Her Majesty the Queen v. Zebedee et al. [Indexed as: R. v. Zebedee]

81 O.R. (3d) 583

Court of Appeal for Ontario,

Doherty, Moldaver and LaForme JJ.A.

June 29, 2006

Criminal law -- Sentencing -- Trial judge not giving sufficient consideration to principle of rehabilitation in imposing sentences of 12 years' imprisonment on two accused and 24 years' imprisonment on another accused for weapons offences and crimes of violence -- Sentences being reduced to ten years' and 17 years'.

Criminal law -- Trial -- Charge to jury -- Position of defence -- Trial judge spending very little time setting out position of defence in his charge to jury -- Case not being complicated and defence position essentially being that complainants were not credible -- Charge being adequate in circumstances. [page584]

Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Trial judge advising counsel that he did not intend to instruct jury that proof beyond reasonable doubt is much closer to absolute certainty than to balance of probabilities as set out by Supreme Court of Canada in Starr -- Defence counsel incorporating Starr language in closing address -- Trial judge telling jury to take law from him and to ignore what defence counsel said in closing address -- Appeal by accused dismissed -- "Closer to absolute certainty" language mentioned in Starr not being mandatory -- Use by trial judge of expression "satisfies your conscience" in describing level of certainty that had to be achieved in order to convict not being fatal to charge on reasonable doubt when considered in context of entire charge -- "Timid juror" instruction also not being fatal in circumstances.

Criminal law -- Trial -- Charge to jury -- Witnesses -- Vetrovec warning -- Trial judge giving Vetrovec caution with respect to unsavoury complainants -- Accused arguing on appeal that Vetrovec caution was not strong enough -- Appeal dismissed -- Trial judge being entitled to considerable deference where argument on appeal is that trial judge gave inadequate rather than no Vetrovec caution -- Appellate intervention only being justified where accused can show that warning as framed clearly failed to convey to jury appropriate degree of caution required for particular witness or witnesses to whom caution addressed -- Trial judge's charge being sufficient.

The five accused were convicted of a number of offences arising out of several attacks on two men who allegedly purchased cocaine from them and did not honour their debts. The central issue at trial was the credibility of the complainants having regard to their close friendship, their extensive criminal backgrounds and their numerous and inconsistent prior statements to the police. Z, the leader, was sentenced to a total of 24 years' imprisonment, and an order under s. 743.6 of the Criminal Code, R.S.C. 1985, c. C-46 was imposed that he not be eligible for parole until he had served ten years of his sentence. Lesser sentences were imposed on the other accused. All five accused appealed their conviction, and Z, B and SL also appealed their sentences.

Held, the conviction appeal should be dismissed; the sentence appeal should be allowed.

In his instructions to the jury on reasonable doubt, the trial judge failed to tell the jury that a reasonable doubt could be derived from a lack of evidence. Ideally, the "lack of evidence" instruction should be provided explicitly. However, when that does not occur, the omission will be harmless if the message is otherwise adequately conveyed to the jury. In this case, the message was adequately conveyed.

The trial judge used the expression "satisfies your conscience" in describing the level of certainty that had to be achieved in order to convict. Morality-laden expressions of that nature should be avoided, but such expressions are not automatically fatal to a charge on reasonable doubt. Rather, they must be considered in the context of the charge as a whole with a view to determining whether they raise a serious concern about the validity of the jury's verdict, and lead to the conclusion that the accused did not have a fair trial. In this case, when the charge on reasonable doubt was read as a whole, the jurors would not have viewed the reasonable doubt standard as a shifting standard that could move up or down depending on their individual consciences. [page585]

The trial judge told the jury that a reasonable doubt was not a doubt "conjured up in the mind of a timid or irresponsible juror to avoid doing [his or her] duty". He should have avoided that language. However, the jury deliberated for 15 hours. That hardly spoke to a jury that was willing to shirk its responsibilities and defy its oath to avoid being labelled "timid".

At the outset of the trial, one of the defence counsel raised a concern about the trial judge's instructions on reasonable doubt. He referred to the decision of the Supreme Court of Canada in R. v. Starr and maintained that in view of that decision it was now incumbent on trial judges to tell the jury that proof beyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities. The trial judge indicated that it was not his intention to instruct the jury along the lines requested because Starr went too far and confused juries. He told defence counsel that the issue could be revisited in the pre-charge conference. Defence counsel did not revisit the matter at either time. Instead, two defence counsel incorporated into their closing addresses the language from Starr that the trial judge had indicated he was not about to use. The trial judge told the jury to take the law from him and ignore what counsel said in their closing addresses. While defence counsel's remarks were correct in law, they should have sought permission from the trial judge before using language that the trial judge felt would only serve to confuse the jury. The trial judge was correct in holding that the "closer to absolute certainty" language mentioned in Starr is not mandatory. While the instruction to ignore what counsel said should have been phrased differently, and the jury should have been told to ignore what counsel said to the extent that it differed from the trial judge's instructions, the failure to include those additional words would not have led the jury to believe that what defence counsel had said was wrong. The trial judge's instruction on reasonable doubt did not fail to adequately differentiate between the criminal and civil standards of proof.

The trial judge did not err in permitting the jury to "cross- reference" the evidence on the various counts of the multi- count indictment in order to determine whether the evidence established a modus operandi or set of business practices that the accused employed when enforcing and collecting drug debts. The evidence was sufficiently probative to warrant its reception for that purpose.

The trial judge correctly concluded that this was a case in which a Vetrovec warning was required. The accused argued on appeal that the warning he gave was inadequate. When the issue on appeal is not whether a Vetrovec instruction should have been given, but whether the instruction was adequate, appellate courts will not test the adequacy of the instruction against some pre-formulated format or prescribed terminology, but will decide whether the instruction, read in the context of the case and the rest of the charge, serves the purpose intended by a Vetrovec caution. If the instruction meets that criterion, there is no misdirection. Trial judges are owed considerable deference in determining how best to frame the Vetrovec caution. Where a Vetrovec warning has been given, appellate intervention will be justified only where the accused can show that in all of the circumstances, the warning as framed clearly failed to convey to the jury the appropriate degree of caution required for the particular witness or witnesses to whom the caution was addressed. In this case, the trial judge could have provided a more detailed and forceful Vetrovec warning, but the warning was sufficient in the circumstances.

The trial judge devoted little time in his charge to the jury to the position of the defence. He did, however, capture the essence of their position, i.e., that the complainants were thoroughly disreputable, that their evidence was fraught with contradictions and inconsistencies, and that it could not possibly be relied upon to [page586] establish the guilt of the accused beyond a reasonable doubt. This was not a complicated case, and there was virtually no technical evidence. The positions of the Crown and defence were straightforward. While he could have gone into more detail, the trial judge adequately instructed the jury on the position of the defence.

The totality of the 24-year sentence imposed on Z was excessive and it failed to address all the relevant objectives of sentencing. The facts of the case did not justify a complete disregard for the principle of rehabilitation. Z's record, although long, was almost entirely for non-violent offences. He had never served a penitentiary sentence. The sentence was reduced to 17 years' imprisonment. Before a s. 743.6 order can be made (imposing a period during which the accused was ineligible for parole), an offender must be advised that he is at risk of such an order, and must be given the opportunity to make submissions and introduce additional evidence. The Crown had not sought such an order. Furthermore, the trial judge must provide reasons why the order is being made. Those requirements were not met in this case. The order was set aside.

B and SL were both sentenced to a total of 12 years' imprisonment. The trial judge found that Z was the leader of the gang and that SL and B were under his influence, particularly SL, who was Z's son. SL and B were in their mid- 20's. The trial judge failed to give adequate consideration to the mitigating factors that applied to them, and failed to give adequate consideration to the principle of totality. In each case, the sentence was reduced to ten years' imprisonment.

APPEAL from the convictions by Kealey J. of the Superior Court of Justice, sitting with a jury, dated September 22, 2001, and from the sentences of Kealey J., [2001] O.J. No. 4514 (S.C.J.).

