DATE: 20050706
DOCKET: C41001
COURT OF APPEAL FOR ONTARIO
WEILER, SIMMONS and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Christopher D. Hicks and Catriona Verner
for the appellant
(Respondent)
- and -
WILLIAM VICKERSON
Michal Fairburn for the respondent
(Appellant)
Heard: June 15, 2005
On appeal from the conviction entered on April 3, 2003, and the sentence imposed April 4, 2003, by Justice Rose Boyko of the Superior Court of Justice, sitting alone.
WEILER J.A.:
OVERVIEW
[1] The appellant was convicted of two counts of aggravated assault and two counts of assault with a weapon and was sentenced to six years imprisonment. He appeals his conviction and, if leave is granted, also appeals his sentence.
[2] As all but one of the grounds of appeal relating to conviction concern the trial judge’s reasoning process, I will discuss the reasons and the relevant evidence pertinent to each ground of appeal as I deal with that ground. Before doing so, a brief outline of the facts will be helpful.
[3] In the early hours of June 25, 2000, Donald Martin and Aaryn Sheahan, the two victims of the assaults, left the Town Pump bar in Keswick. They were intoxicated. On leaving the bar, they encountered a group of women outside. They exchanged words and one woman, Lisa Heaton, slapped Sheahan, who pushed her in return. Heaton said she would call her boyfriend and went to a payphone. (Heaton was either the appellant William Vickerson’s ex-girlfriend or girlfriend at the time.) Martin and Sheahan left. Shortly thereafter, someone came up behind them. Martin testified that he was hit in the face, possibly with a metal bar from a weightlifting set. Sheahan did not remember anything between speaking with the women and waking up in hospital. The key issue at trial was the identification of the perpetrator of the assaults.
ISSUES
[4] The issues on this appeal are:
The trial judge’s treatment of Vickerson’s alibi;
whether the trial judge failed to assess the reliability of Martin’s identification evidence and Karen Bilyj’s confession evidence;
whether the trial judge applied a stricter standard of proof to the appellant’s evidence than to the evidence of witnesses for the Crown;
whether the trial judge erred in admitting the reply evidence about McKim; and
whether the trial judge erred in principle with respect to sentence.
1. The trial judge’s treatment of Vickerson’s alibi
[5] Vickerson denied committing the assaults and testified that he was at the cottage of a friend, Marcel Bevand, on the third weekend in June when the assault was committed. In support of his alibi, the appellant called a number of witnesses.
[6] Prior to finding that the alibi witnesses were not credible and reliable, the trial judge set out the background to the assaults, stated the issue, and reviewed the evidence. At para. 125 of her reasons she stated:
The alibi witnesses for the defendant each have criminal records, several with extensive criminal records. The defendant’s father, although without a criminal record, was not at the cottage and couldn’t attest to where his son was after he left the house. The alibi witnesses provided no statements to the police at the time the defendant was charged and, at trial, all except for McKim, could only assert they were certain that it was the weekend of June 23rd, 2000 when they were at the cottage with the defendant, without being able to point to any independent factor as to why they would know that it was this precise weekend. McKim tied his recollection of events to a missed birthday party for his cousin that weekend but this evidence fizzled out when he couldn’t spell his cousin’s name, didn’t know his address or year of birth and the investigating officer couldn’t find a telephone number for such a person in the telephone directory other than an alias for a Catherine McKim [emphasis added].
Vickerson raises several questions about the trial judge’s treatment of the alibi evidence, including whether the trial judge misapprehended Vickerson’s responsibility to give notice of his alibi, whether the trial judge misapprehended the alibi witnesses’ evidence, and whether the trial judge required Vickerson to establish his alibi.
Did the trial judge misapprehend Vickerson’s responsibility to give notice of his alibi?
