R. v. Dayes (M.), (2013) 310 O.A.C. 319 (CA)

• Judge: Laskin, LaForme and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 03, 2013
• Jurisdiction: Ontario
• Citations: (2013), 310 O.A.C. 319 (CA);2013 ONCA 614

R. v. Dayes (M.) (2013), 310 O.A.C. 319 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. OC.014

Her Majesty the Queen (respondent) v. Myles Dayes (appellant)

(C54839; 2013 ONCA 614)

Indexed As: R. v. Dayes (M.)

Ontario Court of Appeal

Laskin, LaForme and Epstein, JJ.A.

October 11, 2013.

Summary:

After a trial by judge and jury, the accused was convicted of nine offences arising out of an armed robbery. He was sentenced to a global term of imprisonment of six years. The accused appealed from the convictions. He argued that two events rendered his trial unfair. First, the trial judge permitted the Crown to cross-examine its two witnesses who were also involved in the robbery 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 accused. The accused also argued that the trial judge erred in his charge to the jury by failing to instruct the jury on the principles in R. v. D.W., and in failing to relate those principles to all potential exculpatory evidence raised in the Crown's case. Finally, the accused challenged the fitness of the sentence imposed.

The Ontario Court of Appeal dismissed the appeal from conviction. The court granted leave to appeal the sentence, but dismissed the sentence appeal.

Criminal Law - Topic 127

Rights of accused - Right to be present at trial - The accused appealed from his convictions for nine offences arising out of an armed robbery - During the trial, a discussion took place in chambers between the trial judge and both counsel in the accused's absence - The majority of the discussion involved practical and procedural issues surrounding scheduling - However, it also included the trial judge's opinion about the merits of the Crown's case and the possibility of a plea bargain - At issue was whether the discussion in the accused's absence breached s. 650(1) of the Criminal Code - The Ontario Court of Appeal accepted that a discussion in chambers about the possible resolution of charges against an accused engaged his vital interests where, as here, the trial judge expressed an opinion about the Crown's evidence - However, even accepting that the accused's rights under s. 650 of the Code were breached, the court held that the curative proviso in s. 686(1)(b)(iv) should be applied - First, it was obvious from the entirety of the discussion that the trial judge's main concern related to the logistics and scheduling of the jury trial - Second, when the Crown raised the issue of the accused's absence, defence counsel assured everyone that he would have a "fulsome discussion" with the accused about what had transpired - Third, the discussion 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 - Fourth, the entire discussion was on the record - Finally, the trial was by judge and jury and there was 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 - See paragraphs 62 to 78.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - After a trial by judge and jury, the accused was convicted of nine offences arising out of an armed robbery - The Crown's witnesses included S.R. and T.M., who were allegedly involved in planning and executing the robbery with the accused - At S.R.'s trial, T.M. implicated the accused as an active participant in the robbery - However, T.M. testified at the accused's trial that the accused took no part in the planning or execution of the robbery and that the accused did not know the robbery had taken place - When S.R. testified at the accused's preliminary inquiry, he said that the accused was at the scene of the robbery - At the trial, he said that the accused was not involved in the planning of the robbery and that he did not remember his being at the scene of the robbery - The accused appealed, arguing that the trial judge erred by failing to give an R. v. D.W. (S.C.C.) instruction to the jury in view of the testimony of T.M. and S.R. - Specifically, he contended that the trial judge should have related the burden of proof to the exculpatory trial testimony of those 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.'s and S.R.'s trial evidence was capable of raising a reasonable doubt as to the accused's guilt - The Ontario Court of Appeal held that the trial judge was not obliged to give a D.W. instruction and the accused's reliance on R. v. B.D. (Ont. C.A.) as authority for that submission was misplaced - B.D. established that a D.W. instruction might be required even if the accused had not testified - However, the passage from Blair, J.A.'s reasons relied on by the accused did not establish that a D.W. instruction was required when the accused had not testified and the defence had not led any evidence (as was the case here) - The underlying rationale for requiring a D.W. instruction was not engaged on the facts of this case - 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 properly left it open to the jury to decide how much, if any, of these witnesses' trial testimony they accepted or rejected - paragraphs 42 to 61.

Criminal Law - Topic 4487

Procedure - Trial - Attendance of accused - [See Criminal Law - Topic 127 ].

Criminal Law - Topic 5049

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where accused denied right to be present during whole of trial - [See Criminal Law - Topic 127 ].

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5855

Sentence - Robbery - The accused was convicted of armed robbery and eight related offences - He was sentenced to a global sentence of six years, including five years for the armed robbery conviction - In fixing the sentence, the trial judge concluded that the accused was a direct participant in the robbery and not merely the driver of the get-away vehicle - The trial judge was not prepared to find that the accused was pointing the gun or holding the knife; however, he found that the accused was present with the others who wielded those weapons and that the accused was a direct participant in the planning of the robbery - The accused appealed the sentence - He argued that the trial judge erred because he treated the accused's lack of remorse as an aggravating factor - The Ontario Court of Appeal dismissed the appeal - The trial judge did not incorrectly treat the accused's failure to take responsibility for his actions as an aggravating factor - The trial judge did not erroneously increase the accused'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 accused's prospects for rehabilitation - There was nothing wrong with that approach - There was no basis to interfere with the trial judge's balancing of the aggravating and mitigating factors - Five years for armed robbery was within the range and a global sentence of six years was fit and proper - See paragraphs 79 to 87.

Evidence - Topic 4759

Witnesses - Examination - Prior inconsistent statements - Cross-examination on prior testimony - [See both Evidence - Topic 4765 ].

