 104 D.L.R. (4th) 180, 154 N.R. 245, 82 C.C.C. (3d) 310, 21 C.R. (4th) 277 (sub nom. R. v. Griffith); R. v. Binet, 1953 69 (SCC), [1954] S.C.R. 52, 17 C.R. 361; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, 182 D.L.R. (4th) 513, 250 N.R. 103, 141 C.C.C. (3d) 321, 30 C.R. (5th) 201; R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, 49 B.C.L.R. (2d) 299, 119 N.R. 321, [1990] 6 W.W.R. 554, 59 C.C.C. (3d) 321, 80 C.R. (3d) 235; R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, 103 Nfld. & P.E.I.R. 209, 146 N.R. 367, 326 A.P.R. 209, 78 C.C.C. (3d) 289, 18 C.R. (4th) 1; R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545, 16 C.R. (5th) 240 (C.A.) [Leave to appeal to S.C.C. refused (1999), 239 N.R. 193n]; R. v. Crosby, 1995 107 (SCC), [1995] 2 S.C.R. 912, 141 N.S.R. (2d) 101, 179 N.R. 321, 403 A.P.R. 101, 98 C.C.C. (3d) 225, 39 C.R. (4th) 315, revg (1994), 1994 7592 (NS CA), 130 N.S.R. (2d) 61, 367 A.P.R. 61, 88 C.C.C. (3d) 353 (C.A.); R. v. D. (C.) (2000), 2000 5730 (ON CA), 145 C.C.C. (3d) 290 (Ont. C.A.); R. v. Davison (1974), 1974 787 (ON CA), 6 O.R. (2d) 103, 20 C.C.C. (2d) 424 (C.A.); R. v. Ferguson, 2001 SCC 6, [2001] 1 S.C.R. 281, 265 N.R. 201, 152 C.C.C. (3d) 95, 44 C.R. (5th) 305, revg (2000), 2000 5658 (ON CA), 142 C.C.C. (3d) 353, 35 C.R. (5th) 290 (Ont. C.A.); R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, 157 N.S.R. (2d) 161, 143 D.L.R. (4th) 433, 207 N.R. 246, 462 A.P.R. 161, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280; R. v. Mullins-Johnson, 1998 831 (SCC), [1998] 1 S.C.R. 977, 38 O.R. (3d) 574n, 226 N.R. 365, 124 C.C.C. (3d) 381, affg (1996), 1996 1214 (ON CA), 31 O.R. (3d) 660, 112 C.C.C. (3d) 117 (C.A.); R. v. Rosenberg (1968), 1968 247 (ON CA), [1969] 2 O.R. 54, 5 C.R.N.S. 285, [1969] 3 C.C.C. 179 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302; R. v. Winmill (1999), 1999 1353 (ON CA), 42 O.R. (3d) 582, 131 C.C.C. (3d) 380 (C.A.); Vetrovec v. R., 1982 20 (SCC), [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

Howard Leibovich, for respondent. Christopher Hicks, for appellant.

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

A. Introduction

[1] In 1996, the appellant, Allan Harriott, was convicted of six criminal offences arising out of a home invasion robbery at the residence of Ricardo and Maria Iraheta. He was convicted of two counts of robbery, two counts of forcible confinement, one count of possession of a weapon for the purpose of committing an indictable offence, and one count of wearing a disguise with the intent to commit an indictable offence. The trial judge sentenced the appellant to four years in prison.

[2] This court overturned the convictions and ordered a new trial which proceeded in 1998, before a judge and jury, with Locke J. presiding. The appellant was again convicted of all six offences. The trial judge determined that the sentence at the first trial was inadequate. He sentenced the appellant to a total of eight years in prison, in addition to the 19 months and ten days the appellant had spent in custody after the first trial.

[3] The appellant appeals from the convictions on four grounds, all relating to the trial judge's charge to the jury. He also seeks leave to appeal his sentence and, if leave is granted, a reduction in the sentence.

B. Facts

[4] On May 27, 1994, Ricardo Iraheta dropped his children at school and returned home to his apartment building. In the hallway, he had a brief look at a black man outside the stairwell door. He entered his apartment where his wife, Maria, was waiting. He started to undress to take a shower.

[5] Mrs. Iraheta headed for the door, since she was planning to go to her sister-in-law's house. As soon as she unlocked the door, two men pushed it open and directed her towards the couch. Her husband soon joined her there.

[6] The intruders were wearing stockings over their heads. The Irahetas recognized, from the intruders' bare hands, that one of them was white and the other was black. The black intruder was wielding a gun.

[7] The intruders told the Irahetas that they wanted to take money, drugs and jewellery. Mrs. Iraheta informed them that they were no longer in the jewellery business, so there was not much to steal. The black intruder led Mr. Iraheta into the bedroom where he collected a few pieces of jewellery. The intruders took money from both complainants, totalling approximately $1,300-$1,500.

[8] At one point, Mrs. Iraheta's mouth was taped because she was screaming and hysterical. The black intruder knelt her on the floor and told her that if at the count of "5" he did not have the jewellery, he was going to shoot her. The intruder started counting but, at the count of "3", the other intruder said they had to leave. The black intruder kicked Mrs. Iraheta in the back and she fell to the floor. The intruders left.

[9] The white intruder left behind his fingerprints. As a result, Alexsis Hansen, a young offender, was apprehended several days later. He was identified at a line-up by both complainants. Hansen testified that the police told him he would receive a lighter sentence if he co-operated. He identified the appellant as the other intruder, and his cousin, Ruben Rayo, as the driver of the getaway car. Hansen pleaded guilty and received a sentence of four months' closed custody and ten months' open custody followed by two years' probation. Rayo also pleaded guilty and was sentenced to a term of two years' imprisonment. Both Hansen and Rayo also served three months in pre-trial custody.

[10] At the appellant's second trial, the main Crown witnesses were Hansen and Theresa Vagadia, the appellant's former girlfriend, both of whom testified about the appellant's role in the robbery. The appellant testified and denied any involvement in the offences.

[11] There are other facts relevant to the appeal. However, I find it convenient to set out these additional facts in the context of my discussion of the specific grounds of appeal to which they relate.

C. Issues

[12] The issues on the appeal are:

(1) Did the trial judge err by failing to provide the jury with a sufficient instruction about the appellant's alibi defence?