[7] The appellant submits that the trial judge drew a negative inference against him because the alibi witnesses provided no statements to the police at the time the defendant was charged although the alibi witnesses’ names were disclosed sufficiently in advance for his alibi to be investigated. The governing principle is that where the police have adequate time to investigate an alibi then the time of disclosure is no longer a factor: see R. v. Parrington (1985), 9 O.A.C. 76, 20 C.C.C. (3d) 184 (C.A.) at 187-88. Conversely, where an alibi defence is not disclosed in sufficient time to permit investigation, a negative inference may be drawn: R. v. Cleghorn, [1995] 3 S.C.R. 175, 100 C.C.C. (3d) 393 at 397, 404. The failure to disclose is a factor that affects the weight to be given to the alibi evidence.
[8] The Crown submits that in addition to timely disclosure, the disclosure provided must be meaningful in the sense that the police must be able to contact the witnesses. The Crown submits that meaningful disclosure in respect of some witnesses was not provided here and the trial judge was entitled to take that into consideration in weighing their evidence. The Crown further submits that the trial judge did not draw an adverse inference against the appellant’s alibi witnesses based on the timing of disclosure of their alibi. Rather, her comment was made in the course of assessing the reliability of their evidence.
[9] The appellant’s trial took place in February 2003. In her reasons for judgment, the trial judge fairly reviewed the evidence of the alibi witnesses and the evidence concerning the timing and meaningfulness of disclosure of their evidence at paras. 24-44 of her reasons. Although Vickerson gave more names to the police, I will discuss only the police investigation of the alibi witnesses who testified at trial. Vickerson called Bevand, Darryl O’Grady, Darrell Coulton, and Justin McKim. The Crown called Peter Bilyj, who had initially been named as a defence alibi witness.
[10] In July 2000, the Crown asked the police to investigate the alibi witnesses. In mid-September 2000, Detective Wiche tried unsuccessfully to contact Bevand three times. Seven months later, Wiche arranged to meet Bevand at his residence. Bevand testified he responded to a call from Wiche to provide an alibi statement and attended at the police station. Upon learning that Bevand was waiting for him at the police station, Wiche returned to the station. According to Bevand, when Wiche didn’t arrive after a half hour, he went home and Wiche never called him back.
[11] O’Grady’s parents told the police that they did not know where he was. Coulton’s telephone number was not in service. The trial judge also noted at para. 37 of her reasons that Coulton testified he was sure he wrote out a statement that he gave to Vickerson, but that he had not told anyone else about his evidence and that the police did not contact him.
[12] Wiche was unable to locate anyone with McKim’s name. It appears he was given the wrong first name for McKim and no telephone number. About a year before trial, McKim’s name was no longer on the defence list of alibi witnesses given to the Crown.
[13] Peter Bilyj, another witness whom the appellant said was with him at the cottage on the June 23, 2000, weekend, refused to cooperate and said he would provide a statement to Vickerson’s lawyer. At trial, he denied being at Bevand’s cottage on the weekend in question and testified for the Crown.
[14] After the appellant’s preliminary inquiry, Wiche was asked to make a further attempt to contact O’Grady, Bevand, and Bilyj as well as another witness named Johnston. He declined, taking the position they knew how to get in touch with him. By this time, one and a half years had passed since the assaults.
[15] Against this background, the trial judge began to assess the credibility and reliability of the evidence given by the alibi witnesses. She first observed that they all had criminal records. She then commented about the fact they did not give statements at the time the appellant was charged. I take her comment to mean that no independent record of their recollection was made contemporaneous with the appellant’s arrest when the events would have been fresher in their minds and that they were testifying three years after the events in question. The comment she made was tied to her observation that the witnesses had no anchor that would make their recollection of the date more reliable. Read in the context of her reasons as a whole, the trial judge did not misapprehend the notice responsibilities of the appellant nor did she draw an adverse inference against him.
Did the trial judge misapprehend the evidence of the alibi witnesses?
[16] The trial judge found that the alibi witnesses were unable to point to any independent factor linking their recollection to the June 23 weekend. The appellant submits that her finding in this regard was a misapprehension of the evidence in the sense that she failed to give proper effect to the evidence: see R. v. Morrissey (1995), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 at 218-21.