Cases referred to R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Pan, [2001] 2 S.C.R. 344, [2001] S.C.J. No. 44, 200 D.L.R. (4th) 577, 270 N.R. 317, 85 C.R.R. (2d) 1, 155 C.C.C. (3d) 97, 49 C.R. (5th) 203, 2001 SCC 42; R. v. Russell, [2000] 2 S.C.R. 731, [2000] S.C.J. No. 56, 2000 SCC 55, 87 Alta. L.R. (3d) 1, 192 D.L.R. (4th) 585, 261 N.R. 339, [2001] 2 W.W.R. 407, 149 C.C.C. (3d) 66, 38 C.R. (5th) 1 (sub nom. R. v. Russell (M.E.)); R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1, consd R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, [2000] S.C.J. No. 12, 182 D.L.R. (4th) 513, 250 N.R. 103, 141 C.C.C. (3d) 321, 30 C.R. (5th) 201, distd Other cases referred to R. v. Archer, 2005 36444 (ON CA), [2005] O.J. No. 4348, 203 O.A.C. 56, 202 C.C.C. (3d) 60, 34 C.R. (6th) 271 (C.A.); R. v. Douglas (2002), 2002 38799 (ON CA), 62 O.R. (3d) 583, [2002] O.J. No. 4734, 170 C.C.C. (3d) 126, 12 C.R. (6th) 374 (C.A.); R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 16 O.R. (3d) 1, [1993] O.J. No. 4573, 85 C.C.C. (3d) 457, 26 C.R. (4th) 220 (C.A.) (sub nom. R. v. Fair); R. v. Karthiresu, 2000 6008 (ON CA), [2000] O.J. No. 309, 129 O.A.C. 291, 45 W.C.B. (2d) 294 (C.A.); R. v. Pollock, 2004 16082 (ON CA), [2004] O.J. No. 2652, 188 O.A.C. 37, 187 C.C.C. (3d) 213, 23 C.R. (6th) 98 (C.A.); R. v. Sauvé, 2004 9054 (ON CA), [2004] O.J. No. 248, 182 C.C.C. (3d) 321 (C.A.); R. v. Shirley, 2002 20102 (ON CA), [2002] O.J. No. 748, 155 O.A.C. 210 (C.A.); R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40, 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; R. v. Zinck, [2003] 1 S.C.R. 41, [2003] S.C.J. No. 5, 257 N.B.R. (2d) 1, 222 D.L.R. (4th) 1, 300 N.R. 201, 674 A.P.R. 1, 171 C.C.C. (3d) 1, 2003 SCC 6, 8 C.R. (6th) 1 Statutes referred to Canadian Charter of Rights and Freedoms, s. 7 Criminal Code, R.S.C. 1985, c. C-46, s. 743.6 [as am.] [page587]

P. Andras Schreck, for appellant James Zebedee. Michael Peter Zaduk, for appellant Jason Wyse. Jennifer Gleitman, for appellant Jason Brooks. Vanora Simpson, for appellant Shane Lang. Paul Calarco, for appellant Charles Lang. Jennifer Woollcombe, for respondent.

The judgment of the court was delivered by

MOLDAVER and LAFORME JJ.A.: --

Introduction

[1] The appellants were tried on an indictment charging that they committed various weapons offences and crimes of violence against the two complainants, Brian Morrison and Paul Dulmage. The indictment concerned three separate incidents in 1997 involving Morrison and one incident in 1998 involving Dulmage.

[2] The 12-count indictment alleged criminal activity by James Zebedee, his two sons, Shane and Charles Lang, and two family friends, Jason Brooks and Jason Wyse. Morrison and Dulmage identified their attackers as the appellants, people who were well known to them.

[3] Specifically, it was alleged that Zebedee and his family members sold cocaine to Morrison and Dulmage and that when they did not honour their debts, the appellants assaulted them in an effort to collect on what was owing. The central issue at trial was the credibility of the complainants having regard to their close friendship, their extensive criminal backgrounds and their numerous and inconsistent prior statements to the police, including initial denials that the appellants were responsible for their injuries.

[4] Morrison and Dulmage had been friends since childhood. Both had extensive criminal records, including entries for which they had been convicted as co-perpetrators. Both Morrison and Dulmage purchased drugs from Zebedee and his family members, often on credit. Both alleged that the appellants had assaulted them as a means of encouraging repayment of their drug debts.

[5] Morrison alleged that he was assaulted by the appellants in three separate incidents: (i) in the summer of 1997, at an apartment on Bleecker Avenue in Belleville, Charles Lang and Zebedee [page588] beat him with a pipe and pointed a gun at him; (ii) on August 18, 1997, at Zebedee's farm, Wyse and Zebedee shot him with a flare gun and a revolver, resulting in his being treated at a hospital for a bullet wound; and (iii) on December 18, 1997, at Morrison's apartment, Shane Lang, Charles Lang, Brooks and another man engaged him in a fistfight and waved a knife at him.

[6] Dulmage alleged that late in the evening on February 4, 1998, Brooks and Wyse came to an apartment where he was visiting a female friend. Brooks used a ruse to get Dulmage to go to the parking lot. Once he was outside, Wyse pulled a gun on him. Wyse and Brooks forced Dulmage into the back seat of a taxi. Dulmage was driven to Zebedee's residence where Shane Lang threw him down the stairs into the basement and Zebedee, Lang, Brooks and Wyse kicked, punched and beat him with pipes and baseball bats.

[7] Following two weeks of evidence and two days of deliberations, the jury delivered guilty verdicts on all charges against all defendants. The verdicts in relation to counts four and eleven were stayed by the trial judge as a result of the rule against multiple convictions.

[8] The trial judge sentenced Charles Lang to four years imprisonment (which amounted to time served in pre-trial custody), Shane Lang and Jason Brooks to 12 years, Jason Wyse to 15 years and James Zebedee to 24 years, along with an order delaying his eligibility for parole.

[9] The appellants appeal from their convictions on eight grounds, six relating to the trial judge's charge to the jury. The appellants Zebedee, Brooks and Shane Lang also seek leave to appeal their sentences and, if leave is granted, a reduction in the sentences.

Background

(1) Morrison

[10] By the summer of 1997, Morrison had known Zebedee for about eight years. He knew Zebedee to live at "the farm" and, between 1992 and 1997, he went to the farm once or twice a week to obtain narcotics. He came to know Zebedee's wife, his sons, Shane and Charles Lang, and his daughter. Morrison would sometimes pay Zebedee or another family member for the narcotics. Usually, he received the drugs on credit and he would pay down the debt over time. Morrison testified that he had known Jason Wyse for ten years.

(a) The first incident

[11] Morrison testified that May or June 1997 was the first time something happened because of his failure to pay Zebedee [page589] money he was owed. He was at a tavern and, at about 3:00 p.m., was approached by Charles Lang, who told him that his father wanted to see him. Lang said that his father had something for Morrison, which Morrison presumed meant drugs.

[12] Morrison, Lang and "a pool player" from the tavern drove to Bleecker Avenue. He had been to an apartment at this address once before with Zebedee and some others. Zebedee slid a gun across the table and Charles Lang grabbed it. Zebedee then hit Morrison with a pipe that was more than a foot long, leaving bruises on his forearms, which he had used to block the pipe from hitting his head. Morrison thought he had been hit about ten times.

[13] Morrison described the gun as a "small gun" and believed that it was a .25 calibre, or perhaps a .22. Lang merely pointed the gun at him while Zebedee hit him with the pipe. Morrison told Zebedee that he would get Zebedee's money but needed time. Zebedee told him that he had better hurry and continued hitting him.

[14] After the beating, Morrison was driven back downtown to the tavern. He received no medical attention for this assault.

(b) The second incident

[15] Morrison continued to buy drugs from Zebedee and became further indebted to him. By August 18, 1997, he owed about $4,000. On this occasion, Wyse convinced Morrison to leave his apartment on a ruse. Lured inside a car with Wyse and another man, Morrison was taken to Zebedee's farm because, according to Wyse, "the man wants to speak to you" and Morrison "probably was not going to like it". Morrison believed that he was going to get a beating. When they arrived at "the farm", Zebedee came outside and told Morrison that he was a "no good" and a "piece of shit", then pulled out a flare gun. Zebedee fired the gun, hitting Morrison on the outside of his knee. The flare then went into the grass and the grass ignited.

[16] Morrison said that after the flare gun, Zebedee pulled out a handgun, which Morrison thought was .25 calibre. Zebedee pointed the gun at Morrison's knees and "unloaded it". Morrison said that he "did a lot of dancing" around to avoid being shot, and that the shooting continued until no more bullets came out. He was shot once in the left leg. Zebedee instructed his daughter to take Morrison wherever he wanted to go. Plastic was draped over the seat in the car and the daughter drove Morrison back to town.

[17] Morrison subsequently went to the hospital and obtained treatment. Morrison originally lied to the police about what had [page590] happened. Police Constable Jeffrey Ling, who attended at the hospital on August 18, said that Morrison told him that he was shot while walking on Dundas Street. He asked Morrison to accompany him to the location where he had been shot, which Morrison did. P.C. Ling was suspicious of Morrison's account, but Morrison would not recant. No shooting had been reported in the area Morrison showed him.

