COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2013 ONCA 128

DATE: 20130304

DOCKET: C52423 and C54708

MacPherson, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Creg Brown and Richard Rak

Appellants

Misha Feldmann, for the appellant Creg Brown

Mark Halfyard, for the appellant Richard Rak

Grace Choi, for the respondent

Heard: February 25, 2013

On appeal from the conviction entered on April 16, 2010 by Justice J. Robert MacKinnon of the Superior Court of Justice, sitting with a jury.

By the Court:

[1] The appellants Creg Brown and Richard Rak appeal their convictions for various offences following a two-week trial by MacKinnon J. of the Superior Court of Justice, sitting with a jury. Brown was convicted of break and enter with intent to commit an indictable offence, robbery and assault. The break and enter and assault convictions were stayed pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. Rak was convicted of break and enter with intent to commit an indictable offence, robbery and criminal harassment. The break and enter charge was stayed pursuant to Kienapple.

[2] The appellants were convicted of breaking into a motel where a couple, Janet Nichols and Jody Ekman, were staying and robbing them of money and personal effects, including pills.

[3] The appellant Brown raises two issues relating to the trial judge’s instruction to the jury regarding identification evidence.

[4] Both appellants raise issues relating to the number and content of Vetrovec warnings provided to the jury by the trial judge in his jury charge and to the manner in which the trial judge dealt with one witness’s prior inconsistent statement.

A. Brown’s appeal

(1) Jury instruction about identification

[5] The appellant Brown submits that the trial judge erred in his instruction to the jury regarding identification evidence. Specifically, Brown contends that the trial judge erred by instructing the jury to consider how certain the complainants were about the accuracy of their in-dock identification of Brown as one of the people who robbed them at the motel:

Consider how certain were the witnesses about the description? Nichols told you the black man she saw on May 16 was one and the same as the one that she saw on May 14 in her home.

Has the witness ever expressed uncertainty about the identification? I do not believe that there has.

[6] The appellant also submits that the trial judge provided an insufficient warning about the dangers of an in-dock identification and did not properly warn the jury about the dangers of the vagueness and generality of the eyewitnesses’ description of the appellant.

[7] We begin with two contextual observations. First, the trial judge’s charge about identification evidence tracked very closely the specimen charge in Watt’s Manual of Jury Instructions. Second, Brown’s identity as one of the perpetrators did not primarily flow, in the Crown’s view of the case, from the in-dock identification of the complainants. Rather, it was premised on Jason Shelswell’s acquaintance with Brown and his testimony that Brown was known as “Matrix”, which was the name used by two of the robbers to refer to the third robber during the robbery.

[8] Against this backdrop, we do not accept Brown’s submissions on this point. The charge, and especially the re-charge, sufficiently warned of the dangers of in-dock identification. In addition, the trial judge carefully reviewed the complainants’ description of the perpetrator known as Matrix, and, read as a whole, the trial judge’s charge did not communicate that the jury could simply accept the identification based on the complainants’ certainty.

(2) The references to the nickname “Matrix” in the jury charge

[9] The appellant Brown points to the complainants’ testimony that two of the robbers referred to the third robber as “Matrix”. The appellant states that the trial judge referred to him as Matrix throughout the charge, which had the effect of telling the jury that Matrix and the appellant were the same person. This, says the appellant, went beyond referring to the evidence and usurped the fact finding function of the jury. Whether the appellant was Matrix was a critical question of fact to be determined by the jury.

[10] We disagree. In each instance identified by the appellant in which the trial judge referred to Matrix, he did so in the course of summarizing the testimony of various witnesses, primarily Nichols and Ekman, who testified that one of the robbers was called Matrix by the other robbers. This was a perfectly fair summary and did not usurp the function of the jury to determine whether in fact Matrix was the appellant.

B. Both appeals

(3) Vetrovec warnings

(a) Nichols and Ekman

[11] The appellants contend that, although the trial judge was correct to provide Vetrovec warnings concerning the complainants Nichols and Ekman, he erred by saying that “you are permitted to conclude that the evidence of one of them confirms the evidence of the other of them”.

[12] We disagree. As expressed by this court in R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595 at para. 140:

There is, however, no prohibition against the evidence of one Vetrovec witness confirming the evidence of another Vetrovec witness.... The question is not whether the witness is him or herself a Vetrovec witness, but whether the evidence of each witness is sufficiently independent of the evidence of the other to provide confirmation.

[13] Recently, in R. v. Pelletier, 2012 ONCA 566, 295 O.A.C. 200 at para. 69, Watt J.A. stated that “at least in the absence of evidence of collusion or collaboration, the evidence of one unsavoury witness can confirm the testimony of another.”

[14] In this case, there is no live issue of collusion or tainting of the complainants’ evidence. Therefore, the general rule from Drabinsky and Pelletier applies and the trial judge did not err in the passage set out above.

(b) Shelswell

[15] The appellants complain that the trial judge did not provide a Vetrovec warning relating to the Crown witness Shelswell.

[16] We do not accept this submission. The jury knew Shelswell had a criminal record and had been instructed on how to address credibility and the evidence of witnesses with criminal records. Furthermore, during the discussion between the trial judge and counsel about the contents of the jury charge, which involved an extensive dialogue on the Vetrovec issue, none of the three defence counsel requested a Vetrovec warning for Shelswell. After the charge was delivered, no counsel objected to the absence of such a warning relating to Shelswell’s testimony. In these circumstances, what Doherty J.A. said in R. v. Glasgow (1996), 1996 CanLII 4009 (ON CA), 93 O.A.C. 67 (C.A.), at para. 3, is apposite:

If a trial judge was not asked to give a warning, it is difficult to understand how the trial judge can be said to have erred in the exercise of her or his discretion.

(4) Prior inconsistent statement of Danny Steeves

[17] The appellants contend that the trial judge erred by not providing a mid-trial instruction about a prior inconsistent statement by the Crown witness Danny Steeves.

[18] We disagree. No counsel requested such an instruction when Steeves was testifying. Moreover, the trial judge provided an appropriate instruction on this point in his jury charge:

Danny Steeves testified at this trial. He was cross-examined by Crown counsel about the audio/video police statement he gave and in which he used words or responded to questions in relation to “Jay, Rak and Matrix”. He did not accept any of those pre-trial statements when he testified at trial....

Any parts of his pre-trial statement which were not accepted by him at trial as true, cannot be used by you as proof of the facts stated.

[19] No defence counsel objected to this component of the jury charge. In our view, the trial judge’s instruction on this issue was both timely and correct.

Disposition

[20] Both appeals are dismissed.

Released: March 4, 2013 (“J.C.M.”)

“J.C. MacPherson J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”