[17] The trial judge summarized the evidence of Bevand at paras. 28-30 of her reasons. She noted that Bevand testified that he was at his cottage with Vickerson, Bilyj, Coutts, Johnston, O’Grady, Coulton, and McKim. He testified that he recalled the date of the weekend because he was shot one month later on July 22. Although Bevand would certainly recall the date he was shot, this was not a link to the particular weekend at his cottage in June. In cross-examination, an exchange took place that highlights this lack of certainty:
Q. How do you know it was a month and wasn’t five weeks or three weeks?
A. I’m not positive, but I’m pretty sure
Q. But, it could very well have been five weeks before you got shot, right?
A. Possibly, but--
(the sentence was never finished.)
[18] O’Grady also testified that he recalled the particular weekend because of the date Bevand was shot. O’Grady had testified in-chief that they generally went to the Bevand cottage for the May 24 weekend, the June 23 weekend, and a weekend in August when they would take their girlfriends. He could not recall what date in August he had gone to Bevand’s cottage but was certain he had gone in August. In re-examination, he said they usually planned a June holiday but he then said they had gone up “Usually in the third week of July which it usually is the last three years we’ve done it, and then usually in the long weekend in August”. The trial judge also noted that in his examination-in-chief, O’Grady denied having a criminal record. When he was cross-examined, O’Grady admitted he had been charged with property offences, as well as theft and forgery of credit cards. Although found guilty of these offences, he testified he thought he had been discharged and would not have a criminal record.
[19] Coulton testified that he was very certain that he was at the Bevand cottage with Vickerson on the June 24 weekend. When asked why he was so certain about that, he replied, “Because Marcel [Bevand] called me and told me that he was charged for the weekend that we went away.” He then agreed that his recollection was based on what Bevand told him and, in answer to the question whether he had any recollection himself, answered, “Well, not really.” The trial judge did not misapprehend the evidence of the alibi witnesses.
[20] The appellant further submits that the trial judge misapprehended the evidence of Gordon Vickerson. Gordon Vickerson, the appellant’s father, testified that his son was living with him at the time of the events in question. On June 23, 2000, he opened the shed so his son could retrieve his fishing rod. His son then left for the weekend with Kevin Coutts in a grey car to go to the Bevand cottage. The trial judge correctly summarized Gordon Vickerson’s evidence at para. 25 of her reasons. At para. 26 of her reasons she indicated that Gordon Vickerson said he was certain his son was away on the third weekend in June because he turned himself in to the police about twelve days later. He looked at a calendar and worked backwards from the time of his arrest. However, at one point he allowed for the possibility that his son could have gone to the cottage on the June 16 weekend when it was put to him that if his son turned himself in to the police in early July instead of mid-July, he might have gone to the cottage in mid-June. Although he again asserted he was positive the date was June 23, he agreed that his estimate after the return from the cottage to the date his son turned himself in could have been fifteen days. After reviewing his evidence, the trial judge concluded that even if Gordon Vickerson was correct about the date he opened the shed for his son, he was not in a position to know where his son was on the night in question. The trial judge did not misapprehend the evidence of Gordon Vickerson.
[21] Finally, Vickerson claims that the trial judge misapprehended the evidence by finding that Vickerson was Heaton’s boyfriend as opposed to her former boyfriend. Peter Bilyj testified that Vickerson and Heaton were dating at the time of the attack. His mother, Karen Bilyj, testified that the appellant was living at her house at the time and that he had split up from Heaton. Heaton came to talk to the appellant and “it didn’t turn out very nice in my parking lot a couple of times.” Karen Bilyj further testified that although Heaton was not staying at her house at the time of the assaults, within a few days of a television broadcast in which the police appealed for assistance regarding information as to who had committed the assaults, Heaton began sleeping there every night although she did not move in any clothes.