(c) The third incident

[18] On December 18, 1997, while Morrison was living with his girlfriend, Charles Lang, Shane Lang, Brooks and Derek Pang visited him. They pushed their way into the apartment and said that Morrison owed Zebedee $8,000, plus interest. They rummaged through the house, including through Christmas presents under the tree. Shane Lang told Morrison that the money owed was doubled, that they wanted $1,000 a month, and that he was going to be beaten regardless. There was also some discussion about taking Morrison "for a ride".

[19] Morrison suggested that they should "be men about it" and that just one of them should beat him up. Brooks volunteered and the group went outside. There, Brooks swung at Morrison and missed; Morrison swung and hit Brooks, knocking him down. Morrison then ran to a convenience store where he stayed for a while. He then ran back to his apartment building. The four men followed him.

[20] Morrison testified that Charles Lang had a big butcher knife, which he was waving while saying that he would cut Morrison. The group left, saying "you're going to get yours" to Morrison. His girlfriend let him back into the building and he called the police 20 to 30 minutes later. One reason for calling the police, he said, was that he was "sick of them".

[21] Morrison testified that he told Sergeant Graham about what had happened to him in the three incidents because he had nowhere to go, and that he just wanted to get it off his chest so that "if anything ever did happen to me, at least he'd know what happened". Morrison testified that the next month, in January 1998, he packed his bags and "left town".

(2) Dulmage

[22] At the time of trial, Dulmage was 34 years old. His nickname was "Tiger". He had lived in Belleville until 1999, at which point he left because of this case. His lifestyle until 1999 had been that of a thief and drug addict who used alcohol, marijuana and cocaine. He stole merchandise and traded it for drugs. He [page591] also ran up debts. He testified that he had so many criminal convictions that he could not remember them all. He said that while he obtained cocaine from different places, mostly it was from Zebedee through individuals including Wyse, Shane Lang, Charles Lang and Brooks.

[23] He said that he regularly went to a house on Old Cannifton Road or to Zebedee's farm to obtain the cocaine. He testified that he had no difficulties in relation to his debts until he was beaten on February 4, 1998. At that point, he testified that he owed Zebedee about $1,500. He had previously had debts as high as $3,000, which he had paid down by stealing.

[24] Between 3:30 and 4:00 a.m. on February 4, Dulmage said that he was in the townhouse of his girlfriend when Jason Brooks arrived. Brooks used a ruse to get Dulmage to go to the parking lot. Once outside, he saw Jason Wyse leaning into a cab talking to the driver. Wyse looked over and said, "You've got the fucking goof" and pulled a gun from out of his front pants pocket and pointed it at Dulmage's head. Dulmage described the gun as appearing to be a black .32 automatic handgun.

[25] Dulmage said that he was "forcibly pushed" into the cab where they tried to wrap a sweater around his head. The driver was told to take them to Old Cannifton Road and he did so. In the car ride, he was told that he owed money, that he was a "fucking goof" and that he had to sit and shut his mouth. He struggled, but they kept the gun to his head and he stopped yelling.

[26] Michael Gervais was working as a taxi cab driver in February 1998. He testified about events during which Jason Wyse, whom he had known for a few years, asked him to go to an apartment complex. Someone got out of the cab and said he would be back in five minutes. Someone then came out, jumped into the cab, and the other guys got back in. Gervais said that it was "Tiger" who came out. He then drove to Old Cannifton Road, dropped them at a parking lot, and did not see where they went. Less than an hour later, he picked Jason Wyse up at Old Cannifton Road and drove him downtown. He said that there could have been three people in the cab at the time.

[27] Gervais was a Crown witness. In the course of his examination in chief, he was declared an adverse witness and Crown counsel was permitted to cross-examine him on a prior inconsistent statement that he had provided to Sergeant Graham. In cross-examination, he acknowledged that from his perspective, "Tiger" had been forced into his cab. He also recalled that once "Tiger" was in the cab, the two other men covered his head and told him to shut up or they would "cap" him. [page592]

[28] Dulmage testified that after being taken into a house on Old Cannifton Road, he was grabbed by Shane Lang, who said something about "you've got the goof". Shane then threw him down the stairs to the basement and he landed on his shoulder. He was dragged, kicked and beaten with a baseball bat while he thrashed around on the cement floor. He was then dragged to a little room and left there for an hour.

[29] Dulmage said that Zebedee hit his left shin with a steel bar. Someone else hit his right leg, mostly on the shin, with a baseball bat. Zebedee, Shane Lang, Brooks and Wyse all kicked him in his ribs and chest. Dulmage said that he had been hit with the metal bar between 10 and 20 times, and with the baseball bat about 10 times. He said Wyse held his leg for Zebedee to break it. Dulmage thought that Brooks had hit him 10 to 15 times, mostly with his feet, to Dulmage's ribs and side.

[30] Dulmage testified that while he was in the basement, Wyse pulled out the same gun as earlier, stuck it to his head, and told him "you're going to fucking die. Tell the truth." Wyse also told him that if he kept his mouth shut, he would live through this. Shane Lang told him that he was no good and that Lang should cut his fingers off. There was a set of hedge trimmers that Lang said he would use to cut off Dulmage's fingers or toes. They also discussed whether they would leave him in the woods or cut a hole in the Bay of Quinte for him.

[31] Dulmage said that later, Zebedee's daughter came downstairs and gave him a couple of strong pills and a glass of what tasted like vodka. After that, they removed his grey sweatshirt, which was ripped, and put a burgundy t-shirt on him. Wyse took him out the back door and, together with Brooks, dragged him to a car. There was plastic on the seats. Shane Lang and Wyse drove him to Bleecker Avenue, where he was put on the side of the road in a snow bank and "told to keep my mouth shut or I'd get killed". They said they would call an ambulance and told him to "stay solid".

[32] Dulmage crawled to a house on Bleecker Avenue, and when he received no response to his banging on the door, he crawled back to the road where he was met by an ambulance and taken to Belleville General Hospital. He told the police that he had been hit by a car and refused to permit Sergeant Graham to take his photograph. His explanation was that he felt "scared for my life, scared for my family's life" and that he had decided that he was not going to say what happened and was not going to testify, particularly because Shane Lang had told him in the basement that they knew where each of his family members lived and that they "would be all hurt". Police attended the area where [page593] Dulmage said he was hit by a car but it revealed no glass or tire marks or any other indicators consistent with an automobile accident.

[33] Dulmage was initially treated in the emergency department of Belleville General Hospital. He had a number of lacerations and abrasions to either side of his face, bruising over his back, tenderness in the abdominal cavity, and an open wound on the right upper leg. He also had fractured ribs, a hole in his lung, bruising over the right knee, and a left lower leg abrasion and contusion. As well, he suffered a fractured knee, and fractures to both his right and left legs. Dulmage refused to allow the police to take photographs of him.

[34] Dulmage was transferred to Kingston General Hospital, where he was treated. Dr. Taylor said that Dulmage had a punctured right lung and primarily musculoskeletal injuries, although he did not require surgery. He suffered from a scalp laceration, a couple of lacerations to his right shin that went down to the bone, a fractured right kneecap, a fractured lower fibula slightly above the ankle and a fractured left fibula just below the knee. There was a rib fracture on the right side and it was the displaced rib that had punctured the lung. It was Dr. Taylor's expert opinion that the injuries were not consistent with Dulmage having been hit by a car. They were, he said, consistent with Dulmage having been beaten repeatedly with a blunt object.

[35] Dulmage testified that while he was in Kingston General Hospital, Wyse, Brooks and two others visited him. He was told that "I was a good boy for staying solid" and that they were going to take $500 off his debt. Dulmage said that they gave him some flowers and a get-well card. The flowers were put on the table beside him. Dulmage said they also took a couple of pictures, and then left.

[36] Sergeant Graham testified that Dulmage provided him with a card that read in part as follows: "Get well soon" from "Honest Jim and Company". The name "Honest Jim" was a name Dulmage had used to refer to Zebedee. Subsequently, Graham observed Zebedee in a parking lot wearing a shirt to which a white tag appeared to be affixed. The tag said, "Honest Jim". As well, in the context of an unrelated investigation, police seized several photographs from the residence of Jason Wyse's mother. These photographs show the flowers in Dulmage's hospital room and Jason Wyse standing outside of the Kingston General Hospital. [page594]

Grounds of Appeal

[37] The appellants have raised eight grounds of appeal against conviction. Six of them relate to alleged errors in the trial judge's charge to the jury; the remaining two concern the jury selection process and the late disclosure of a piece of evidence.

[38] Of the six grounds of appeal relating to the trial judge's charge, we called upon the Crown to respond to the following four grounds:

(1) Failure to properly instruct the jury on reasonable doubt.

