CITATION: R. v. Gelle, 2009 ONCA 262
DATE: 20090324
DOCKET: C43368
COURT OF APPEAL FOR ONTARIO
Feldman, MacPherson and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ahmed Gelle
Applicant/Appellant
Andras Schreck, for the appellant
Alexander Hrybinsky, for the respondent
Heard: February 12, 2009
On appeal from the conviction by Justice Katherine E. Swinton of the Superior Court of Justice, sitting with a jury, on October 14, 2004.
MacPherson J.A.:
I. OVERVIEW
[1] The appellant, Ahmed Gelle, was convicted of robbery and of having his face masked with intent to commit an indictable offence following a seven day trial in Toronto in the Superior Court of Justice before Swinton J. and a jury.
[2] The appellant appeals his conviction on a single ground, namely, that the trial judge erred in giving the jury an unsavoury witness warning with respect to testimony that favoured the defence.
II. FACTS
[3] Three men robbed a 7/11 convenience store in Toronto shortly after 3:00 a.m. on a winter night in January 2003. They stole money, cigarette cartons, bus tickets, and telephone cards.
[4] There was very strong evidence that the appellant was one of the robbers. The robbery was videotaped. The witnesses who testified provided a continuous chain of evidence from the time of the robbery to the appellant’s arrest in a laneway next to the store almost immediately thereafter.
[5] Daniel Abreha, one of the robbers, pleaded guilty at his own trial. While in police custody, he gave a videotaped statement to police identifying the appellant as one of his accomplices in the robbery. The statement was admitted as evidence at the appellant’s trial.
[6] Abreha was also called as a Crown witness at the appellant’s trial. His testimony, however, directly contradicted his prior statement to the police. Whereas in his statement he identified the appellant as one of his accomplices, he testified at trial that the appellant was not one of the robbers. Further, he did not identify the appellant in court and said that he had never seen the appellant before.
[7] Abreha had a long criminal record, which included one conviction for armed robbery, three for robbery, eight for assault, and one for sexual assault. His criminal record, coupled with the stark contrast between his statement to the police and his testimony in court, easily qualified him as an “unsavoury witness”. Accordingly, in her charge to the jury, the trial judge gave a Vetrovec warning in relation to Abreha. This cautionary instruction forms the basis for the appellant’s sole ground of appeal to this court from his conviction of the two offences with which he was charged.
III. ISSUE
[8] The sole issue on appeal is whether the trial judge erred in her decision to give a Vetrovec warning and/or in her articulation of the contents thereof.
IV. ANALYSIS
[9] In her charge to the jury in relation to Abreha’s evidence, the trial judge reminded the jury that they had heard evidence of Abreha’s significant criminal record. She then gave the jury the following cautionary instruction:
Common sense tells you that there is good reason to look at Mr. Abreha’s evidence with the greatest of care and caution, given his background.
[10] The trial judge continued and advised the jury that they could consider the fact, number, and nature of Abreha’s convictions in deciding how much of his testimony to believe and rely upon. She reminded the jury, however, that a previous conviction, or even many of them, did not necessarily mean that the jury could not or should not believe or rely upon Abreha’s evidence. The trial judge then instructed the jury as follows:
If you were considering relying on Mr. Abreha’s evidence, you should look for evidence from somebody or something, other than Mr. Abreha, which tends to confirm Mr. Abreha’s evidence. It is for you to say whether any evidence confirms or supports his testimony, and how that affects whether, or how much, you will believe of, or rely upon, his testimony in deciding the case.
You may believe Mr. Abreha’s testimony if you find it trustworthy, even if no one or nothing else confirms it. When you consider his testimony, however, keep in mind who gave the evidence and the circumstances under which Mr. Abreha testified.
[11] The appellant challenges the trial judge’s Vetrovec instructions to the jury in relation to Abreha’s evidence on two bases: first, that the trial judge erred in even giving a Vetrovec warning in relation to Abreha’s evidence; and, second, that the contents of the Vetrovec warning were deficient.