[22] The trial judge understood the appellant’s position was that he was no longer dating Heaton on June 23, 2000. She referred to his evidence on this point and, at para. 144 of her reasons, rejected his evidence. She was entitled to do so. The trial judge did not misapprehend the evidence.
Did the trial judge require Vickerson to “establish” his alibi?
[23] The appellant acknowledges that, “The trial judge alluded to the principle that an alibi need not be believed to result in an acquittal during her discussion of general principles”. He submits, however, that she failed to apply this principle during her actual analysis of the appellant’s alibi and relies on paras. 126 to 128 of the judgment in support of his position, which state:
I reject the defendant’s evidence that he was at the cottage on the weekend in question and I reject the rest of his alibi evidence from his friends that it was precisely on this weekend that they were all together at the Bevand cottage near Parry Sound. Although it is possible that at some point in time some or all of the alibi witnesses may have attended at the Bevand family cottage, the evidence does not establish that all of these witnesses were at the Bevand cottage on the June 23, 2000 weekend as they had testified was the case.
I find it significant that Vickerson’s evidence was inconsistent with the evidence of Bevand, for example, on the point as to when he might have visited the Bevand cottage at any other time; he stated he was there once in the winter, whereas Bevand said it was impossible to get to the cottage in the winter.
Bilyj said he was not at the cottage and his mother supports his evidence. Even the defendant acknowledged he was very close to Bilyj at that time and it is plausible that they were together at the Bilyj residence as Bilyj and his mother testified. This would accord with the evidence of Martin that Heaton placed a telephone call to her boyfriend and Bilyj’s evidence that Vickerson received a telephone call, after which they went in search of the two males who had an altercation with Heaton.
[24] It is trite law that a trial judge’s reasons must be read as a whole. At the beginning of her reasons, in para. 10, she stated:
At issue in this trial is whether 1) the evidence of the defendant and his alibi witnesses should be believed that he was elsewhere at the time of the assault; or whether 2) the defendant’s evidence or evidence favourable to his case raises a reasonable doubt as to his identity as the perpetrator, or whether 3) on the whole of the evidence, the Crown has established beyond a reasonable doubt that the defendant was the person who assaulted the two victims.
[25] At para. 144 of her reasons, the trial judge summarized her findings about the appellant’s evidence. She rejected his evidence that he was elsewhere on the night in question, rejected his evidence that he was not living at the Bilyj residence, and rejected his account that he was being sarcastic when he confessed to Mrs. Bilyj.
[26] At the end of her reasons in paras. 148 and 149, the trial judge performed a W.(D.) analysis in which she rejected the evidence of the appellant and stated that she did not find that the alibi evidence was established or that it raised “a reasonable doubt that the defendant was in Keswick at the time of the incident.” She then found that the Crown had proved beyond a reasonable doubt that the defendant was in Keswick and had beaten the complainants as charged.
[27] The trial judge’s finding that the alibi had not been established was used when she was deciding whether she believed the appellant’s version of events. Thereafter she considered whether his evidence raised a reasonable doubt and concluded it did not. Finally, she found that the Crown had proven its case beyond a reasonable doubt. Reading the trial judge’s reasons as a whole, it is clear that her use of the term “established” was linked to whether she believed the evidence of the appellant. She did not and rejected it. That was not, however, the end of her reasons. She did not overlook consideration of whether the evidence raised a reasonable doubt and did not misapply the burden of proof.
2. Did the trial judge fail to assess the reliability of Martin’s identification evidence and Karen Bilyj’s confession evidence?