(2) Failure to properly segregate the evidence that the jury could consider on the various counts.

(3) Failure to provide an adequate Vetrovec instruction.

(4) Failure to adequately review the position of the defence.

[39] We propose to address those grounds first. We shall then address, in summary form, the remaining issues.

Issue 1: Did the trial judge misdirect the jury on the definition of reasonable doubt?

[40] The appellants submit that the trial judge made four errors in his instructions on reasonable doubt. First, he failed to instruct the jury that a reasonable doubt could be derived from a lack of evidence. Second, he erred in using the morality-laden phrase "satisfies your conscience" when describing the level of certainty needed to convict. Third, he erred in telling the jury that a reasonable doubt is not a doubt "conjured up in the mind of a timid or irresponsible juror to avoid doing [his or her] duty". Fourth, he erred in failing to adequately distinguish the criminal burden of proof from the civil burden of proof and in failing to instruct the jury that the level of proof required was much closer to absolute certainty than to proof on a balance of probabilities.

[41] The trial judge's instructions on reasonable doubt are set out below. Notably, they were preceded by full and complete instructions on the presumption of innocence and the burden of proof. The jury was also told, in no uncertain terms, that if at the end of the trial, they had "a reasonable doubt after weighing the evidence as a whole as to whether [a particular] accused committed the offence with which he [was] charged", they must give the benefit of that doubt to the accused and find him not guilty. The trial judge continued as follows: [page595]

As I said, given our human condition it is virtually impossible to prove anything with absolute certainty. So the burden which is on the Crown is to prove the charge beyond a reasonable doubt. That is what the Crown is required to achieve. That term, beyond a reasonable doubt, has been used for a very long time. It is part of the history and traditions of our system of justice, deeply ingrained in the criminal law. But there is no mystical or magical formula of law which defines the term.

I tell you that a reasonable doubt is a real, honest doubt. It is not some fanciful, frivolous or imaginary doubt. It must not be based on sympathy or prejudice. Such doubt is not one that is conjured up in the mind of a timid or irresponsible juror to avoid doing their duty. It is a doubt which is based on reason and common sense, and is logically derived from the evidence.

When the totality of the evidence that you find credible convinces your mind and satisfies your conscience, and you are sure of the guilt of any one of the men charged, then you should convict. Proof beyond a reasonable doubt has been achieved. But if the totality of the evidence falls short of such a persuasion in any way, then proof beyond a reasonable doubt has not been achieved and you must acquit. And the belief that an accused is probably or likely guilty is not sufficient.

So let me just repeat that. When the totality of the evidence that you find credible convinces your mind and satisfies your conscience, and you are sure of the guilt of the person charged, you should convict. Proof beyond a reasonable doubt had been achieved. But if the totality of the evidence falls short of such persuasion in any way, then proof beyond a reasonable doubt has not been achieved and you must acquit. And the belief that an accused is probably or likely guilty is not sufficient.

[42] Before analyzing the alleged errors in that instruction, it is useful to recall the test that must be applied in every case in which a trial judge's instructions on reasonable doubt are challenged. It is found at para. 233 of R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449, at p. 263 S.C.R., as follows:

A charge must be examined in its entirety to determine whether the essential elements of a fair and accurate instruction on reasonable doubt are present and have been properly explained. The question in every case in which a trial judge's instructions on reasonable doubt are impugned is whether there is a reasonable likelihood that the jury was under a misapprehension as to the correct standard of proof to apply.

(Emphasis added)

[43] With that test in mind, we turn to the alleged errors.

(a) Lack of evidence can give rise to a reasonable doubt

[44] In his instructions, the trial judge failed to tell the jury that a reasonable doubt could be derived from a lack of evidence. He should have done so. (See R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 C.C.C. (3d) 1, at paras. 36 and 39.) Lack of evidence is a factor that the jury can consider in deciding whether or not the Crown has met its burden of proof. [page596]

[45] Ideally, the "lack of evidence" instruction should be provided explicitly. However, when that does not occur, the omission will be harmless if the message is otherwise adequately conveyed to the jury.

[46] In this case, the message was adequately conveyed in two ways. First, the jury was repeatedly told that they were to consider the evidence "as a whole" in deciding whether the Crown had met its burden of proof. As such, it would have been evident to the jury that "gaps and silences in the evidence must be factored into their reasonable doubt assessment". (See R. v. Archer, 2005 36444 (ON CA), [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (C.A.), at para. 40, per Doherty J.A.)

[47] Second, in recharging the jury following objections to the charge, the trial judge told the jury that in considering the defence position, they could consider not only "the many identifiable inconsistencies in the testimony of Messrs. Morrison and Dulmage" but also "the lack of confirmatory evidence in some areas". He then provided the jury with several examples of "missing" evidence that defence counsel had stressed in their closing addresses to the jury.

[48] Taking those instructions into account and considering the charge as a whole, we have no doubt that the jury would have understood that they could consider a lack of evidence in deciding whether the Crown had met its burden of proof.

(b) "Morality-laden" language

[49] The trial judge used the expression "satisfies your conscience" in describing the level of certainty that had to be achieved in order to convict. In light of Lifchus, supra, at paras. 26 and 37, morality-laden expressions of that nature should be avoided. That said, such expressions are not automatically fatal to a charge on reasonable doubt. Rather, they must be considered in the context of the charge as a whole with a view to determining whether they raise a "serious concern about the validity of the jury's verdict, and lead to the conclusion that the accused did not have a fair trial". (See R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, [2000] S.C.J. No. 56, 149 C.C.C. (3d) 66, at para. 23 and R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344, [2001] S.C.J. No. 44, 155 C.C.C. (3d) 97, at para. 128.)

[50] Pan, supra, is of particular significance on the issue of "morality-laden" language. In Pan, the learned and experienced trial judge told the jury [at p. 408 S.C.R.], among other things, that proof beyond a reasonable doubt "is that degree of proof which convinces the mind and satisfies the conscience so you, as [page597] conscientious jurors, feel bound or compelled to act upon it. You must be able to say to yourself, 'He is really guilty. Of that I am morally certain.'"

[51] As is apparent, the "morality-laden" language in Pan went much further than the language used by the trial judge in this case. And yet, the Supreme Court found that the charge in Pan did not cross the Russell line. We reach the same conclusion here. When the charge on reasonable doubt is read as a whole, we do not believe that the jurors would have viewed the reasonable doubt standard as a shifting standard that could move up or down depending on their individual consciences.

(c) The "timid" juror instruction

[52] The trial judge told the jury that a reasonable doubt was not a doubt "conjured up in the mind of a timid or irresponsible juror to avoid doing [his or her] duty". He should have avoided that language. (See R. v. Karthiresu, 2000 6008 (ON CA), [2000] O.J. No. 309, 129 O.A.C. 291 (C.A.), at para. 8.) Nonetheless, a similar instruction was given in Pan, supra, and, as indicated above, the Supreme Court found that the charge did not cross the Russell line.

[53] The same holds true in this case. The jury deliberated the fate of the appellants for the better part of 15 hours over the course of two days. That hardly speaks to a jury that was willing to shirk its responsibilities and defy its oath to avoid being labelled "timid". On the contrary, bearing in mind that none of the appellants testified, it attests to a jury who approached this case with considerable care and caution.

(d) Failure to adequately distinguish the criminal and civil standards of proof

[54] The appellants submit that the trial judge failed to adequately distinguish the civil and criminal standards of proof. In particular, they contend that as a result of his instructions, the jury would have been left with the erroneous impression that the level of proof required did not have to be "much closer to absolute certainty" than to proof on a balance of probabilities.

[55] That submission, which we view as the appellants' chief complaint, has two components. First, the appellants submit that the instructions on reasonable doubt were facially deficient; second, they argue that these deficiencies were aggravated by the trial judge's admonition that the jury was to take the law from him and ignore what counsel had said in their closing addresses. (In their closing addresses, two of the five defence counsel told the jury that the reasonable doubt standard fell much closer to [page598] absolute certainty than to proof on a balance of probabilities.) We propose to address those complaints in reverse order.

[56] Commencing with the trial judge's admonition, some background is required to put this complaint into its proper perspective.

[57] At the outset of the trial, after the jury had been selected, the trial judge provided the jury with some opening instructions. Included in them were instructions on the presumption of innocence, the burden of proof and the definition of reasonable doubt.

