COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pelletier, 2012 ONCA 566

DATE: 20120831

DOCKET: C51054

Armstrong, Watt JJ.A. and Then R.S.J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Pelletier

Appellant

Jill D. Makepeace, for the appellant

Scott Latimer, for the respondent

Heard: February 22, 2012

On appeal from the convictions entered by Justice Edward J. Koke of the Superior Court of Justice, sitting without a jury, on March 23, 2009, and from the sentences imposed by Justice Koke on May 15, 2009.

Watt J.A.:

[1] The relationship between debtors and creditors is common to both licit and illicit commerce. Debtors owe. Debtors are expected to pay. Creditors are owed. Creditors expect to be paid.

[2] Some debtors pay their debts on time and in full. Others lag behind and require reminder or encouragement to discharge their obligations. The methods used to remind debtors of their obligations and to encourage repayment vary. Some follow conventional methods. Others take different approaches.

[3] In this case, some drug purchasers fell behind in their payments to their suppliers. To remind them of their indebtedness and to encourage repayment, their suppliers shunned dunning letters and threats of litigation in favour of a more direct approach: a baton and a handgun.

[4] A judge found Kevin Pelletier (the appellant) guilty of several offences arising out of his role in a beating and a shooting, about a week apart, of two drug purchasers who got behind in their payments.

[5] The appellant says that his convictions were flawed because the judge at his trial didn’t take sufficient care in assessing the reliability of evidence of disreputable characters and untrustworthy eyewitnesses in reaching his conclusions of guilt. The appellant also contends that the sentence imposed by the trial judge was unfit because the judge failed to take into account that the appellant is Aboriginal.

[6] These reasons explain why I would dismiss the appeal from conviction and grant leave to appeal but dismiss the appeal from sentence.

THE BACKGROUND FACTS

[7] The several counts in the indictment on which the appellant was tried relate to two home invasions in which two drug debtors were beaten and shot in the homes of their friends.

[8] The case for the Crown included the eyewitness testimony of the victims of each attack and the evidence of an unsavoury witness who disavowed his prior B(KG) statement in which he recounted the appellant’s admission of participation in both incidents. Other evidence adduced at trial confirmed various aspects of the unsavoury witness’ pre-trial statement.

The First Incident: October 9, 2006

[9] The first home invasion happened in Jeremy McConnell’s apartment. McConnell and Mark Arbour were friends who worked together paving driveways. Arbour was a frequent visitor to McConnell’s apartment and was there during the evening of October 9, 2006. Arbour had smoked marijuana at the apartment that evening.

The Knock at the Door

[10] At about 8 or 9 p.m., while McConnell and Arbour were watching television, somebody knocked at the door. The knock became progressively louder. McConnell said the person at the door was ‘D’, Dwayne Davis, a drug dealer to whom McConnell owed money.

[11] Arbour fled to the bedroom and closed the door behind him. He heard the apartment door being forced open then heard McConnell complain that he was being hit.

The Attack

[12] About five or ten minutes after he first heard the knock, the door to the bedroom opened. A man, about 5’8” or 5’9” tall, clean-shaven, and with “well done” hair, directed Arbour to the living room. Davis was in the hallway.

[13] The man who had directed Arbour to the living room struck him from behind on the back of his neck. When Arbour turned to face his assailant, the man kicked him and hit him repeatedly with a baton. It was clear to Arbour that the men were there to beat up McConnell who owed money to Davis for prior drug purchases. Arbour concluded that he was being beaten because he was a friend of McConnell.

[14] Arbour estimated that the home invasion lasted about 25 minutes.

The Injuries

[15] Mark Arbour suffered bruising, injuries to his neck and torn ligaments in his leg during the attack.

The Weapon

[16] Mark Arbour said he was assaulted with a baton. The baton shown to him and filed as an exhibit at trial looked like the weapon used to assault him. Arbour explained that he thought the weapon used felt longer than the exhibit because of the force applied and the manner in which it was used.

[17] The baton filed as an exhibit at trial was produced by Richard Danis. In his B(KG) statement, but not in his evidence at trial, Danis said that the appellant had given him the baton for disposal after he had beaten two guys to collect a drug debt owed by Jeremy to Dwayne Davis. The beating took place at Jeremy’s house.

The Evidence of Mark Arbour

[18] From the beginning of the investigation in October, 2006 until April, 2008 Mark Arbour had no interest in helping the police find his assailant. He avoided contact with the police, failed to attend court and, when interviewed, lied under oath about how he became injured and who had beaten him. He blamed Justin Hoffman for beating him. Arbour did describe his attacker as a man, in his late twenties, 5’8” to 5’9” tall, and weighing 170 to 180 pounds. The man was clean-shaven and had his hair spiked a bit.

[19] In an interview in April, 2008 prior to the preliminary inquiry, Arbour announced a change of heart. He was shown a photo line-up that included a picture of the appellant, a photograph that was so different from the appellant’s actual appearance that neither counsel conducting the proceedings recognized the image. Arbour did not identify the appellant in the line-up as his attacker. He did identify another man, but acknowledged his uncertainty.

[20] At the preliminary inquiry, Mark Arbour was asked whether he saw his attacker in the courtroom. Initially, he said he was “pretty sure” the appellant had beaten him. After a closer look he resiled from his identification because of differences in the appellant’s hair and weight. He said that the appellant was not his attacker.

[21] After a recess at the preliminary inquiry, Arbour confirmed that the appellant had in fact beaten him. The appellant had the same build, posture and profile as his assailant and was “French looking” like his attacker.

[22] At trial, and despite changes in the appellant’s appearance, Arbour maintained that the appellant had beaten him on October 9, 2006.

The B(KG) Statement of Richard Danis

[23] In his B(KG) statement admitted at trial as proof of its contents, Richard Danis told police that he drove Darrin Bruneau and the appellant to McConnell’s apartment to collect an outstanding drug debt. This incident had occurred before the appellant shot another man who also owed money to his drug dealer. The appellant gave Danis the baton that he (the appellant) had used in the beating at “Jeremy’s” place and asked him to dispose of it. Danis later gave the baton to police.