1. The trial judge did not err in giving a Vetrovec warning in relation to Abreha’s evidence.
[12] The appellant submits that no Vetrovec warning should have been given by the trial judge in relation to Abreha’s evidence because, although Abreha was called as a Crown witness, his testimony at trial was exculpatory of the appellant; he was, therefore, in effect, a defence witness. In support of this submission, the appellant relies on the decisions of this court in R. v. Tzimopoulus (1986), 1986 152 (ON CA), 29 C.C.C. (3d) 304, and R. v. Chenier (2006), 2006 3560 (ON CA), 205 C.C.C. (3d) 333. In Chenier, at pp. 352 – 353, Blair J.A. said the following with respect to giving a Vetrovec warning in relation to a defence witness:
It is not permissible to give a Vetrovec warning in relation to a defence witness; the warning should only be given where a witness is giving evidence that assists in the demonstration of guilt.
The rationale behind the principle that a Vetrovec warning is not to be given in connection with defence evidence is that the instruction to look for confirmatory/corroborative evidence impermissibly transfers a burden to the accused and is contrary to the requirements of W. (D.). Defence evidence need only raise a reasonable doubt. [Citations omitted.]
[13] For several reasons, I do not agree with the appellant’s submission in this regard.
[14] First, it is well established that whether or not to give a Vetrovec warning is a decision very much within the discretion of the trial judge: see R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, at p. 601. In the same vein, in R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 24, Bastarache J. referred to “the spirit of Vetrovec, which affirmed a judicial discretion to provide warnings only in appropriate circumstances”, and then provided the following caution:
Provided there is a foundation for the judge’s exercise of discretion, appellate courts should not interfere.
[15] Second, the trial judge provided a draft of the jury charge to and consulted with counsel in relation thereto on the morning before delivering it. During the pre-charge conference, defence counsel raised five concerns about the draft charge. None related to the Vetrovec warning. Nor did defence counsel object on this issue after the charge. Although the absence of an objection is not conclusive, it is an important consideration in such a common and well-known area of criminal law: see R. v. Harriott (2002), 2002 23588 (ON CA), 58 O.R. (3d) 1 (C.A.), at para. 41, aff’d 2003 SCC 5, 1 S.C.R. 39.
[16] Third, and crucially, unlike the witnesses in Tzimopoulus and Chenier, Abreha was not a defence witness. The reality is that his statement to the police was entirely inculpatory of the appellant, whereas his testimony at the trial was largely, although not exclusively, exculpatory. In short, Abreha was a “mixed witness”. For such a witness, the trial judge was not precluded from giving a Vetrovec warning if the trial judge, in the exercise of her discretion, “deemed it necessary”: see Tzimopoulus at p. 341.
[17] For these reasons, and bearing in mind both Abreha’s lengthy and serious criminal record as well as the inconsistencies between his statement to the police and his testimony at trial, I cannot say that the trial judge erred by exercising her discretion to give a Vetrovec warning to the jury in relation to Abreha. Further, and perhaps more importantly, common sense dictates that a Vetrovec warning was entirely appropriate in this case – Abreha was indisputably a very unsavoury witness.
1. The contents of the trial judge’s Vetrovec warning were not deficient.
[18] The appellant’s second argument is that if the trial judge did not err in giving a Vetrovec warning in relation to Abreha, the contents of the Vetrovec warning were deficient as the jury was not instructed that the warning applied equally to both Abreha’s prior statement and his trial testimony. The appellant submits that the trial judge erred in emphasizing in her Vetrovec instruction the need for corroboration of Abreha’s trial evidence and in minimizing the need for corroboration of his statement. He also submits that in her review of the evidence, the trial judge only reviewed independent evidence confirming Abreha’s statement, but not confirming his testimony.
[19] For several reasons, I also do not agree with the appellant’s second submission.
[20] First, the content or form of a Vetrovec warning is, like the decision to give the warning, a matter in which the trial judge’s exercise of her discretion should generally be respected: see Harriott at para. 32.
[21] Second, defence counsel was informed about, accepted (pre-charge), and did not object (post-charge) to the contents of the Vetrovec warning. As noted above, these are important factors which support the appropriateness and sufficiency of the trial judge’s instructions in this case: see Harriott at para. 41.
