R. v. Burnett, 2007 ONCA 478

CITATION: R. v. Burnett, 2007 ONCA 478

DATE: 20070627

DOCKET: C43803

COURT OF APPEAL FOR ONTARIO

GOUDGE, LANG and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

DAVELL BURNETT

Appellant

Leslie Maunder for the appellant

John Pearson for the respondent

Heard: April 5, 2007

On appeal from the convictions and sentence entered by Justice John R. Sproat of the Superior Court of Justice dated May 17, 2005 and July 11, 2005, respectively.

ROULEAU J.A.:

[1] After a seven-day trial, the jury found the appellant guilty of robbery, disguise with intent, and possession of an imitation firearm in relation to the March 7, 2004 robbery of a Blockbuster video store in Mississauga. The appellant was acquitted of assaulting his former girlfriend, Victoria Taylor. The appellant was sentenced to thirty months imprisonment. The appellant appeals his conviction and applies for leave to appeal against sentence, and if leave is granted appeals against sentence.

[2] The central issues on the conviction appeal are the ruling by the trial judge whereby he allowed the Crown to cross-examine the appellant’s mother, an alibi witness, on a collateral matter going to her credibility and the trial judge’s instructions to the jury about how it could use this evidence. With respect to the sentence appeal, the appellant argues that the sentencing judge erred in principle in reaching his decision and the sentence should be reduced. For the reasons that follow, I would dismiss the conviction appeal, grant leave to appeal against sentence, allow the sentence appeal, and reduce the sentence to two years less a day.

Facts

[3] At approximately 10:45 p.m. on March 7, 2004, a man wearing a balaclava, silver makeup around his eyes, and a heavy dark jacket entered a Blockbuster video store at Mavis Road and Eglinton Avenue West in Mississauga. When the clerk asked him what was in his bag, the man pulled out a handgun from inside his coat. He asked where the safe was and was taken to the office that housed the safe. Inside the office, the shift supervisor was putting money into the safe. The robber pointed the gun at the supervisor and asked where the money was. The supervisor opened the safe and removed the money. At one point, the robber also pulled a hammer out of his bag, although the supervisor did not know why he did this. The robber took the money and a metal cash box and fled the store.

[4] While the robbery was taking place, the clerk went back to the front counter and told the only customer in the store that there was a robbery in progress. The clerk asked the customer to call 911. The customer left the store, got into his car to observe the front of the store, and called 911. When the robber exited the front door and fled on foot, the customer followed him in his vehicle while on the phone with 911. Within a short time, he lost track of the robber.

[5] All three men who saw the robber offered similar descriptions: slim to medium build, between 5’6 and 5’10. They assumed that by the robber’s manner of speech he was black. One of the store employees thought he recognized the robber’s voice.

[6] Ms. Taylor who was pregnant with the appellant’s child at the time of the offence testified that, just prior to March 7, the appellant told her that he was going to rob the Blockbuster store. A few days after this comment, the appellant entered her apartment with a black bag, carrying a balaclava, wearing a puffy black jacket, and wearing makeup to lighten the area around his eyes. He also had with him a hammer and a gun that Ms. Taylor said did not look real. The appellant washed off the makeup and told her that he had robbed the Blockbuster store. The appellant showed her the money as well as the cash box he had stolen. The next day, the two went shopping and the appellant bought shoes, a $550 ring, and collector trading cards.

[7] Ms. Taylor’s father visited the apartment sometime later in the spring. Ms. Taylor told him that the appellant had robbed the store. Ms. Taylor’s father called the store and confirmed there had been a robbery. He then told Ms. Taylor to call the police. She called Crime Stoppers as well as the appellant’s mother. Ms. Taylor also called the Blockbuster store, spoke with the supervisor, and gave him the appellant’s name and contact information. When the supervisor looked up the name of the appellant, he saw that he was a customer of the store.

[8] Ms. Taylor was interviewed by the police and turned the cash box that the appellant had left with her over to them. The cash box was later identified by the shift supervisor as the one stolen on March 7.

