DATE: 20020925 DOCKET: C33487

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – G.H. (Appellant)

BEFORE: O’CONNOR A.C.J.O., MACPHERSON AND ARMSTRONG JJ.A.

COUNSEL: Michael W. Lacy and Jennifer Gleitman, for the appellant Amy Alyea, for the respondent

HEARD: September 16, 2002

On appeal from the finding of guilt on June 23, 1999 and the disposition imposed on October 13, 199 by Justice Heather L. Katarynych of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant, G.H., and C.K.N., both young persons within the meaning of the Young Offenders’ Act, R.S.C. 1985, c. Y-I, were charged with seven counts of extortion. The counts related to two alleged incidents, one in a restaurant and the other in a high school, where the two were alleged to have obtained money from several other young people by threatening violence.

[2] At the start of the trial, a voir dire was held to determine the admissibility of statements made by both accused while in police custody. At the conclusion of the voir dire, counsel for Mr. C.K.N. conceded the voluntariness of his client’s statements. The trial judge then ruled that the statements made by the appellant had been made voluntarily and were admissible at trial. Mr. C.K.N. then pleaded guilty to four counts of extortion, two counts of assault and one count each of uttering death threats and failing to comply with an undertaking. He was sentenced to eight months of pre-trial custody and 18 months probation.

[3] The appellant’s trial proceeded. He was convicted of seven counts of extortion. The trial judge imposed a sentence of eight months of secure custody, followed by two months of open custody and 12 months probation.

[4] The appellant appeals from his conviction, seeks leave to appeal his sentence and, if leave is granted, appeals from the sentence imposed.

A. Conviction appeal

(1) Unfair trial/apprehension of bias

[5] The appellant submits that the manner in which his trial proceeded undermined the appearance of fairness in the trial. There are two prongs to this argument.

[6] First, the appellant submits that the trial judge should not have continued to preside over his trial after finding him to be an “incredible” witness during the voir dire dealing with the voluntariness of the statements. We disagree. Trial judges are constantly called upon to assess credibility in making rulings on pre-trial motions and voir dires during the trial. It is a necessary and accepted part of the judicial role and of the administration of justice that those conclusions will not impermissibly flow through to the trial proper. A trial judge’s assessment of the credibility of an accused during the trial will depend on what the accused says during his or her testimony, that is if the accused chooses to testify.

[7] Second, the appellant contends that once the trial judge chose to accept Mr. C.K.N.’s guilty pleas and heard the Crown’s read-in of the facts supporting the pleas, which implicated both Mr. C.K.N. and the appellant, she should have declined to continue presiding over the appellant’s trial.

[8] There is some merit to this submission. Once C.K.N. decided to plead guilty, and if the read-in of the facts supporting the plea would implicate the appellant, then if the trial judge decided, appropriately in our view, to continue to preside at this trial, the better course might have been for her to refer the co-accused’s plea and sentencing to another judge: see, for example, R. v. Pheasant, [2000] O.J. No. 4817 (C.J.) at paras. 3-4. However, we cannot say that the trial judge’s failure to follow this practice in this case (trial counsel did not suggest it) creates a reasonable apprehension of bias. At the conclusion of the trial, the trial judge gave extensive reasons for finding the appellant guilty. She did not refer to the evidence read-in at Mr. C.K.N.’s trial. We think that a fair inference is that she removed that evidence from her mind as she was required to do when she continued to preside at the appellant’s trial.

(2) Voluntariness of appellant’s statement

[9] The appellant contends that the trial judge erred by ruling that the appellant’s statement while in police custody after his arrest was voluntary. He contends that the statement was not videotaped, that a brief passage in the trial judge’s ruling indicates that she improperly placed the evidentiary burden on the appellant to establish that his statement was not voluntary, and that she did not deal in her reasons with conflicting evidence from the voir dire hearing.

[10] We disagree. The statement from the appellant, taken in December 1997, was audio recorded and followed immediately after the appellant arrived unannounced at the police station and told the duty officer that he had participated in two incidents of extortion. Moreover, the trial judge’s comprehensive ruling, read as a whole, clearly establishes that she applied the correct standard of proof. Finally, there is no obligation on a trial judge to deal with every aspect of the evidence in a ruling.

(3) Alibi evidence

[11] The appellant’s alibi was disclosed during the trial, following the trial judge’s ruling that the appellant’s statement to the police was admissible and after the appellant had retained new counsel. Following the disclosure of the alibi, the trial was adjourned in order to allow the police an opportunity to investigate.

[12] The appellant contends that the trial judge impermissibly linked the issues of the timing of the alibi and its weight: see R. v. Parrington (1985), 20 C.C.C. (3d) 184 at 187‑88 (Ont. C.A.).

[13] We do not think that the trial judge committed this error. Although she referred in her reasons to “a very, very late arriving alibi”, this reference was descriptive of the timing of the alibi. It does not, as we read her reasons, form part of her extensive explanation for rejecting the alibi evidence.

(4) Credibility findings at trial

[14] The appellant contends that the trial judge applied the wrong burden of proof evaluating the evidence adduced during the trial. He submits that although she explicitly acknowledged and purported to apply R. v. W. (D.), [1991] 1 S.C.R. 742, she misstated the second branch of the W.(D.) test by employing the wording “could reasonably be true” rather than “left in reasonable doubt by it”.

[15] We agree that the trial judge erred in the words she chose to state her understanding of the second branch of W.(D.): see R. v. Phillips (2001), 154 C.C.C. (3d) 345 at 357-8 (Ont. C.A.). However, in the circumstances of this case, it is clear that the trial judge completely rejected the appellant’s testimony and found the Crown case overwhelming. Accordingly, we do not regard her slight slip in formulation as fatal.

(5) Unreasonable verdict

[16] The appellant submits that the trial judge misapprehended the evidence in three crucial respects which rendered her verdict unreasonable.

[17] The appellant contends that the trial judge erred in concluding that B. W. was a victim of the restaurant extortion and in concluding that the appellant committed a second extortion of him in the high school two months later.

[18] Although the trial judge made these errors in her oral reasons, she immediately corrected them when counsel pointed out that one of the victims at the restaurant was M. W., not B. W.

[19] The appellant also contends that the trial judge erred in her treatment of the identification evidence at trial. We disagree. It was open on the facts of the case for the trial judge to conclude that when three of the victims referred to one of the extortionists, they were referring to the appellant.

B. Sentence appeal

[20] The appellant submits that both the length and form of the sentence imposed by the trial judge were excessive. We disagree. The appellant committed serious, even terrifying, offences against young people on two separate occasions. The duration of 10 months strikes us as fit, as does the requirement that the sentence be a custodial one.

C. Disposition

[21] The appeal from conviction is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.

“Dennis O’Connor A.C.J.O.”

“J. C. MacPherson J.A.”

“Robert P. Armstrong J.A.”