CITATION: R. v. Brown, 2007 ONCA 554
DATE: 20070801
DOCKET: C42549
COURT OF APPEAL FOR ONTARIO
WEILER, GILLESE and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
WINSTON BROWN
Appellant
David Lepofsky for the respondent
Paul Calarco for the appellant
Heard: July 26, 2007
On appeal from the conviction entered on May 18, 2004 and the sentence imposed on September 28, 2004 by Justice Bruce C. Hawkins of the Superior Court of Justice.
ENDORSEMENT
[1] The appellant was convicted of procuring the complainant to become a prostitute (x2), living off the avails of prostitution (x2), assault, assault with a weapon, aggravated assault, sexual assault, and extortion. He was sentenced to six years in jail on each charge, concurrent, in addition to the equivalent of two years pre-trial custody.
[2] The trial lasted one week. The complainant testified for three days. The appellant did not testify and called only limited defence evidence that went to collateral matters. The trial judge’s charge to the jury was twelve pages long. His supplemental charge was one page and his responses to questions from the jury were brief.
The Conviction Appeal
[3] The trial judge’s charge to the jury in this case gives us serious concern, which we believe might often be fatal. We are not, however, of the view that in this case it amounts to reversible error.
[4] Our view is that in spite of the deficiencies in the trial judge’s instructions, in all of the circumstances of this case, the jury’s task was straightforward and it would have had no confusion as to the nature and extent of its duties and responsibilities. The jury clearly carefully considered the evidence and it asked intelligent questions, which make it plain that this jury had no doubt as to what its correct task was. The trial judge’s charge, while not as complete and informative as it ought to have been, nevertheless did convey the essence of the jury’s duties and responsibilities to judge the facts in this case.
[5] Contrary to the assertions of the appellant, this was not a complex trial. It rested entirely on the testimony of the complainant and, therefore, her reliability and credibility as a witness. The theory of the defence at trial was simple; that is, the complainant is lying and should not be believed.
[6] While appellate counsel now appears to take issue with the extent to which trial counsel failed to object to the matters now complained of, he firmly stresses the point that competence of trial counsel is not an issue on this appeal. Accordingly, trial counsel’s competence is presumed, and care must be taken by this court to appreciate that the trial proceeded in a manner generally acceptable to trial counsel.
[7] In this case, therefore, it is important to appreciate that at trial, experienced and competent defence counsel is deemed to have been alive to the many issues now raised on this appeal. Indeed, an examination of the record supports this. The trial judge held a pre-charge conference, he addressed objections after the charge, and he invited input before answering the jury’s questions. Counsel clearly appears to have decided that the instructions, when considered in their entirety, were sufficient.
[8] Of all the appellant's grounds of appeal, only Vetrovec[^1] was raised at trial. Subject to one issue of no consequence — which we will discuss below — there is no merit to any of the grounds of appeal that are of such a magnitude as to warrant a new trial in this case. Some of the more noteworthy grounds of appeal, however, do require some brief comment.
[9] First, it is our view that a Vetrovec warning was not required. The complainant had no criminal record, no unsavoury past, and was not a jailhouse informer. The trial judge had wide discretion over whether to give a Vetrovec warning regarding the complainant’s evidence, his decision is entitled to deference and we see no basis on which to interfere with that decision.
[10] Second, the trial judge’s failure to instruct the jury on the distinction between credibility and reliability, in the circumstances of this case, did not amount to reversible error. The complainant’s evidence does not remotely suggest that she misinterpreted the events she complained about. Indeed, neither defence counsel’s cross-examination of her nor the closing arguments to the jury made such a claim. Finally, at no time did defence raise this at trial or seek an instruction on differentiating reliability from credibility.
[11] Third, the appellant contends that the trial judge erred in failing to instruct on all of the constituent elements on each of the offences charged. We would first note that it is not the case that no constituent elements were included in the trial judge’s instructions to the jury. We do, however, agree that his charge on the constituent elements of the various offences was not as complete as it could have been.