[24] Scientists detected no DNA on the baton.

The Second Incident: October 16, 2006

[25] In 2006, Dwayne Guy was a drug addict and dealer. Earlier that year some people attacked him with a hammer, baseball bat, and a knife over a $200.00 drug debt he owed to others. Guy subscribed to the street code, that “the street takes care of itself”, and was unhelpful to police investigating the incident.

The Bruneau Debt

[26] In the spring of 2006, Dwayne Guy owed Darrin Bruneau $640.00 for drugs he (Guy) had previously purchased. Guy was concerned about the debt because Jeremy McConnell had told him what had happened when Bruneau and others invaded McConnell’s house to recover McConnell’s drug debt.

The Apartment

[27] On October 16, 2006 Dwayne Guy was staying at Larry Hunt’s place. A party was in progress. Guy was using cocaine and hadn’t slept for several days.

The Knock at the Door

[28] At about 5:00 or 5:30 p.m. on October 16, 2006 somebody banged on the outside door of Hunt’s home. Hunt answered the knock. A man asked “where is buddy. You know, Dwayne”. Hunt told Guy that somebody was there to see him.

The Home Invasion

[29] Guy heard Bruneau say “so, you thought you could rip me off”. A second man, short and wearing a black jacket, entered Hunt’s home. Guy raised his fists and rushed Bruneau, trying to push the door closed with the two men on the outside. Unable to achieve his purpose, Guy bolted towards Hunt’s bedroom when he saw a shiny black object in the waistband area of the other man’s pants. Guy threw a dish rack on the floor to delay his pursuers.

[30] The man with Bruneau shot Guy with a handgun. At first, Guy thought the thing in the shooter’s hand was a baton. Guy was shot in the left chest. The bullet penetrated his lung, spleen and bowel and lodged near his spinal cord. He was transferred to a Toronto hospital for treatment. The bullet could not be removed surgically because of its location near Guy’s spinal cord.

[31] Bruneau and the shooter fled from Hunt’s home.

Dwayne Guy and the Police

[32] Early in the police investigation, Guy refused to provide any information to the police. Interviewed at the hospital while medicated, Guy told police that he had never seen the shooter before and didn’t know who had shot him. The man had short dark hair. Guy resumed his drug use after he had been released from hospital. He talked to others about the incident. Two or three of these people had a “very, very good idea” about the persons who had invaded Hunt’s apartment and the man who had shot Guy.

The Change of Heart

[33] In early November 2006, Guy was arrested and detained in custody at the North Bay Jail. Guy was upset that one of the persons responsible for an earlier attack on him, also an inmate at the jail, had experienced no repercussions for having done so. The “street” hadn’t “taken care of themselves like they were supposed to”. Claiming a desire to change his life, Guy contacted the police and spoke to them about the earlier shooting incident.

[34] In a B(KG) statement, Guy described the man with Bruneau as short, with short, dark, slicked-back hair and clean-shaven. He said the man was “French” although he did not hear him speak.

[35] Guy recalled that he had seen the shooter once before, about three weeks earlier. The man was in the back seat of Bruneau’s car when he (Guy) and Bruneau had engaged in a drug transaction. Guy paid attention to the man because of the nature of the dealings he had with Bruneau.

[36] About two months after his B(KG) statement, Guy viewed a police line-up. Among the eight photographs were images of two persons whom Guy knew. Guy was told that he could review the photos individually and serially but could not put the photos side by side for comparison. He thought one photo looked like the shooter, but wanted to review the photos again to be one hundred percent certain of his identification. On his second review, he picked out the appellant’s photograph.

The Shooting Scene

[37] Investigators noticed damage to the front door of Hunt’s home. They found a dish rack on the bedroom floor with dishes scattered around. Other clutter in the apartment appeared undisturbed.

[38] In Hunt’s apartment, police found two pairs of sunglasses. An undamaged pair with no identifiable brand name was found near the place from which the shots were fired. Forensic DNA analysis on the glasses confirmed that the appellant could not be excluded as the source of some of the DNA. A second source could not be identified. No DNA was found on the second pair of sunglasses, of Oakley manufacture. Guy was not sure whether the broken (Oakley) sunglasses belonged to him.

[39] Police located four .22 calibre shell casings in the main living area of Hunt’s home. They found no gun.

The B(KG) Statement of Richard Danis

[40] Richard Danis, a 29-year old drug user and dealer with an extensive criminal record, surrendered to police on January 5, 2007 aware that they held an outstanding warrant for his arrest. He had known the appellant for about a decade. Shortly after his surrender, Danis was charged with attempting to bring drugs into the local jail.

[41] About a week after his surrender, Danis told police that he wanted to speak to them at the jail. Danis offered information about the shooting of Dwayne Guy but demanded consideration in return. Police promised him nothing but did say that they would advocate on his behalf if he gave them truthful information. In 2004, Danis had provided information about a murder but recanted when called as a witness at trial.

[42] Danis provided a B(KG) statement to investigators. The statement, which was under oath, videotaped, and included a warning about the consequences of lying or recanting, was admitted at trial.

[43] Danis told police that his partner, Darrin Bruneau, had approached him about collecting on outstanding drug debts. Danis was also present when Bruneau described collecting Guy’s debt with the appellant. Marcel Serre had provided a .22 calibre semi-automatic handgun to Bruneau to be used to shoot another debtor. Bruneau gave the gun to the appellant who put it in the waistband of his pants before leaving with Bruneau in Danis’ car. After the shooting, the appellant explained that the guy he shot had been eating spaghetti when they arrived at the apartment, then tried to rush Bruneau. The appellant opened fire shooting six or seven times. The men left the victim lying on the ground and fled. One or two bullets remained in the gun.

