DATE: 20061010
DOCKET: C42828
COURT OF APPEAL FOR ONTARIO
ROSENBERG, MACPHERSON and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Joseph Wilkinson for the appellant
Respondent
- and -
ERIC MEAROW
Lucy Cecchetto for the Crown respondent
Applicant/Appellant
Heard: September 14, 2006
On appeal from the conviction entered by Justice Lawrence W. Whalen of the Superior Court of Justice dated March 5, 2004 and from the sentence imposed by Justice Whalen dated April 14, 2004.
ROSENBERG J.A.:
[1] Shortly after midnight on June 20, 2003, two masked men entered a convenience store in Sault Ste. Marie and robbed the clerk of a small amount of cash, some cigarettes and some soft drinks. One of the men, Adrian Smith, was armed with a loaded sawed-off shotgun. By chance, Smith and another man, Andre Laine, were arrested a few hours after the robbery on another matter. Smith came to believe that Laine had informed on him to the police and accordingly, he told the police of his and Laine’s role in the robbery. He also implicated the appellant in the robbery as the get-away driver. A short time later, the police arrested the appellant and, after obtaining a search warrant, found the shotgun and some of the stolen goods in the appellant’s bedroom.
[2] At the joint trial of the appellant and Laine, Smith recanted any part of his statement to the police implicating them in the robbery. The trial judge admitted the statement as an exception to the hearsay rule.
[3] The appellant attempted to meet the Crown’s case by adducing evidence of an alibi and through his own testimony in which he denied participating in the robbery. He claimed that Smith had left the gun in his room without his knowledge when he was briefly out of the room.
[4] The trial judge, Whalen J., considered Smith to be a highly suspect witness and since there was no independent evidence confirming Smith’s story as it implicated Laine, he acquitted him. However, he found ample corroboration as regards the appellant because the appellant was in possession of the gun and the stolen goods only a short time after the robbery. He rejected the appellant’s alibi and convicted him.
[5] The appellant appeals his conviction and the sentence of six years imprisonment imposed on him by the trial judge.[^1] As regards the conviction appeal, the appellant submits that the trial judge erred in rejecting the alibi evidence and erred in his assessment of the appellant’s credibility. As regards sentence, the appellant submits that there is an unjustifiable disparity between the sentence that he received and the sentence of four years imprisonment imposed on Smith. For the following reasons, I would dismiss the appeal from conviction and sentence.
THE ALIBI
[6] On the Friday before the trial was to begin, counsel for the appellant (not Mr. Wilkinson) provided a letter to Crown counsel stating that his client relied upon an alibi. The particulars given in the letter were that the appellant was with Ricky Hodgkins on June 20, 2003 until 12:30 a.m. At trial, Hodgkins testified that the appellant was with him on two occasions on June 19, that they met up the second time between 9:00 and 10:00 p.m. and that they were together for the next one to two hours. He was able to remember the day he was with the appellant because he found out that the appellant was arrested the following day and because the appellant had been talking about his sister’s graduation. However, it is fair to say that Hodgkins’ memory was otherwise not good. He could provide virtually no details of what he did with the appellant during these times.
[7] The appellant testified that from 4:00 to 9:00 p.m. on June 19, he was with members of his family at his sister’s high school graduation. No other members of his family testified at the trial. However, the appellant identified a photograph showing him at the graduation and his sister’s diploma, with the June 19 date, was entered into evidence. The 4:00 to 9:00 p.m. interval was important because in his statement Smith had said that some of the preparation and planning for the robbery involving the appellant took place then.
[8] The appellant submits that the trial judge erred in his treatment of his alibi in several respects. First, he submits that the trial judge erred in stating that the law requires an accused to give to the Crown “the earliest possible notice” of an alibi. As held in R. v. Cleghorn (1995), 1995 63 (SCC), 100 C.C.C. (3d) 393 (S.C.C.) at 397, the correct statement of the principle is that the disclosure of the alibi is proper “when it allows the prosecution and police to investigate the alibi evidence before trial”. The timeliness and adequacy are evaluated “on the basis of whether a meaningful investigation could have been undertaken as a result of disclosure”.
[9] However, this error by the trial judge was of no consequence. The trial judge drew an adverse inference against the alibi, not because it was not disclosed at the earliest possible time, but because it was not disclosed in time to allow for meaningful investigation. In his reasons, the trial judge explained how the police investigation was hampered by this late disclosure.
[10] In his very helpful submissions, Mr. Wilkinson attempted to rebut the argument that the investigation was hampered. First, he argued that, as a matter of fact, the police were able to investigate the alibi because they took a statement from Hodgkins before he testified. However, by the time the police were able to speak to Hodgkins, some eight months after the robbery, Hodgkins had almost no memory of the events. He could provide no details that could be independently verified.
[11] Second, Mr. Wilkinson argued that the Crown is precluded from relying on the adverse inference resulting from late disclosure of an alibi because they did not seek an adjournment to conduct an investigation. I need not decide whether such a proposition could ever be an answer to the Crown’s claim of an adverse inference arising from late disclosure since it has no application in this case. The police did what investigation they could based on the notice provided to the Crown. Delaying the trial would not have assisted because, by the time he was interviewed, Hodgkins had little information to provide. The police did not need more time, they needed to have notice of the alibi at a time when they could have made a meaningful inquiry. That opportunity was lost because of the late disclosure.
[12] Third, Mr. Wilkinson argued that the Crown called no evidence that it was prejudiced by the late disclosure and was therefore precluded from relying on the resulting adverse inference. It may be that in some cases such evidence could be adduced, but the evidence was not necessary here. The prejudice is obvious on the record from the nature of Hodgkins’ evidence.