(2) Did the trial judge err by failing to give a sufficient Vetrovec warning concerning the testimony of Alexsis Hansen and Teresa Vagadia?

(3) Did the trial judge give an inadequate instruction concerning identification evidence?

(4) Did the trial judge err by failing to give the jury a limiting instruction regarding the prior bad acts of the appellant?

(5) Was the sentence imposed by the trial judge harsh and excessive?

D. Analysis

(1) Alibi

[13] At the appellant's first trial, the defence led alibi evidence in support of his testimony. The appellant's girlfriend, Teresa Divito, testified that the appellant was with her in their apartment at the time of the robbery. The appellant's landlord at the time, Sam Kovak, also testified that he saw the appellant in his apartment around 8:30 a.m. on the morning of the robbery.

[14] At the second trial, events unfolded in a different way. The girlfriend Teresa Divito had become a former girlfriend and married another man, thus becoming Teresa Vagadia. Vagadia testified as a Crown witness implicating the appellant in the robbery. Vagadia further testified that the alibi she provided at the first trial was untrue, that it was given at the behest of the appellant, and that Kovak had also testified for the appellant.

[15] The defence wanted to call Kovak as a witness at the second trial but Kovak was unwilling to appear. Following a voir dire, which included medical evidence that Kovak had been suffering from a major depressive disorder for about five years and could not presently testify, the trial judge ruled that "however suspicious the odour may be surrounding the failure of Mr. Kovak to be here in person . . . to exclude the Kovak evidence given at his first trial would present apparent unfairness." Accordingly, Kovak's brief testimony at the first trial was read in as part of the defence case. The gist of his evidence was that he remembered the day in question because he had sold a house and had to go sign some papers at his lawyer's office. He stated that he saw the appellant that morning"I can't recall the right time, maybe 8:30 a.m. or so." In cross- examination, when asked if he had seen the appellant "at approximately 8:30", Kovak replied: "I think it was before that. I said I have gone down to the basement apartment, that would be correct, around that time."

[16] The appellant also testified. He denied any involvement in the robbery and said that for "basically the whole day I was in the apartment" and that he saw his landlord during the morning. He denied asking his girlfriend or Kovak to lie for him although he conceded that his girlfriend had lied in court from time to time to help him on other charges.

[17] The appellant contends that the issue of alibi was central to his defence and that the trial judge's instruction to the jury on Kovak's testimony was inadequate. Specifically, the appellant contends that the trial judge should have given an instruction relating the alibi evidence to the principle of reasonable doubt along the lines suggested by this court in R. v. Parrington (1985), 20 C.C.C. (3d) 184, 9 O.A.C. 76 (C.A.). In Parrington, the appellant testified that he could not have committed the offences with which he was charged because, on the night in question, he was at his girlfriend's residence. The girlfriend and two other witnesses testified to this effect. On appeal, this court held that the instruction to the jury was not adequate because the trial judge made no attempt to relate the principle of reasonable doubt to the evidence adduced at trial. Cory J.A., speaking for the court, commented further as follows, at p. 187 C.C.C.:

It would have been preferable if the judge had directed the jury along these lines:

(1) that if they believed the alibi testimony given then, of course, they must acquit;

(2) that if they did not believe such testimony, but were left in reasonable doubt by it, once again they must acquit the accused;

(3) that even if they were not left in reasonable doubt by this testimony, then on the basis of all the evidence they must determine whether they were convinced beyond a reasonable doubt of the guilt of the accused.

[18] The appellant concedes that the trial judge properly instructed the jury along these lines on the approach they should take in considering the appellant's testimony. That instruction was as follows:

Mr. Harriott has testified. He has stated to you his explanation of these charges. As I understand his evidence, he has stated that he was not at this robbery at all. He has stated he was elsewhere. He has stated he was in his apartment, the basement apartment of the home on Amaron, with his then girlfriend, Ms. Divito. If you believe and accept that explanation, after you have considered it along with all of the other evidence, then you must return a verdict of not guilty to all of the counts in the indictment. You do not decide your verdict on whose version of events that you prefer, or whose version of events you do not prefer. You approach the issue in this way: if you believe the accused's explanation, he must be acquitted; even if you do not believe his explanation, but it leaves you in reasonable doubt, then you still must return a verdict of not guilty. If you reject Mr. Harriott's evidence in its totality, and if you disbelieve him, that is not the end of the matter. If that is the case, you then must go back to the evidence that you do accept and believe, and you must then decide, on the basis of the evidence, whether or not the Crown has proven guilt beyond a reasonable doubt, and if that is the case, it is then and only then that it is open to you to return a verdict of guilty with respect to the counts in this indictment.

(Emphasis added)

[19] The appellant submits that the general reference to "all of the other evidence" in conjunction with the appellant's alibi evidence was inadequate and that it was incumbent on the trial judge to specifically relate Kovak's evidence to the principle of reasonable doubt. Rather than doing so, the trial judge made only one specific reference to Kovak's testimony later in his charge in the course of summarizing the defence position, where he said: "Further, if Mr. Kovak is to be believed, when he saw Mr. Harriott at his house at 8:30, and, if that is the case, Mr. Harriott could not have been at the robbery scene."

[20] The appellant submits that the trial judge further erred in failing to instruct the jury that alibi evidence which is disbelieved but not concocted has no evidentiary value. The appellant concedes, however, that there was evidence of concoction in this case and that proof that an alibi is deliberately fabricated by an accused may constitute affirmative evidence of guilt: see R. v. Davison (1974), 1974 787 (ON CA), 6 O.R. (2d) 103, 20 C.C.C. (2d) 424 at pp. 428-30 (C.A.) and R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545 (C.A.).

[21] For several reasons, I do not agree with the appellant's submissions.

[22] First, in my view, the trial judge effectively charged the jury in accordance with the guidance provided by this court in Parrington, supra. The language suggested by Cory J.A. in that case is virtually identical to the now famous wording he set out, after he had become a judge on the Supreme Court of Canada, in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 at pp. 757-58 S.C.R., p. 409 C.C.C. The trial judge faithfully gave the W. (D.) instruction in this case. Importantly, he did not limit it to only the appellant's testimony; he said: "If you believe and accept that explanation, after you have considered it along with all the other evidence. . . ." In my view"all the other evidence" included Kovak's evidence to which the trial judge later made specific reference in his charge.