[44] The appellant told Danis that he left his sunglasses at the place where he had shot Guy. He had buried the gun off a trail near the Blockbuster store in North Bay. Danis asked the appellant to retrieve the gun then assisted in its disposal in a lake by Bruneau who also hid a knapsack used to transport the gun near an abandoned car on a pathway leading to the lake.

[45] After completing the B(KG) statement, police told Danis that the appellant’s name had surfaced in the investigation of the shooting of Dwayne Guy. Danis asked whether the appellant’s name had come up because his (the appellant’s) sunglasses had been found at the scene.

The Location of the Gun

[46] Shortly after providing the B(KG) statement, Danis took police to a nearby lake, led them down a remote trail, and showed them the lake where Bruneau had thrown the gun the appellant had used to shoot Guy. Police divers recovered the gun, which contained two unfired rounds, in the water under the ice. It was slightly rusted. The police also found the backpack buried in the snow near an abandoned car, just off the path to the lake.

[47] The gun found in the lake matched the gun used in the shooting of Dwayne Guy.

The Evidence of Richard Danis

[48] Richard Danis recanted his B(KG) statement at trial. He said that its contents were based upon hearsay from different sources. He gave the statement because he wanted to get out of custody so that he could resume his drug use.

THE GROUNDS OF APPEAL

[49] On the appeal from conviction, Ms. Makepeace advances two grounds that I would paraphrase in this way:

i. that the trial judge erred in failing to subject the evidence of two witnesses of unsavoury character, Danis and Arbour, to greater scrutiny; and

ii. that the trial judge erred in failing to adequately scrutinize the reliability of the eyewitness testimony of Guy and Arbour.

[50] A further issue arises in connection with the appellant’s conviction of aggravated assault on the count alleging that he attempted to murder Dwayne Guy. That issue has two aspects. The first has to do with the authority of the trial judge to convict the appellant of aggravated assault on an unparticularized count of attempted murder. The second involves the remedy available in this court in the absence of authority in the trial court.

[51] On the appeal from sentence, the appellant argues that the trial judge erred in failing to take cognizance of the appellant’s Aboriginal status and, in any event, in imposing a sentence that was excessive in the circumstances.

THE APPEAL AGAINST CONVICTION

Ground #1: The Unsavoury Witness Ground

[52] The nature of the argument advanced in support of this ground of appeal makes it unnecessary to supplement earlier references to the evidence of Danis and Arbour. It is helpful to begin with a brief recapture of the arguments advanced on appeal before turning to the reasons of the trial judge and the principles of law that control our decision on this issue.

The Arguments on Appeal

[53] The appellant says that both Danis and Arbour were unsavoury witnesses whose evidence warranted Vetrovec-like analysis even though a Vetrovec self-instruction was not required. Each was an unsavoury witness, a person who proffered evidence for the prosecution in order to divert suspicion or blame from or to gain advantage for himself.

[54] The appellant contends that the trial judge erred in accepting as truthful Danis’ B(KG) statement without adequate consideration of its incompatibility with the objective evidence of what occurred at the scene of the shooting of Dwayne Guy. Further, the appellant’s submits, the trial judge erred in treating as confirmatory of Danis’ statement evidence that was not independent of his statement and showed no more than that Danis knew about and was involved in both the Guy and Arbour incidents.

[55] In connection with Arbour, the appellant reminds, the trial judge erred in placing undiscriminating reliance on the evidence of a witness who had misled investigators twice and deliberately lied when he assigned responsibility for the attack to a perfectly innocent person, Justin Hoffman.

[56] The respondent says that the trial judge was right to admit the B(KG) statement provided by Danis and made no error in his evaluation of its reliability and probative value. The narrative provided by Danis was detailed and confirmed by objective facts that restored the trial judge’s confidence in its reliability. Danis related what the appellant had told him about the home invasion and subsequent events. Any discrepancy between the statement and the subsequent findings on investigation was not of Danis’ doing. Confirmatory evidence need not implicate the appellant in the offences charged, only provide comfort to the trial judge, as the trier of fact, that Danis was telling the truth in his B(KG) statement.

[57] The respondent submits that the trial judge properly assessed the evidence of Arbour. The judge appreciated its frailties and properly gauged its reliability. These findings are owed substantial deference and should not be disturbed at one remove.

The Reasons of the Trial Judge

[58] The trial judge admitted the appellant’s B(KG) statement under the principled exception to the hearsay rule.

[59] In finding the reliability requirement met, the trial judge noted that the statement was made under oath and preceded by a warning about the manner in which it (the statement) could be used if Danis claimed a memory loss or testified in a way that was inconsistent with the contents of the statement. The videotape of the statement permitted the trial judge to assess Danis’ demeanour when he made it and to compare that demeanour with what the judge saw at trial when Danis testified.

[60] The trial judge assigned no weight to Danis’ trial testimony. This finding coincided with the positions advanced by both counsel at trial.

[61] The trial judge grounded his findings of fact in connection with the counts relating to Dwayne Guy on a combination of:

i. Danis’ statement recording what the appellant told him about the incidents;

ii. the finding of the weapon used in the shooting in accordance with Danis’ statement and directions;

iii. the finding of a pair of sunglasses with DNA linked to the appellant at the scene; and

iv. the identification evidence of Dwayne Guy whom the trial judge found to be a very persuasive witness.

The Governing Principles

[62] The parties occupy common ground on the principles that inform our determination of this ground of appeal, but divide on the result that their application yields in this case.

[63] Several principles merit brief reference.

[64] First, as a matter of general principle, the evidence of a single witness is sufficient to support a conviction of any offence other than treason, perjury or procuring a feigned marriage: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 2.

[65] Second, where proof of the guilt of an accused rests exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is especially acute: Khela, at para. 2. Thus, in jury cases, we try to ensure that the jury understands when and why it is unsafe to rest a conviction on the unsupported evidence of witnesses to whom descriptors like “unsavoury”, “untrustworthy”, “unreliable”, or “tainted” apply: Khela, at para. 3. Such an instruction, a Vetrovec caution, is not mandatory in judge alone trials: R. v. Snyder, 2011 ONCA 445 (2011), 273 C.C.C. (3d) 211, at paras. 24-25.

