CITATION: R. v. Anderson, 2008 ONCA 814
DATE: 20081202
DOCKET: C48962
COURT OF APPEAL FOR ONTARIO
Gillese, Armstrong and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Knoxford Anderson
Appellant
Mark Halfyard, for the appellant
Sarah Egan, for the respondent
Heard and released orally: November 21, 2006
On appeal from the judgment of Justice Margaret P. Eberhard, of the Superior Court of Justice, dated July 6, 2007.
ENDORSEMENT
[1] The appellant was convicted on charges of trafficking in cocaine and a number of related firearm offences. He was sentenced to a total of eight years in prison, with credit given for time served on a two-for-one basis. The appellant submits on appeal that the trial judge erred in a number of ways, namely, in:
refusing to reopen the case after final submissions so as to permit the defence to call alibi evidence;
her treatment of the evidence of Kerrigan, the main Crown witness, who was the appellant’s accomplice;
her treatment of the evidence of D.C. Kellachan, who provided confirmatory evidence in respect of one of the counts of trafficking; and
imposing a sentence of eight years.
[2] Permitting the defence to reopen its case is a discretionary remedy. The appellant has not demonstrated any error in the trial judge’s application of the test set out in R. v. Hayward. In effect, the trial judge found that there was an overwhelming inference that the reopening was simply an attempt to reverse an earlier tactical decision. This finding was available to her on the record, and we see no basis for interfering with it.
[3] With respect to the evidence of Kerrigan, the trial judge recognized the need for a Vetrovec warning and correctly instructed herself on the law. She characterized Kerrigan as an unsavoury witness and set out the reasons on which her characterization was based. The trial judge then reviewed Kerrigan’s evidence, including its frailties, and found not only that Kerrigan was consistent in her testimony, but also that nothing in the evidence caused her to disbelieve Kerrigan’s testimony. The trial judge also found corroboration of Kerrigan’s evidence in the evidence of D.C. Kellachan. As a result, she accepted the testimony of Kerrigan. We see no basis for interfering with this conclusion.
[4] The trial judge carried out a very limited review of the frailties in D.C. Kellachan’s evidence and of the inconsistencies between his evidence and the evidence of Kerrigan. Although a more extensive analysis by the trial judge of these would have been preferable, we do not consider that her failure to do so amounts to reviewable error. The credibility and reliability of Kerrigan and D.C. Kellachan were the central issues in this case. In our view, when the trial judge’s reasons are read as a whole in the context of all the evidence, the trial judge’s credibility and reliability findings were available and are adequately explained in her reasons.
[5] With respect to sentence, while the sentence is at the upper end of the range, we discern no error in principle and, accordingly, cannot conclude that the sentence is unfit.
[6] For these reasons, the appeal as to conviction is dismissed, leave to appeal sentence is granted, but the sentence appeal is dismissed.
“E.E. Gillese J.A.”
“R.P. Armstrong J.A.”
“Paul Rouleau J.A.”