Her Majesty the Queen v. Dayes

[Indexed as: R. v. Dayes]

Ontario Reports

Court of Appeal for Ontario,

Laskin, LaForme and Epstein JJ.A.

October 11, 2013

117 O.R. (3d) 324 | 2013 ONCA 614

Case Summary

Criminal law — Evidence — Cross-examination of own witness — Crown not exceeding scope of s. 9(2) of Canada Evidence Act by cross-examining Crown witness about why his testimony in prior proceedings was inconsistent with his testimony at trial — Canada Evidence Act, R.S.C. 1985, c. C-5, s. 9(2).

Criminal law — Sentence — Robbery — Accused receiving global sentence of six years for armed robbery and eight related offences (including five years for armed robbery) — Accused's appeal from sentence dismissed.

Criminal law — Trial — Charge to jury — Burden of proof — Accused not testifying or calling any evidence at his robbery trial — Two Crown witnesses giving exculpatory evidence that was inconsistent with their testimony in previous proceedings — Trial judge not required to give R. v. W. (D.) instruction to jury.

Criminal law — Trial — Presence of accused — Trial judge making brief comment about merits of Crown's case and possibility of plea bargain during mid-trial meeting on the record with counsel in chambers in absence of accused — Crown raising concern about accused's absence and defence counsel stating that he would have "fulsome discussion" with accused about what transpired — Discussion referred to in open court in presence of accused and trial judge giving defence counsel time to review it with accused — Accused not claiming that he was prejudiced by failure to comply with s. 650(1) of Code — Curative proviso applying — Criminal Code, R.S.C. 1985, c. C-46, s. 650(1). [page325]

After a jury trial, the accused was convicted of armed robbery and eight other related offences. At trial, the Crown called two witnesses who were involved in the robbery. Their exculpatory testimony at trial was inconsistent with their testimony in previous court proceedings. The Crown was given permission to examine one of those witnesses, M, under s. 9(2) of the Canada Evidence Act (the "CEA") on material discrepancies between his trial testimony and his previous testimony. After the s. 9(2) cross-examination, the trial judge allowed the Crown's motion to declare M an adverse witness and granted leave to the Crown to cross-examine M under s. 9(1) of the CEA. At a mid-trial meeting with counsel in chambers, the trial judge made brief comments about the merits of the Crown's case and the possibility of a plea bargain. The accused was sentenced to six years' imprisonment (including five years for armed robbery). He appealed his conviction and sentence.

Held, the appeal should be dismissed.

The Crown did not exceed the scope of cross-examination under s. 9(2) of the CEA by questioning him about why his testimony at trial was inconsistent with his previous testimony. One of the purposes of cross-examination under s. 9(2) is to permit the court to make an adversity ruling. Factors that are relevant to an adversity ruling include possible grounds for bias and collusion between the witness and the opposing party to fashion testimony. Crown counsel's questions attempting to elicit the reason why M had changed his evidence -- in particular, whether he did so to protect the accused -- were relevant to the inconsistencies in his prior testimony.

As the accused neither testified nor called evidence, the trial judge was not required to give an R. v. W. (D.) instruction to the jury. The rationale of W. (D.) is to assist the jury on how to make credibility findings when faced with accepting or rejecting conflicting evidence on a vital issue. The judge properly left it to the jury to choose what portions, if any, of the exculpatory evidence of the two Crown witnesses.

Accepting that the accused's right under s. 650(1) of the Criminal Code to be present throughout his trial was breached, the curative proviso applied in the circumstances. The chambers discussion was on the record and was capable of being transcribed for purposes of appellate proceedings. When the Crown expressed a concern about the accused's absence, defence counsel assured everyone that he would have a "fulsome discussion" with the accused about what had transpired. Although the discussion was not recounted in open court, it was referred to in the presence of the accused and the trial judge gave defence counsel time to review with him what had been discussed. The accused did not claim that he was prejudiced as a result of the breach of s. 650(1).

The sentence was fit. The trial judge did not incorrectly treat the accused's failure to take responsibility for his actions as an aggravating factor; rather, he simply found that that failure went a long way to negate the mitigating factor of the potential of rehabilitation. There was nothing wrong with that approach.

R. v. D. (B.), [2011] O.J. No. 198, 2011 ONCA 51, 226 C.R.R. (2d) 92, 273 O.A.C. 241, 266 C.C.C. (3d) 197; R. v. Figliola (2011), 105 O.R. (3d) 641, [2011] O.J. No. 2777, 2011 ONCA 457, 281 O.A.C. 306, 272 C.C.C. (3d) 518, 96 W.C.B. (2d) 281; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91, 119 D.L.R. (4th) 464, 171 N.R. 360, J.E. 94-1672, 157 A.R. 321, 93 C.C.C. (3d) 1, 34 C.R. (4th) 1, 25 W.C.B. (2d) 39; R. v. Soobrian (1994), 1994 CanLII 8739 (ON CA), 21 O.R. (3d) 603, [1994] O.J. No. 2836, 76 O.A.C. 7, 96 C.C.C. (3d) 208, 25 W.C.B. (2d) 605 (C.A.); R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, EYB 1991-67602, 12 W.C.B. (2d) 551, consd [page326]