[66] Third, where a Vetrovec warning is provided, in appropriate cases the trial judge should also draw the attention of jurors to evidence capable of confirming or supporting the material parts of the otherwise untrustworthy evidence: Khela, at para. 11.

[67] Fourth, to be confirmatory of the testimony of an unsavoury witness, evidence must come from another source and tend to show that the unsavoury witness is telling the truth about the guilt of the accused: Khela, at para. 37; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R 328, at para. 15. Confirmatory evidence must be independent of the tainted witness, but need not implicate the accused: Khela, at paras. 39-41; Kehler, at para. 16. Where the only issue in dispute is whether an accused committed the offence, the trier of fact must be comforted that the tainted witness is telling the truth in that regard before convicting on the strength of the tainted witness’ testimony: Khela, at para. 43; Kehler, at para. 20.

[68] Fifth, after considering the totality of the evidence, a trier of fact is entitled to believe the evidence of a disreputable witness, even on disputed facts that are not otherwise confirmed, if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful: Kehler, at para. 22.

[69] Finally, at least in the absence of evidence of collusion or collaboration, the evidence of one unsavoury witness can confirm the testimony of another: R. v. Roks, 2011 ONCA 526, (2011), 274 C.C.C. (3d) 1, at para. 67.

The Principles Applied

[70] For several reasons, I would not give effect to this ground of appeal.

[71] First, it is notorious that, absent any misapprehension of evidence or palpable or overriding error, appellate courts are to accord substantial deference to findings of fact made by trial judges. It is all the more so where, as here, the complaint reduces to an assertion that the trial judge miscalculated the weight or overvalued the reliability of evidence adduced at trial, even though it is not said that the finding of guilt is unreasonable.

[72] Second, this is not a case in which it is or could be said that the trial judge was unmindful of the need for caution in assessing the credibility of Danis and Arbour and the reliability of their evidence. The trial judge was acutely aware of Danis’ antecedents and his patent unwillingness to cooperate with the party who called him as a witness. He rejected Danis’ sworn testimony and took into account the several enumerated flaws in his B(KG) statement before relying on it and finding guilt established. He was entitled and pre-eminently positioned to do so.

[73] Third, as the trier of fact, the trial judge was entitled to rely on Danis’ B(KG) statement, even in the absence of confirmatory evidence, as a basis upon which to record a finding of guilt. No rule of law requires confirmatory evidence of an unsavoury witness: Kehler, at para. 22.

[74] Fourth, to be confirmatory of a tainted witness’ testimony, evidence need not implicate an accused in the commission of the offence. Evidence is confirmatory if it provides comfort to the trier of fact that the unsavoury witness is telling the truth; Khela, at paras. 39 and 42-43; Kehler, at para. 15. Among the items of confirmatory evidence in this case are the results of scientific testing of the semi-automatic handgun found at the bottom of the lake and the sunglasses found at the scene of the shooting. The gun was the weapon with which Guy was shot. DNA consistent with that of the appellant was found on the sunglasses. Guy identified the appellant as the shooter.

[75] Finally, the trial judge was required to consider the evidence as a whole in determining whether the Crown had proven the appellant’s guilt of any offence charged beyond a reasonable doubt. This judge, aware of the frailties associated with the evidence of Danis and Arbour, did so. That was his call.

Ground #2: The Identification Evidence

[76] The appellant’s second complaint has some affinity with the first. Each claims error in the judge’s assessment of the reliability of evidence said to be inherently unreliable. The first had to do with the unsavoury character of the witness who gave the evidence. The second fastens more on the nature of the evidence: eyewitness identification.

The Background

[77] Mark Arbour and Dwayne Guy were eyewitnesses to the home invasions in which each was injured. Each identified the appellant as their assailant.

[78] When Dwayne Guy was first presented with a photo line-up, which included a picture of the appellant, he selected the photograph of another person as the individual he believed or thought was the shooter. When he reviewed the photographs a second time, one by one, he identified the appellant as the shooter.

[79] When the police first interviewed Guy at the hospital, he told them that he didn’t know the man who shot him and had never seen him before. He did say that the shooter had short, dark hair. At the preliminary inquiry, Guy testified that he had seen the shooter (the appellant) once before, sitting in the rear seat of a vehicle in which Guy and Bruneau concluded a drug deal.

The Arguments on Appeal

[80] The appellant begins with a reminder about the notorious unreliability of eyewitness testimony and about the obligation of triers of fact to scrutinize carefully the reliability of eyewitness testimony, including but not only the circumstances of photo line-up and in-dock identifications.

[81] In this case, the appellant continues, the photo line-up identification was seriously flawed because police failed to follow the recommendations of the Sophonow Inquiry. The array consisted of only six photos because Guy knew two of the persons shown in the line-up. Guy viewed the photos twice, instead of once as recommended by the Sophonow Inquiry. The photos were not representative. And the witness, Guy, tentatively identified another person as the shooter before his second serial review of the photographs.

[82] The appellant says that the trial judge erred in failing to assign sufficient weight to the serious flaws in the photo line-up procedure. These flaws, especially when considered along with the impact of the shock of the attack itself on the ability of its victim to identify his assailant, rendered Guy’s identification evidence of negligible, if any, probative value.

[83] The appellant submits that the identification evidence of Mark Arbour was also overvalued by the trial judge. The error here has to do with Arbour’s about-face at the preliminary inquiry where he first said that the appellant was not his assailant, then reversed field on a tenuous basis, and said that the appellant was the one who beat him.

[84] The respondent acknowledges the need for triers of fact to subject eyewitness testimony to careful scrutiny. But here, the respondent says, the trial judge’s reasons demonstrate such scrutiny and reveal thoughtful and thorough consideration of the strengths and weaknesses of this evidence. The trial judge’s conclusions were the reasoned product of his assessment of the evidence as a whole.