[23] Second, Kovak's alibi evidence did not play a central role in the theory of the defence at trial. The main issue was the identity of the black intruder described by the complainants. While the appellant is correct in stating that alibi was an important part of the defence's attack on the Crown's case on identification, the alibi evidence consisted mainly of his own testimony, and the Kovak evidence played but a minor role in supporting it.

[24] During the voir dire to determine its admissibility, it was the position of defence counsel at trial that the Kovak evidence "sort of pointed to the direction of Mr. Harriot being at home around 8:30", and that this contradicted "the time at which Alexsis Hansen, at least, says he was outside the door preparing [for the robbery]". As noted by counsel, according to Hansen (and Vagadia as well), the appellant was no longer at the apartment around 8:30 a.m. Vagadia testified that the two men left shortly after 7:30 a.m. Hansen testified that he picked up the appellant at his apartment sometime "between seven and eight" and that, after no more than five minutes, they left to go to the location of the robbery. The evidence is not clear on how long it took to get there, but Hansen testified that they arrived at the apartment building before 8:00 a.m. and that they then waited half an hour to an hour before committing the robbery. Hence, to the extent that the Kovak evidence contradicted the Crown e vidence on this aspect of the timing, it tended to support the appellant's testimony.

[25] However, it becomes clear on considering the evidence as a whole that the timing issue arising from the Kovak evidence was of limited probative value to the defence. There was a great deal of differing testimony from all witnesses at the trial about the time the various events occurred. Hansen himself, whose evidence was contradicted by Kovak's on this point, was very vague and at times inconsistent with respect to the timing of the various events that took place that morning. More significantly, on everyone's account there is no real conflict between Kovak's sighting of the appellant at approximately 8:30 a.m. or earlier and his being at the scene of the crime at the time the actual robbery took place sometime later that morning. In other words, even if the members of the jury had a reasonable doubt on whether the appellant was at his own apartment around 8:30 a.m., or even if they were satisfied that he was there, it would still be open on the evidence for them to be convinced beyond a reas onable doubt that the appellant committed the crime. When considered in context, Kovak's evidence was a very weak link in the chain of events. Hence, had the trial judge linked Kovak's evidence to the appellant's testimony in his W. (D.) instruction as suggested, it could have left the jury with the impression that the credibility of one was somehow tied to the other, thereby undermining the defence. As matters stood, the trial judge probably put the defence in the best light by focusing mainly on the appellant's testimony in the W. (D.) part of the charge and then referring to the Kovak evidence at its highest from the defence's perspective when he told the jury without further elaboration "if Mr. Kovak is to be believed, when he saw Mr. Harriott at his house at 8:30, and, if that is the case, Mr. Harriott could not have been at the robbery scene".

[26] It is particularly noteworthy that defence counsel at trial did not object to the trial judge's instruction on this point. Defence counsel mentioned the Kovak evidence in his objections to the charge, noting that the trial judge had failed to remind the jury that the source of this evidence was to be found in one of the transcripts, but made no objection relating to the substance of the instruction. Counsel did not suggest that the jury should be instructed in the manner that is now contended on appeal.

[27] Third, I do not think that the appellant was prejudiced by the trial judge's failure to instruct the jury on the inference that could be drawn from the evidence of concoction in the particular circumstances of this case. Normally such an omission would result in an objection from the Crown. However, in this case, the evidence of concocted alibi came from Vagadia, who also testified that the appellant committed the robbery. Therefore, the main issue for the jury was whether they believed her testimony. In these circumstances, the trial judge's decision not to charge the jury on the use that could be made of a concocted alibi made sense since it would have added little to their fact-finding function and may have confused them. Again, it is noteworthy that no objection was made on this point. This is perhaps not surprising because, in my view, the non-direction on this point, if anything, benefited the appellant.

[28] In summary, the trial judge's instruction on the alibi issue was appropriately brief, sound in law and, if anything, favourable to the appellant. I would not give effect to this ground of appeal.

(2) Vetrovec warning

[29] Alexsis Hansen was, on his evidence, the appellant's accomplice in the robbery. He testified for the Crown at the second trial.

[30] Teresa Vagadia testified for the appellant, her then boyfriend and the father of their unborn child, at the first trial, and provided alibi evidence for him. At the second trial, she admitted that she had perjured herself at the first trial. She also testified that she had provided the two robbers with masks and gloves which potentially made her an accomplice.

[31] The appellant contends that the trial judge did not give the jury the "clear and sharp warning" about relying on the testimony of accomplices required by Vetrovec v. R., 1982 20 (SCC), [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1 at p. 831 S.C.R., p. 17 C.C.C. and its progeny.

[32] The decision of a trial judge to give a Vetrovec warning is discretionary. There is also a good deal of discretion with respect to the form the warning should take. The discretion as to whether, and how, to give a warning is reviewable, but an appellate court must show deference to the trial judge and not lightly interfere with his or her decision: see Vetrovec, at p. 831 S.C.R., pp. 17-18 C.C.C.; R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, 82 C.C.C. (3d) 310, at pp. 612-15 S.C.R., pp. 325-27 C.C.C.; and R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, 30 C.R. (5th) 201, at pp. 264 and 274-75 S.C.R., pp. 220 and 227 C.R.

[33] The appellant does not contend that the trial judge gave no warning to the jury about relying on Hansen's testimony. Rather, the appellant's submission is that the warning he gave was inadequate. The appellant further submits that the trial judge gave no warning at all about the risks in adopting Teresa Vagadia's testimony. Finally, the appellant submits that the trial judge, rather than cautioning the jury against accepting their testimony, actually tried to rehabilitate both Hansen and Vagadia when he dealt with their testimony.

[34] I disagree with these submissions. I think it is useful to set out the instruction which the appellant now challenges as both inadequate and tilted against him:

From the evidence that Mr. Hansen gave, to the effect that as a young person, in 1994, he was one of two persons who robbed the two complainants named in the indictment of their money and jewellery. It is open to you as jurors to conclude, if you wish to do so, that Mr. Hansen was then a disreputable person. It is open to you to bear in mind that the evidence of such a person, before it is acted upon, should be treated by you, as jurors, with great care and with great caution. On the other hand, you have listened to the evidence of Alexsis Hansen when he testified last week, 1998, four years later. You have very recently heard him give evidence in detail of how, where and when and with whom the robbery was planned and executed, and what happened after.