Other cases referred to

R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 148 N.R. 241, J.E. 93-466, 61 O.A.C. 1, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1, 18 W.C.B. (2d) 588; R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, 45 D.L.R. (4th) 487, 81 N.R. 321, J.E. 88-71, 87 N.S.R. (2d) 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305, 3 W.C.B. (2d) 205; R. v. Hertrich, 1982 CanLII 3307 (ON CA), [1982] O.J. No. 496, 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510, 7 W.C.B. 478 (C.A.); R. v. Milgaard, 1971 CanLII 792 (SK CA), [1971] S.J. No. 264, [1971] 2 W.W.R. 266, 2 C.C.C. (2d) 206, 14 C.R.N.S. 34 (C.A.) [Leave to appeal to S.C.C. refused [1971] S.C.R. x]; R. v. Mohammad, 2007 CanLII 54965 (Ont. S.C.J.); R. v. Ramage, [2010] O.J. No. 2970, 2010 ONCA 488, 213 C.R.R. (2d) 291, 96 M.V.R. (5th) 1, 265 O.A.C. 158, 257 C.C.C. (3d) 261, 77 C.R. (6th) 134; R. v. S. (S.W.), 2005 CanLII 43072 (Ont. S.C.J.); R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, 269 O.A.C. 359, 263 C.C.C. (3d) 59 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 459]; R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82, 128 D.L.R. (4th) 121, 186 N.R. 365, J.E. 95-1956, 85 O.A.C. 321, 101 C.C.C. (3d) 97, 42 C.R. (4th) 133, 28 W.C.B. (2d) 282, affg 1994 CanLII 1085 (ON CA), [1994] O.J. No. 1058, 72 O.A.C. 117, 90 C.C.C. (3d) 541, 32 C.R. (4th) 378, 23 W.C.B. (2d) 496 (C.A.)

Statutes referred to

Canada Evidence Act, R.S.C. 1985, c. C-5, s. 9 [as am.], (1), (2)

Criminal Code, R.S.C. 1985, c. C-46, ss. 650 [as am.], (1) [as am.], 686(1)(b)(iv)

Authorities referred to

Hill, S. Casey, David M. Tanovich and Louis P. Strezos, eds., McWilliams' Canadian Criminal Evidence, looseleaf, 5th ed. (Aurora, Ont.: Canada Law Book, 2013)

Paciocco, David M., "Confronting Disappointing, Hostile and Adverse Witnesses in Criminal Cases" (2012), 59 Crim. L.Q. 301

APPEAL by the accused from the conviction entered on March 3, 2011 and from the sentence entered on June 20, 2011 by Parayeski J. of the Superior Court of Justice, sitting with a jury.

Geneviève McInnes, for appellant.

Kimberley Crosbie, for respondent.

The judgment of the court was delivered by

LAFORME J.A.: —

A. Introduction

[1] After a trial by judge and jury, the appellant was convicted of nine of the 11 offences for which he was charged arising out of an armed robbery.[^1] Convictions were entered and he was [page327] sentenced to a global term of imprisonment of six years. The appellant did not testify at his trial nor did he call any evidence. The Crown's witnesses included two people who the Crown alleged were involved in planning and executing the robbery with the appellant.

[2] The appellant raises several issues, including the consequences of two events that occurred during his trial.

[3] First, the trial judge permitted the Crown to cross-examine its two witnesses who were involved in the robbery. This cross-examination was allowed on the basis that the witnesses' testimony was inconsistent with their testimony in previous court proceedings. Second, the trial judge conducted a brief discussion in his chambers with counsel in the absence of the appellant. The appellant submits that these two events rendered his trial unfair.

[4] The appellant also contends that the trial judge erred in his charge to the jury by failing to instruct the jury on the principles in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, and in failing to relate those principles to all potential exculpatory evidence raised in the Crown's case.

[5] Finally, the appellant challenges the fitness of the sentence imposed.

[6] For the reasons that follow, I would dismiss the appeal from conviction. Although I would grant the appellant leave to appeal his sentence, I also would dismiss the sentence appeal.

B. Crown's Evidence at Trial

[7] On October 26, 2006, the appellant drove three of his friends from Toronto to Cambridge, Ontario in his minivan.

[8] A witness called by the Crown, Mike Beacham, testified in chief that at around 10:00 p.m., he saw four men, dressed in dark clothing and wearing bandanas, standing near the parking lot of his former high school in Cambridge. Beacham next noticed that in the parking lot there were two cars that belonged to his friends. He drove up to one of the cars and talked with its four occupants.

