R. v. Gabris, 2007 ONCA 437

CITATION: R. v. Gabris, 2007 ONCA 437

DATE: 20070615

DOCKET: C44302

COURT OF APPEAL FOR ONTARIO

LASKIN, MACPHERSON and LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

MARCEL GABRIS

Appellant

Richard A. Fedorowicz for the appellant

Gregory J. Tweney for the respondent

Heard: May 17, 2007

On appeal from the conviction entered and sentence imposed by Justice Thomas P. Cleary of the Ontario Court of Justice, on September 15, 2005.

BY THE COURT:

A. OVERVIEW

[1] The appellant, Marcel Gabris, appeals his conviction for robbery.

[2] On November 17, 2003, at approximately eight o’clock in the evening, the complainant went to a Money Mart store in Toronto where he purchased two money orders worth $1,000. Mr. Gabris was in the store at the same time to cash a cheque and was accompanied by his co-accused.

[3] The Crown alleged that just after the complainant left the store, Mr. Gabris and his co-accused approached him from behind demanding money. When the complainant refused to comply, the co-accused pushed him against a concrete pillar and told Mr. Gabris to rob him. Mr. Gabris went through the complainant’s pockets and stole between $10 and $20, but did not take the money orders. A passer-by shouted at both accused and they ran off. The complainant called the police.

[4] Both Mr. Gabris and his co-accused denied robbing the complainant. Mr. Gabris testified that on leaving the Money Mart store, the co-accused asked the complainant for a cigarette to which the complainant replied, “Get a job.” The co-accused and the complainant then began arguing and swearing at each other. Eventually the co-accused called the complainant a “Paki.” The two accused then left. They contended that the complainant called the police to get back at them for uttering a racial slur.

[5] At trial, the only witnesses were the complainant and the two accused. Identity was not in question. The sole issue was whether the robbery took place. The trial judge rejected the defence evidence, accepted the complainant’s evidence and convicted both accused. He sentenced Mr. Gabris to thirty days in custody (plus twenty-one days of pre-trial custody) and twelve months probation.

B. THE ISSUES

[6] Mr. Gabris argued four grounds of appeal against conviction:

(1) The trial judge erred in failing to find that Mr. Gabris’ right to a trial within a reasonable time under s. 11(b) of the Charter was infringed;

(2) The trial judge failed to take account of numerous inconsistencies in the complainant’s evidence;

(3) The trial judge misapplied the burden of proof; and

(4) The verdict was unreasonable.

[7] We called on the Crown to respond to the second and third grounds of appeal. On the first ground, we were not persuaded that the trial judge erred in holding that on the facts of this case, the twenty-month delay for a trial in the Ontario Court of Justice did not violate Mr. Gabris’ s. 11(b) Charter right. On the fourth ground of appeal, the evidence of the complainant could support the conviction and therefore, the verdict was not unreasonable.

C. ANALYSIS

1. Failure to deal with inconsistencies in the complainant’s evidence.

[8] Mr. Gabris’ main attack on the trial judge’s reasons focuses on his failure to deal with the many inconsistencies in the complainant’s evidence. Mr. Gabris has accurately set out these inconsistencies at para. 43 of his factum. They are numerous. Some of these inconsistencies are between the complainant’s evidence at trial and his earlier statement to the police; some are within the complainant’s own evidence at trial.

[9] The trial judge did acknowledge that “there were differences to some extent in what the complainant testified to and what he said to the police.” Beyond this acknowledgment, however, the trial judge did not address these “differences” in his reasons.

[10] Of course, trial judges are not required to deal expressly with every inconsistency in the evidence. Trial judges should, however, address contradictory evidence on key or material points. See R. v. Stark (2004), 190 C.C.C. (3d) 496 at paras. 12-13 (Ont. C.A.).

[11] Here, there were several key inconsistencies in the complainant’s evidence, which the trial judge failed to address. For example:

• At trial, the complainant testified that Mr. Gabris stared at him and looked at him in a threatening manner while inside the Money Mart store. Yet, in the complainant’s statement to the police – which he acknowledged was given shortly after the incident, was given when he was not upset and was accurate – the complainant did not say that Mr. Gabris stared at him or looked at him in a threatening way.

• At trial, the complainant testified that Mr. Gabris took cash and receipts for the money orders from him. Yet, in his statement, when the police asked him, “Did they take anything,” he answered, “No.”

• At trial, the complainant testified that Mr. Gabris went through his pockets. In his statement, the complainant did not say that anyone went through his pockets.

• In his examination in chief, the complainant testified that Mr. Gabris got into a taxi and left the scene by the time the police had arrived. In cross-examination, however, the complainant acknowledged that Mr. Gabris was still standing outside a nearby store when the police arrived, and only later left in a taxi after the police had not detained him.

[12] All these inconsistencies are material; two are critical because they go to the question whether the complainant was robbed. In our view, the trial judge’s failure to deal with these inconsistencies deprived Mr. Gabris of a fair trial. On this ground alone, we would allow the appeal.

[13] Adding to the unfairness is the trial judge’s comparative treatment of the defence’s evidence. Although the trial judge did not address important inconsistencies in the Crown’s case, he did fasten on one fairly unimportant inconsistency in Mr. Gabris’ evidence concerning who left the Money Mart store first, and used it as basis to reject his evidence.

2. Misapplication of the burden of proof.

[14] Mr. Gabris contends that the trial judge failed to apply R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), properly and instead treated the case as a credibility contest. The trial judge certainly referred to W.(D.) and correctly reminded himself that, “[i]t is not a contest of who is believed because that would appear to detract one’s thinking from the test of it being proved beyond a reasonable doubt. That is always the test.”

[15] When the trial judge came to analyze the evidence, however, he said, “[I]n these particular pieces of evidence, either there was a robbery or there wasn’t. There is no other alternative here.”

[16] This passage is troubling because it does suggest that the trial judge failed to turn his mind to the middle ground, whether there was a reasonable doubt a robbery occurred. Nonetheless, we need not decide whether the trial judge’s application of W.(D.) warrants reversal. His failure to address the important inconsistencies in the complainant’s evidence entitles Mr. Gabris to a new trial.

D. CONCLUSION

[17] We allow the conviction appeal, set aside the conviction and order a new trial.

“H.S.L.”

RELEASED: JUN 15, 2007 “John Laskin J.A.” “J.C. MacPherson J.A.” “H.S. LaForme J.A.”