He was cross-examined vigorously. The differences in evidence that he gave at various times in the past and the statements that he has made in the past, and what he said to you at trial where Mr. Harriott is the accused on trial, is all before you. In short, it seems to me that you have a clear portrait of what occurred when Mr. Hansen was age 15, what occurred in the intervening four years, and what you see of Mr. Hansen 48 months later at age 19, when he testified here.

The very same thing applies to Ms. Divito, except that the time period is much shorter concerning what she said at the bail hearings and other court appearances, and what she said here at this trial. This subject is important, because the issue of credibility or the weight that each of you as jurors is prepared to give to the evidence of any witness, and especially that of Mr. Hansen and that of Ms. Divito is a vital and important issue in this trial. You, as jurors, have had an excellent opportunity to assess the credibility as it relates to each of these witnesses on the basis of what you know of Alexsis Hansen at age 15 and what you have seen of him now, four years later. The same thing applies, to a lesser extent, to Ms. Divito.

For example, you heard Ms. Divito quite clearly and frankly state that in her life as Mr. Harriott's girlfriend and lover, she was a person who was prepared, having been given up by her family, under oath on other occasions to have been untruthful in order, as she said, to protect Mr. Harriott in his difficulties with the criminal justice system. You heard her again, under cross-examination, give you the reasons why she was prepared to do this. As I understood her evidence, fear of him was the reason she described, and that was a leading factor compelling her to be untruthful under oath in the past. You also heard her evidence of what kind of a person she was then, and how she regards herself now, in what she described as a much different way of life as she is living at present.

In the result, each [of] you as jurors is in the best position to decide the weight or the credibility, if any, that you are prepared to give to the evidence of any witness who testified in this trial, and certainly that of Mr. Hansen and Ms. Divito. Examine their testimony with care. Consider the evidence of each, along with all of the other evidence led in the trial, when you deliberate. Again, please remember the evidence of what Mr. Harriott said when he testified when you are assessing the weight, if any, that you will accord to any witness who testified in the trial. You will please consider any previous statements that were given by either Mr. Hansen or Ms. Divito, or both. I remind you, if they adopt the previous inconsistent statement, then it becomes part of the evidence at the trial. If they do not adopt the previous inconsistent statement or statements, then you may not employ what was said previously for the truth of its content, but you may employ it to assess credibility; that is fo r you, and no one else to say.

(Emphasis added)

[35] In my view, it was within the trial judge's discretion to instruct the jury in the manner that he did. His review of the relevant features of Hansen's and Vagadia's evidence was fair and balanced. He also instructed the jury that Hansen's evidence "should be treated by you, as jurors, with great care and with great caution". He said: "The very same thing applies to Ms. Divito [Vagadia]". He told the jury that it was for them to decide the weight or the credibility they would assign to the evidence of all the witnesses. However, he singled out Hansen and Vagadia for special caution: "Examine their testimony with care."

[36] Moreover, I do not see how the above passage supports the contention that the trial judge's instruction on this issue was tilted against the appellant because it tried to rehabilitate Hansen and Vagadia in the eyes of the jury. It did no such thing. This was the second trial for the appellant and the jury was made aware of earlier testimony by the witnesses. The robbery took place in 1994, the first trial in 1996. The jury was hearing evidence in 1998. All the trial judge was trying to do was provide the jury with a proper frame of reference within which to consider Hansen's and Vagadia's testimony. In my view, he did this in a brief, clear and neutral fashion.

[37] I also note that the trial judge's Vetrovec warning should not be reviewed by an appellate court in isolation. As expressed by Osborne A.C.J.O. in R. v. Winmill (1999), 1999 1353 (ON CA), 42 O.R. (3d) 582, 131 C.C.C. (3d) 380 at p. 603 O.R., p. 405 C.C.C. (C.A.):

The sufficiency of the Vetrovec caution cannot reasonably be assessed by an isolated review of that part of the charge that one can identify as the "Vetrovec warning". That is to say, the charge must be read as a whole. The Vetrovec warning is a special part of the charge on credibility.

[38] In the present case, the trial judge gave careful and correct instructions regarding the assessment of credibility and the use and misuse of prior inconsistent statements.

[39] I make one final observation on this issue. In R. v. D. (C.) (2000), 2000 5730 (ON CA), 145 C.C.C. (3d) 290 at p. 306 (Ont. C.A.), Morden J.A. stated:

I need not say much about the submission that the trial judge, given the evidence of collaboration and prior inconsistent statements, did not caution the jury on the danger of acting on the evidence of T. The giving of a caution is, generally, a matter of discretion [citations omitted] (R. v. Brooks) and it is difficult to accept that the discretion was wrongly exercised when the giving of it was not requested by either counsel, as was the case in this proceeding.

(Emphasis added)

[40] I agree with this passage. Trial counsel play an important role in suggesting whether, and in what form, a Vetrovec warning should be given. That is because a Vetrovec warning can be a two-edged sword, drawing attention not only to the disreputable character and/or conduct of the accomplice, but also to evidence that might confirm the accomplice's testimony. As Dickson J. observed in Vetrovec, at p. 818 S.C.R., p. 7 C.C.C.:

The accused is in the unhappy position of hearing the judge draw particular attention to the evidence which tends to confirm the testimony the accomplice has given. Cogent prejudicial testimony is thus repeated and highlighted.

[41] The clearer and sharper a trial judge's warning about the testimony of an accomplice, the more likely it is that it will be accompanied by a full and robust review of potential confirming evidence. Thus, although the ultimate responsibility for deciding whether, and in what form, to make a Vetrovec warning rests with the trial judge (Brooks, supra, at p. 277 S.C.R., p. 229 C.R.), trial counsel is in a particularly good position to assess whether, from the perspective of an accused, the trial judge has given an inadequate warning. The absence of an objection, especially on such a well-known matter, should be regarded as a strong sign that the language employed by the trial judge was appropriate, at least from the perspective of the accused. In my view, that is especially so in the circumstances of this case, where defence counsel made several objections to the contents of the jury charge, but said nothing about a Vetrovec warning.