[9] Suddenly, an armed group of masked men dressed in dark clothing ran up to their vehicles and yelled at the occupants not to move. According to Beacham, someone tried to open the door of his car. Beacham quickly backed away and waited at the exit [page328] of the parking lot. In cross-examination, Beacham agreed that there might have been only three assailants rather than four.

[10] Two of the four occupants of the other car also testified. They said that one of the assailants pointed a shotgun through the driver's side window and demanded all of their belongings. Another assailant stood at the passenger's door with what appeared to be a knife. The four occupants handed over their belongings. The robbers quickly ran off to a minivan. These two complainants put the number of robbers at either three or four.

[11] Beacham pursued the minivan in his car as it drove onto Highway 401. Beacham's passenger called 911 and kept the 911 operator informed of the minivan's location. Beacham clocked the speed he had to drive on the 401 to keep up with the minivan at about 160 to 170 km/h.

[12] The police caught up with the minivan in a Tim Hortons parking lot and staged a "high-risk takedown" of the driver -- the appellant -- and the three passengers. A sawed-off shotgun was found sticking out from the back seat of the minivan and a knife was found in the glove compartment.

[13] A surveillance camera at the school's parking lot recorded the robbery and was introduced at trial.

[14] One of the four occupants of the minivan, T.M., pleaded guilty to robbery while another, S.R., was convicted of robbery after a trial. They were both sentenced as young offenders. A third member of the group, Selwyn Coy, also pleaded guilty to robbery.

[15] T.M. testified at S.R.'s trial and implicated both S.R. and the appellant in the planning and execution of the robbery. At the appellant's trial, however, T.M. changed his testimony and indicated that the appellant had nothing to do with the robbery. At the preliminary inquiry, S.R. testified that the appellant was at the scene of the robbery. At the appellant's trial, however, S.R. changed his evidence and testified that only he, Coy and T.M. approached the complainants' vehicles and that he did not recall the appellant's having approached their vehicles.

C. Defence Case at Trial

[16] As noted, the appellant did not testify and called no witnesses.

[17] The defence theory at trial was that the appellant neither knew about nor participated in the robbery and that he did not know about a shotgun that one of his friends brought into his minivan. He was not acting as a getaway driver after the robbery. Rather, he was only doing a favour for his friends in [page329] agreeing to drive them to Cambridge so that S.R. could get a laptop from his mother's home there.

D. Analysis

I. Conviction appeal

(1) Did the trial judge allow an improper scope of cross-examination of the main Crown witness?

(a) The Crown's cross-examination of T.M. under s. 9 of the Canada Evidence Act

[18] At S.R.'s trial, T.M. implicated the appellant as an active participant in the robbery. The Crown expected that T.M. would give the same evidence at the appellant's trial. However, contrary to this expectation, T.M. testified that the appellant took no part in the planning or execution of the robbery and he further claimed the appellant did not know the robbery had taken place.

[19] In the absence of the jury, Crown counsel applied under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the "CEA") to examine T.M. on 11 material discrepancies between his trial testimony and his prior testimony at S.R.'s trial.

[20] Section 9 of the CEA reads as follows:

9(1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness' present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.

[21] In accordance with the procedure for considering an application under s. 9(2) set forth in R. v. Milgaard, 1971 CanLII 792 (SK CA), [1971] S.J. No. 264, 2 C.C.C. (2d) 206 (C.A.), at pp. 221-22 C.C.C., leave to appeal to S.C.C. refused [1971] S.C.R. x, the trial judge considered the alleged inconsistencies in T.M.'s evidence and ruled that T.M.'s evidence was inconsistent in each respect. Defence counsel conceded proof of the prior statement and was afforded the opportunity to cross-examine T.M. about the circumstances of his testimony at S.R.'s trial. The trial judge subsequently ruled [page330] that the Crown should be permitted to cross-examine T.M. under s. 9(2) of the CEA.

[22] After the jury was recalled, Crown counsel cross-examined T.M. about the inconsistencies in his evidence at this trial and at S.R.'s trial, including the possible reasons for the change in his evidence. For example, at the appellant's trial, T.M. originally testified in chief that he did not bring anything into the appellant's minivan when the appellant first picked him up on the night in question. Later in his examination-in-chief, T.M. claimed that he was the one who brought the gun into the minivan. In contrast, at S.R.'s trial, T.M. had testified that the gun was already in the minivan when the appellant picked him up and he also had testified that he did not know where the gun had come from.

[23] Crown counsel put it to T.M. that he was "throwing [himself] under the bus for" the appellant in testifying that he had brought the gun, and that it was "important for [him] not to be seen as a rat". At another point, Crown counsel asked T.M. whether he was "afraid of anyone" and was changing his evidence for that reason.

[24] During the Crown's cross-examination under s. 9(2), T.M. at one point said it was not important to him to tell Crown counsel the truth. He also said he was wasting his time by testifying at the appellant's trial.

