DATE: 20020424 DOCKET: C35278
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. KEITH AUDLEY BABB (Appellant)
BEFORE:
DOHERTY, CHARRON and ARMSTRONG JJ.A.
COUNSEL:
T. Kranjc
for the appellant
David Lepofsky
for the respondent
HEARD:
April 12, 2002
RELEASED ORALLY:
April 12, 2002
On appeal from the conviction entered by Justice C.M. Speyer, sitting with a jury, dated December 2, 1999 and the sentence imposed dated February 14, 2000.
E N D O R S E M E N T
[1] The appellant was convicted of robbery and kidnapping and received a sentence of 5 years. The Crown alleged that the appellant and two unknown persons stopped the complainant while he was driving his vehicle on the highway. They forced the complainant to take them to the complainant’s store where they required him to open the safe. The appellant and his two cohorts stole about $12,000 and left the complainant in a freezer. He escaped about thirty minutes later and called the police.
[2] The position of the defence was that the complainant was a willing participant in the entire scheme and that insurance fraud was the motive. The appellant did not testify. The evidentiary basis for the defence position came from a statement the appellant made to the police. The Crown put that statement into evidence as part of its case.
[3] This was truly a one issue case. Was the complainant a victim of a kidnapping and robbery or a party to a scheme to defraud his insurer?
The Conviction Appeal
[4] We reject the submission that the trial judge did not make it clear that if the appellant’s statement left the jury with a reasonable doubt they must acquit the appellant. The trial judge gave a thorough and powerful reasonable doubt instruction. The significance of the appellant’s statement was readily apparent and the trial judge reviewed the statement in the course of his evidence. In our view, the jury would clearly have understood that if on all of the evidence, including the statement, they were left with a reasonable doubt as to whether the complainant was a willing participant they must acquit. No more was required.
[5] It was open to the trial judge to instruct the jury on motive. The instruction was correct in law and fairly put both the Crown and defence positions with respect to the question of the appellant’s motive. No objection was taken to the charge, and in our view the complaints raised on appeal cannot be sustained. It was not incumbent on the trial judge to refer to each and every piece of evidence which might have a connection to a motive.
[6] It was also argued on appeal that the trial judge should have expressly dealt with the complainant’s potential motive for testifying falsely. As we understand it, that motive was that the complainant was involved in a conspiracy to defraud the insurer. There was no evidence of that motive apart from the appellant’s statement and even on that evidence the financial benefit to the complainant who was not the insured or an owner of the store was far from apparent. The trial judge was not asked to deal with the complainant’s motive as a separate feature of the case. We see no error in his failure to do so.
[7] The appellant argues that the trial judge should have given a “Vetrovec warning”. We think it would have been wrong for the trial judge to give such a warning. Unlike the case of R. v. Frankland (1985), 1985 ONCA 3561, 23 C.C.C. (3d) 385 (Ont. C.A.), relied on by the appellant, this is not a case where the complainant was an admitted perjurer. The complainant’s credibility was challenged, as the credibility of complainants almost inevitably is challenged, but in our view a mere challenge to the credibility of a complainant does not give rise to the need for a “Vetrovec” warning. We do not see how this witness could fit within the “unsavoury witness” category based on the evidence heard by this trial judge. No “Vetrovec” warning was requested at trial.
[8] The conviction appeal is dismissed.
Sentence Appeal
[9] It is not argued that the trial judge made an error in principle. It is, however, argued that the sentence of 5 years was manifestly too long having regard to the appellant’s age (45), the absence of any criminal record and his work history. We are not satisfied that the sentence is manifestly unreasonable. A significant penitentiary term was warranted, even for a first offender. The trial judge was entitled to impose the sentence he did and we cannot interfere with the sentence. Leave to appeal sentence is granted but the sentence appeal is dismissed.
“Doherty J.A.”
“Louise Charron J.A.”
“Robert P. Armstrong J.A.”