(3) Identification evidence

[42] The appellant contends that the trial judge failed to charge the jury on the specific frailties of the Iraheta evidence relating to their identification of the appellant as one of the robbers.

[43] I disagree. During the course of his review of the testimony of Ricardo and Maria Iraheta, the trial judge pointed out many potential frailties, including: (1) neither of the victims had seen the intruders before the day of the robbery; (2) Mrs. Iraheta identified the male person in photo number 8 but said "I wasn't too sure"; (3) Mrs. Iraheta testified that all black people look alike facially; (4) Mrs. Iraheta could not give facial characteristics; (5) Mrs. Iraheta knew that the two robbers would be at the courthouse on Jarvis St. on the day she says she saw the appellant in a car near the courthouse; (6) Mrs. Iraheta's identification of the appellant in the car was limited to the clothes he was wearing (the same as on the day of the robbery); (7) Mr. Iraheta had only a brief look at a man standing in the stairwell of his apartment building on the day of the robbery; (8) Mr. Iraheta could see the face of the white intruder through his pantyhose mask more clearly than the face of the black intruder through his pantyhose mask; (9) Mr. Iraheta told police that he did not pay much attention to the black intruder; and (10) Mr. Iraheta could not identify the appellant in police photographs.

[44] In addition to this comprehensive list of potential frailties, the trial judge gave the traditional strong instruction about the dangers of relying on identification evidence.

[45] In summary, the trial judge provided the jury with an appropriate description of relevant facts and a sound instruction on the law relating to the issue of identification in this case.

(4) Prior bad acts

[46] During the cross-examination of Teresa Vagadia, defence counsel asked many questions about the appellant's abusive behaviour towards her. He did this, apparently, to attack her credibility. During the examination-in-chief of the appellant, defence counsel elicited responses denying physical abuse of Ms. Vagadia.

[47] The trial judge gave a strong caution to the jury against making an improper use of the appellant's criminal record. Subsequently, when he reviewed Ms. Vagadia's evidence, he did not discuss the abuse she had described during her cross-examination. Rather, he mentioned it in only a tangential way as her explanation for why she had lied during previous court appearances:

You heard her again, under cross-examination, give you the reasons why she was prepared to do this. As I understood her evidence, fear of him was the reason she described, and that was a leading factor compelling her to be untruthful under oath in the past.

[48] In my view, the trial judge's caution about improper use of the appellant's criminal record, coupled with this restrained use of the evidence relating to abusive conduct, was sufficient to remove from the jury any notion that they could use the evidence of prior bad acts committed by the appellant as evidence of his guilt in relation to the robbery charges. I note again that defence counsel did not object to this component of the jury charge. Presumably, this reflected his view that the trial judge's charge conveyed the requisite point without highlighting the evidence relating to prior abusive conduct engaged in by the appellant.

(5) Sentence

[49] Following his first trial, the appellant received a sentence of four years' imprisonment. The trial judge at the second trial regarded this sentence as inadequate. He thought that a sentence of ten years was appropriate. He took into account the fact that the appellant had served 19 months and ten days of the sentence imposed at the first trial and sentenced the appellant to eight years in prison.

[50] The other intruder, Alexsis Hansen, pleaded guilty. He was a young offender at the time of the robbery. In addition to three months served in pre-trial custody, he received a sentence of four months closed custody, ten months' open custody and two years' probation. The driver of the getaway car, Ruben Rayo, was sentenced to a two-year term in the penitentiary in addition to the three months of pre-trial custody he served.

[51] The appellant argues that the sentence imposed following the second trial is unfit for two reasons: it is too high given the sentence imposed at the [first] trial, and it is disproportionate to the sentences imposed on the other two offenders. I disagree with these submissions.

[52] It is true that the imposition of a sentence imposed after a re-trial should not be regarded as a matter entirely de novo. If the trial judge at the second trial decides to impose a greater sentence than the original sentence, he or she must first determine that the original sentence was unfit, or that new facts have emerged, and then consider all the relevant factors before imposing the new sentence: see R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 at p. 512 (C.A.).

[53] That is what the trial judge did in the present case. Between the two trials, this court had upheld sentences of eight years' and nine years' imprisonment, in addition to a credit of 18 months for pre-trial custody, in R. v. Soares, [1998] O.J. No. 3274 (C.A.), a home invasion robbery and unlawful confinement case with facts not dissimilar to those in the present case. The Crown brought Soares to the attention of the trial judge and submitted that the sentence for the appellant "should be significantly higher . . . than the Soares case". The trial judge imposed a sentence about one month greater than the sentence imposed on one accused and about 11 months less than the sentence imposed on the other accused in Soares.

[54] In light of Soares, I cannot say that the trial judge erred in concluding that the original sentence was inadequate. He was, therefore, entitled to increase the sentence. His further determination that the horrible circumstances of the home invasion robbery, the previous criminal conduct of the appellant, and the devastating effects of the robbery on the complainants warranted a sentence of ten years' imprisonment (from which he deducted about five months) is, in my view, also supportable.

[55] Finally, I see no merit in the appellant's disparity [argument]. Alexsis Hansen was 15 years old at the time of the robbery. Ruben Rayo did not enter the apartment and terrorize the complainants. There is simply no basis on which to compare the appellant's sentence with those imposed on Hansen and Rayo.

Disposition

[56] I would dismiss the appeal from the convictions. I would grant leave to appeal the sentence and dismiss the appeal from sentence.

DOHERTY J.A. (dissenting): --

I

[57] I have had the advantage of reading the reasons of my colleague, MacPherson J.A. I agree with his analysis of the grounds of appeal arising out of the instruction on identification evidence (paras. 42-45) and the instruction on the evidence of disreputable conduct by the appellant (paras. 46-48). I do not agree, however, that the trial judge's instructions on the defence of alibi and his instructions on the caution with which the evidence of the two main Crown witnesses should be approached were adequate. I would allow the appeal, quash the convictions and order a new trial.