[58] Before the first witness was called, one of the defence counsel raised a concern about the trial judge's instructions on reasonable doubt. In particular, he referred the trial judge to the decision of the Supreme Court of Canada in R. v. Starr, supra, and maintained that in view of that decision, it was now incumbent on trial judges to "tell the jury that proof beyond a reasonable doubt is, in the words of [the Supreme Court], much closer to absolute certainty than to a balance of probabilities". The trial judge replied that he was familiar with Starr but that it was not his intention to instruct the jury along the lines requested because "[Starr] goes too far and it just confuses juries. It leaves it open for juries to come back -- how far is, you know, the distance between probability and certainty. You and I both know that you can't draw a line and do that."

[59] The trial judge then told defence counsel that while the issue could be revisited "in the pre-charge conference or discussion that we'll have", he had "considered very closely the direction in Starr" and he did not "share [counsel's] view that it's obligatory that I tell the jury what you have suggested".

[60] In sum, as a result of that interchange, defence counsel knew or should have known that while the matter could be revisited at a later stage in the trial, the trial judge was not about to give the jury the "closer to absolute certainty" instruction referred to in Starr.

[61] In our view, the trial judge was entitled to take the position he did. The issue raised by counsel involved a question of law and it was for the trial judge, not counsel, to decide the content of his legal instruction on reasonable doubt. If it turned out that the trial judge was wrong, he could be corrected on appeal. That is basic.

[62] Unfortunately, defence counsel did not revisit the matter with the trial judge at the pre-charge conference or at any other time. Instead, two of the defence counsel incorporated into their closing addresses the language from Starr that the trial judge had indicated he was not about to use. They did not seek the trial judge's permission before doing so. [page599]

[63] In the circumstances, while defence counsel's remarks were correct in law, we think that they should have sought permission from the trial judge before using language that the trial judge felt would only serve to confuse the jury. In that regard, we note that the trial judge was correct in holding that the "closer to absolute certainty" language mentioned in Starr is not mandatory. (See R. v. Archer, supra, at para. 37.)

[64] With that background in mind, the trial judge prefaced his instructions on the presumption of innocence, the burden of proof and the definition of reasonable doubt with the following remarks:

Lastly I want to again, as I did at the outset, review the very important legal concepts discussed in my opening remarks, namely the presumption of innocence, burden of proof and reasonable doubt. These have been offered to you by all counsel -- almost all counsel who addressed you yesterday. And I tell you now to ignore counsel's definition of these concepts or any words used in their description. This is an area of law, and you must accept it as I am about to give it to you.

(Emphasis added)

[65] The appellants submit that the trial judge's instruction to "ignore" defence counsel's accurate depiction of the reasonable doubt standard was the functional equivalent of telling the jury that what defence counsel had said was wrong. As a result, the jury would have been left with the impression that the standard of proof to be met need not be closer to absolute certainty than to proof on a balance of probabilities.

[66] We would not give effect to that submission. Admittedly, the impugned instruction should have been phrased differently. The trial judge should have told the jury to ignore what counsel had said "to the extent that it differed from his instructions". That said, we do not accept that his failure to include those additional words would have led the jury to believe that what defence counsel had said was "wrong", as opposed to "less helpful" than what they were about to hear from the trial judge. In so concluding, we take comfort from the fact that a few pages earlier in the charge, when he was explaining to the jury how his role differed from theirs, the trial judge stated: "[s]o forget any statements that counsel have made to you about the law if they differ from what I am about to tell you" (emphasis added). Importantly, in his instructions on reasonable doubt, while the trial judge did not use the same language that the two defence counsel had used in defining the reasonable doubt standard, he did not say anything that would have led the jury to believe that what defence counsel had said differed in any substantial way from what he was telling the jury. [page600]

[67] Regardless, as pointed out earlier, the ultimate question to be asked in connection with this ground of appeal is whether, having regard to what the trial judge actually told the jury, there was a reasonable likelihood that the jury did not appreciate the correct standard of proof to apply. That brings us to the appellant's first complaint, i.e., that the instruction on reasonable doubt was facially deficient and it failed to adequately differentiate between the criminal and civil standards of proof.

[68] Again, we do not agree. The trial judge told the jury that they could only convict a particular accused if they were sure, based on credible evidence that convinced their minds, that the accused was guilty. He then directed the jury that if the totality of evidence fell "short of such persuasion in any way, then proof beyond a reasonable doubt [will] not [have] been achieved and you must acquit" (emphasis added). Finally, he concluded by admonishing the jury that probable or likely guilt was not sufficient.

[69] In our view, by telling the jury that probable guilt was insufficient, that they could only convict if they were sure of the accused's guilt based on credible evidence that convinced their minds, and that they must acquit if the totality of the evidence fell short of such persuasion in any way, we are satisfied that the jury would have appreciated the very high standard that must be met before a conviction could be registered. Put differently, nothing in the charge causes us "serious concern about the validity of the jury's verdict [or] leads us to the conclusion that the [appellants] did not have a fair trial". (See Russell, supra, at para. 23.)

[70] That said, in the future, the trial judge would do well to follow the model instructions suggested by Cory J. in Lifchus, with perhaps some augmentation along the lines suggested in Starr. There was no excuse for not doing so in this case and the charge contained deficiencies that it should not have. Quite frankly, post-Lifchus and Starr, we find it remarkable that this ground continues to raise its head. There is no reason for this and trial judges should take extra care to ensure that their instructions on reasonable doubt are not open to the kind of attack brought here.

[71] In the end, for the reasons stated, we would not give effect to this ground of appeal.

Issue 2: Did the trial judge properly segregate the evidence that the jury could consider on the various counts?

[72] The indictment in this case was a multi-count indictment involving multiple accused. The various counts related to four [page601] separate incidents, three of which involved the complainant Morrison and one the complainant Dulmage. Morrison was not involved in the Dulmage incident and Dulmage was not involved in the Morrison incidents. In some of the incidents, not all of the appellants were charged; in others, they were all charged. The jury of course heard all of the evidence as it related to each of the counts, each of the complainants, and each of the appellants.

[73] In his charge, the trial told the jury that apart from one limited exception, they were to determine the guilt or innocence of each accused on each count solely on the basis of evidence admissible against that accused. As for the one exception, he told the jury that they could look at the evidence on the various counts to see if it contained similarities on matters such as patterns of conduct, motive, and late reporting, and if so, the jury could consider those similarities in assessing the overall strength of the Crown's case on any particular count or group of counts. At the same time, the trial judge told the jury that they could also consider dissimilarities in the evidence and take those into account in assessing what, if any, value the evidence on one or more counts had in relation to other counts. Finally, he warned the jury that they could not use the similar evidence to show that the accused (or any of them) were persons of bad character who deserved to be punished or that they were the type of persons likely to commit the crimes with which they were charged.

[74] The appellants submit that the trial judge erred in permitting the jury to "cross-reference" the evidence on the various counts, even for the limited purpose outlined by him.

[75] With respect, we disagree. Stripped to its essentials, what the jury was being told was that they could look to the evidence on the various counts to see if it established a modus operandi or set of business practices that the appellants employed when enforcing and collecting drug debts.

[76] In our view, the evidence was sufficiently probative to warrant its reception for that purpose. The strong limiting instruction given by the trial judge ensured that its prejudicial effect would not outweigh its probative value.

[77] Accordingly, we would not give effect to this ground of appeal.

Issue 3: Did the trial judge fail to provide an adequate Vetrovec instruction?

[78] At trial, the appellants took the position that Morrison and Dulmage were thoroughly disreputable and that they could [page602] not be trusted to tell the truth. In that regard, they pointed to the unsavoury background and character of both men, the many frailties and inconsistencies in their testimony, the strong motive, particularly in the case of Dulmage, for falsely accusing the appellants [^1] and the lack of confirmatory evidence that should, in some instances, have existed if the complainants were telling the truth. In sum, the appellants maintained that the evidence of the complainants was fraught with difficulties and that it could not be relied upon to establish guilt beyond a reasonable doubt.

[79] In the circumstances, the trial judge correctly concluded that this was a case in which a Vetrovec warning was required. The appellants contend that the warning he gave was inadequate.

[80] Before addressing the adequacy of the warning, it is important to put the appellants' submission into its proper perspective. Unlike the situation in R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, [2000] S.C.J. No. 12, 141 C.C.C. (3d) 321, where a Vetrovec warning, though mandated, was not given, the complaint here is that the warning given was not "strong" enough or "detailed" enough.