[85] The respondent points out that trial counsel for the appellant did not challenge the representativeness of the photos contained in the line-up. In his assessment of the weight to be assigned to the photo line-up identification, the trial judge enumerated and carefully considered each specific weakness advanced on the appellant’s behalf. He considered this evidence along with and in the context of the balance of the evidence adduced at trial including Guy’s B(KG) statement and the support furnished by the forensic identification linking the gun and the appellant to the scene of the shooting.

[86] The respondent says that the trial judge paid specific attention to the circumstances in which Arbour identified the appellant as his assailant. These included the initial exclusion of the appellant, the circumstances that caused Arbour to change his mind, and the problematic nature of in-dock identification. Once again, the conclusion was based on the evidence as whole, unadulterated by legal error or misapprehension of the evidence.

The Reasons of the Trial Judge

[87] The trial judge characterized the identity of the victims’ assailant as the primary issue to be determined at trial. He reviewed the circumstances in which Guy selected the appellant’s photo as depicting his assailant. The line-up procedure was videotaped, the videotape played at trial, and a copy filed as an exhibit. The trial judge paid special attention to the frailties in the identification process advanced by the appellant, and explained why he was satisfied that the evidence should be admitted and accorded the weight he assigned to it.

[88] The trial judge followed a similar approach in connection with the evidence of Mark Arbour. He rested his conclusion about the person responsible for both incidents on the cumulative effect of all the evidence.

The Governing Principles

[89] Several basic principles inform our decision on this ground of appeal. None require extended examination.

[90] First, countless authorities acknowledge the inherent frailties of eyewitness identification evidence, especially in cases that involve fleeting glimpses of unfamiliar persons in stressful circumstances: R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.), at pp. 450-451.

[91] Second, the weight to be assigned to evidence of eyewitnesses is a variable, not a constant. The weight of such evidence is for the trier of fact to determine and will vary according to the circumstances of individual cases: Miaponoose, at p. 452.

[92] Third, the reliability of eyewitness testimony is not determined by or coextensive with the actual or apparent honesty of, or the confidence in correctness expressed by, the identification witness: R. v. Izzard (1990), 54 C.C.C. (3d) 252 (Ont. C.A.), at p. 255.

[93] Fourth, as a general rule, in-dock identifications are entitled to little weight in the assessment of the adequacy of the prosecution’s proof on the issue of identity: Izzard, at p. 256; R. v. Williams (1982), 66 C.C.C. (2d) 234 (Ont. C.A.), at p. 235; R. v. A.(F.) (2004), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 47; and R. v. Nguyen (2000), 132 O.A.C. 354, at para. 41.

[94] Fifth, the recommendations of the Sophonow Inquiry about the manner in which photo line-ups should be conducted are persuasive tools to avoid wrongful convictions arising from faulty eyewitness identification, but they are neither conditions precedent to the admissibility of eyewitness testimony nor binding legal dictates for the assignment of weight: R. v. Goulart-Nelson, [2004] O.J. 4010 (C.A.), at para. 11; R. v. Grant, 2005 ABCA 222, (2005), 198 C.C.C. (3d) 376, at para. 6; and R. v. Doyle, 2007 BCCA 548, at paras. 12-13.

[95] Finally, each case that includes eyewitness testimony as part of the prosecution’s case requires the trier of fact, mindful of its frailties both inherent and patent, to consider it in its entirety, along with and in the context of the balance of the evidence, in deciding whether an accused’s guilt has been proven beyond a reasonable doubt: Goulart-Nelson, at para. 11; Grant, at para. 6; Doyle, at para. 13.

The Principles Applied

[96] I would not accede to this ground of appeal for four reasons.

[97] First, the trial judge was well aware that the identity of the assailant was the central issue in connection with each home invasion and that its proof depended, in part, on the weight to be assigned to the eyewitness testimony of the victims of each attack. He approached that evidence with justifiable caution mindful of its inherent untrustworthiness and the specific problems unique to this case.

[98] Second, the trial judge reviewed at length the substance of the evidence of both eyewitnesses, and, in particular, the circumstances in which each claimed to have concluded that the appellant had attacked them. He rehearsed in detail the specific flaws relied upon by trial counsel and accorded the evidence the weight he thought it warranted in the overall scheme of the prosecution’s case.

[99] Third, he considered first whether the evidence about Guy’s line-up identification should be excluded because of the few photographs displayed and the review procedure followed. This admissibility determination involved balancing probative value and prejudicial effect. The appellant made no effort to impeach the judge’s admissibility conclusion on appeal. The judge reminded himself of the difference between admissibility and weight in these terms:

In light of these facts, I am unable to conclude that the potential prejudicial effect of the photo lineup evidence outweighs its probative value and that it must therefore be excluded. The evidence is clearly probative to the issue of identification. This is not to say that some aspects of this evidence and the evidence-gathering process cannot be impugned, but any such shortcomings can be dealt with by the weight I attribute to it.

[100] In connection with the evidence of Arbour, the trial judge took into account Arbour’s lies to investigators and his unwillingness to cooperate with them, along with his testimonial reversal at the preliminary inquiry about the appellant’s participation in the attack. He tackled Arbour’s failure to pick out the appellant’s image in the photographic line-up. In the end, the judge concluded:

In conclusion, I find that, notwithstanding the fact Mr. Arbour gave the impression of being a reluctant witness, he was concerned about giving his evidence truthfully. I find that his initial inability to identify Mr. Pelletier as the assailant arose from his desire to provide evidence which he believed was reliable. This initial inability was compounded by the fact that initially he was unable to take note of what may be one of Mr. Pelletier’s more distinguishing features, namely, his stature. If anything, his initial reluctance to identify Mr. Pelletier underscored his desire to be accurate in giving his evidence. I find that his evidence has a sufficient degree of reliability to receive careful consideration. It is clearly probative to the issue of identification.