[9] The appellant testified and denied that he was involved in the robbery. He agreed that on a few occasions he had been to the Blockbuster store that was robbed. It was the store closest to Ms. Taylor’s apartment. The appellant testified, however, that he had never seen either of the store employees who witnessed the robbery. When he was first arrested, the appellant was not sure what he had been doing on March 7. His mother later remembered that she had been unable to attend a wedding on March 6, because she had to work, and that jogged her and his memory as to events of the next day, Sunday, March 7.

[10] The appellant testified that on the evening of the robbery he had gone to Ms. Taylor’s apartment between 6:00 p.m. and 6:30 p.m. after picking up groceries for her. He stayed for an hour or so and then took the bus home. He recalled that he was careful not to stay so long that he would miss the last bus which stopped running on this route early on Sunday evenings. When he got home, he spoke to his mother, may have had something to eat, and then went to the basement to play video games. He did not leave the house again that night.

[11] The appellant argued that it was implausible that he would tell Ms. Taylor that he was going to commit a robbery, go back to her place immediately after the robbery, and leave evidence behind at her apartment given the poor state of their relationship at the time. He maintained that Ms. Taylor fabricated the story and decided to call Crime Stoppers following an argument they had. On the day of the argument, Ms. Taylor told the appellant that she was going to tell about the robbery to which the appellant replied, “They’ll never believe you.”

[12] The appellant’s mother testified that when her son was first charged, she could not recall what she did on March 7. A couple of months later she was looking at some documents relating to her work and realized that March 7 was the weekend that she had returned to work after three months at home with a bad back. This assisted her in recalling her activities and her son’s whereabouts on that day. On March 7, she started work at 7:00 a.m. and finished at 2:00 p.m. The appellant called her from his work at a Blockbuster video store (a different location from the one that was robbed) where he was employed. The appellant told her that when he finished work at 5:00 p.m. he was going to stop by Ms. Taylor’s apartment. Ms. Taylor had called and asked him to pick up some things for her.

[13] The appellant’s mother recalled that her son came home shortly before 9:00 p.m., had some dinner in the kitchen, said goodnight to his younger sister, and went to the basement where he spent a lot of his time. The appellant’s mother went to her room shortly after. She did not see the appellant again, but was of the opinion that she would have heard him had he left the house as the house is equipped with a security system. In order to leave, the appellant would have had to disarm the system which makes a noise that the appellant’s mother was confident she would have heard. The appellant’s mother checked on her children before leaving for work at 6:30 a.m. the next morning and noted that the appellant was asleep in his bed.

[14] At trial, the defence objected to the Crown’s cross-examination of the appellant’s mother about an investigation conducted by the police in 1999. In 1999, the appellant’s mother reported being robbed at gunpoint immediately after returning to her car from a bank machine. The investigating officer tried to re-enact the robbery as described by the appellant’s mother but was unable to do so. The appellant’s mother said that the police did not believe her. As a result, she offered to take a polygraph test. The test was never taken as she refused to miss work in order to take the test. In the course of the cross-examination, the appellant’s mother agreed that she had signed a note indicating she did not want the charges further investigated. She explained that she did so because the police were treating her as if she was the perpetrator. She denied lying to the police about the incident and denied that she had been cautioned about being charged with public mischief. She further denied the allegation that, after signing the statement indicating that she did not want the investigation to proceed, she told the investigating officer “Okay, it didn’t happen.”

Issues

[15] The appellant raises three issues on appeal:

1. Did the trial judge err in allowing the Crown to cross-examine the appellant’s mother on her 1999 complaint to the police?

2. Were the trial judge’s instructions to the jury adequate?

3. Did the trial judge err in his determination of the appropriate sentence?

Analysis

1) Did the trial judge err in allowing the Crown to cross-examine the appellant’s mother on her 1999 complaint to the police?

[16] The appellant argues that the Crown ought not to have been allowed to cross-examine the appellant’s mother on her alleged discreditable conduct. In essence, the appellant submits that critical parts of the evidence elicited in the course of the cross-examination were inadmissible. Once these portions of the evidence are excluded, the appellant submits the potential prejudicial impact of the balance of the evidence outweighs what little probative value remains.

