R. v. Waugh, 2007 ONCA 517
CITATION: R. v. Waugh, 2007 ONCA 517
DATE: 20070709
DOCKET: C45767
COURT OF APPEAL FOR ONTARIO
DOHERTY, FELDMAN and MacPHERSON JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
TOMMY WAUGH
Applicant/Appellant
Victor Giourgas and Catriona Verner for the Applicant/Appellant
Christine Tier for the Respondent
Heard: July 5, 2007
On appeal from the conviction entered on May 19, 2006 and the sentence imposed on June 21, 2006 by Justice Peter B. Hockin of the Superior Court of Justice, sitting with a jury.
BY THE COURT:
[1] The appellant, Tommy Waugh, appeals his conviction, by Hockin J. sitting with a jury, for robbery, wearing a disguise, and possession of property obtained by crime. He also seeks leave to appeal his sentence of three years (two years plus one year credit for pre-trial custody).
[2] On October 4, 2005, someone robbed Belinda Austin, an employee working at the Canadian Legion branch in London. The key issue at the trial was the identity of the robber – was it the appellant or his friend, Darcy Woodruff. At the preliminary inquiry, Woodruff testified that he committed the robbery. However, he did not testify at the trial although he was subpoenaed and available to testify. The appellant did not testify but his brother was called by the defence and testified that Woodruff was the robber.
Conviction Appeal
[3] The trial judge told the jury that it could infer from the defence failure to call Woodruff that his evidence would not have been helpful to the defence. In oral argument, counsel for the appellant accepted that the trial judge could give that instruction in the circumstances of this case. He argued, however, that the jury should have been told to proceed cautiously before drawing that inference. The trial judge could have added this caution to his instruction. However, it was not mandatory and the failure to give it does not amount to reversible non-direction.
[4] The appellant also submits that the jury should have been told that there may have been perfectly valid reasons for the defence not to call Woodruff. We agree that it would have been better had the trial judge added this to his instruction. However, we agree with the Crown’s submission that in the circumstances it would have been obvious to everyone that the defence did not call Woodruff because he would not have taken sole responsibility for the robbery.
[5] Second, the appellant contends that the trial judge erred by limiting defence counsel’s cross-examination of Officer Hicks with respect to the potential identification evidence of Eleanor McLaughlin.
[6] We disagree. At the time he made his ruling, there was no foundation for any questions to any witness about Ms. McLaughlin. As the trial judge said, the accused could have called her as a witness and, if she testified, “if it becomes important, the officer may return.”
[7] Third, the appellant submits that the trial Crown engaged in misconduct during the trial in three respects – issuing a subpoena to a witness (Woodruff) he did not intend to call, commenting in his closing address on the defence’s failure to call Woodruff as a witness, and overstating the strength of the eyewitness evidence of Ms. Austin.
[8] We disagree. The issuance of a subpoena to Woodruff was an obvious precautionary step relating to an obvious potential witness. Furthermore, it can in no way be seen as a misuse of the subpoena power in the Criminal Code. We also observe that the defence also subpoenaed, but did not call, Woodruff. The Crown comment about the failure to call Woodruff as a witness was a reasonable comment, especially in light of the defence position throughout the trial that Woodruff was the robber. The Crown submission about Ms. Austin’s identification evidence did not overstep the bounds of proper advocacy.
[9] Fourth, the appellant submits that the trial judge erred by failing to apply the principles from R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) to all of the exculpatory evidence led by the defence.
[10] We disagree. The trial judge may not have followed the precise formula used in W.(D.). However, his instruction achieved the same effect. He carefully and fairly reviewed all of the defence evidence, including the appellant’s denial of any involvement in the robbery in his videotaped police interview, as well as the exculpatory evidence. It is an overly technical reading of his jury charge to say that the W.(D.) instruction was divorced from the broad context of all the evidence in the case.
[11] Fifth, the appellant contends that the trial judge erred in allowing Crown counsel to lead hearsay information through Officer Hicks to the effect that Woodruff denied involvement in the robbery.
[12] The respondent concedes that Woodruff’s denial should not have been admitted for the purpose sought by the Crown. The Crown sought to give context to the appellant’s response to the police when they advised him that Woodruff had denied involvement in the offence. However, based on the evidence given by Officer Hicks, it does not appear that the appellant gave a response when advised by the police of Woodruff’s denial.
[13] In our view, this one error in this case – relating to Officer Hicks’ testimony about Woodruff denying involvement in the robbery – did not occasion a substantial wrong or miscarriage of justice. No emphasis was placed on it after it was admitted – by anyone, including the defence. Counsel did not ask for a limiting instruction, nor did she object to the jury charge on the basis of a limiting instruction. The reality is that the admission of Woodruff’s denial through Officer Hicks’ testimony was largely eclipsed by the inference that could be drawn from the defence’s failure to call Woodruff at trial, which the trial judge properly instructed the jury was open to them.
Sentence Appeal
[14] The appellant contends that the sentence imposed on him was too high for three reasons.
[15] First, the appellant submits that the trial judge did not take sufficient account of his youth (nineteen when the offence was committed). We disagree. The trial judge referred to the appellant’s age as a mitigating factor.
[16] Second, the appellant contends that a three-year sentence was outside the appropriate range. We disagree. The robbery committed by the appellant was a serious one with a substantial negative impact on the victim. We also observe that defence counsel’s position at trial was that a two-year sentence was appropriate.
[17] Third, the appellant contends that the trial judge did not properly take account of the fact that he was of aboriginal heritage. It is true that no one in this case – defence counsel, Crown counsel or the trial judge – did anything other than make a glancing reference to this important fact. It is essential that all actors in the justice system address this factor in a careful and balanced way: see R. v. Wells (1998), 2000 SCC 10, 141 C.C.C. (3d) 368 (S.C.C.) and R. v. Kakekagamick (2006), 211 C.C.C. (3d) 289 (Ont. C.A.), the latter decision admittedly being released after the sentence in this case was imposed. Having said that, the trial judge’s brief reference to this factor – namely, that it did not apply to this serious and violent offence by a man with a significant record, including for other crimes of violence – was, in our view, a reasonable conclusion expressly recognized by the analyses in Wells and Kakekagamick. In short, a sentence of three years in custody for this offender committing this offence was not an unfit sentence.
[18] We do note that in preparation for this appeal, defence and Crown counsel co-operated in obtaining a report from the appellant’s parole officer to assist in dealing with the appellant’s aboriginal background. That report provides positive information about the appellant’s progress in custody. The report advises that the appellant is doing very well in the institution and he is participating in aboriginal cultural activities and ceremonies. This information supports the conclusion that the sentence for this young man was an appropriate one.
RELEASED:
“JUL -9 2007” “Doherty J.A.”
“DD” “K. Feldman J.A.”
“J.C. MacPherson J.A.”