Court of Appeal for Ontario

Date: 2019-09-27

Docket: C64084; C64154 and C64757

Judges: Juriansz, Pepall and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Travis O'Leary, Michael Doxtator and Charles Grebenchan Appellants

Counsel

Robert C. Sheppard, for the appellant Travis O'Leary

Lance Beechener, for the appellant Michael Doxtator

Scott O'Neill, for the appellant Charles Grebenchan

Ken Lockhart, for the respondent

Heard: September 18, 2019

On appeal from: the convictions entered on January 11, 2017 and the sentence imposed on June 12, 2017 by Justice Jonathon C. George of the Superior Court of Justice.

Reasons for Decision

Overview of the Appeal

[1] These three appeals arise from a September 18, 2015 bank robbery. Four disguised assailants had robbed a Scotiabank brandishing imitation firearms. The three appellants, who were tried together, were found guilty of various offences arising out of the robbery. Michael Doxtator and Charles Grebenchan were found to be two of the assailants who entered the bank. Travis O'Leary was found to have conspired to commit the robbery and to have surveyed the bank about two hours before the commission of the robbery.

The Crown's Key Witness

[2] The Crown called Leigha Ainscow as a witness. She was the girlfriend of Doxtator at the time of the robbery. Her testimony was crucial to the Crown's case, which was otherwise circumstantial. She was arrested on October 9, 2015 and charged with an unrelated offence. At that time, she gave a video recorded statement to the police implicating the appellants. She had bipolar disorder and by the time of trial had suffered a permanent brain injury. The appellants sought to attack her reliability. The trial judge, however, relied on her testimony in convicting the appellants.

[3] On appeal, the appellants submit that the trial judge erred in the treatment of and reliance on her evidence.

Memory Refreshing and Admissibility

[4] When Ainscow began her testimony, it became immediately apparent that she had to refresh her memory by relying on her statement to the police. A recess was taken so she could review the transcript of that statement. Then, as she testified, she refreshed her memory by referring to the transcript. The appellants submit that her evidence was not properly admissible because she had no present recollection of the events after referring to the transcript and was simply reading the transcript.

[5] The trial judge said: "Her examination was, I found, to be a painful exercise, which should not be confused with the rejection of her testimony. The Crown had a difficult task in managing and questioning her, its own witness. I, however, disagree entirely with the defence suggestion that she was just reading from her police statement when prompted, and that she was simply providing answers in order to satisfy the Crown." The trial judge, in fact, stated that he believed she was attempting to favour the defence.

[6] Counsel's review of passages of the trial transcripts did not persuade us there was any basis to interfere with the trial judge's finding that Ainscow was not "just reading" from the statement. The trial judge was totally alive to the difficulties resulting from her disabilities and it was his role to assess her reliability. Moreover, the trial judge relied on evidence of Ainscow when she clearly stated that her review of the transcript had refreshed her memory. The trial judge expressly did not rely on those parts of Ainscow's evidence that she indicated were not refreshed by her reading of the transcript.

The Vetrovec Warning

[7] At trial, the appellants urged the trial judge to give himself a Vetrovec warning in relation to Ainscow's testimony because she had given her police statement while she was in custody hoping for release. The trial judge determined this was unnecessary. In reaching that conclusion, he said her initial account to the police did not strike him as self-serving, given with the sole purpose of getting her released from custody. He found that she had, in her examination-in-chief, "adopted" the relevant points from her police statement, twice confirming she had been truthful at the time she gave it.

[8] The appellants submit that the trial judge's use of the word "adopted" shows he unjustifiably considered Ainscow's evidence as past recollection recorded, rather than present memory revived. We disagree. Considering his reasons as a whole, it is clear the trial judge was not using the term "adopted" in the strict legal sense. Rather he was responding to the defence submission that he should instruct himself in accordance with the principles concerning the caution to be exercised when considering the evidence of untrustworthy witnesses, as articulated in R. v. Vetrovec, [1982] 1 S.C.R. 811. Moreover, it is readily apparent from his reasons that he appreciated the difference between past recollection recorded and present memory revived.

Corroboration of Ainscow's Evidence

[9] The trial judge also found that the reliability of Ainscow's testimony was corroborated by the evidence of bank employees that a red dye pack had gone missing at the time of the robbery and that Ainscow testified seeing $20 bills with red stains at the Oakville address.

Evidence Against Doxtator and Grebenchan

[10] Ainscow's evidence combined with the circumstantial evidence provided overwhelming support for the trial judge's inference that Doxtator and Grebenchan were two of the four robbers who had entered the bank. We reject out of hand the argument that the Crown's case against Grebenchan foundered because Ainscow failed at trial to identify Grebenchan, who was a passing acquaintance. The trial judge carefully set out the evidence that supported the identification of Grebenchan, including evidence that his DNA was on a hat in the getaway car.

Evidence Against O'Leary

[11] Similarly, there is ample evidence to support the finding of guilt against O'Leary. The cumulative circumstantial evidence against him provided a solid base for the trial judge's conclusion that the only reasonable inference that could be drawn was that he was a party to the robbery. His cell phone demonstrated the other appellants were well known to him. The bank's video surveillance cameras established he was at the bank two hours before the robbery even though he was not a customer of that bank. An independent witness testified O'Leary acted so suspiciously it prompted the witness to report his conduct to the bank. Four hours before the robbery, an Internet search for "police scanners" had been conducted on his cell phone. The cell phone had hardware enabling it to act as a "police scanner". The cell phone also contained thumbnail photos of red stained $20 bills and an activated dye pack. Shortly after acting suspiciously at the bank, O'Leary had gone and met with Doxtator.

Assessment of Circumstantial Evidence

[12] We do not accept the submission that the trial judge applied the wrong test in assessing the effect of the circumstantial evidence. He was able to reject the myriad of coincidences that would have been necessary to explain the cumulative effect of all the circumstantial evidence.

Fresh Evidence Application

[13] The appellants moved to admit the criminal record of Ainscow as fresh evidence. They point out that in explaining why he did not instruct himself in accordance with Vetrovec, the trial judge had observed that Ainscow had no criminal record. Had the criminal record been before him, they contend it would have materially damaged Ainscow's credibility and would have undermined the Crown's case.

[14] Ainscow's criminal record was disclosed to the defence before trial. Moreover, it is clear from their cross-examination of Ainscow that they had made a tactical decision not to refer to it. Their focus was on undermining the reliability of her evidence rather than her credibility. In light of all the evidence, we are not persuaded that the fresh evidence could reasonably be expected to have affected the trial's result.

Conclusion on Conviction Appeals

[15] We agree with the Crown that this was a factual appeal in which the appellants sought to relitigate the case. The trial judge's factual findings were reasonable and grounded in the evidence. The verdict is entirely reasonable.

Sentence Appeal

[16] We see no merit in Doxtator's sentence appeal. The trial judge considered the relevant aggravating factors, including that Doxtator played a leadership role in the robbery. We are satisfied that finding was open to him on the evidence. He also gave appropriate consideration to the Gladue report. We are not persuaded that the sentence is demonstrably unfit or reflected any error in principle.

Disposition

[17] The appeals as to conviction are dismissed. Doxtator is granted leave to appeal sentence, but the sentence appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.