[12] Nevertheless, failure to instruct on all of a count’s constituent elements is not necessarily reversible error: R. v. Abbas Ali Khan (1982), 66 C.C.C. (2d) 32 at 40-41 (Ont. C.A.); R. v. Mohammed, 2007 ONCA 513 at para. 22. Defence counsel in this case gave a thorough and effective closing address that did not contend that the complainant’s evidence, if accepted, might not prove one of these offence's constituent elements. Furthermore, she made only a few limited suggestions in the pre-charge discussion and did not object to the failure to charge more fully on the offences’ constituent elements.
[13] It is implicit in defence counsel's closing address that if the complainant’s evidence was accepted, the appellant's guilt would be proven. In this case, with the exception of the offence of assault with a weapon, the complainant’s evidence, if accepted by the jury, would establish the respective offence’s constituent elements.
[14] Regarding the exception, which is in relation to count 7, the appellant was charged with assault with a weapon, namely, a knife. The Crown concedes that the trial judge did not clarify that the weapon with which the appellant was charged in the count of assault with a weapon was a knife and not a cigarette. On the facts of this case, an instruction that included the constituent element of a knife was essential. The jury’s verdict therefore on the offence of assault with a weapon, namely a knife, cannot survive.
[15] Nevertheless, the facts which the jury must have accepted are capable of proving beyond a reasonable doubt the included offence of common assault. The trial judge’s instructions were sufficient to support such a verdict. We, therefore, set aside the conviction for assault with a weapon and substitute one of common assault. In all other respects, the appeal against conviction is dismissed.
The Sentence Appeal
[16] We agree with the trial judge’s total sentence of six years incarceration in addition to a period of pre-sentence custody fixed at two years. We accept that an overall sentence of eight years imprisonment for these offences and this offender is fit and proper. Except for some variation in the periods the trial judge assigned to each of the counts — which we discuss below — we agree with the total sentence fixed by him as well as his reasons for doing so.
[17] The appellant in this case carried on a systematic and calculated exploitation of an unsophisticated and susceptible young woman. He did this while on parole for living on the avails of a sixteen-year-old victim. Clearly the appellant has no regard for the criminal justice system. Furthermore, he has a significant and relevant criminal record that includes prior convictions for living on the avails of prostitution as well as offences of violence and dishonesty. At the time of these offences he was thirty-one-years-old with two children.
[18] This was a simple sentencing matter that followed a simple trial. The sentencing submissions were short and straightforward. The period of pre-sentence custody was agreed to by both the Crown and defence. In our view, the trial judge applied the correct sentencing principles and gave adequate reasons for a total sentence. Subject to the error discussed below, we see no other error on the part of the trial judge.
[19] The sentencing judge simply assigned six year concurrent sentences for each offence. It was not open to him to do so. The trial judge incorrectly imposed a six-year period of imprisonment for common assault in contravention of the five-year maximum. However, we see this as having no impact on the fitness of the total eight-year sentence imposed for all the offences.
[20] We would, therefore, set aside the sentencing judge’s assignment of the length of imprisonment for the respective offences and substitute those set out below. Thus, in addition to the agreed upon credit for pre-sentence custody of two years imprisonment, the appellant’s sentence of periods of further incarceration will be amended as follows:
• Counts 1 and 4, procuring for prostitution - 3 years each consecutive.
• Counts 2 and 5, living on the avails of prostitution – 3 years each consecutive and concurrent with counts 1 and 4.
• Counts 3 and 7, assault – 1 year each concurrent to each other and to all other counts.
• Count 6, aggravated assault – 2 years concurrent.
• Count 8, sexual assault – 2 years concurrent.
• Count 9, extortion – 2 years concurrent.
[21] The sentence, therefore, while amended by this court, nevertheless confirms the total sentence of eight years imposed by the trial judge less credit for pre-sentence custody. In all other respects, while leave to appeal sentence is granted, the appeal is dismissed.
DISPOSITION
[22] In all the circumstances of this case, the appeal against conviction is dismissed. And, while we grant leave to appeal sentence, the sentence appeal is dismissed subject to the variation recorded in these reasons.
“K.M. Weiler J.A.”
“E.E. Gillese J.A.”
“H.S. LaForme J.A.”
[^1]: R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811.