[13] The appellant also submits that the trial judge erred in his approach to the alibi in other respects. He submits that the trial judge erred in dealing with that part of the alibi concerning the graduation ceremony. In his reasons, the trial judge stated that he had some scepticism about whether the certificate proved the date of the graduation and “would have been more comfortable if someone had indicated it specifically and independently in a situation as serious as this. In any event, even accepting that he did go to the graduation exercises that day, there is no corroboration of the time of day or for how long he was there.”
[14] The appellant submits that it was an error to place a burden on the appellant to introduce corroboration of the alibi. While the term “corroboration” could have been avoided in this context, in my view, the trial judge did not make a reversible error. He was merely making the observation that the graduation certificate did not establish the time when the appellant was at the ceremony. While the trial judge accepted the certificate and the photograph as independent evidence confirming the appellant’s attendance at the ceremony, there was no independent evidence confirming when the appellant was there. I do not read the reasons as reversing the burden of proof or as suggesting that the trial judge was unaware that the appellant had to be acquitted if there was a reasonable doubt arising from the alibi evidence.
[15] In my view, the same must be said of the other passages in the reasons about which the appellant complains. For example, the appellant submits that the trial judge erred when he said that he was not “convinced” by Hodgkins and did not find him a helpful or “convincing” witness. Again, these statements do not indicate any reversal of the burden of proof. For the cogent reasons that he provided, the trial judge did not believe Hodgkins was with the appellant at the critical times. It was simply in that sense that the trial judge used the above phrases.
[16] Finally, the appellant submits that the trial judge erred in failing to consider the alibi evidence in the context of the evidence as a whole, and especially in conjunction with the appellant’s own testimony. I do not accept this submission. The trial judge reviewed all the evidence, especially the appellant’s evidence, and he explained in great detail why he did not find the appellant credible. I would not give effect to this ground of appeal.
SMITH’S LACK OF MOTIVE TO FALSELY IMPLICATE THE APPELLANT
[17] The appellant submits that the trial judge erred by improperly using Smith’s apparent lack of motive for falsely implicating him in the robbery in his assessment of the appellant’s credibility. This ground of appeal arises out of a portion of the reasons where the trial judge provided several grounds for rejecting the appellant’s explanation for the presence of the gun in his bedroom. He said the following:
First of all, I don’t see any reason for Mr. Smith to implicate Mr. Mearow if he wasn’t in fact involved. He had no reason to be angry with Mr. Mearow or to seek revenge against him. It wasn’t necessary to implicate him just to get Mr. Laine. Nor was it necessary to tell police where the gun was.
The trial judge then went on to give other reasons for rejecting the appellant’s evidence. The record supports those reasons.
[18] The appellant submits that it was an error to place the burden on him to provide some reason for Smith to falsely implicate him in the robbery. But this part of the reasons has to be considered in the context of the issues presented at the trial. In cross-examination of Smith and in argument, counsel for the appellant attempted to establish that, at the time he was giving his statement to the police, Smith did have a motive for falsely implicating the appellant. The attempt failed. In my view, in the impugned part of the reasons the trial judge merely dealt with one of the issues raised by the appellant at trial. He was not placing any burden on the appellant to explain Smith’s testimony, nor did he use the perceived absence of motive to strengthen Smith’s credibility. As this court said in R. v. Batte (2000), 2000 5751 (ON CA), 145 C.C.C. (3d) 449 at para. 120, “the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility”. In my view, that is all that the trial judge was doing here.
[19] I would not give effect to this ground of appeal. Accordingly, I would dismiss the appeal from conviction.
THE SENTENCE APPEAL
[20] The principal challenge to the sentence is the disparity between the six-year sentence imposed on the appellant and the four-year sentence imposed on Smith. In my view, the trial judge did not err in principle in imposing the appellant’s sentence. The actual disparity is only 18 months because six months of the appellant’s sentence is attributable to an offence of possession of a prohibited weapon unrelated to the robbery. Further, Smith’s sentence has to be viewed in context. He pleaded guilty and offered substantial assistance to the police in the investigation of the offence. He was entitled to a significant reduction in the sentence that would ordinarily be imposed because of these mitigating factors. Further, the four-year sentence was actually part of a total five-and-a-half-year sentence imposed on Smith for the robbery and other unrelated offences. In considering the disparity issue it is important to bear in mind other principles of sentencing, such as totality, that would have impacted any sentence imposed on Smith.
[21] In my view, the sentence imposed on the appellant was appropriate. Although he was only 19 years old, the appellant had 47 prior convictions including convictions for assault, uttering threats, assault with a weapon, and assault causing bodily harm. When he committed this robbery, the appellant had been out of custody for some two days. This was a very serious offence involving the use of a loaded sawed-off shotgun to rob a vulnerable victim. The appellant helped plan the robbery, participated in stealing the car used in the robbery, and assisted in obtaining the gun and ammunition. Even if the appellant was merely the getaway driver, his culpability in this offence was significant. The trial judge was in a particularly advantageous position in determining the appropriate sentence. He had presided at the trial, heard Smith and the appellant testify, and viewed the videotapes of Smith’s statement and surveillance camera footage showing the commission of the robbery.
DISPOSITION
[22] Accordingly, I would dismiss the appeal from conviction. While I would grant leave to appeal sentence, I would also dismiss that appeal.
Signed: “M. Rosenberg J.A.”
“I agree J.C. MacPherson J.A.”
“I agree E.E. Gillese J.A.”
RELEASED: “MR” October 10, 2006
[^1]: The actual sentence was less because the trial judge gave the appellant credit for 19 months pre-trial custody.