II

[58] The review of trial judges' instructions to juries is a mainstay of appellate judging in criminal matters. Proper appellate review of jury instructions requires a functional approach which focuses on the purposes to be served by jury instructions. A proper instruction must set out the issues to be determined, the legal principles to be applied, the respective positions of the parties and must relate the evidence to those issues and positions: R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, 78 C.C.C. (3d) 289, at pp. 163-64 S.C.R., p. 301 C.C.C.

[59] Jury instructions can significantly affect the outcome of a trial. They are the last word heard by the jury before deliberations begin and they emanate from a person who the jury will usually see as neutral and authoritative. The fairness of a trial often hangs in the balance when the trial judge delivers his or her instructions. In addition to meeting the functional needs described above, those instructions must strive for a balance which will equip the jury with the tools needed to fashion a proper verdict, but will not direct the jury towards a particular verdict: R. v. Ferguson (2000), 2000 5658 (ON CA), 142 C.C.C. (3d) 353, 35 C.R. (5th) 290 (Ont. C.A.), per Laskin J.A. in dissent at p. 376 C.C.C., revd 2001 SCC 6, [2001] 1 S.C.R. 281, 152 C.C.C. (3d) 95.

[60] In this case, identity was the central issue at trial. The defence mounted a two-fold attack on the Crown's contention that the appellant was one of the robbers. First, through the evidence of the appellant and his landlord, Mr. Kovak, the defence advanced an alibi placing the appellant at his apartment when the robbery occurred. Second, the defence vigorously challenged the credibility of the two main Crown witnesses, Alexsis Hansen, an accomplice in the robbery, and Teresa Vagadia, an admitted perjurer. These two witnesses gave evidence that directly implicated the appellant in the robbery. Their evidence constituted the bulk of the Crown's case against the appellant. It was essential that the trial judge address both components of the defence in a manner that was legally correct and presented the defence in a balanced and fair manner.

[61] With respect to the able and experienced trial judge, I must conclude that his instructions were not correct in law and effectively undermined the force of both prongs of the defence advanced at trial.

III

The Alibi Defence

[62] Although the time at which the robbery commenced could not be fixed precisely, it would appear that the robbery started at 9:00 a.m. or shortly thereafter. The robbers were at the scene of the robbery for some time before it actually commenced.

[63] Mr. Hansen testified that he awoke at 6:30 a.m. and immediately phoned the appellant to get directions to his apartment. Hansen drove to the appellant's apartment with his cousin, the third participant in the robbery, arriving there between 7:00 a.m. and 8:00 a.m. According to the plan, Hansen and the appellant were to be outside the victims' apartment by 8:00 a.m. Hansen said that he was at the appellant's apartment for a few minutes and then left with the appellant and proceeded to the victim's apartment. Hansen testified that he and the appellant were in the building where the victims' apartment was located for about an hour before the robbery actually commenced.

[64] Ms. Vagadia testified that she was staying with the appellant on the day of the robbery and that Hansen arrived at the apartment at 7:30 a.m. He and the appellant left ten or 15 minutes later on their way to the victims' apartment.

[65] The appellant testified that he remained in his apartment for most of the day of the robbery and never went to the victims' apartment. The defence read in the evidence of the appellant's landlord, Sam Kovak, given at the first trial. Mr. Kovak was suffering from depression and was unable to testify at a second trial. According to his evidence, he got up at 7:50 a.m. and saw the appellant at the apartment at about 8:30 a.m. or perhaps a little earlier. Mr. Kovak left the apartment building about 9:15 a.m. He had to see his lawyer about a real estate closing that was to occur later that day.

[66] There was evidence that the appellant's apartment was 8.5 kilometres from the victims' apartment. According to defence evidence, it took about half an hour in rush hour to drive from the appellant's apartment to the victims' apartment. [See Note 1 at end of document] Consequently, Kovak's evidence could not exclude the possibility that the appellant was at the victims' apartment at 9:00 a.m. or shortly thereafter. His evidence was, however, completely inconsistent with the evidence given by the two main Crown witnesses, both of whom had the appellant leaving his apartment by 8:00 a.m. Hansen placed the appellant at the scene of the robbery well before 9:00 a.m.

[67] In his instructions, the trial judge highlighted identity as the "main" issue at trial. He told the jury that it was the appellant's position that he was at home when the robbery occurred. Remarkably, however, in a case where identity was the central issue and the defence had put forward an alibi, there is no separate treatment of the defence of alibi anywhere in the charge to the jury. The legal principles applicable to that defence were not provided to the jury and the alibi evidence was not reviewed by the trial judge. The only reference to Mr. Kovak's evidence appears in the trial judge's summary of the defence position. In reviewing counsel's submission with respect to Mr. Kovak, the trial judge said:

Further, if Mr. Kovak is to be believed, when he saw Mr. Harriott at his house at 8:30, and if that is the case, Mr. Harriott could not have been at the robbery scene. . . .

[68] While this brief reference was no doubt an accurate summary of counsel's submission, it did not properly state the legal effect of Mr. Kovak's evidence. That evidence had value even if it was not believed, as long as it was not rejected. The trial judge was required to specifically relate the burden of proof to the alibi defence. He should have told the jury that the appellant was under no obligation to prove that defence, but that if his evidence, or Mr. Kovak's evidence, or their evidence taken in combination left the jury with a reasonable doubt as to the appellant's whereabouts at the time of the robbery, he was entitled to be acquitted. In R. v. Parrington, supra, at p. 187 C.C.C., Cory J.A. suggested that the linkage between the defence of alibi and the burden of proof should be drawn in the following way:

It would have been preferable if the judge had directed the jury along these lines:

(1) that if they believed the alibi testimony given then, of course, they must acquit;

(2) that if they did not believe such testimony, but were left in reasonable doubt by it, once again they must acquit the accused;

(3) that even if they were not left in reasonable doubt by this testimony, then on the basis of all the evidence they must determine whether they were convinced beyond a reasonable doubt of the guilt of the accused.

[69] The trial judge did instruct the jury in accordance with the three-step approach set out in R. v. W. (D.), supra. That instruction, however, contains no specific reference to the defence of alibi and no reference to the evidence of Mr. Kovak and its potential value in assessing either the appellant's evidence or whether the Crown had established guilt on the entirety of the evidence. I cannot agree that this instruction makes up for the total absence of any alibi instruction.