[25] After asking for the jury to be excused, Crown counsel sought a ruling that T.M. was "hostile". Following submissions on a voir dire, the trial judge refused to make such a ruling. However, he allowed the Crown's subsequent motion to declare T.M. an adverse witness. The trial judge then granted leave to the Crown to cross-examine T.M. under s. 9(1) of the CEA in the presence of the jury.

[26] Crown counsel proceeded to further question T.M. about the inconsistencies between his testimony at the present trial and at S.R.'s trial. Crown counsel put it to him that his memory would have been better at the previous trial, which occurred less than two years after the robbery. In this continued cross-examination, T.M. was not asked to explain any motive he may have had for changing his evidence.

[27] Following this continued cross-examination, the Crown brought a successful B. (K.G.) application[^2] to have T.M.'s testimony [page331] from S.R.'s trial introduced for the truth of its contents. The appellant takes no issue with the trial judge's B. (K.G.) ruling.

(b) The Crown's cross-examination of T.M. was not improper

[28] The appellant submits that the Crown's cross-examination under s. 9(2) of the CEA exceeded the limits prescribed by s. 9 and amounted to an improper, broader attack on T.M.'s credibility. Citing R. v. Figliola (2011), 105 O.R. (3d) 641, [2011] O.J. No. 2777, 2011 ONCA 457, at paras. 49-51, he contends that the scope of the leave to cross-examine under s. 9 of the CEA is restricted to the prior inconsistent statements and the circumstances surrounding them. It is not cross-examination at large. This restriction, he says, is because the right at common law to cross-examine one's own witness at large arises only if in the judge's opinion the witness is "hostile". Since the trial judge denied the Crown's application to declare T.M. hostile, Crown counsel was not at liberty to cross-examine T.M. at large and he ought not to have put questions to the witness concerning his motive for changing his evidence.

[29] I would reject the appellant's submission because, in my view, it was open to the Crown to cross-examine T.M. under s. 9(2) of the CEA about why his testimony at the trial was inconsistent with his testimony at S.R.'s trial. Such questioning relates to the inconsistent statement and is therefore within the scope of cross-examination permitted by the provision.

[30] One of the purposes of cross-examination under s. 9(2) is to permit the court to make an adversity ruling. Factors that are relevant to an adversity finding include possible grounds for bias and collusion between the witness and the opposing party to fashion testimony: see the Hon. Mr. Justice S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds., McWilliams' Canadian Criminal Evidence, looseleaf, 5th ed. (Aurora, Ont.: Canada Law Book, 2013), at para. 21:20.30.60.30.

[31] Crown counsel's questions attempting to elicit the reason why T.M. had changed his evidence -- in particular, whether he did so to protect the appellant --were relevant to the inconsistencies in his prior testimony and did not exceed the acceptable scope of cross-examination under s. 9(2) of the CEA: see R. v. U. (F.J.), 1994 CanLII 1085 (ON CA), [1994] O.J. No. 1058, 90 C.C.C. (3d) 541 (C.A.), at p. 551 C.C.C., affd 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82; R. v. S. (S.W.), 2005 CanLII 43072 (Ont. S.C.J.), at paras. 1-2; R. v. Mohammad, 2007 CanLII 54965 (Ont. S.C.J.), at paras. 14-16; and the Hon. David M. Paciocco, "Confronting Disappointing, Hostile and Adverse Witnesses in Criminal Cases" (2012), 59 Crim. L.Q. 301, at p. 331. [page332]

[32] The appellant goes on to cite R. v. Soobrian (1994), 1994 CanLII 8739 (ON CA), 21 O.R. (3d) 603, [1994] O.J. No. 2836 (C.A.) for the proposition that it is impermissible for the Crown to call a witness where the witness does not in any way advance the Crown's case and where the cross-examination merely tends to show that the witness is not credible. In Soobrian, this court concluded that it was incumbent on the trial judge to provide a limiting instruction to the jury to the effect that, in the absence of any collusion between the witness and the accused, if the jury were to find the witness not to be credible, they cannot use that finding to draw an inference adverse to the defence.

[33] In Figliola, this court held, at paras. 61-62, that a Soobrian limiting instruction is required where the effect of the Crown's cross-examination of a witness under s. 9(1) is to "shred the credibility of the Crown's own witness and to create a factual matrix" where the jury could conclude that the witness "was not only a liar, but was a witness lying for the very purpose of covering up for the appellants' wrongful deeds and that the appellants were therefore liars themselves, and guilty too".

[34] According to the appellant, in the present case, Crown counsel urged T.M. to admit that he was lying at the trial to cover up for the appellant, with the implication being that the appellant was therefore guilty. The appellant contends that the trial judge erred in not providing a limiting instruction as described in Soobrian and Figliola.

[35] I do not agree that the cross-examination of the appellant strayed into impermissible Soobrian territory as described by this court in Figliola. Thus, I do not accept that the trial judge was required to provide the limiting instruction described in Soobrian and Figliola.