[17] The specific portions of evidence that the appellant submits were inadmissible are the appellant’s mother’s statement that the police thought she was lying and the statement that the police had cautioned her about making false reports. This latter statement was contained in a question posed by Crown counsel.

[18] According to the appellant, his mother’s testimony about what the police might have thought was inadmissible hearsay. This testimony was particularly prejudicial because the appellant was unable to cross-examine the police concerning their belief that the appellant’s mother had been lying. The appellant also relies on R. v. Ghorvei (1999), 46 O.R. (3d) 63 (C.A.), for the proposition that a witness cannot be cross-examined on the fact that, in another proceeding, the witness was disbelieved.

[19] Further, the appellant argues that the statement contained in the Crown’s question to the appellant’s mother, suggesting that she had been cautioned by the police, could be equated to cross-examination on withdrawn charges and is impermissible according to R. v. Hoilett (1991), 3 O.R. (3d) 449.

[20] Once these two portions of the cross-examination are removed, there is, according to the appellant, insufficient evidence from which the jury could draw an inference that the appellant’s mother lied to the police when she reported a robbery in 1999. The cross-examination on the 1999 incident therefore would have no probative value but would instead cause prejudice if the jury used the inadmissible portions of evidence to conclude that the appellant’s mother was lying.

[21] The Crown argues that the cross-examination was proper and that the challenged portions of the evidence adduced in the course of the cross-examination were admissible. The Crown’s cross-examination of the appellant’s mother on her past conduct sought to show that in 1999 she had made a false report to the police. If, based on the evidence, the jury drew the inference that the appellant’s mother had lied to the police in 1999, this would go to her credibility and could be weighed by the jury in assessing her testimony at this trial.

[22] I would reject the appellant’s submission that his mother ought not to have been cross-examined at all concerning her 1999 complaint to the police. The trial judge dealt with this objection at trial. He considered the proposed testimony and concluded that it was open to the jury to draw an inference from that evidence that the appellant’s mother had made a false report to the police in 1999.

[23] Since the appellant’s mother’s credibility was at issue, it was open to the trial judge to conclude that the proposed evidence was relevant and to admit it. It would be up to the jury to decide what weight to give to this evidence in assessing the appellant’s mother’s credibility. In reaching this conclusion, I take into account that this court should give considerable deference to such decisions by trial judges: see R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.).

[24] It would have been preferable, however, had the cross-examination been restricted to the allegation of the false report and not strayed into the police belief in its veracity or the police caution for public mischief.

[25] Regarding the police view of the appellant’s mother’s credibility, the Crown asked, “I’m going to suggest the police didn’t believe your allegation?” In response, the appellant’s mother replied, “Yes, and they made it quite clear they didn’t.” The Crown then questioned the appellant’s mother about why she did not attend for a polygraph test that she had requested and the appellant’s mother explained her reasons including that the police made her feel like a perpetrator of a crime rather than the victim she believed herself to be.

[26] In response to the Crown’s question about the public mischief caution, the appellant’s mother denied that she had ever received such a caution.

[27] In my view, if the police belief in the veracity of the appellant’s mother’s earlier complaint was elicited as relevant to the appellant’s mother’s state of mind as is argued on this appeal, this should have been explained to the jury, including how her state of mind was relevant. If it was elicited to show that the police believed that the incident never occurred or that the police believed that the appellant’s mother was a liar, it should not have been admitted.

[28] With respect to the question put by the Crown to the appellant’s mother asking whether she had been cautioned about being charged with public mischief, the appellant’s mother denied that she had received such a caution.

[29] In my view, the trial judge was obliged to caution the jury regarding both pieces of challenged evidence.

2) Were the trial judge’s instructions to the jury adequate?