[70] In one respect, the instruction exacerbated the absence of the alibi instruction. When the trial judge reached the third step in R. v. W. (D.), supra, he said:

If you reject Mr. Harriott's evidence in its totality, and if you disbelieve him, that is not the end of the matter. If that is the case, you then must go back to the evidence that you do accept and believe, and you must then decide, on the basis of that evidence, whether or not the Crown has proven guilt beyond a reasonable doubt . . . .

(Emphasis added)

[71] On this instruction, the jury could not consider Mr. Kovak's alibi evidence unless they believed it. This instruction is wrong in law. Even if Mr. Kovak's evidence was not believed, it remained a part of the evidentiary mix as long as it was not rejected as false and had to be considered in determining the appellant's ultimate guilt.

[72] The failure to specifically relate the burden of proof to the defence of alibi constitutes misdirection.

[73] I am also satisfied that even though Mr. Kovak's evidence was brief and heard by the jury at the end of the trial, there should have been some review of that evidence, particularly given that the trial judge did review the evidence of the Crown witnesses and relate it to the issues at trial. Mr. Kovak had given a statement to the police concerning the appellant's whereabouts within a short time of the relevant events, he had a reason to remember the events of the morning, and his evidence was not shaken on cross-examination. He had no apparent motive to give the appellant a false alibi. Some, if not all, of these factors deserved some mention by the trial judge.

[74] Nor can I agree with my colleague that Mr. Kovak's evidence was not central to the defence. While he could not provide a definitive time at which he saw the appellant, his evidence was completely inconsistent with the evidence given by the two main Crown witnesses. On their evidence, the appellant had left the apartment by 8:00 a.m. While it may have been physically possible for the appellant to be at home at about 8:30 a.m. and at the victims' apartment when the robbery started, that was not the theory of the Crown advanced at trial. Given the evidence of the main Crown witnesses, I think it is fair to describe Mr. Kovak's evidence as crucial to the defence position that the Crown had failed to prove that the appellant was one of the robbers. Nor would I dismiss Kovak's evidence as unimportant because it was brief. Independent confirmation of an accused's alibi is a precious commodity to the defence and is crucial where identification is the main issue.

[75] I agree with my colleague's observation that had an alibi instruction been given in this case, it would have been appropriate for the trial judge to also instruct the jury on the potential evidentiary value of a fabricated false alibi. I cannot agree, however, that the absence of any objection to the alibi instruction reflects a tactical decision whereby counsel sought to avoid the potential risk of a fabricated alibi instruction. A fabricated alibi instruction would not have been of any significant benefit to the Crown in this case. The jury could only find that the alibi was fabricated if they believed Ms. Vagadia's evidence that the appellant made her put forward a false alibi at the first trial. If the jury believed that part of her evidence, it seems to me that they would have inevitably believed her evidence that the appellant was involved in the robbery. If the jury believed her evidence as to the appellant's involvement in the robbery, he would inevitably have been convicted without resort to t he circumstantial value of evidence of a concocted alibi.

IV

The "Vetrovec" Warning

[76] Mr. Hansen testified that he agreed to commit the robbery with his cousin and then recruited the appellant to assist him. He was a full participant in the robbery. The police found Hansen's fingerprints at the scene and arrested him. He was on probation at the time. When the police questioned Hansen, they told him that he would get a lighter sentence if he co-operated. The police knew that at least two people were involved in the robbery, but had not been able to identify the other person. Hansen testified that he knew from his previous contacts with the police that they always promised a more lenient sentence in exchange for co-operation, but that the sentence was ultimately determined by the trial judge. On at least one prior occasion, Hansen had agreed to plead guilty to certain charges in exchange for having other charges dropped.

[77] Hansen knew the appellant and he knew that the appellant had been in jail "a lot of times". It was the position of the defence that Hansen had falsely identified the appellant because of his criminal background and because he was afraid of the person who had actually engaged in the robbery with him.

[78] According to Hansen, he was terrified when he was arrested and questioned by the police. He gave a statement to the police admitting his role in the robbery and identifying the appellant as his co-perpetrator. Hansen believed that he could be charged with perjury if he gave testimony which was different [from] his statement. He admitted that he was "terrified" of being charged with perjury. In an unrelated matter, the police had charged Hansen with attempting to obstruct justice based on alleged lies told by Hansen to the police.

[79] Hansen's involvement in the robbery, the circumstances in which he gave his statement implicating the appellant, his fear that any deviation from the statement could result in a criminal charge, and the importance of his evidence to the Crown's case combined to require that the jury receive a clear and sharp caution about the danger inherent in relying on the unconfirmed evidence of Hansen: Vetrovec v. R., supra; R. v. Brooks, supra.

[80] MacPherson J.A. has set out the relevant part of the trial judge's instructions to the jury at para. [34] of his reasons. I cannot agree with his conclusion that the trial judge told the jury that Hansen's evidence should be treated with great care and caution. Instead, he told the jury that it was open to it:

. . . to conclude, if you wish to do so, that Mr. Hansen was then a disreputable person. It is open to you to bear in mind that the evidence of such a person, before it is acted upon, should be treated by you, as jurors, with great care and with great caution. . . .

(Emphasis added)

[81] The trial judge treated the caution as optional and not mandatory and left it to the jury to decide whether to apply that caution. It is for the trial judge to decide whether a "Vetrovec" caution should be given. I think a "Vetrovec" caution was mandatory insofar as Hansen was concerned. The trial judge erred in leaving it to the jury to decide whether to proceed with caution in considering Hansen's evidence.

[82] The trial judge further depreciated the value to the defence of even the optional caution he gave to the jury by suggesting that Hansen's status as a "disreputable person", and hence a witness whose evidence should be viewed with caution, may have somehow evaporated in the four years between the robbery and Hansen's testimony. The trial judge was wrong to suggest that Hansen's status as a disreputable person was in the past tense and that the events between the robbery and his testimony could diminish the need to proceed with caution in considering his evidence. The passage of time had no effect on the reasons underlying the need for that caution. Hansen had implicated the appellant in a statement at a time when it was very much in his interest to appear to be fully co-operating with the police. The appearance of co-operation necessitated that he identify the second robber. Hansen also believed that any deviation from his statement could result in a criminal charge against him. The passage of four years between the robbery and Hansen's testimony did nothing to diminish the strong self-interest Hansen had in maintaining the position he had taken in his initial statement to the police. By suggesting otherwise, the trial judge obscured the reason underlying the need to treat Hansen's evidence with caution and improperly invited the jury to conclude that the passage of time could somehow eliminate the need for that caution.