[36] Clearly, this was not a situation like Soobrian, where the Crown called a witness for the tactical reason of demonstrating that the witness' testimony was false and to use that evidence to suggest that the defence position was fabricated. The Crown did not call T.M. with the plan of impeaching him or suggesting that he and the appellant had colluded to cover up the appellant's involvement in the robbery. Rather, based on T.M.'s testimony at the trial of S.R., the Crown expected that T.M. would give evidence implicating the appellant in the robbery. When T.M. testified in a way that absolved the appellant of knowledge or involvement in the robbery, the Crown quite properly applied under s. 9(2) of the CEA to cross-examine T.M. on his prior statement at the trial of S.R.

[37] In Figliola, Crown counsel put to its own witness a series of questions aimed at supporting the Crown's theory that this [page333] witness was fabricating an alibi for the accused. As this court put it, at para. 48, the Crown cross-examined its own witness "forcefully in a wide-ranging fashion" for the purposes of shredding the witness' credibility.

[38] In contrast, Crown counsel's cross-examination of T.M. was not aimed at extracting testimony in an effort to destroy his credibility and lead the jury to conclude that because he was not telling the truth, the appellant was therefore guilty. Rather, T.M. freely gave testimony that conflicted in a host of material respects from his prior sworn evidence at S.R.'s trial. The vast majority of the Crown's questions explored these inconsistencies. Crown counsel's few questions concerning why T.M. had changed his evidence so dramatically were within the permissible scope of questioning under s. 9(2) of the CEA.

[39] Moreover, it is important to recognize that T.M.'s testimony from S.R.'s trial was admitted for the truth of its contents, unlike the witness' prior inconsistent statement in Figliola. Accordingly, in the present case, the jury was at liberty to use T.M.'s prior evidence for its truth, as well as for purposes of assessing his credibility. The limiting instruction described in Soobrian and Figliola is not suited to a situation where it is open to the jury to accept the witness' prior inconsistent statement inculpating the accused for the truth of its contents and not merely for purposes of assessing the witness' credibility.

[40] Finally, I note that in the second pre-charge conference, defence counsel specifically asked that no strong warning be given about T.M.'s credibility. He explained that such a warning would do a disservice to the appellant, given his own reliance on T.M.'s trial testimony. After the charge was delivered, defence counsel did not object or otherwise indicate that he had reconsidered this position.

[41] I would therefore dismiss this ground of appeal.

(2) Did the trial judge fail to instruct the jury on the W. (D.) principles?

[42] The appellant submits that the trial judge erred by failing to give a W. (D.) instruction to the jury in view of the testimony of T.M. and S.R. Specifically, he contends that the trial judge should have related the burden of proof to the exculpatory trial testimony of these two witnesses by making it clear that the testimony, if believed by the jury, would have provided a complete defence to the charges; and that even if the jury did not believe the exculpatory portions of their evidence, the jury still had to consider whether T.M. and S.R.'s trial evidence was capable of raising a reasonable doubt as to the appellant's guilt. [page334]

[43] The trial judge gave the jury the standard instructions on the burden of proof and the presumption of innocence. The jury was further told that they could accept all, part or none of a witness' evidence. Also, in the pre-charge conference, the trial judge specifically suggested that he not include the standard W. (D.) instruction because "we just don't need to confuse them with that". Defence counsel did not complain either at the pre-charge conference or at the conclusion of the final charge to the jury. The appellant acknowledges all of this.

[44] To define this issue more clearly, recall that at S.R.'s trial, T.M. testified that both S.R. and the appellant were involved in the planning and the execution of the robbery. At the appellant's trial, however, T.M. testified to the effect that the appellant did not know that his three passengers planned to commit a robbery, that the appellant did not see them commit the robbery and that the appellant did not know they had committed the robbery.

[45] When S.R. testified at the appellant's preliminary inquiry, his evidence was that the appellant was at the scene of the robbery in the parking lot. At the trial, he changed his evidence and said that the appellant was not involved in the planning of the robbery and that he did not remember his being at the scene of the robbery when it was committed.

[46] In closing, defence counsel urged the jury to accept the exculpatory testimony of S.R. and T.M. at the appellant's trial and to disregard the inculpatory portions of T.M.'s testimony at S.R.'s trial and S.R.'s testimony at the appellant's preliminary inquiry.

[47] Crown counsel did not ask the jury to completely reject T.M.'s trial testimony, but rather asked them to consider his testimony when it was supported by other individuals. The Crown asked the jury to consider the evidence that S.R. gave at the preliminary inquiry when assessing the credibility of his trial testimony.

(a) The principles behind W. (D.)