[101] Finally, like its immediate predecessor, this ground of appeal has to do with the weight the trial judge assigned to items of evidence adduced at trial. Yet, in the same way as with its predecessor, the appellant stops short of saying that the findings of guilt are unreasonable. The weight to be assigned to individual items of evidence and the persuasive force of the evidence as a whole are pre-eminently questions for the trial judge. This trial judge did not misapprehend the evidence, reach his conclusion illogically, or fail to appreciate the value and effect of the evidence adduced at trial. That was his job. It is not ours to reset the balance.

The Further Issue: The Conviction of Aggravated Assault

[102] A further issue arises in connection with the appellant’s conviction of aggravated assault on the count alleging he attempted to murder Dwayne Guy. This issue, which emerged on the hearing of the appeal from conviction, requires brief reference to the language used in the count that charged attempted murder, the findings made by the trial judge, the principles governing included offences, and the authority of an appellate court to amend a count in an indictment on appeal.

The Indictment

[103] In its material part, the count charging attempted murder alleged that the appellant:

did attempt to murder Dwayne Guy while using a firearm, contrary to s. 239 (1) of the Criminal Code of Canada.

The inclusion of the italicized phrase does not specify the means by which the appellant committed the offence charged. Said in another way, the count of attempted murder is unparticularized.

The Conviction of Aggravated Assault

[104] The trial judge explained the basis upon which he found the appellant not guilty of attempted murder, but guilty of aggravated assault. The judge said:

In conclusion, although I find as a fact that Mr. Pelletier intended to shoot Mr. Guy, I am unable to conclude beyond a reasonable doubt that he intended to cause his death. I do find Mr. Pelletier guilty of the included offence of aggravated assault, contrary to Section 268 of the Criminal Code. It is clear that, by entering the Cassells Street premises with a loaded gun and subsequently firing the gun in the direction of Mr. Guy, Mr. Pelletier intended to wound and endanger the life of Mr. Guy and, in fact, did so. These facts constitute the offence of aggravated assault, contrary to Section 268 of the Criminal Code and, accordingly, I find Mr. Pelletier guilty of this offence.

The Governing Principles

[105] One offence may be included in another in any of three ways:

i. by description in the enactment creating the offence[^1];

ii. by description in the indictment or count in which the accused is charged[^2]; or

iii. by specific statutory provision[^3].

See, R. v. Simpson (No. 2), (1981), 58 C.C.C. (2d) 122 (Ont. C.A.), at p. 133; Luckett v. The Queen, [1980] 1 S.C.R. 1140, at p. 1141.

[106] An “included offence” is part of the main (principal) offence. The offence charged as described in the enactment that creates it, or in the count that charges it, must contain the essential elements of the included offence: Simpson, at p. 133; R. v. Fergusson, [1962] S.C.R. 229, at p. 233.

[107] Section 239(1) of the Criminal Code creates the offence of attempted murder: Simpson, at p. 134. However, the subsection, in particular its phrase “by any means”, does not “describe” the ways in which the offence of attempted murder may be committed: Simpson, at p. 140. The offence of attempted murder may be committed without committing an assault or causing any bodily harm whatsoever: Simpson, at p. 142. It follows that, “as described in the enactment creating it”, attempted murder does not include any crime of assault or unlawfully causing bodily harm: Simpson, at pp. 142-143.

[108] Sections 662(2)-(6) permit conviction of certain offences on indictments for other crimes.[^4] The effect of these provisions is to declare certain offences to be included in other offences. Nothing in these provisions permits a court to convict an accused of aggravated assault on an unparticularized count of attempted murder.

[109] One offence may be included in another where the commission of the offence charged, as described in the count, includes the commission of another offence: Criminal Code, section 662(1). In other words, apt words of description in the charging count may import as included offences crimes that fall outside those included in the enactment creating the principal offence or the specific provisions of sections 662(2)-(6).

[110] Attempted murder is one of several offences in the Criminal Code that attracts a minimum punishment when firearms are used in its commission. The inclusion of the words “while using a firearm” in a count that charges attempted murder puts an accused on notice that, if a conviction of attempted murder is entered, he or she will be subject to a minimum punishment in accordance with the scheme put in place by sections 239(1)-(3): R. v. Manley, 2011 ONCA 128, (2011), 269 C.C.C. (3d) 40, at paras. 54-61; R. v. D.(A.) (2003), 2003 BCCA 106, 173 C.C.C. (3d) 177 (B.C.C.A.), at paras. 29-31. The addition of the phrase “while using a firearm”, does not amount to a particularization of the means by which the offence was committed, thus cannot serve to expand the offences included in the description of the enactment creating the principal offence.

[111] Counts of attempted murder that do not specify the means used to commit the offence and do not contain other apt words of description include the offence of unlawfully attempting to cause bodily harm: Simpson, at p. 143; R. v. Colburne (1991), 66 C.C.C. (3d) 235 (Que. C.A.), at p. 247.

[112] Section 683(1)(g) of the Criminal Code permits a court of appeal, where it considers it in the interests of justice, to amend an indictment, unless the court concludes that the accused has been misled or prejudiced in his or her defence or appeal. The scope of the amendment authority matches that of a trial judge under section 601 and reaches variations between the evidence and the charge: R. v. Irwin (1998), 123 C.C.C. (3d) 316 (Ont. C.A.), at paras. 8 and 31.

[113] In R. v. St. Clair (1994), 88 C.C.C. (3d) 402 (Ont. C.A.), a jury convicted the appellant of an offence that had been erroneously left to them as an included offence on a count that did not specify the means by which the offence charged had been committed. This court amended the indictment on appeal by adding to the count words that described the means by which the principal offence was committed and upheld the conviction of the included offence: St. Clair, at p. 410. In determining whether to make the amendment, the court considered several factors including:

i. the original indictment;

ii. the evidence adduced at trial;

iii. the positions of the parties at trial; and

iv. the real issues on appeal.

St. Clair, at p. 408.

The Principles Applied

[114] I would amend the count charging attempted murder by adding a description of the means by which the offence was committed and of its consequences to the victim, and affirm the conviction for aggravated assault.