[83] Teresa Vagadia was the appellant's girlfriend from 1992 until 1996. According to her, their relationship was an abusive one and the appellant assaulted her on many occasions. Her parents did not like the appellant and eventually would have nothing to do with her while she was living with the appellant. Ms. Vagadia said that when she was living with the appellant she was isolated and under his control.

[84] Ms. Vagadia testified that shortly after the appellant was arrested on these charges, he asked her to provide a false alibi for him. She went to the police by herself and gave a statement indicating that the appellant was with her at the time of the robbery. According to her, she made the statement to the police because she was afraid of the appellant. She provided a false alibi at the appellant's bail hearing, while he was in custody, and again at his first trial. Ms. Vagadia also acknowledged on cross-examination that she had lied to the police and in court in other proceedings at the request of the appellant while they were living together.

[85] Ms. Vagadia testified that when the appellant went to jail in 1996, she seized the opportunity to start a new life. She went back to her parents, eventually met someone, and married him in February 1998. In that same month, she received a subpoena from the police requiring her to testify at the second trial. She was no longer afraid of the appellant and she had the support of her new husband and her parents. Her hatred of the appellant was evident. She decided to go to the police and tell them that she had committed perjury. When she did so, the police told her that she could be in serious trouble for committing perjury and then asked her to provide a videotaped statement to them. She gave the police a statement describing the appellant's involvement in the robbery and admitting her prior perjury. Ms. Vagadia was never charged with perjury.

[86] The trial judge told the jury that the optional caution he had given them in respect of Mr. Hansen's evidence also applied to the evidence of Ms. Vagadia. He then proceeded to come close to making a virtue out of Ms. Vagadia's numerous prior acts of perjury saying:

For example, you heard [Ms. Vagadia] quite clearly and frankly state that in her life as Mr. Harriott's girlfriend and lover, she was a person who was prepared, having been given up by her family, under oath on other occasions to have been untruthful in order, as she said, to protect Mr. Harriott in his difficulties with the criminal justice system. . . .

(Emphasis added)

[87] In my view, where a crucial witness for the Crown has committed perjury on several previous occasions, it is essential that the trial judge tell the jury in the clearest terms that it is dangerous to act on the unconfirmed evidence of that witness: R. v. Binet, 1953 69 (SCC), [1954] S.C.R. 52, 17 C.R. 361; R. v. Rosenberg (1968), 1968 247 (ON CA), [1969] 2 O.R. 54, 5 C.R.N.S. 285 (C.A.), leave to appeal to S.C.C. refused, [1969] 2 O.R. 60n; R. v. Crosby (1994), 1994 7592 (NS CA), 88 C.C.C. (3d) 353 at pp. 367-69, 130 N.S.R. (2d) 61 (C.A.), revd on a different issue, 1995 107 (SCC), [1995] 2 S.C.R. 912, 98 C.C.C. (3d) 225. The witness's explanation for the previous perjuries and the reasons why the Crown contends that the witness's present evidence should be believed must, of course, be reviewed with the jury. The trial judge did that. Those explanations and reasons cannot detract from the need for caution, but do provide a basis upon which to accept the witness's evidence having exercised that caution. The trial judge's instructions stressed the excuses offered for the witness's perjury, but did not provide a clear caution with respect to accepting her evidence in the light of her perjury.

V

[88] Counsel for the appellant at trial (not Mr. Hicks) raised several objections to the charge. None touched on the instruction with respect to alibi or the adequacy of the "Vetrovec" warning. For me, the absence of any objection on these issues is the most troublesome aspect of this appeal. The failure to object at trial is not a bar to raising an objection to a charge to the jury on appeal. The absence of any objection will, however, be an important consideration. As Lamer C.J.C. said in R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, 113 C.C.C. (3d) 1 at p. 339 S.C.R., p. 19 C.C.C.:

. . . [D]efence counsel's failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.

[89] Arguments raised for the first time on appeal should be viewed with suspicion. Quite frankly, many arguments that are made for the first time on appeal are not made at trial because counsel quite reasonably views them as inconsequential to the result at trial. They emerge on appeal because they are seen as having more attraction in the rarefied atmosphere of the appellate court.

[90] The significance on appeal of the failure to have raised the objection at trial will depend in large part on the nature of the objection. Silence at trial will be particularly damaging on appeal if it is alleged on appeal that the trial judge erred in the exercise of a discretion or failed to adequately put some aspect of the defence to the jury: R. v. Brooks, supra, per Bastarache J. at pp. 210-12; R. v. Mullins- Johnson (1996), 1996 1214 (ON CA), 31 O.R. (3d) 660, 112 C.C.C. (3d) 117 at p. 123 (C.A.), affd 1998 831 (SCC), [1998] 1 S.C.R. 977, 124 C.C.C. (3d) 381. Where, however, the alleged errors relate to misdirection or non-direction on important legal principles, the failure to object at trial will have much less significance in determining the merits of that ground of appeal: R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, 59 C.C.C. (3d) 321, per Cory J. at pp. 1319-20 S.C.R.; R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, 87 C.C.C. (3d) 289, at pp. 142-43 S.C.R., p. 299 C.C.C. I f a trial judge gave the jury the wrong law on a central feature of the case, it cannot matter that he or she did so with the acquiescence or even the support of counsel for an accused. [See Note 2 at end of document]

[91] The errors I have identified in the jury instructions, with one exception (the review of the alibi evidence), fall into the category of errors relating to legal principles. The errors concern principles that were central to the two-pronged defence put forward by the appellant. Trial counsel's failure to object is unfortunate but, in my view, does not diminish the force of the arguments made on appeal.

[92] I would allow the appeal, quash the convictions and direct a new trial.

Appeal dismissed.

Notes

Note 1: The Crown led evidence that the drive took some 10 minutes on a Sunday morning. The robbery occurred on a weekday at about 9:00 a.m.

Note 2: The Crown may still seek refuge in the curative proviso. Counsel's failure to object will have relevance to the harmless error analysis.