Evidence - Topic 4765

Witnesses - Examination - Prior inconsistent statements - Cross-examination on - By party producing the witness - After a trial by judge and jury, the accused was convicted of nine offences arising out of an armed robbery - The Crown's witnesses included S.R. and T.M., who were allegedly involved in planning and executing the robbery with the accused - At S.R.'s trial, T.M. implicated the accused as an active participant in the robbery - However, T.M. testified at the accused's trial that the accused took no part in the planning or execution of the robbery and that the accused did not know the robbery had taken place - The Crown applied under s. 9(2) of the Canada Evidence Act (CEA) to examine T.M. on material discrepancies between his trial testimony and his prior testimony at S.R.'s trial - The trial judge permitted the Crown to cross-examine T.M. under s. 9(2) - On appeal, the accused contended that the scope of the leave to cross-examine under s. 9 of the CEA was restricted to the prior inconsistent statements and the circumstances surrounding them - He argued that the Crown was not at liberty to cross-examine T.M. at large and the Crown should not have put questions to T.M. concerning his motive for changing his evidence - The Ontario Court of Appeal rejected the accused's argument - 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 - The Crown's questions attempting to elicit the reason why T.M. had changed his evidence, in particular, whether he did so to protect the accused, were relevant to the inconsistencies in his prior testimony and did not exceed the acceptable scope of cross-examination under s. 9(2) - See paragraphs 18 to 31.

Evidence - Topic 4765

Witnesses - Examination - Prior inconsistent statements - Cross-examination on - By party producing the witness - After a trial by judge and jury, the accused was convicted of nine offences arising out of an armed robbery - The Crown's witnesses included S.R. and T.M., who were allegedly involved in planning and executing the robbery with the accused - At S.R.'s trial, T.M. implicated the accused as an active participant in the robbery - However, T.M. testified at the accused's trial that the accused took no part in the planning or execution of the robbery and that the accused did not know the robbery had taken place - The trial judge permitted the Crown to cross-examine T.M. on his prior statement under s. 9(2) of the Canada Evidence Act (CEA) - On appeal, the accused cited R. v. Soobrian (Ont. C.A.) for the proposition that it was impermissible for the Crown to call a witness where the witness did not in any way advance the Crown's case and where the cross-examination merely tended to show that the witness was not credible - The accused argued that the Crown urged T.M. to admit that he was lying at the trial to cover up for the accused, with the implication being that the accused was therefore guilty - The accused contended that the trial judge erred in not providing a limiting instruction as described in Soobrian and R. v. Figliola (Ont. C.A.) - The Ontario Court of Appeal dismissed the appeal - The cross-examination did not stray into impermissible Soobrian territory as described in Figliola and the trial judge was not required to provide the limiting instruction described in those cases - The Crown'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 accused was therefore guilty - The Crown's few questions concerning why T.M. had changed his evidence were within the permissible scope of questioning under s. 9(2) of the CEA - Moreover, T.M.'s testimony from S.R.'s trial was admitted for the truth of its contents, unlike the witness's prior inconsistent statement in Figliola - The limiting instruction described in Soobrian and Figliola was not suited to a situation where it was open to the jury to accept the witness's prior inconsistent statement inculpating the accused for the truth of its contents and not merely for purposes of assessing the witness's credibility - See paragraphs 32 to 40.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, consd. [para. 4].

R. v. Milgaard (1971), 2 C.C.C.(2d) 206 (Sask. C.A.), leave to appeal refused [1971] S.C.R. x, refd to. [para. 21].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 27, footnote 2].

R. v. Figliola (M.) et al. (2011), 281 O.A.C. 306; 105 O.R. (3d) 641; 2011 ONCA 457, dist. [para. 28].

R. v. F.J.U. (1994), 90 C.C.C.(3d) 541; 72 O.A.C. 117; 32 C.R.(4th) 378 (C.A.), affd. [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [para. 31].

R. v. S.W.S., [2005] O.T.C. 1004; 2005 CanLII 43072 (Sup. Ct.), refd to. [para. 31].

R. v. Mohammad (R.A.), [2007] O.T.C. Uned. Q39; 2007 CanLII 54965 (Sup. Ct.), refd to. [para. 31].

R. v. Soobrian (K.); R. v. Beaudry (J.R.) (1994), 76 O.A.C. 7; 21 O.R.(3d) 603 (C.A.), dist. [para. 32].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 49].

R. v. B.D. (2011), 273 O.A.C. 241; 266 C.C.C.(3d) 197; 2011 ONCA 51, dist. [para. 51].

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 65].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 65].

R. v. Simon (A.D.) (2010), 269 O.A.C. 359; 104 O.R.(3d) 340; 2010 ONCA 754, leave to appeal denied (2011), 422 N.R. 399 (S.C.C.) refd to. [para. 68].

R. v. Ramage (R.) (2010), 265 O.A.C. 158; 257 C.C.C. (3d) 261; 2010 ONCA 488, refd to. [para. 86].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 9 [para. 20].

Criminal Code, R.S.C. 1985, c. C-46, sect. 650(1) [para. 62]; sect. 686(1)(b)(iv) [para. 67].

Authors and Works Noticed:

Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., McWilliams' Canadian Criminal Evidence (2013 5th Ed., loose-leaf), para. 21:20.30.60.30 [para. 30].

Paciocco, David M., Confronting Disappointing, Hostile and Adverse Witnesses in Criminal Cases (2012) 59 C.L.Q. 301, p. 331 [para. 31].

Counsel:

Geneviève McInnes, for the appellant;

Kimberley Crosbie, for the respondent.

This appeal was heard on May 3, 2013, before Laskin, LaForme and Epstein, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by LaForme, J.A., and was released on October 11, 2013.