[48] The Supreme Court of Canada's majority decision in W. (D.) is the seminal authority on the application of the burden of proof in criminal trials in which credibility is important. At p. 758 S.C.R., Cory J. set out the following three-part jury instruction that applies in a case in which the accused has testified:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. [page335]

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[49] Cory J. also noted, however, that the failure to use this language is not fatal, so long as "the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply": W. (D.), at p. 758 S.C.R. Cory J. elaborated on this point in R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91, at p. 533 S.C.R.:

Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essence of these instructions be given. It is erroneous to direct a jury that they must accept the Crown's evidence or that of the defence. To put forward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version in preference to the other and yet on the whole of the evidence be left with a reasonable doubt. The effect of putting such a position to the jury is to shift a burden to the accused of demonstrating his or her innocence, since a jury might believe that the accused could not be acquitted unless the defence evidence was believed.

[50] In S. (W.D.), the trial judge, in a recharge responding to a jury question, suggested that the jury had to choose between two competing versions of events: that of the complainant or that of the accused. Cory J. concluded that the jury would have understood that they had to decide which story was stronger and act on that one. This instruction improperly shifted the burden of proof to the appellant by telling the jury that it could only acquit if the accused's story is believed rather than the complainant's story. The fact that the trial judge in S. (W.D.) told the jury several times in the recharge that it had to base its verdict on "the whole of the evidence" did not correct the error. The conviction was set aside and a new trial was directed.

[51] This court recently explained that the principles underlying W. (D.) are not limited to circumstances in which the accused testifies, but also extend to circumstances where "there is other defence evidence called contradicting the Crown's case and/or conflicting evidence favourable to the defence in the Crown's case . . . and the jury must make credibility findings in that context": R. v. D. (B.), [2011] O.J. No. 198, 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 105.

[52] The appellant points specifically to the following passage from Blair J.A.'s reasons in D. (B.), at para. 114:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused [page336] testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if -- viewed in the context of all of the evidence -- the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice [R. v. Challice, 1979 CanLII 2969 (ON CA), [1979] O.J. No. 1301, 45 C.C.C. (2d) 546 (C.A.)]. In that event, they must acquit.

[53] D. (B.) was a case of alleged incest and forgery. The Crown sought to prove that B.D.'s co-accused, who was claiming to be her husband, Prince, was in fact her son, Wafi. The principal frailty in the jury charge was that the trial judge presented the jury's task as establishing whether the co-accused was Wafi or Prince. He did not explain to the jury that there was a third alternative: if the jury had a reasonable doubt whether the co-accused was Wafi or Prince, they were also required to acquit. In other words, the trial judge did not instruct the jury that even if they did not accept the evidence favourable to the defence -- in particular, the defence evidence of the appellant's son, Olaseni -- they had to consider whether that evidence raised a reasonable doubt in their minds as to the co-accused's identity, and, if it did, that they were required to acquit: see D. (B.), at para. 97.

(b) Application to this case

[54] In my view, the trial judge was not obliged to give a W. (D.) instruction and the appellant's reliance on D. (B.) as authority for this submission is misplaced. This court's decision in D. (B.) establishes that a W. (D.) instruction may be required even if the accused has not testified. However, the passage from Blair J.A.'s reasons relied on by the appellant does not establish that a W. (D.) instruction is required when the accused has not testified and the defence has not led any evidence. More importantly, the underlying rationale identified in D. (B.) for requiring a W. (D.) instruction is not engaged on the facts of this case.

[55] The underlying rationale for requiring a W. (D.) instruction in D. (B.) is that the jury had to make credibility findings on a vital issue that seemed to require an either/or choice between conflicting evidence, namely, whether the co-accused was the husband or the son of the accused. The jury in D. (B.) therefore needed to be told how the concept of reasonable doubt applied to the credibility findings on this vital issue. In particular, the [page337] jury needed to know that they had the option of acquitting if the conflicting evidence, when viewed in the context of all of the evidence, left them in a state of reasonable doubt as to the accused's guilt.

[56] As I said, the underlying rationale for requiring a W. (D.) instruction does not exist here. The jury was not explicitly or implicitly required to make an either/or choice between accepting or rejecting T.M.'s and S.R.'s trial testimony on a vital issue. The trial judge quite properly left it open to the jury to decide how much, if any, of these witnesses' trial testimony they accepted or rejected.

[57] The trial testimony of T.M. and S.R. dealt with a range of issues critical to the verdicts on the 11 counts facing the appellant, including whether the appellant was involved in the discussions in planning the robbery, whether he brought a gun into the car, whether he knew a gun was in the car, whether the appellant participated in the robbery, whether he knew about the robbery after it was committed and whether he was acting as the getaway driver after the robbery. The jury was not faced with an either/or choice of deciding whether they accepted all or none of the trial testimony of these witnesses on one or more vital issue(s). Indeed, some aspects of these witnesses' trial testimony, including both T.M.'s and S.R.'s evidence that the appellant was driving the minivan, supported the Crown's case against the appellant.

[58] In my view, the trial judge in this case was correct in instructing the jury on how to assess a witness' credibility where the witness has said one thing in the box, but has said something quite different on a previous occasion. He properly left it for the jury to decide whether or how much of the two witnesses' trial testimony the jury saw fit to believe or rely on in light of the inconsistent evidence they had given in prior proceedings.