[30] The appellant raises four objections to the jury charge but focusses principally on the fact that the trial judge, having allowed the cross-examination of the appellant’s mother regarding the 1999 complaint to the police, did not assist the jury on what use they could make of it. The other three objections were: that the trial judge’s caution that questions posed are not evidence was not adequate; that the trial judge’s R. v. (W.)D. (1991), 63 C.C.C. (3d) 397 (S.C.C.), instruction was inadequate because he did not specifically refer to the appellant’s mother’s evidence; and that the trial judge’s statement that the Crown was not entitled to call evidence to contradict the appellant’s mother’s evidence that she did not lie to the police was misleading as it would suggest to the jury that evidence was available to contradict her but that some legal rule prevented the Crown from calling it. I will deal with each of these objections in turn.

(a) Did the trial judge adequately instruct the jury on the use it could make of evidence regarding the 1999 complaint to the police?

[31] After reviewing the evidence of the appellant’s mother regarding the 1999 complaint to the police, the trial judge concluded with the following instruction:

Having heard her evidence and the answer she gave, it is for you to consider whether this evidence concerning the 1999 incident affects your assessment of her credibility, and if so in what manner and to what extent.

[32] The appellant argues that this instruction was inadequate and that there is a real risk the jury could have misused that evidence. I agree.

[33] There were several aspects of the evidence regarding the 1999 incident that are of concern. Specifically, the jury may not have understood that the appellant’s mother’s statement that the police did not believe her was hearsay and could not be used by them as evidence of the police’s belief, nor that their belief was reasonable or well founded. The trial judge should have made it clear that the appellant’s mother was not accused of making a false report and that her understanding of what the police thought was admitted solely for the purpose of explaining why she acted as she did. The belief of the police could not be used by the jury in assessing the appellant’s mother’s credibility.

[34] On this record, the use that the jury could make of this evidence was not obvious. The trial judge gave no general instruction on hearsay and his instruction respecting the appellant’s mother’s testimony was that her answers “constitute the evidence” that they should consider. This may well have led the jury to understand that the appellant’s mother’s statement as to the police officers’ belief was evidence they could use in reaching their decision. In my view, the trial judge ought to have tasked the jury as to the use of this testimony. His failure to do so is, in the circumstances of this case, an error.

(b) Did the trial judge adequately caution the jury that questions by counsel at trial should not be considered as evidence?

[35] The appellant argues that the trial judge’s caution to the jury that they should not consider the questions posed as evidence was not adequate in this case. Of particular concern is the Crown’s question to the appellant’s mother that suggested she had been cautioned by the police not to make further false reports. Because the appellant’s mother had denied the suggestion, the jury should have been told that this denial was the only admissible evidence and they should ignore the suggestion contained in the question. If this question were considered as evidence by the jury, it would clearly be prejudicial.

[36] In my view, the trial judge’s caution to the jury was adequate. At the outset of the trial, the trial judge cautioned the jury that questions by counsel were not evidence. He repeated this caution in his final instructions to the jury. In addition, the caution was repeated in the course of his review of the appellant’s mother’s evidence.

(c) Did the trial judge provide the jury with an adequate (W.)D. instruction?

[37] The appellant submits that the (W.)D. instruction ought to have included a specific reference to the evidence of the appellant’s mother. He submits that the trial judge’s failure to do so, in light of the importance of that evidence, constituted reversible error.

[38] In my view, the trial judge’s (W.)D. instruction was adequate in the circumstances of this case. He gave this instruction twice. Although on neither of the two occasions did he specifically refer to the appellant’s mother’s testimony, in the first he made reference to having “heard evidence that [the appellant] was at his home when the offence was alleged to have been committed.” This would have been understood by the jury to include the appellant’s mother’s evidence. I would, therefore, give no effect to this ground of appeal.

(d) Did the trial judge err by referring to the fact that the Crown was not entitled to call evidence to contradict the appellant’s mother’s version of the 1999 incident?