[115] My reasons for reaching this conclusion progress through several steps.

[116] First, aggravated assault is not an offence included in the unparticularized count of attempted murder contained in the indictment on which the appellant was tried. The reason is straightforward. Neither section 239(1) of the Criminal Code, the section that creates the offence of attempted murder, the language in the charging count, nor any specific statutory provision makes aggravated assault an included offence in the count of attempted murder contained in the indictment.

[117] Second, the trial judge was satisfied beyond a reasonable doubt that the appellant shot Dwayne Guy, but was not satisfied to the same degree of certainty that the appellant intended to kill Guy. These findings, as the trial judge recognized, required that the appellant be found not guilty of attempted murder. The trial judge made that finding.

[118] The trial judge found further that, when he shot Guy, the appellant intended to wound and endanger the life of Mr. Guy. It was on this basis that the trial judge found the appellant guilty of aggravated assault.

[119] Firing a semi-automatic handgun at Dwayne Guy was an assault. The consequences of this assault were that Guy was wounded and his life endangered. The evidence established and the trial judge found the actus reus of aggravated assault.

[120] The trial judge also found that the appellant intended to wound and endanger the life of Dwayne Guy when he shot him. In the result, the trial judge was satisfied beyond a reasonable doubt that the appellant was guilty of aggravated assault.

[121] The mens rea required for aggravated assault is objective foresight of the risk of bodily harm. The Crown is not required to prove that an accused intended to wound, or maim, or disfigure, or endanger the life of the victim: R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at para. 22; R. v. Godin, [1994] 2 S.C.R. 484, at p. 485.

[122] The trial judge’s misdescription of the mens rea of aggravated assault benefitted the appellant because it reflected a finding that the appellant actually intended to wound or endanger the life of Dwayne Guy. Proof of this state of mind necessarily included proof of objective foresight of the risk of bodily harm.

[123] Crown counsel at trial did not invite the trial judge to amend the count of attempted murder to conform to the trial judge’s finding of guilt. The trial judge did not do so on his own motion. No one suggests that the trial judge lacked the authority to amend the count to conform to his findings of guilt.

[124] To determine whether we should exercise our authority under section 683(1)(g) of the Criminal Code to amend the count to conform to the conviction of aggravated assault entered at trial, we must consider whether the appellant has been misled or prejudiced in his defence or on appeal.

[125] The defence advanced at trial was that the appellant did not shoot Dwayne Guy. The appellant did not testify at trial, rather relied on the unsavoury character of prosecution witnesses and the frailties associated with eyewitness testimony to argue that the Crown had failed to establish his guilt with the required degree of certainty. The grounds of appeal advanced do not indicate, nor does the appellant suggest, that he would be (or would have been) misled or prejudiced by the amendment. He does not suggest that the conviction of aggravated assault is unreasonable or vitiated by some error specific to it.

[126] For these reasons, I would dismiss the appeal from conviction in its entirety and amend the count of attempted murder by adding immediately after “while using a firearm”, the phrase “by shooting him with a gun, thereby wounding him”.

THE APPEAL FROM SENTENCE

[127] The appellant also applies for leave to appeal sentence. He says that the trial judge erred in principle by failing to take into consideration the appellant’s Aboriginal status and by imposing a sentence that offended the fundamental principle of proportionality.

The Background

[128] The trial judge heard sentencing submissions about a month after he gave his reasons for convicting the appellant. At the outset of the hearing, trial counsel for the appellant indicated that she was not requesting a pre-sentence report. No victim impact statements were tendered. Neither counsel nor the trial judge suggested or required preparation of a Gladue report.

[129] The trial Crown submitted that the predominant sentencing principles at work were denunciation and general deterrence. At the time of the offences, the appellant, a mature recidivist, was bound by a weapons prohibition and subject to the terms of a recognizance. The trial Crown sought a total sentence in “low to mid double digits”.

[130] Trial counsel for the appellant did not suggest any specific range of sentence for the offences of which the appellant had been convicted. She did ask, however, that the judge award credit for pre-sentence custody at the rate of 2:1. On the relevance of the appellant’s Aboriginal background to the sentencing decision, trial counsel said:

Mr. Pelletier is also a person of First Nations decent [sic] and he has through his life had some involvement, I don’t believe I would tell you that he lives on a – he hasn’t lived on reserve for some time and at this point in time when he was arrested wasn’t actively participating in the spiritual teachings of his First Nation history, but that is a factor. I am not suggesting, Sir, that Gladue factors ought to come into play. We put that for full information before the court.

The Sentencing Decision

[131] The trial judge considered that a global sentence of 12 years in the penitentiary was proportionate to the gravity of the appellant’s offences and the degree of his responsibility. He credited the appellant with 2 years and 8 months as the equivalent of the 16 months he had spent in pre-sentence custody and imposed a global sentence of 9 nine years 4 months in the penitentiary.

[132] In his sentencing decision, the trial judge assigned primary importance to the principles of denunciation and general deterrence, but he also took into account the appellant’s rehabilitative prospects based on his comparative youth, employable skills, and significant gap in his criminal record. The trial judge made no mention of the appellant’s Aboriginal status in his sentencing decision.

The Arguments on Appeal

[133] The appellant says that the trial judge erred in principle in failing to take into account the appellant’s Aboriginal status as mandated by section 718.2(e) of the Criminal Code and in failing to adhere to the analysis required by R. v. Gladue, [1999] 1 S.C.R. 688. Further, by overemphasizing the objectives of denunciation and deterrence, the trial judge betrayed the fundamental principle of sentencing: proportionality.

[134] The respondent acknowledges the failure of the trial judge to consider the principles that appear in section 718.2(e) of the Criminal Code. He submits, however, that trial counsel, for all practical purposes, made it clear that the appellant waived his right to have his circumstances as an Aboriginal offender considered on the sentencing decision. The respondent says that, in any event, the sentence imposed was and remains fit.