[59] With respect to T.M.'s evidence in particular, which was admitted for its truth, the trial judge properly did not put to the jury an either/or choice between accepting and acting on either T.M.'s inculpatory or his exculpatory version of events. Nor would the jury have assumed that they had to either accept or reject one or other version in its entirety. Rather, the trial judge gave a standard B. (K.G.) instruction directing the jury to consider how much or how little of T.M.'s present and past testimony they would believe and rely on. Presumably, the jury may have believed and acted on some of T.M.'s evidence at S.R.'s trial and some of his testimony at the appellant's trial.

[60] Finally, I note that the trial judge was not asked to give a W. (D.) instruction despite having encouraged counsel repeatedly [page338] to suggest anything they felt could be helpful in delivering a complete and accurate charge.

[61] I would therefore not give effect to this ground of appeal.

(3) Did a discussion held in the appellant's absence breach s. 650(1) of the Criminal Code?

(a) Nature of the discussion held in the judge's chambers

[62] Mid-way through T.M.'s testimony, a discussion took place in chambers between the trial judge and both counsel in the appellant's absence. The entire discussion was on the record.

[63] The majority of the discussion involved practical and procedural issues surrounding scheduling matters. However, the discussion also included the trial judge's opinion about the merits of the Crown's case and the possibility of a plea bargain. The trial judge stated:

But I must tell you that I have formed, and bearing in mind of course that I'm not the jury, but I have formed the opinion, based upon everything that I've heard, that what [T.M.] has done [has] irreparably damaged the Crown's case with respect to what I call the robbery related charges.

I think that the Crown should consider withdrawing those charges and offering a plea arrangement with respect to the accessory after the fact and possibly the weapon in the vehicle without a licence charge and that, if the Crown were to do that, I think that it's something that the defence should take very seriously. It's just my observation and I give it to you for that purpose only.

[64] Crown counsel raised a concern about a mistrial occurring when the accused is not present during an in-chambers discussion. Defence counsel responded that he would "have a fulsome discussion with [the appellant]".

(b) Section 650 and the accused's right to be present during the whole of his trial

[65] Section 650(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides that an accused must be "present in court during the whole of his . . . trial". Courts have adopted an expansive view of what constitutes part of the trial, holding that an accused must be present for any part of the proceedings in which his or her "vital interests" are engaged: R. v. Hertrich, 1982 CanLII 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.), at p. 539 C.C.C. Section 650(1) is triggered when a decision bears on the substantive conduct of the trial: R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at pp. 708 and 730 S.C.R., citing Hertrich, at p. 529 C.C.C. [page339]

[66] The appellant argues that the in-chambers discussion formed part of his trial and was neither preliminary nor merely procedural in nature. He contends that even though the trial judge was sitting with a jury, the trial judge was the central figure in the trial and was in a position to make rulings on evidence and other issues. The appellant says he had "an utmost interest in hearing the trial judge's opinion about the merits of the Crown's case and a possibility of a plea bargain". He adds that, although the discussion was transcribed, its content was not repeated on the record in open court.

[67] The appellant does not allege that the meeting resulted in specific prejudice to his case. Nonetheless, he submits that the proviso in s. 686(1)(b)(iv) of the Code should not be applied because the discussion about the merits of the Crown's case in his absence caused prejudice to the administration of justice. Section 686(1)(b)(iv) provides that the court of appeal may dismiss an appeal from conviction where, "notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby".

[68] Prudence and good practice suggest that the default position in all criminal trials is that any conversation involving trial counsel and the judge ought to take place in the appellant's presence, in open court and on the record. This should also apply to discussions held in a judge's chambers, since the term "trial" in s. 650(1) can include in-chambers discussions: R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, at para. 117, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 459; Hertrich, at p. 539 C.C.C.

[69] However, not every in-chambers discussion will constitute part of the "trial". As I noted earlier, whether something that happened during the course of a trial is part of the "trial" depends on whether or not it involved or affected the vital interests of the accused or whether any decision made bore on "the substantive conduct of the trial": Simon, at para. 116.

[70] I accept that a discussion in chambers about the possible resolution of charges against an accused engages his vital interests where, as here, the trial judge expresses an opinion about the Crown's evidence. That being said, even accepting that the appellant's rights under s. 650 of the Code were breached because he was excluded from this discussion, it is necessary to decide if the curative proviso is applicable. I note, however, that the need for this inquiry can be avoided so long as courts follow the prudent [page340] course of including the accused in all in-chambers conferences, regardless of the issues being discussed.

[71] In Simon, at para. 123, Watt J.A. listed the following non-exhaustive, relevant factors to be considered when deciding whether to apply the curative proviso to a breach of s. 650 of the Code:

i. the nature and extent of the exclusion, including whether it was inadvertent or deliberate;

ii. the role or position of the defence counsel in initiating or concurring in the exclusion;

iii. whether any subjects discussed during the exclusion were repeated on the record or otherwise reported to the accused;

iv. whether any discussions in the accused's absence were preliminary in nature or involved decisions about procedural, evidentiary or substantive matters;

v. the effect, if any, of the discussions on the apparent fairness of trial proceedings; and

vi. the effect, if any, of the discussions on decisions about the conduct of the defence.