[28] In assessing the evidence of a witness, a judge must consider the witness’s reliability as well as credibility: the integrity of the witness relates to the witness’s credibility and is of little assistance in assessing the reliability of the witness’s evidence: see R. v. Norman (1993), 16 O.R. (3d) 295, 87 C.C.C. (3d) 153 (C.A.) at 172 and Morrissey, supra, at 205. A failure to address contradictions in the evidence of an important witness indicates that a trial judge has failed to address the reliability of that witness’s evidence: see R. v. Gostick (1999), 121 O.A.C. 355, 137 C.C.C. (3d) 53. This is particularly true when the evidence of that witness bears the full weight of the case for the Crown: see R. v. Quercia (1990), 75 O.R. (2d) 463, 60 C.C.C. (3d) 380. Other errors relating to assessing reliability include the failure of a trial judge to consider the possibility of collusion between the witnesses as in R. v. Burke, [1996] 1 S.C.R. 474, 105 C.C.C. (3d) 205 or the failure to consider whether the witness’s identification of the accused was tainted as in R. v. Sutton, [1970] 2 O.R. 358, [1970] 3 C.C.C. 152 (C.A.). With this general background in mind, I propose to deal with the appellant’s submissions on this issue.
Martin’s Identification Evidence
[29] Martin identified two people in the three photo line-ups he was shown: Vickerson and Heaton.
[30] The appellant submits that the trial judge focused solely on the credibility of Martin’s identification evidence and not its reliability. The appellant submits that the trial judge failed to consider five deficiencies in Martin’s evidence that affected his reliability:
Martin failed to give a description of his attacker when first interviewed by police;
He identified the appellant’s photo from the line‑up conducted by Wiche after hearing that the appellant was his attacker;
On Wiche’s version of events, Martin could only say that he was “pretty sure” the appellant’s picture matched his attacker;
Martin was drunk and had a poor memory of many of the details of that evening; and
Martin’s evidence at trial strongly suggested that he was using his observations of the appellant at court proceedings as confirmation of his prior identification.
[31] I would disagree. The trial judge noted that the defence position was that Martin’s identification evidence was not reliable at para. 12 of her reasons.
[32] She found at para. 137 that although Martin didn’t offer any description of his assailant, “that doesn’t mean he was unable to recognize a photograph. It was dark that night, after midnight, but Martin testified that his assailant came very close to him.”
[33] The trial judge was aware that the defence challenged Martin’s identification of Vickerson from the photo line-up in part because Martin acknowledged he had been told the person who assaulted him was Vickerson. The trial judge observed that there was no evidence that Martin knew Vickerson prior to viewing the photo line-up and Martin testified that he did not know what Vickerson looked like. She also rejected the defence allegation that the line-up was tainted because after Martin commented that photograph 15 looked familiar, Wiche asked him if the person in the photo was one of the assailants and Martin said he was “pretty sure”. It was open to the trial judge to find that Martin made an untainted positive identification from the photo line-up.
[34] In her judgment, the trial judge noted that Martin was drunk at the time of the assault. She found, however, at para. 137 of her reasons that despite his drunken state Martin was not incoherent and that he “did have some memory of the occasion.”
[35] The trial judge also recounted the various stages of Martin’s evidence at paras. 46-50 of her reasons. When Martin was at the hospital, he said he remembered starting to walk home and Sheahan saying, “here they come”, and that he didn’t remember anything else. At the preliminary inquiry, Martin said he had no recollection of being assaulted. At trial, he said that he recalled that his assailant was Vickerson, who was short and might have looked scruffy with facial hair. He said that Vickerson’s eyes were dark and evil looking. The trial judge did not attach any weight to Martin’s description of the appellant at trial.
[36] The trial judge did not fail to appreciate the frailties in Martin’s identification evidence. She addressed all five aspects of reliability raised by the appellant in her reasons. She did not err by assessing only Martin’s credibility as opposed to his reliability, but rather assessed both.
Reliability of Karen Bilyj’s Confession Evidence
[37] Karen Bilyj was a surprise witness. She was present when her son testified at the appellant’s trial. Karen Bilyj had a conversation with an officer outside the courtroom and he discovered that she had some relevant evidence. Karen Bilyj testified that when she and Vickerson saw a news bulletin on television that indicated he was a suspect he told her the victims’ injuries were not as bad as they appeared.