[22] Third, the warning delivered in this case was relatively soft or tame. The trial judge’s instruction to the jury that “[c]ommon sense tells you that there is a good reason to look at Mr. Abreha’s evidence with the greatest of care and caution, given his background” does not easily attract the traditional Vetrovec label of a “clear and sharp warning”: see R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, at p. 831.
[23] Fourth, the trial judge connected Abreha’s trial testimony and his prior statement to the police in an entirely appropriate fashion when she stated as follows:
In deciding whether or how much to believe of, or rely upon, the testimony of Mr. Abreha at trial, you should consider his truthfulness and the weight you will give to his evidence in light of my earlier instructions about assessing the evidence of witnesses, and particularly a witness like Mr. Abreha. You should also consider the fact, nature and extent of any differences that you find between what Mr. Abreha said here at trial and what he said in the earlier video statement in deciding how much or how little you will believe of, or rely upon, his testimony at trial.
[24] Fifth, the trial judge provided a comprehensive and unchallenged caution to the jury about the use they could make of Abreha’s prior inconsistent statement to the police that inculpated the appellant. In this component of her charge, the trial judge properly conveyed to the jury a series of hurdles, relating both to the process by which the statement was obtained and to its substance, which the jury would have to clear before accepting it for the truth of its contents.
[25] Sixth, the trial judge specifically instructed the jury that nothing precluded them from believing Abreha’s testimony when he stated as follows:
You may believe Mr. Abreha’s testimony if you find it trustworthy, even if no one or nothing else confirms it.
[26] Finally, the purported unequal treatment by the trial judge of the independent evidence confirming Abreha’s statement to the police relative to the independent evidence confirming his testimony at the trial simply reflects the obvious reality in this case – there was a good deal of the former evidence and none of the latter. In her closing address at trial, defence counsel (not appellate counsel) did not suggest any evidence that could be confirmatory of Abreha’s trial testimony. Nor does appellate counsel point to such evidence. It goes without saying that a trial judge cannot invent evidence in an attempt to create a more “equal” review of the evidence.
[27] For these reasons, I would not give effect to the appellant’s submission that the contents of the trial judge’s Vetrovec warning were deficient.
V. DISPOSITION
[28] For the foregoing reasons, I would dismiss the appeal.
“J.C. MacPherson J.A.”
“I agree K. Feldman J.A.”
Armstrong J.A. (Concurring):
[29] I have read the reasons for judgment of my colleague, MacPherson J.A. I differ from my colleague’s reasons. In my view the trial judge erred in giving a Vetrovec warning to the jury in respect of testimony that favoured the defence. However, I agree with the result reached by my colleague as I would also dismiss the appeal.
[30] I take a different view of the witness, Abreha, than my colleague. In my view, Abreha was, without question, a defence witness at trial. He recanted his KGB statement that was given to the police on his arrest and said, without qualification, that the appellant was not one of the robbers. Thus at trial Abreha became a witness for the defence. Based on Tzimpoulos, supra, and Chenier, supra, a Vetrovec warning was not called for.
[31] When the trial judge advised the jury that they “should look for evidence from somebody or something other than Mr. Abreha, which tends to confirm Mr. Abreha’s evidence” she transferred the burden of proof to the appellant. As noted by R.A. Blair J.A. in Chenier at p. 353 such an instruction is “contrary to the requirements of W.(D.).” The defence need do no more than raise a reasonable doubt.
[32] The trial judge should at least have told the jury that they need not look for confirmatory evidence of Abreha’s trial evidence to raise a reasonable doubt.
[33] Nevertheless, I am satisfied that if the trial judge had not given a Vetrovec warning to the jury, there is no reasonable possibility that the verdict would have been different. This was a very strong Crown case. I would therefore invoke s. 686(1)(b)(iii) of the Criminal Code as I conclude that no substantial wrong or miscarriage of justice has occurred by reason of the erroneous instruction.
[34] In the result, as indicated, I would dismiss the appeal.
RELEASED: March 24, 2009 (“RPA”)
“Robert P. Armstrong J.A.”