[72] Having regard to these factors, in my view, the proviso should be applied for the following reasons.

[73] First, it is obvious from the entirety of the discussion that the trial judge's main concern related to the logistics and scheduling of the jury trial.

[74] Second, when the issue of the appellant's absence was raised by the Crown, defence counsel assured everyone that he would have a "fulsome discussion" with the appellant about what had transpired.

[75] Third, although the discussion was not recounted in open court, it was referred to in the presence of the appellant and the trial judge gave defence counsel time to review with him what had been discussed.

[76] Fourth, the entire discussion was on the record and was capable of being transcribed for purposes of appellate proceedings, which provides transparency with respect to the content of the discussions.

[77] Finally, the trial was by judge and jury and there is no assertion that the trial judge's brief comment about the merits of the Crown's case had any impact on the fairness or the conduct of the trial. Indeed, the appellant acknowledges that he is not alleging that the meeting resulted in any specific prejudice to the conduct of his defence.

[78] I would dismiss this ground of appeal. [page341]

II. Sentence appeal

(1) Was the sentence fit and proper?

[79] The appellant was convicted of armed robbery and eight related offences. The Crown sought a sentence of six to eight years' imprisonment, while the defence requested a sentence of four years, which is the statutory mandatory minimum for armed robbery. The trial judge sentenced the appellant to a global sentence of six years, including five years for the armed robbery conviction.

[80] The appellant argues that the trial judge erred in principle by imposing a sentence based on aggravating factors that were not properly treated as such, and by failing to give appropriate weight to the applicable mitigating factors.

[81] In fixing the six-year sentence, the trial judge concluded that the appellant was a direct participant in the robbery and not merely the driver of the getaway vehicle. The trial judge was not prepared to find that the appellant was pointing the gun or holding the knife; however, he did find that the appellant was present with the others who wielded these weapons. The trial judge also found that the appellant was a direct participant in the planning of the robbery. The trial judge was entitled to make these findings based on the evidence at the trial and committed no error in doing so.

[82] The trial judge reviewed the pre-sentence report and the letters submitted on behalf of the appellant. He recognized the relevant aggravating and mitigating factors and correctly noted the operative sentencing principles with respect to sentencing for the use of a gun in a robbery.

[83] The trial judge stated that the appellant's failure to take responsibility for his actions "goes a long way to negate the mitigating factor of the potential of rehabilitation". The trial judge went on to say:

While not an aggravating factor per se I note that Mr. Dayes required a trial to be held. Of course that was entirely his right but I mention the lack of a guilty plea . . . simply because a guilty plea might otherwise be a mitigating factor.

[84] The appellant argues that the trial judge erred because he treated the appellant's lack of remorse as an aggravating factor. He contends that the absence of remorse merely deprives the accused of additional mitigation on that account.

[85] I disagree that the trial judge incorrectly treated the appellant's failure to take responsibility for his actions as an aggravating factor. The trial judge's reasons read as a whole [page342] illustrate that he did not erroneously increase the appellant's punishment as a result of his failure to accept responsibility for his actions -- he just did not mitigate the sentence on the basis of the appellant's prospects for rehabilitation. There is nothing wrong with this approach.

[86] Trial judges are afforded significant discretion in determining the quantum of sentence: R. v. Ramage, [2010] O.J. No. 2970, 2010 ONCA 488, 257 C.C.C. (3d) 261. Doherty J.A. explained the rationale for this deference in Ramage, at para. 70:

In the vast majority of cases, there is no single sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge must make his or her selection. That selection is driven by the judge's evaluation of the sentence that best reflects his or her assessment of the combined effect of the many variables inevitably at play when imposing a sentence.

[87] I see no justification for interfering with the trial judge's balancing of the aggravating and mitigating factors in this case. Five years for armed robbery is within the range and a global sentence of six years for all the offences that the appellant was convicted of is fit and proper. Accordingly, I would grant leave to appeal but dismiss the appeal from sentence.

E. Disposition

[88] For the reasons set out above, I would dismiss appeal from conviction. I would grant leave to appeal sentence and dismiss the sentence appeal.

Appeal dismissed.

[^1]: The appellant was charged with armed robbery, having his face masked with intent to commit an indictable offence, pointing a firearm, possession of a weapon, carrying a concealed weapon, possession of a firearm without a licence, threatening to cause serious bodily harm, accessory after the fact to robbery, failure to comply with a prohibition against the possession of a weapon, dangerous driving and occupying a vehicle with an unauthorized firearm.

[^2]: On a B. (K.G.) application, a party seeks to have a prior inconsistent statement by a witness admitted for the truth of its contents: R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22.

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