[38] The appellant did not deny making the statement. He testified that he remembered having a similar conversation with Karen Bilyj but said he was being sarcastic at the time.
[39] Given the appellant’s admission that the conversation took place, the reliability of the comment was not in dispute. Nevertheless, in stating, as she did, at para. 143 of her judgment, that “Mrs. Bilyj provided a context for her testimony that made sense”, the trial judge addressed both reliability and credibility. She saw and heard the witnesses and it was open to her to reject Vickerson’s evidence that he was being sarcastic or had been misinterpreted. I would not give effect to this ground of appeal.
3. Did the trial judge apply a stricter standard of proof to the appellant’s evidence than to the evidence of witnesses for the Crown?
[40] This ground of appeal is partly related to previous grounds of appeal. The appellant submits that the Crown’s evidence was at times evaluated in terms of its probability or plausibility, whereas the defence had to “establish” its defence. In effect, the appellant submits that the trial judge failed to give effect to the presumption of innocence. I have already dealt with the alibi and identification evidence issues and have pointed out how the trial judge correctly applied the burden of proof. I would not give effect to this submission.
[41] The appellant also submits that the trial judge set up Peter Bilyj’s evidence as the measure of truth and proceeded to discredit any evidence that differed from it. Such an error arises when the trial judge fails to consider the evidence as a whole or accepts the evidence of the complainant without first properly assessing it in the context of the other evidence at trial, particularly the evidence of the defence: see e.g. R. v. Gostick, supra, at 58-59; R. v. C.(J.) (2000), 131 O.A.C. 230, 145 C.C.C. (3d) 197 at paras. 18-19; R. v. Owen (2001), 150 O.A.C. 378. Vickerson more generally submits that the trial judge’s reasons for rejecting his evidence are inadequate or that the trial judge failed to properly apply the burden of proof: see e.g. R. v. Maharaj (2004), 186 (C.C.C.) (3d) 247 (Ont. C.A.), leave to appeal to S.C.C. ref’d [2004] S.C.C.A. No. 340; R. v. S.(W.) (1994), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242 (C.A.) at 250.
[42] The trial judge carefully reviewed the evidence as a whole before making her findings of fact. She commented at para. 138 of her reasons that, “Peter Bilyj is hardly a credible or reliable witness” and observed that he had an extensive criminal record. She noted that, at the time he told the police that Vickerson committed the assault, he was facing several outstanding charges some of which had not been resolved at the time he testified. However, she found that Peter Bilyj’s description of how the blows were delivered was consistent with the nature of injuries sustained by the victims and with Martin’s recollection of how he tried to run away until he fell. She also mentioned Bilyj’s evidence that one of the victims was carrying cans of beer that were smashed during the assault. This evidence was confirmed by the police evidence who found one of Martin’s fingerprints on a can of beer. The trial judge found that Peter Bilyj’s comment was unlikely to have come from the police disclosure package, as was a comment he made about a bicycle lock.
[43] The trial judge did not set up Peter Bilyj’s evidence as the measure of truth. She considered whether it was tainted and rejected that suggestion. Her acceptance of Bilyj’s evidence was tied to her finding that there was independent confirmation of his evidence. In accepting Peter Bilyj’s evidence because it was generally confirmed by independent evidence, she gave an explanation for rejecting the evidence of the appellant. Finally, the trial judge’s application of W.(D.) indicates that she did not omit to consider whether, although she rejected the appellant’s evidence, it raised a reasonable doubt.
[44] The appellant further submits that the trial judge’s analysis of the evidence of the Napolitano brothers revealed a similar error in the sense that she set up Peter Bilyj’s evidence as the standard against which to assess their evidence.