[81] In our view, considerable restraint should be exercised before giving effect to a submission of that nature, lest we begin to slip back into the "blind and empty formalism" and "ritualistic incantation" that marked the pre-Vetrovec era. (See R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40, at p. 823 S.C.R.) For trial judges of that era who faced the daunting task of crafting instructions that did not run afoul of the inflexible rules then in force, Vetrovec was like a breath of fresh air. It put a premium on common sense and it recognized that juries were intelligent and they could be trusted to do the right thing. It sought to simplify an area of the law that had become "unduly and unnecessarily complex and technical". (See Vetrovec, supra, at p. 830 S.C.R.) Elaborate instruction, the court said, was not needed. All that was required, in the case of some witnesses, was "a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness". (See Vetrovec, supra, at p. 831 S.C.R.)

[82] Vetrovec provided much-needed guidance. It sent a clear message that common sense and the law need not be strangers [page603] and that the purpose of legal instruction was to educate, not complicate. That message is as important today as it was 25 years ago -- perhaps more so. And yet, the appellants' submissions, if accepted, could well start us down a road towards the reintroduction of a set of rules and formulas reminiscent of those that existed in the pre-Vetrovec era. That is a disturbing prospect. It should not be permitted to take root.

[83] Hence, in a case like this, where the issue on appeal is not whether a Vetrovec instruction should have been given, but whether the instruction given was adequate, appellate courts will not test the adequacy of the instruction against some pre- formulated format or prescribed terminology, but will decide whether the instruction, read in the context of the case and the rest of the charge, serves the purpose intended by a Vetrovec caution. [^2] If the instruction meets that criterion, there is no misdirection. Trial judges are owed considerable deference in determining how best to frame the Vetrovec caution. They are much better situated than appellate courts to determine how to provide a particular jury with an effective and balanced Vetrovec caution tailored to the circumstances of the particular case.

[84] In sum, where a Vetrovec warning has been given, appellate intervention will be justified only where the appellant can show that in all of the circumstances, the warning as framed [page604] clearly failed to convey to the jury the appropriate degree of caution required for the particular witness or witnesses to whom the caution was addressed.

[85] That brings us to the case at hand. In his charge, before providing the jury with a "formal" Vetrovec instruction, the trial judge drew the jury's attention to the lengthy criminal records of the complainants and he explained how those records could be used in assessing the complainants' credibility. In that context, he described the complainants as having lived "a life of crime" and he told the jury that this was something that they could "take . . . into account in considering whether [the complainants] were credible; whether you believe them".

[86] The trial judge then turned to Vetrovec. He began his instruction by observing that in view of the background of the complainants and their prior criminal involvement, the jury would, as a matter of "common sense", want "to look at their evidence with great care and caution" (emphasis added). In that regard, he suggested that although it was not "absolutely necessary", the jury might wish to have "some confirmation" of their evidence from "somebody or something other than their testimony standing alone". He then reminded the jury of the need to "closely scrutinize" the evidence of the complainants in deciding whether the Crown had proved its case beyond a reasonable doubt. Thereafter, he repeated his instruction that it would not be "unreasonable for [the jury] to seek confirmation from other evidence" although such confirmation was not mandatory. Finally, he admonished the jury that the "caution" he had just given applied only insofar as the jury was inclined to use the complainants' evidence to convict the appellants; it did not apply if their evidence assisted the appellants.

[87] The trial judge next alerted the jury to aspects of the evidence that might serve as "possible confirmation" of the complainants' evidence. He introduced this segment of the Vetrovec instruction in the following neutral terms:

You may find there is some evidence that confirms or supports parts of Mr. Dulmage or Mr. Morrison's testimony. It is for you to say, and to determine, how such testimony affects whether or how much you will believe or rely upon the evidence of the two complainants in arriving at your verdicts. The evidence to which I am about to refer illustrates the kind of evidence you may find that confirms or supports the Dulmage or Morrison accounts. It may help you and it may not. It is for you to say.

The trial judge then outlined, in point form, without any elaboration, various items of evidence that the jury could consider as "possible confirmation". With that, he completed his Vetrovec instruction. [page605]

[88] The appellants complain that the Vetrovec instruction was inadequate for three reasons. First, it failed to alert the jury to all of the characteristics that called the evidence of the complainants into serious question. Second, it was not enough to tell the jury that they should proceed with "great care and caution" and "closely scrutinize" the evidence of the complainants before acting on it, without more, to convict; the jury should have been told that it would be "dangerous" to do so. Third, the instruction left the jury with the erroneous impression that confirmatory evidence was more of a luxury than a necessity in deciding whether they could act on the evidence of the complainants, without more, to convict.

[89] Beginning with the third complaint, we agree that it was unnecessary and unhelpful for the trial judge to emphasize that the jury need not find confirmatory evidence before acting on the evidence of the complainants to convict. While the instruction was legally sound, it bore little relationship to the case at hand. And that is precisely why it could not possibly have prejudiced the appellants. There was no lack of confirmatory evidence here; if anything, there was an abundance of it. And some of it was extremely powerful. Had the trial judge chosen to delve into it in detail, he could have done considerable damage to the defence position.

[90] In the case of Dulmage, the taxi driver's evidence was very damaging. Standing alone, it virtually sealed the appellants' fate. But it did not stand alone. Equally compelling was the evidence surrounding the hospital visit, including the get-well card from "Honest Jim [Zebedee] and Company", the picture of the flowers taken in Dulmage's room, and the picture of the appellant Wyse standing outside of the Kingston General Hospital. And that is not all. There was the evidence of Dr. Taylor confirming that Dulmage's injuries were consistent with a beating, not a car accident, and Morrison's evidence confirming the "business practices" that "Honest Jim and Company" employed to enforce and collect drug debts.

[91] As for Morrison, in addition to the support emanating from Dulmage's evidence, there was the medical evidence establishing that he had been shot on August 18, 1997, and the evidence of his complaint to Sergeant Graham on December 18, 1997, in which he outlined the various incidents of violence perpetrated against him. That complaint was highly significant. It rebutted the appellants' allegation that Morrison's evidence was the product of recent fabrication and it lent credence to his testimony. It also left a gaping hole in the appellants' collusion theory, i.e., that Morrison and Dulmage had put their heads together [page606] and falsely concocted evidence against the appellants for their own personal reasons. In that regard, it is noteworthy that Morrison had nothing to gain by falsely implicating the appellants; if anything, he stood to lose a good deal by putting his own life at risk.

[92] Turning to the second complaint, i.e., the trial judge should have told the jury that absent confirmation, it would be "dangerous" to convict on the complainants' evidence, we see little difference between that warning and the one actually given. The trial judge instructed the jury to proceed with "great care and caution" and to "closely scrutinize" the evidence of the complainants before relying on it, without more, to convict. In the circumstances of this case, we view the difference between the two as largely one of semantics. The particular wording chosen to caution the jury lies within the discretion of the trial judge. So long as the discretion is exercised reasonably, appellate courts will not interfere. In our view, the wording chosen by the trial judge in the instant case was reasonable. Accordingly, we would not interfere. [^3]

[93] As for the first complaint, i.e., that the jury should have been alerted to all of the characteristics that called the evidence of the complainants into serious doubt, we acknowledge that the trial judge could have provided the jury with more particulars. He could have mentioned the benefit that Dulmage and his girlfriend received in respect of their outstanding fraud charges; he could have told the jury about the money Dulmage hoped to get from the Criminal Injuries Compensation Board; he could have alerted the jury to the inconsistencies and other frailties in the complainants' evidence; and he could have told the jury to be wary of so-called "reformed" criminals. [page607]

[94] Manifestly, the trial judge could have mentioned all of those things. The question, however, is not whether he could have mentioned them, but whether, as a matter of law, he was required to do so. In our view, the answer is "No".

[95] The trial judge was entitled to take a functional approach to the charge. Unlike the situation in Sauvé, the characteristics which went unmentioned here were not the least bit subtle or esoteric; they were self-evident. In our view, it borders on intellectual snobbery to think that the jury would not have been alive to them or appreciated their significance. This is especially so when one considers that the charge in this case was preceded by no less than five closing addresses in which defence counsel emphasized and re-emphasized all of the characteristics that called the complainants' evidence into doubt. In the circumstances, requiring the trial judge to turn over the same factual ground that counsel had tilled and re- tilled would result in form triumphing over substance. That is precisely the kind of formalism that Vetrovec sought to eliminate. We would do well not to resurrect it.

[96] In the final analysis, we accept that the trial judge could have provided a more detailed and forceful Vetrovec warning. Had he done so, however, it would have been equally proper for him to stress and embellish the powerful body of confirmatory evidence that supported the complainants' evidence. In the end, the trial judge chose to take a more measured approach to each. He provided the jury with the basic tools that they needed and he left the matter to them. While his instructions were by no means a model of perfection, they were sufficient in the circumstances. Accordingly, we would not give effect to this ground of appeal.

Issue 4: Did the trial judge adequately put the position of the defence to the jury?

