DATE: 20020909 DOCKET: C35445

COURT OF APPEAL FOR ONTARIO

LABROSSE, WEILER and CHARRON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

RICHARD STEWART

Appellant

Joan Barrett, for the respondent

Stephen F. Gehl, for the appellant

Heard: September 4, 2002

Released orally: September 4, 2002

On appeal from the conviction imposed by Justice Donald J. Taliano of the Superior Court of Justice dated July 14, 2000 and from the sentence imposed by Justice Taliano dated September 1, 2000.

BY THE COURT:

Introduction

[1] The appellant appeals his conviction and sentence of eight years on charges of assault causing bodily harm, robbery, extortion, forcible confinement, aggravated assault and theft over.

[2] The charges arose out of an incident when the victim was viciously beaten and robbed of his truck and money by two persons he met that night. The main issue at trial was the identity of the perpetrator. The evidence as to identity consisted of eye witness identification placing the appellant with the victim on the night in question and the identification evidence of the victim. Documentary evidence, in the form of a tape from a surveillance camera at an automatic teller machine, showed the appellant withdrawing money from the victim’s bank account using the victim's bank card and personal identification number on the night in question. The appellant denied any knowledge or involvement in the attack on the victim. He called alibi evidence to support his position that he could not have assaulted the victim. He also stated that the appellant asked him to withdraw money using his bank card as a favour to him.

The conviction appeal

[3] With respect to conviction, the appellant raises three issues which we propose to deal with each in turn.

1) The trial judge’s ruling on the Corbett application

[4] The appellant submits that the trial judge erred in rejecting the Corbett application to exclude the appellant’s six prior convictions for common assault. The trial judge refused to exclude the record, in part, on the basis of the position taken by the defence that a Crown witness, Jason Campbell, had committed the crimes on the victim and this witness had a propensity for violence as evidenced by his criminal record. The trial judge ruled that, in these circumstances, to exclude the record of the appellant’s assaults would leave the jury with a false impression.

[5] In our opinion, the trial judge did not err in principle in the exercise of his discretion in refusing the Corbett application. Similarly, the trial judge properly instructed the jury with respect to the appellant’s criminal record and its limited use.

2) The admission of Heather Broddy’s evidence

[6] The appellant submits that the evidence of Ms. Broddy as to the demeanour of the child witness violates the rules against oath helping.

[7] We note that defence counsel did not object to this witness being called or to her evidence. She did not give evidence as to the content of the conversation between the child and the police officer. Given the inference from defence counsel’s questions that the police may have implanted the suggestion that the appellant was the perpetrator of the crimes in the child’s mind, we are of the opinion that the evidence was admissible. Further, the evidence was properly admitted to establish the circumstances in which the child had identified the appellant as the perpetrator.

3) The interruption of defence counsel’s closing address

[8] The appellant was content to rely on his factum with respect to this ground of appeal. Although the Crown interrupted once during the closing address of the defence when he thought that defence counsel was misstating the evidence, he apologized immediately. Following the interruption, the appellant did not apply for a mistrial. Rather, he requested, and received, an instruction to the jury by the trial judge that the interruption was wrong and that there had been no misstatement. There is no merit to this ground of appeal.

[9] The appeal against conviction is dismissed.

The sentence appeal

[10] With respect to sentence, the appellant’s sentence is effectively equivalent to nine years and nine months. The appellant submits that the disparity between his sentence and that of the co-accused, Tim Lindsay, who received a sentence of three years in addition to fifteen months’ pre-trial custody is an error in principle. Mr. Lindsay pled guilty in separate proceedings to a lesser number of charges. We do not agree that the sentence is an error in principle. The appellant instigated the assault. Unlike Mr. Lindsay, he was on probation at the time of the offences and on bail. Allowing double credit for pre-trial custody in these circumstances was not required. The rule against disparity in sentencing does not require equal sentences but that the sentence be understandable. In our opinion, the disparity in sentence is understandable.

[11] The appeal as to sentence is dismissed.

Released: SEP 09 2002 KMW

Signed: “J.-M. Labrosse J.A.”

“Karen M. Weiler J.A.”

“Louise Charron J.A.”