[39] In the course of re-examining the appellant’s mother, appellant’s counsel may have left the jury with the impression that some inference could be drawn from the fact that the Crown did not call the police officers involved in the 1999 incident to contradict the appellant’s mother. In final submissions, the Crown commented on this issue. The trial judge dealt with this issue in his charge. He instructed the jury as follows:

Now, in the course of his questions, [appellant’s counsel] made some reference to the fact that the investigating officer from 1999 was not at court to contradict [the appellant’s mother]. I think this was an inadvertent reference because as a matter of law, the Crown is not entitled to call evidence to contradict a witness on this type of collateral issue. In other words, the Crown had no right to call this officer, so the fact of his absence is itself of no significance.

[40] The appellant submits that this instruction suggested that evidence was in fact available, that this evidence would favour the Crown, and that a rule of the court prevented the Crown from calling it. I would reject this ground of appeal. No objection was taken to this part of the charge. In my view, the instruction was appropriate and would not have been misunderstood by the jury.

(e) Applying the curative proviso

[41] The Crown argued that, should this court find any error in the trial judge’s charge to the jury, we should apply the curative proviso and sustain the convictions.

[42] The only error I have identified is the trial judge’s failure to adequately instruct the jury as to the use it could make of the appellant’s mother’s evidence respecting the 1999 complaint to the police. The question I must pose is whether the verdicts would necessarily have been the same had the jury been adequately tasked as to the use they could make of that evidence. In my view, that error occasioned little harm to the appellant and certainly none that would warrant a new trial. I am satisfied that the verdict would necessarily have been the same had the error not been made. The case against the appellant was overwhelming and there is no realistic possibility that a new trial would produce a different result.

[43] As to the issue of harm, the evidence respecting the 1999 incident was directed at the credibility of the appellant’s mother. It would not have affected the appellant’s credibility. Although the trial judge found that the evidence respecting the incident was relevant to the appellant’s mother’s credibility, it would only be marginally so as the evidence was far from conclusive and the incident occurred some five years earlier.

[44] In addition, the appellant’s mother’s evidence did not provide the appellant with a firm alibi. She did not testify to having seen the appellant at home at the relevant time but testified only that she believed that the appellant was in the basement of the house at the relevant time. This, she explained, was because she was confident that she would have heard him turn off the alarm system had he gone out. In final submissions, the Crown did not invite the jury to use the evidence regarding the 1999 incident to reject the appellant’s mother’s evidence concerning the evening of the robbery. The Crown pointed out that the appellant’s mother’s evidence put the appellant within fifteen minutes from the robbery and, even accepting her evidence, the appellant had a nine hour window in which to commit the crime. This evidence did not contradict Ms. Taylor’s clear evidence regarding the events of that evening. Therefore, the jury did not have to disbelieve the appellant’s mother in order to convict the appellant. I view the resulting harm as minimal.

[45] The evidence against the appellant was overwhelming. Ms. Taylor testified that the appellant admitted to having committed the robbery. Her evidence was supported by the fact that she had the cash box which had been stolen from Blockbuster and that she was able to produce it to the police. There was no air of reality to the appellant’s explanation that someone else must have left it with her. In addition, Ms. Taylor’s detailed evidence as to the appearance of the appellant when he went to her apartment after the robbery is strikingly similar to the descriptions of the robber given by the witnesses. Ms. Taylor testified that the appellant had a balaclava, a hammer, and what appeared to be a silver coloured gun. In particular, Ms. Taylor made note of the makeup around the appellant’s eyes to lighten his skin colour, a detail noted by another witness who described the makeup as silver.

[46] The appellant admitted that after an argument, Ms. Taylor threatened that she would report the robbery. To this threat he responded: “They’ll never believe you”. This is not the response that one would expect from someone who knew nothing about any robbery in the first place.

[47] There was also compelling evidence about the shopping spree the day after the robbery. There was no evidence supporting the explanation of the appellant and his mother that the purchases were made with birthday money given to the appellant three weeks before the date of his birthday.

