DATE: 20061211
DOCKET: C40468
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – EVERALD DAVIS (Accused/Appellant)
BEFORE:
WEILER, FELDMAN AND MACFARLAND JJ.A.
COUNSEL:
Paul Calarco
for the appellant
Debbie Calderwood
for the respondent
HEARD:
November 15, 2006
On appeal from the conviction entered by Justice J. Robert MacKinnon of the Superior Court of Justice dated January 16, 2003 and from the sentence imposed by Justice MacKinnon dated April 8, 2003.
E N D O R S E M E N T
[1] The appellant appeals his conviction by a jury on January 16, 2003 of two counts of use of a firearm in a kidnapping, use of a firearm in committing a robbery; use of a firearm in committing extortion and unlawful confinement. He also appeals the six year sentence imposed by MacKinnon J.
THE FACTS
[2] Early in the morning on May 29, 2001, D’Angelo Christie (“Christie”) and Lincoln Brown (“Brown”) were kidnapped at gunpoint by two men. Christie and Brown had been lured to the parking lot of a nightclub when two gunmen appeared. One of the gunmen got into Christie’s car, while the other followed behind in a Lexus. The gunman in the car with Christie and Brown directed Christie to drive to a parking lot in an industrial area. While they were driving, the gunman was speaking on a cell phone headset. It appeared to Christie and Brown that he was speaking to the driver of the Lexus.
[3] Once in the industrial park, the gunman in the Lexus joined the others in Christie’s car. Christie was then asked for money and threatened (Brown was not). Christie begged to be driven to his home where he would provide the men with money. The gunmen directed Christie to do so. They directed him as to which route to take, suggesting that they already knew the way to his house.
[4] At the house, the gunman who had been with Christie the entire time, entered the house with Christie. The two came upon Christie’s wife (“Giovanna”). The gunman searched for and demanded money that he said was “owed” to him. He also stole jewellery from the house. During the search, Christie escaped to a neighbour’s house and called 9-1-1. When he realized that Christie had escaped, the gunman left the house, returned to Christie’s car (where the other gunman and Brown had been waiting), and drove back to the industrial park, where they left Brown in Christie’s car and left in the Lexus.
[5] On September 10, 2001, Clarence Coward (a.k.a. Clarence Rogers) was arrested and was found to be in possession of a cell phone that was used on the night of the kidnapping and a gun that resembled a gun identified by the complainants. On October 19, 2001, the appellant was arrested and was found to be in possession of a cell phone bill associated with the cell phone that the first gunman’s phone had been calling on the night of the kidnapping.
[6] The sole issue at trial was the identification of the appellant as the gunman who rode in Christie’s car and who entered his house. The defence did not take issue with the fact the offences were committed
THE CONVICTION APPEAL
[7] The foundation of the conviction appeal rests on the fresh evidence application before this court.
[8] Prior to the trial, counsel for the appellant received information that one of the complainants, D’Angelo Christie, was using an assumed name and had a criminal record. Counsel prepared a pre-trial application to obtain citizenship and immigration records from the Government of Canada, and they also subpoenaed occurrence reports and other materials from the Toronto Police Service, York Regional Police and Peel Regional Police.
[9] The affidavit filed in support of the application was that of the legal assistant to trial counsel and was based on information and belief. Paragraph 3 of that affidavit stated:
- Mr. McLachlin has advised me that he has been provided with hearsay information, the source of which is not verifiable, relating to the identity of a Crown witness in this case who calls himself D’Angelo Christie. Mr. McLachlin has informed me that the information he was provided is that D’Angelo Christie is not the real name of this witness.
and in paragraph six:
- Mr. McLachlin has advised me that he has been provided with hearsay information, the source of which is not verifiable, that the witness who calls himself D’Angelo Christie was convicted of criminal offences in Canada and deported. Mr. McLachlin has informed me that his information is that subsequent to this witness’ deportation he met Giovanna Christie and returned to Canada under his brother’s name.