[97] The appellants submit that the trial judge did not adequately put the position of the defence to the jury. They further allege that the charge "was one-sided, unbalanced and constituted a mere reiteration of the position of the Crown".

[98] We do not agree with either of those submissions. The second complaint, in our view, is completely unfounded. It stems from a misapprehension of the format that the trial judge used in reviewing the essential elements that the Crown had to prove in respect of a particular offence or group of offences. That format consisted of:

-- A brief recitation of the count or groups of counts under consideration; [page608]

-- An overview of the evidence giving rise to the particular count or a group of counts;

-- Legal instruction on the essential elements of the count or group of counts under consideration.

[99] The appellants take issue with the second element of the format. The overview of the evidence, they say, consisted of a summary of the evidence called by the Crown in chief and it failed to review the deficiencies and frailties exposed by cross-examination.

[100] The appellants are correct that the overview of the evidence was essentially a summary of the evidence led by the Crown in chief. But that is precisely what it was meant to be. The trial judge was not, at this juncture, explaining the position of the parties. He was merely alerting the jury to the events giving rise to the counts under consideration. That would have been apparent to the jury. In our view, there was nothing untoward or improper about the format used by the trial judge.

[101] The second complaint is that the trial judge failed to adequately put the position of the appellants to the jury.

[102] It is true that in the charge proper, the trial judge devoted little time to the position of the appellants. He did however, capture the essence of their position, i.e., that Morrison and Dulmage were thoroughly disreputable, that their evidence was fraught with contradictions and inconsistencies and that it could not possibly be relied upon to establish the appellants' guilt beyond a reasonable doubt.

[103] Following objections to the charge, the trial judge re- instructed the jury and he supplemented his earlier outline of the defence position. In particular, he highlighted some of the more prominent inconsistencies and deficiencies in the testimony of the complainants, as requested by the appellants. He also instructed the jury on the law of prior inconsistent statements (something he had neglected to do in the charge proper) and he alerted the jury to be on the watch for deliberate lies on significant matters as they could be "more telling as against the witness' credibility". That, of course, is the position that the appellants were urging in respect of the complainants and the trial judge alerted the jury to fruitful areas of their evidence where such inconsistencies could be found. Finally, the trial judge instructed the jury on the dangers of collusion and the dramatic impact that collusion could have on the testimony of the complainants. That was a prominent feature of the appellants' defence, which, through inadvertence, the trial judge had also [page609] neglected to bring to the jury's attention in the charge proper. He did so quite forcefully in the recharge.

[104] Considering the charge and recharge together, we are satisfied that the trial judge adequately instructed the jury on the position of the defence. While it is true that he could have gone into more detail, he was not obliged to do so in the circumstances of this case. There are several factors behind that observation.

[105] First, although there were five accused and multiple counts, overall, the case was not complicated. Essentially it boiled down to the jury's assessment of the complainants' evidence. There was virtually no technical evidence and what little there was was easily understandable.

[106] Second, the positions of the Crown and defence were straightforward and uncomplicated. Indeed, in the charge proper, the trial judge spent almost as little time on the Crown's position as he did on the defence. The recharge, however, was devoted almost entirely to the defence.

[107] Third, this was a case uniquely suited for the jury and we are satisfied that, at the end of the day, the jury would have been fully familiar with the position of the appellants. In saying this, we recognize that in his charge, the trial judge made little use of the summaries prepared by the appellants at his request. In response to objections from defence counsel about this, the trial judge stated that he found the summaries to be of "very little help".

[108] Be that as it may, we cannot stress enough the right, if not the duty of trial judges, to take a functional approach to jury charges. Yes, the trial judge could have provided the jury with more details about the defence position, but in the face of five "united front" closing addresses by the defence, one could be forgiven for asking: "What would have been the point?" By the end of those addresses, we have no doubt that the jury could have rhymed off the position of the appellants in their sleep.

[109] In sum, we wish to emphasize that this ground of appeal cannot and should not be approached on a "one-size-fits-all" basis. What will be adequate in one case may not be in another. Trial judges, however, are in the best position to gauge how much or how little is required. On appellate review, their assessment of the matter should be afforded considerable deference.

Other Issues

[110] The appellants raised four other grounds of appeal against conviction. We did not call upon the Crown to respond to them and we propose to address them in short order. [page610]

(1) The jury selection issue

[111] In view of the publicity surrounding this case, the prospective jurors were challenged for cause. The appellants complain that within that process, some of the triers of fact were not properly instructed about the nature of their task or the procedure to be followed.

[112] We would not give effect to that argument. The procedure followed by the trial judge ensured that each of the triers was aware of the nature of the task to be performed and the procedure to be followed. Individual instruction may not have been given to every trier but it was not required. (See R. v. Douglas (2002), 2002 38799 (ON CA), 62 O.R. (3d) 583, [2002] O.J. No. 4734 (C.A.), at paras. 19-22.)

(2) Direction that the jury must take as proof a witness's denial of a suggestion put in cross-examination

[113] In his instructions to the jury on the legal effect of a witness's denial of a suggestion put in cross-examination, the trial judge stated:

And, on the other hand, keep in mind that counsel's questions do not constitute evidence, as I told you before, unless the witness agrees that the question is factually correct. And I warn you of this since allegations of misconduct or suggestions about evidentiary matters are easily put in cross-examination. In the absence of evidence supporting such an allegation or a suggestion, the witness's denial of the allegation or suggestion must be taken as correct. Counsel's questions or submissions cannot be considered evidence; only witnesses can testify.

(Emphasis added)

[114] As the appellants point out, the emphasized portion of that instruction is wrong. While it is true that unaccepted suggestions put to a witness do not amount to evidence, a witness's denial of a suggestion does not mean that the denial must be taken as correct. The jury is entitled to accept all, a part or none of a witness's testimony. (See R. v. Shirley, 2002 20102 (ON CA), [2002] O.J. No. 748, 155 O.A.C. 210 (C.A.), at paras. 15-16.)

[115] Fortunately, in this case, in the paragraph immediately preceding the impugned passage, the trial judge told the jury that they were "not obliged to accept any of the evidence of a witness just because there is no denial of it by other evidence". As well, one page earlier, he told the jury that they could believe all, part or none of the evidence given by a witness.

[116] In the circumstances, when the impugned passage is read in the context of the charge as a whole, we are satisfied that the jury would have known that they could accept all, part or none of [page611] a witness's evidence regardless of whether it was contradicted by other evidence.

(3) The use of prior consistent statements

[117] As mentioned earlier, in the recharge, the trial judge instructed the jury on the law relating to prior inconsistent statements. In the context of that instruction, he included the following instruction on prior consistent statements:

Similarly, if the statement, or part of it, is consistent with the witness's testimony, it is admissible only as to the witness's credibility or reliability -- nothing else -- in the sense that a prior consistent statement may be considered as a factor capable of strengthening the credibility or reliability of testimony at trial.

[118] It is unclear why the trial judge included that instruction in his instructions on prior inconsistent statements. The appellants contend that it could only have been referable to Morrison's complaint to the police on December 18, 1997, following the last of the alleged incidents involving him. To the extent that it did relate to that statement, the appellants submit that the charge was in error because the December 18 statement could not be used to confirm the truth of Morrison's sworn evidence. (See R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 16 O.R. (3d) 1, [1993] O.J. No. 4573, 85 C.C.C. (3d) 457 (C.A.).)

[119] With respect, the passage from F. (J.E.) upon which the appellants rely deals with a situation where a prior consistent statement is introduced solely as part of the narrative. That is not this case. The appellants alleged collusion between Morrison and Dulmage and they claimed that Morrison's evidence was the product of recent fabrication. Morrison's December 18 statement to the police served to rebut both of those suggestions and the jury could have been instructed accordingly. As well, the trial judge could have told the jury that Morrison's prior consistent statement was something that they could consider in assessing the truth of his testimony.

[120] Viewed that way, the instruction about which the appellants complain is benign. Had the trial judge fully instructed the jury on the use that could be made of Morrison's December 18 statement, such instruction would have enured to the benefit of the Crown.

(4) Non-disclosure of a conversation involving the appellant Wyse

[121] The appellants were found guilty by the jury on September 22, 2001. Prior to the sentence hearing, which was held on [page612] October 26, 2001, the Crown produced a transcript of a telephone call that had been intercepted on August 11, 1998, pursuant to a valid wiretap authorization. Through inadvertence, the Crown had failed to alert the defence to the call either before or during the trial.