[48] In addition, there was the evidence of the manager of the Blockbuster video store. He testified that he thought the voice of the robber was familiar. After receiving the robber’s name from Ms. Taylor, he looked up the appellant’s name in the store records and found that the appellant had an account with that store and had rented movies from there. There was also the evidence of the customer who followed the robber after he left the store but lost sight of him in the direction of Ms. Taylor’s apartment. The totality of this evidence led to the conclusion that the appellant was guilty.

[49] Putting all of this together, I conclude that if a new trial were ordered and if the trial judge were to give the appropriate instructions to the jury as to the use they could make of the evidence concerning the 1999 incident, there is no realistic possibility that the verdict would be different. I conclude, therefore, that this is a proper case to apply the curative proviso. Accordingly, I would dismiss the appellant’s appeal from his convictions.

3) Did the trial judge err in his determination of the appropriate sentence?

[50] The appellant’s trial counsel had sought a sentence of two years less a day in custody while the Crown sought a sentence of two and a half to four and a half years in custody.

[51] The appellant submits that the sentencing judge erred in principle in his approach to sentencing. The sentencing judge, while he may have been sympathetic to the appellant’s submission that he should be sentenced to two years less a day, was not referred to any similar case where such a sentence was imposed. As a result, the sentencing judge felt compelled to impose a higher sentence. In support of this submission, the appellant refers to the sentencing judge’s comment where, in considering the appropriate sentence and the fact that there was a mandatory minimum for using an imitation firearm, the sentencing judge stated as follows:

When I looked at the cases and I asked [the appellant’s counsel] in his submissions, are there any cases that really would allow us to say, if the facts were a bit more like the case in front of me, the sentence would have been within that range of two years less a day and I really cannot see any cases that would stand for that proposition. To get two years less a day would require me to impose, for practical purposes, a sentence of one year less a day in relation to the robbery and then to make count two concurrent. None of the cases cited that, in my opinion, are authority for the proposition that that sentence would be appropriate.

[52] The appellant submits that there have been several instances where, in similar circumstances, youthful offenders with excellent prospects of rehabilitation have received sentences that did not exceed two years less a day.

[53] The appellant sought to file fresh evidence outlining the present employment of the appellant. The Crown has not objected to it being received. I would therefore allow the appellant’s motion to file fresh evidence. This fresh evidence provides updated information on the appellant’s employment status and confirms that since being released on bail pending the appeal he has abided by the conditions of his release.

[54] The appellant presents very favourable prospects for rehabilitation. He is young, nineteen years of age at the time of the offence, with no criminal record or history of behavioural problems. By all accounts, this offence was out of character. There was no gratuitous violence in the commission of the offence and, in fact, the evidence was that the appellant was polite and apologised in the course of carrying it out. The appellant received a very positive pre-sentence report. He has no substance abuse issues, and completed high-school while working part-time. Prior to the charges being laid, he was taking college courses with a view to entering an architecture program. At the time of trial and during most of the period pending his appeal he was working full-time with the support of his employer. The appellant was employed part-time at the time of the appeal and has custody of his child every other weekend. He has the support of his family and is a responsible parent to his young child.

[55] I agree with the sentencing judge’s observation that for robberies of this type general deterrence and denunciation are important factors in determining the appropriate sentence. A substantial sentence is normally warranted to convey the clear message that offences of this type will be severely punished. On the facts of this case, I believe the sentencing judge erred in placing undue emphasis on the principle of deterrence without giving adequate weight to the rehabilitation of this youthful first offender. I conclude that in light of the particular circumstances of this offender, a sentence of two years less a day is appropriate composed of one year less a day for the robbery, three months concurrent for disguise with intent, and a further one year minimum for the firearms offence.

Disposition

[56] For these reasons, I would dismiss the conviction appeal, grant leave to appeal sentence, allow the sentence appeal, and vary the global sentence to two years less a day by varying the sentence for robbery from fifteen months to one year less a day. The sentence for disguise with intent remains at three months concurrent with the robbery sentence and the sentence for possession of an imitation firearm remains at one year consecutive.

“Paul Rouleau J.A.”

“I agree S.T. Goudge J.A.”

“I agree S.E. Lang J.A.”

RELEASED: June 27, 2007