[10] Trial counsel also requested that the Crown provide a copy of the finger prints of this witness (Christie) to be run through fingerprint data banks available to police.
[11] While the Crown resisted the appellant’s request as presented, it did obtain D’Angelo Christie’s consent to have the police compare his elimination prints (taken from his residence after the incident), against the immigration prints taken when D’Angelo Christie entered Canada under the name D’Angelo Christie. This comparison confirmed that this man was the same man who entered the country under the name D’Angelo Christie and who had obtained Canadian citizenship.
[12] Neither the appellant nor his counsel provided any further information to the court as to the source of the “hearsay information” relied upon. The Crown opposed the balance of the application.
[13] The information that was available at the time of trial indicated that the complainant had no criminal antecedents and was not using a false name and the trial proceeded on that basis.
[14] The complainant was cross-examined at trial and denied any suggestion that he had a criminal record and/or was in this country illegally. In re-examination Crown counsel then elicited from this witness that he had never been arrested or convicted of a criminal offence.
[15] Subsequent to the appellant’s conviction and sentence, his counsel was able to confirm that it was true that the complainant had used many aliases, had a criminal record, and had been twice deported from Canada and returned to Canada illegally.
[16] The appellant now seeks to have this information admitted as fresh evidence before this court. It is argued that this information affects the integrity of the trial process and the reliability of the verdict.
[17] The test for the admission of fresh evidence is well settled:
the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal cases as in civil cases;
the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
the evidence must be credible in the sense that it is reasonably capable of belief; and
it must be such that if believed, it could reasonably, when taken with the other evidence adduced at the trial, be expected to have affected the result.
See R. v. Palmer, [1980] S.C.R. 759.
[18] In our view the appellant fails on both the first and fourth parts of the test.
[19] Even in this court in the affidavit of trial counsel filed in support of this application, the source of the information in relation to D’Angelo Christie, that he was using an assumed name and had a criminal record, is not revealed. Although particulars of the aliases used and the particulars of the past criminal convictions are detailed, there is nothing that demonstrates that this evidence was not available at trial. This is not a case of either advertent or inadvertent non-disclosure by the Crown. There having been no misconduct or lack of disclosure on the part of the Crown, it cannot be said to be evidence that goes to the fairness or integrity of the trial process.
[20] The appellant’s defence was solely based on identification. However, this complainant’s evidence was not the only evidence of identification before the court. The complainant’s wife also identified the appellant.
[21] In addition there was compelling evidence in the form of cell phone records which put the appellant in contact with his co-accused at the approximate locations where the offences were carried out at about the time they were said to have occurred.
[22] In these circumstances we are not persuaded that even had this evidence been admitted, it could reasonably be expected to have affected the result.
[23] Counsel suggest that had this evidence been available at trial the appellant’s defence may well have been different. For example, he could have said he knew the victim who owed him money but that there was no violence and that the victim had animus against him. However there is no evidence before us from the appellant that had this information been admitted at trial, his defence would have been any different than the defence he ultimately presented, which was based solely on identification.
[24] In all of the circumstances, we are not persuaded that the overall fairness of the trial was in any way compromised or that the verdict may reasonably have been different.
[25] The appeal against conviction is dismissed.
SENTENCE
[26] The sole basis on which the appeal against sentence rests is that the trial judge erred in imposing the sentence for the offence of forcible confinement where Giovanna Christie (wife of D’Angelo Christie) was the complainant consecutive to the sentences imposed for the other convictions. The appellant does not submit that the sentence is otherwise unfit or is outside the range.
[27] While we agree that the conduct giving rise to the charges all arose through a single series of closely related events where we would expect that the sentences imposed would be concurrent, we are not prepared to interfere where the sentence is overall a fit one.
[28] Leave to appeal sentence is granted but, the appeal against sentence is dismissed.
“K. M. Weiler J.A.”
“K. Feldman J.A.”
“J. MacFarland J.A.”