[122] The call involved the appellant Wyse and another individual by the name of Jim Thompson. In the call, Thompson, who apparently had affiliations with the Hells Angels, commented that "the boys are on a collection". Wyse expressed concern that Thompson was trying to get him "clubbed" out and Thompson replied that they were not going to do that. Wyse then said:

I, I don't know how (laughs). I don't know how anybody else's fuckin' club works. But I know in my club we revolve around violence . . . to get our fuckin' loot.

[123] The appellants submit that the failure of the police to disclose that call deprived them of their s. 7 Charter right to make full answer and defence. They seek a new trial on that basis.

[124] In our view, that submission is entirely without merit. Viewed realistically, the taped conversation could not possibly have assisted the defence; if anything, it provided the Crown with even more ammunition than it already had. In the circumstances, there is no reasonable possibility that the inadvertent non-disclosure of the telephone call could have affected the fairness of the trial. Had it been disclosed, we have no doubt that the outcome would have been precisely the same.

Conclusion

[125] We would not give effect to any of the grounds of appeal against conviction. Accordingly, we would dismiss the appeals from conviction.

Sentence Appeals

[126] Zebedee, Shane Lang and Jason Brooks also seek leave to appeal their sentences and appeal the sentences imposed. We will deal with each of the appellants in order.

[127] The sentence the trial judge imposed on Zebedee in connection with the Morrison incident in the summer of 1997 on Bleecker Avenue was:

-- Use of firearm in committing assault: 1 year

-- Assault with a weapon: 1 year consecutive

[page613]

[128] In connection with the Morrison shooting incident in August 1997, he was sentenced to:

-- Assault with a weapon: 2 years consecutive

-- Aggravated assault: 5 years consecutive

-- Unlawful confinement: 3 years consecutive

[129] And finally, regarding the Dulmage kidnapping incident in February 1998, his sentence was:

-- Kidnapping: 10 years concurrent

-- Aggravated assault: 12 years consecutive

-- Threatening death: 3 years concurrent

[130] Zebedee's total sentence was 24 years. In our view, the totality of the sentence for Zebedee was excessive and it failed to address all the relevant objectives of sentencing.

[131] When imposing sentence on Zebedee, the trial judge said:

In sentencing you, I'm not trying to do a balancing act between rehabilitation and deterrence or denunciation of your activity. The only principle of sentencing that applies to you is deterrence.

[132] Given the nature of the offences, deterrence was indeed an important objective. However, in our view, the facts of this case did not justify a complete disregard for the principle of rehabilitation. Zebedee's criminal record, while lengthy, was almost entirely for non-violent offences. With one exception, the convictions were for crimes that warranted a reformatory sentence. There were two offence-free periods on his record: one between 1976 and 1984, and the other between 1986 and 1993.

[133] The trial judge did not find that Zebedee was incapable of being rehabilitated. Indeed, his prospects for rehabilitation, while perhaps somewhat remote, do appear to exist. In our view, the trial judge imposed an overall sentence that crushed any hope of rehabilitation.

[134] In addition, the 12-year sentence for aggravated assault and the ten-year sentence for kidnapping in relation to Dulmage were excessive. Although Dulmage's injuries were serious and he was hospitalized for 12 days, the injuries were not life-threatening and do not appear to have caused him any long-lasting impact.

[135] We would therefore grant Zebedee leave to appeal his sentence, allow the appeal and substitute a total sentence of 17 years. It will be made up as follows. [page614]

[136] In connection with the Morrison incident in the summer of 1997:

-- Use of firearm in committing assault: 1 year

-- Assault with a weapon: 1 year concurrent

[137] For the Morrison shooting incident in August 1997:

-- Assault with a weapon: 2 years concurrent

-- Aggravated assault: 7 years consecutive

-- Unlawful confinement: 3 years concurrent

[138] And, for the Dulmage kidnapping incident in February 1998:

-- Kidnapping: 7 years concurrent

-- Aggravated assault: 9 years consecutive

-- Threatening death: 3 years concurrent

[139] The trial judge also made an order, pursuant to s. 743.6 of the Criminal Code, that Zebedee not be eligible for parole until he has served ten years. Before any s. 743.6 order can be made, an offender must be advised that he is at risk of such an order, and have the opportunity to make submissions and introduce additional evidence. Furthermore, the trial judge must provide reasons why the order is being made. (See R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, [2003] S.C.J. No. 5, 171 C.C.C. (3d) 1, at paras. 36-37.) These requirements were not met in this case.

[140] The Crown at trial made no request for such an order and defence counsel received no notice that the trial judge was considering such an order. Because of this, Zebedee's counsel was not given any opportunity to make submissions or call additional evidence. Finally, the trial judge provided no reasons for making the order. In our view, these errors require that the order be set aside.

[141] We turn next to the sentences imposed on each of Shane Lang and Jason Brooks. In connection with the Morrison incident in the summer of 1997, the trial judge sentenced each of them to two years for break and enter. Regarding the Dulmage incident in 1998, each was sentenced as follows:

-- Kidnapping: 10 years consecutive

-- Aggravated assault: 10 years concurrent

-- Threatening death: 3 years concurrent

[page615]

[142] The total sentence for each was 12 years. In our view, the trial judge failed to give adequate consideration to the mitigating factors that applied to them. Moreover, he failed to give adequate consideration to the principle of totality.

[143] The trial judge found that Zebedee "was the leader of the gang", and that he had "inveigled others -- taken others along with [him] in this criminal lifestyle". Having found that Zebedee exerted influence over them, he should have considered this in determining the appropriate sentence to impose on both Lang and Brooks. This fact should have been taken into account as mitigating their sentences.

[144] The trial judge knew that Shane Lang was Zebedee's son and, in the circumstances of this case, that influence should have been considered as a significant mitigating factor. At the time of sentencing, Shane Lang was 26 years old and had a young son.

[145] Brooks was 25 years old, was in a relationship and also had a young son. He had the support of his family, who would assist him upon his release.

[146] Given the ages and other antecedents of both Lang and Brooks, rehabilitation was an important factor to consider for each of them. In the end, we believe the sentences imposed were excessive.

[147] We would therefore also grant Shane Lang and Jason Brooks leave to appeal their sentences, allow their appeals and substitute a total sentence for each of ten years, made up as follows: in connection with the Morrison break and enter in the summer of 1997, two years each. Regarding the Dulmage incident in 1998, each will receive a sentence of six years concurrent for kidnapping, eight years consecutive for aggravated assault, and three years concurrent for threatening death.

Appeal from conviction dismissed;

sentence appeal allowed.

Notes

[^1]: Dulmage and his girlfriend received assistance from the police in relation to fraud charges they were facing and Dulmage's cooperation with the police was something that the Criminal Injuries Compensation Board was likely to consider in assessing the amount of any award made to Dulmage.

[^2]: In R. v. Sauvé, 2004 9054 (ON CA), [2004] O.J. No. 248, 182 C.C.C. (3d) 321 (C.A.), this court stated that a proper Vetrovec warning consists of the following four elements:

(1) The evidence of certain witnesses is identified as requiring special scrutiny;

(2) The characteristics of the witness that bring his or her evidence into serious question are detailed;

(3) The jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and

(4) The jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect of whom the warning has been given.

Those elements ought not to be viewed as though they were cast in stone. (See for example R. v. Pollock, 2004 16082 (ON CA), [2004] O.J. No. 2652, 187 C.C.C. (3d) 213 (C.A.), where the Vetrovec instruction was affirmed even though the trial judge failed to point to all of the reasons for finding the evidence of certain witnesses suspect; see also Sauvé itself, where the court observed that there is no particular magic in the use of the words "danger" or "dangerous"; it is the circumstances of the case that will determine the nature and content of the warning.) They merely provide a legal framework that trial judges should keep in mind when crafting instructions that are designed to meet the particular needs of the case at hand.

[^3]: R. v. Sauvé, supra, is one of those rare cases where this court found that the Vetrovec warning given by the trial judge in relation to three principal Crown witnesses, was not strong enough and that the jury should have been told that it would be "dangerous" to convict on their evidence without more. Importantly, the trial judge in Sauvé [at para. 71] did not use the strong language used by the trial judge in the present case. He merely told the jury that it would be "prudent to examine [the evidence of the three witnesses] carefully" and, where they considered it advisable, to look for supporting evidence. In concluding that the warning was insufficient, this court noted that the suspect witnesses were informants who may have had subtle motives for falsely implicating Sauvé and subtle means of obtaining information that "could only" have come from him. In the circumstances, the court found that it was obligatory for the jury to treat their evidence with "the utmost care". That, of course, is similar to the language used by the trial judge in the instant case where he told the jury that they were to proceed with "great care and caution" before acting on the evidence of the complainants, without more, to convict.