The Fresh Evidence

[135] The appellant seeks leave to adduce evidence about his activities in the penitentiary, in particular, his involvement in programs for Aboriginal inmates. The evidence reveals that in the early stages of his incarceration, the appellant did not participate in these programs. More recently, however, he has done so, to some limited extent.

The Governing Principles

[136] Section 718.2 of the Criminal Code enacts several principles that a sentencing court is required to consider in determining a fit sentence for an offender and his offences. Among those principles is section 718.2(e).

[137] Section 718.2(e) requires a sentencing judge to consider in sentencing any offender all available sanctions other than imprisonment, but only where those alternative dispositions are reasonable in the circumstances. Adherence to this principle is of particular importance for Aboriginal offenders.

[138] The effect of section 718.2(e) is to direct sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders: Gladue, at para. 37. It is worthy of reminder that the sentencing principle enacted by section 718.2(e) applies to all Aboriginal offenders, no matter where they live: Gladue, at paras. 90-91. Said somewhat differently, any Aboriginal offender is entitled to the method of analysis described in Gladue in the determination of a fit sentence: Gladue, at paras. 33, 75, and 93.

[139] Whether an offender is Aboriginal or non-Aboriginal, the overarching duty of the sentencing judge is to fashion a sentence that pays heed to the fundamental principle of sentencing-proportionality: Gladue, at para. 33.

[140] In sentencing proceedings involving Aboriginal offenders, Gladue teaches that the judge is to take judicial notice of the systemic or background factors that are relevant for Aboriginal offenders and to adopt the approach to sentencing required by section 718.2(e): Gladue, at paras. 83 and 93. Beyond the reach of judicial notice, it is the responsibility of counsel, or, in default, of the sentencing judge, to adduce relevant evidence about the offender’s circumstances to inform the sentencing decision: Gladue, at paras. 83-84. This affirmative obligation to make inquiries is limited to appropriate circumstances and where the inquiries are practicable. Deference is due to the sentencing judge’s assessment of the necessity for and nature of any further inquiries: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 55.

[141] Where the sentencing judge has not fulfilled the duty imposed under section 718.2(e), a court of appeal on an appeal from sentence grounded in this failure must consider any relevant and admissible fresh evidence in determining the fitness of the sentence: Gladue, at para. 85.

[142] An Aboriginal offender who does not wish specific evidence adduced may waive his or her right to have particular attention paid to his or her circumstances as an Aboriginal offender: Gladue, at para. 83. Consistent with general principle, this waiver should be clear and unequivocal, made with full knowledge of the right that is surrendered and of the effect of waiver of that right: Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41, at p. 49.

[143] Finally, for some offenders, both Aboriginal and non-Aboriginal, separation, denunciation and deterrence are fundamentally relevant. It does not follow that Aboriginal offenders must always be sentenced in a way that accords greatest weight to the principles of restorative justice and less weight to objectives like deterrence, denunciation and separation: Gladue, at para. 78. Although not a general principle, in practical terms, the more violent and serious an offender’s crime, the more likely that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other, if not the same: Gladue, at para. 79; Wells, at para. 42; R. v. Ipeelee, 2012 SCC 13, (2012), 280 C.C.C. (3d) 265, at para. 85.

The Principles Applied

[144] I would grant leave to appeal sentence, but dismiss the appeal.

[145] The principal error advanced on appeal is the failure of the trial judge to take into account the sentencing principle enacted by section 718.2(e) in determining a fit sentence.

[146] At the sentencing hearing, trial counsel for the appellant, who had expressly said that no pre-sentence report was required, told the trial judge that:

i. the appellant was a person of First Nations descent;

ii. the appellant was not an active participant in spiritual teachings of First Nations peoples; and

iii. the appellant was not suggesting that Gladue factors were at play in determining a fit sentence.

[147] It is doubtful whether these comments by trial counsel amount to an express, unequivocal waiver of the application of the principles of section 718.2(e). On the other hand, it seems clear that the appellant was waiving the collection of Gladue information for use in the sentencing decision.

[148] Accepting the failure of the trial judge to expressly identify section 718.2(e) as a relevant sentencing principle as an error in principle disentitling the sentencing decision to deference, I am satisfied that the sentence imposed remains fit.

[149] These offences, committed a week apart, involved pre-concerted activity. Each involved the use of a weapon against unarmed victims. One of the weapons was a semi-automatic handgun. Both victims suffered serious injuries. The motive underlying each invasion was to encourage or enforce payment of a drug debt. The appellant was recruited as an enforcer.

[150] No rational application of the objectives and principles of sentencing dictated a sentence that did not involve a substantial period of imprisonment. Denunciation, deterrence and the need to separate persons who engage in such behaviour from the rest of society were the most prominent sentencing principles. The trial judge did not lose sight of the appellant’s rehabilitative prospects, good work record and substantial gap in his previous convictions.

[151] Nor does the fresh evidence about the appellant’s activities in prison persuade me that the sentence imposed in unfit. For the first several months, he did not attend or participate in any Aboriginal ceremonies, circles or other activities. More recently, he has begun to participate in these activities. That said, he remains a mature recidivist with a significant record for prior offences of violence, property crimes and failures to abide by court orders.[^5]

[152] I would not interfere with the sentence imposed at trial.

CONCLUSION

[153] For these reasons, I would dismiss the appeal from conviction and grant leave to appeal, but dismiss the appeal from sentence.

Released: August 31, 2012 (“R.P.A.”)

“David Watt J.A.”

“I agree Robert P. Armstrong J.A.”

“I agree Edward Then R.S.J. (ad hoc)”

[^1]: Section 662(1) of the Criminal Code.

[^2]: Section 662(1) of the Criminal Code.

[^3]: Sections 662(2)-(6) of the Criminal Code.

[^4]: These offences are not included “as described in the enactment creating” the principal offence under section 662(1).

[^5]: The appellant’s record includes three prior convictions for assault, one for robbery, four for break and enter, and six for failures to comply with recognizances or to attend court.