[45] The trial judge reviewed Derek Napolitano’s evidence that he lived across the street from where the assault took place, that a woman banged on his door and asked him to call the police and an ambulance because someone was hurt, that instead he first went outside, did not know anyone at the scene, and that the guys who were fighting ran away. One victim who had fallen got up and started to run again. Derek Napolitano ran after him to try and help him but the victim kept running away. He testified that he had seen Vickerson at parties and didn’t see him at the scene. Many other people were in the vicinity, however, and Derek Napolitano could not say he was completely sure that Vickerson was not there. Ryan Napolitano, Derek’s younger brother, also came to the scene and testified that he would have recognized Vickerson if Vickerson had been there but he didn’t see him. The day after the events in question, however, Ryan told the police he was drunk, saw a crowd of eleven or twelve people and did not know any of the people who were fighting.
[46] The trial judge questioned how much Derek or Ryan Napolitano actually saw of the fight given when they arrived at the scene. She accepted Peter Bilyj’s evidence that they came after the second victim had fallen and that Derek Napolitano ran after that victim as he ran away. His evidence fit with Derek Napolitano’s evidence of what he did. The trial judge’s acceptance of Peter Bilyj’s evidence does not mean that she did not give proper consideration to the evidence of the Napolitano brothers. She considered it but, because she concluded they had limited opportunity to observe the fight and the assailants, she rejected it. She did not commit the error alleged.
4. Did the trial judge err in admitting the reply evidence about McKim?
[47] The appellant submits that the trial judge erred in permitting the Crown to lead reply evidence from Wiche, who testified about McKim’s assertion that he remembered being at the cottage with the appellant on the weekend in issue because his mother was upset that he had missed his cousin’s birthday.
[48] The original name provided to the police for this witness was Jess McKim whom the police could not locate. About a year before trial, defence counsel sent a letter to the Crown listing the alibi witnesses he planned to call. That letter did not mention McKim as an alibi witness. According to the Crown, McKim was, therefore, a surprise witness in the sense that the Crown had no opportunity to investigate the alibi evidence he gave in advance of his testimony. In cross-examination, McKim said his cousin had the same last name as his mother’s maiden name but he could not spell the last name and knew only that the cousin lived “[s]omewhere in the city near Don Mills”.
[49] In rebuttal, Wiche testified that he had run the name given by McKim through the York Regional Police computer system and the only last name that had come up with a similar spelling was for a person born in April 1958. He checked the PARIS system to see if the person had a driver’s licence in Ontario and found nothing. He checked the Metro and York region telephone directory and no person with that surname was in the book. He had tried different spellings of the surname without success.
[50] The defence did not object when Wiche was recalled and used the opportunity to question him at large about the investigation he had conducted respecting the alibi witnesses put forward by the defence.
[51] In her reasons for judgment, the trial judge rejected McKim’s alibi evidence and in so doing referred to the fact that he couldn’t spell his cousin’s name and didn’t know his address and “the investigating officer couldn’t find a telephone number for such a person in the telephone directory”. The appellant now complains that Wiche’s rebuttal evidence was unfair because McKim was never asked if he knew his cousin’s telephone number when he was cross-examined.
[52] A trial judge has a discretion to admit evidence in reply that becomes relevant to the prosecution’s case as a result of defence evidence that the Crown could not reasonably be expected to anticipate: R. v. Armstrong (2003), 176 O.A.C. 319, 179 C.C.C. (3d) 37.
[53] The reply evidence called in this case is quite different from that in R. v. Diu (2000), 49 O.R. (3d) 40, 144 C.C.C.(3d) 481 at 502 (C.A.), R. v Krause, [1986] 2 S.C.R. 466, 29 C.C.C. (3d) 385 at 391-92, and R. v. G.(S.G.), [1997] 2 S.C.R. 716, 116 C.C.C. (3d) 193 at 210 on which the appellant relies and in which the reply or rebuttal evidence was ruled improper. In Diu, supra, the appellant’s defence of self-defence was a live issue before the close of the Crown’s case. The Crown reopened its case and called the victim’s parents whose evidence about the victim’s peaceful disposition should have been led by it in-chief. Their evidence was highly prejudicial to the defence. In Krause, supra, the accused testified that the police had harassed and threatened him during their investigation. As the Crown had not introduced the accused’s statements made during their investigation as part of the case in-chief, the Crown was not permitted to call evidence that his statements were false in rebuttal. The rebuttal evidence was strictly collateral. In S.G.G., supra, after the defence had closed its case, the Crown applied to reopen its case to call a third person who lived in the same house as the accused. When the case was reopened, the witness filled an important gap in the Crown’s case. In that case, the conduct of the defence did not contribute to the failure to call the witness in-chief and the evidence of the witness related to an important and controversial matter.
[54] I do not accept the appellant’s submission that this reply evidence is a stand-alone basis for appellate intervention. This was not a case where the appellant was caught off guard or was unfairly trapped by the Crown. The Crown could not reasonably have been expected to anticipate McKim’s evidence about why he remembered being at Bevand’s cottage with Vickerson on the weekend of June 23, 2000. The reply evidence was not strictly collateral but went to the Crown’s position that the appellant had a motive to fabricate his whereabouts on the night in question and had talked his friends into supporting his position. In any event, the reply evidence appears to have been inconsequential. It merely increased the weakness of McKim’s already shaken credibility. I would dismiss this ground of appeal.
[55] Finally, the appellant does not argue that his conviction was unreasonable. I think he was correct in not advancing that argument.
[56] I would dismiss the appeal as to conviction.
5. The Sentence Appeal
[57] In her reasons for sentence, the trial judge summarized in brief compass the evidence at trial, the injuries of the victims, the appellant’s criminal record, his personal circumstances, and the positions of the Crown and defence on sentence. She concluded her reasons as follows:
The appropriate sentence is 6 years. Unlike Smith, where the offender was younger and there was no violence involved and a guilty [sic] was entered, in this case there was no such co‑operation and the offender is older with a more substantial criminal record. Although the injuries were not life threatening as was the case in Johnson, they were substantial and permanent. The fact that there were two victims is an aggravating factor in this case. The court must consider the principle of deterrence as a prime sentencing factor given the circumstances in this case.
[58] The appellant submits that the trial judge’s reasons for sentence reveal a misapprehension of the evidence regarding whether the assault was premeditated. She found that when Vickerson arrived at the scene his girlfriend was not there. She also stated:
[T]here was no indication that the two males posed any threat to Vickerson. He did not have to get involved and clearly did so to avenge his girlfriend’s earlier assault. Vickerson caught the victims by surprise and they had no opportunity to defend themselves. It was an unprovoked attack with some prior planning evidenced by bringing a metal bar with him, intending to use it and carrying out his plan once he arrived at the scene.
[59] Peter Bilyj testified that the appellant brought a metal bar to the scene of the offence. The appellant submits that the trial judge was not entitled to rely on his evidence in this regard because Bilyj was an unsavoury witness whose evidence the trial judge recognized should not be relied on unless supported by other evidence. The appellant submits that there was no confirmation of Bilyj’s evidence that the appellant brought a metal bar to the scene. In addition, the appellant submits that the sentence was manifestly unfit.
[60] The evidence that the assailant used a metal bar or something in addition to his hands to assault the victims was not disputed at trial. Martin testified that he was struck on the face with something solid, possibly a bar from a weightlifting set. The only issue was the identity of the assailant. Inasmuch as it was open to the trial judge to find that the appellant was the assailant and to convict him, it was open to her to find that there was an element of premeditation to the attack. She did not err in principle.
[61] Considering the seriousness of the assaults, and the appellant’s prior criminal record, the sentence of six years was within the appropriate range and was fit.
DISPOSITION
[62] For the reasons given, I would dismiss the appeal from conviction. Although I would grant leave to appeal sentence, I would also dismiss the appeal as to sentence.
RELEASED: July 6, 2005 (“KMW”)
“Karen M. Weiler J.A.”
“I agree Janet Simmons J.A.”
“I agree E. E. Gillese J.A.”