R. v. Gagnon (Y.R.J.) et al., (2000) 136 O.A.C. 116 (CA)

• Judge: Catzman, Weiler and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 15, 2000
• Jurisdiction: Ontario
• Citations: (2000), 136 O.A.C. 116 (CA);2000 CanLII 16863 (ON CA);147 CCC (3d) 193;[2000] OJ No 3410 (QL);136 OAC 116

R. v. Gagnon (Y.R.J.) (2000), 136 O.A.C. 116 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. SE.030

Her Majesty The Queen (respondent) v. Yvon Roméo Joseph Gagnon and André Donald Gagnon (appellants)

(C24985; C25069)

Indexed As: R. v. Gagnon (Y.R.J.) et al.

Ontario Court of Appeal

Catzman, Weiler and Laskin, JJ.A.

September 15, 2000.

Summary:

The accused (Yvon and André) were con­victed in 1995 of one count of conspiracy to commit robbery. The accused were involved in two 1991 robberies of armoured cars ($361,000 and $802,000). None of the mon­ies were recovered. The accused were also involved in the 1993 robbery of a pharmacy employee making a deposit ($4,400). Yvon was sentenced to 12 years' imprisonment. André was sentenced to eight years' im­prisonment. The trial judge imposed a com­pensation order exceeding $1 million on both accused. Both accused appealed against conviction and the imposition of the com­pensation order. André also appealed the length of his sentence.

The Ontario Court of Appeal dismissed Yvon's appeal and allowed André's convic­tion appeal, ordering a new trial. The trial judge erred in failing to properly instruct the jury to avoid finding André guilty simply because of evidence of bad character led against him by the co-accused. The court dismissed the appeal against the compen­sation order.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Criminal Law - Topic 5250.1 ].

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - Two accused were convicted of conspiracy to commit robbery in relation to three armed rob­beries - The accused submitted that the trial judge erred in permitting the jury to consider hearsay acts and declarations of co-conspirators in deciding whether the accused were probable members of the conspiracy - The Ontario Court of Appeal held that the trial judge did not err, stating that "the members of the jury were entitled to consider the hearsay acts of alleged co-conspirators to give meaning to the evi­dence of the [accused's] own acts and declarations" - The jury was properly advised not to consider the acts and decla­rations of others (hearsay) to establish that the accused were probably members of the conspiracy - See paragraphs 50 to 66.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused and his brother were convicted of conspiracy to commit robbery - The ac­cused submitted that the trial judge erred in failing to instruct the jury not to convict the accused simply because of his relation­ship with his brother, who was an admitted member of a motorcycle gang involved in criminal activity - The brother led propen­sity evidence (bad character) against the accused - The Ontario Court of Appeal held that an accused was permitted to lead propensity evidence against a co-accused - The trial judge erred in failing to instruct the jury that they could not use such evi­dence of bad character to find the accused guilty - The court noted that the accused did not testify and had no opportunity to rebut or explain the evidence - Absent such a limiting instruction, the jury may have used the propensity evidence to infer that the accused was guilty - The court ordered a new trial - See paragraphs 103 to 116.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour - Threats - The accused was convicted of conspiracy to commit robbery partially on the basis of an accomplice's testimony - Evidence was adduced that the accused allegedly threat­ened to kill the accomplice - The Ontario Court of Appeal held that the trial judge did not err in charging the jury respecting the use of that evidence - The trial judge properly instructed the jury that such evi­dence could not be used against the ac­cused - See paragraphs 75 to 79.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - An accused convicted of conspiracy to commit robbery submitted that the trial judge erred in not declaring a mistrial after two jurors saw him in shackles outside the courtroom - The Ontario Court of Appeal held that the trial judge did not err in refusing to grant a mistrial near the end of a long trial - It was apparent to the jury that the ac­cused was in custody and they were clearly instructed that the fact that the accused was in custody should play no part in their deliberations - Any prejudice was cured by the instruction - See paragraphs 117 to 119.

Criminal Law - Topic 5250.1

Evidence and witnesses - Identification - Dock identification - The accused was identified in court by a witness - The witness had previously given police a description of the offender following a brief opportunity to view him at the scene of the offence - There were also still pho­tographs and security videos of the of­fenders at the scene - The Ontario Court of Appeal held that the trial judge did not err in admitting the evidence to be weighed by the jury - Evidence tainted because the identification was suggested by the ac­cused's presence in the prisoner's box or because of improper police procedure was not inadmissible - The evidence of tainting was a factor going to the weight of the evidence - Here, given the out of court description and the security photographs and videos, the jury had an articulable basis upon which to assess the in court identification of the accused - See para­graphs 82 to 102.

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examina­tion of accused - Prior convictions - An accused convicted of conspiracy to commit robbery had a lengthy criminal record, including a 1982 manslaughter conviction -The accused requested that the trial judge exercise his discretion to edit his record to exclude the manslaughter conviction, sub­mitting that its prejudicial effect out­weighed its probative value, given, inter alia, the length of time since the offence - The trial judge declined to edit the record, finding that deletion of this serious offence from the accused's record would leave the jury with incomplete information as to the accused's credibility - The Ontario Court of Appeal held that the trial judge did not err - He properly weighed the factors to be considered in exercising his discretion - See paragraphs 67 to 74.

Criminal Law - Topic 5450

Evidence and witnesses - Testimony re­specting the accused - Character of accused - Jury charge - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5476

Evidence and witnesses - Joint or separate trials - Admissibility of evidence of dis­position or propensity of co-accused - [See Criminal Law - Topic 4379].

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - What constitutes corroboration - Two accused were convicted of conspiracy to commit robbery in relation to three armed robberies - Central to the Crown's case was the testimony of two accomplices - The trial judge gave the jury a Vetrovec warning, cautioning them about relying on the evidence of accomplices absent cor­roborating evidence - The accused sub­mitted that the trial judge undermined the Vetrovec warning by improperly charac­terizing certain evidence as corroborative -The Ontario Court of Appeal, in rejecting the submission, noted that corroborating evidence need not emanate entirely in­dependently of the accomplices; cor­roborating evidence need not point to the accused's guilt, but must satisfy the trier of fact that the accomplice was telling the truth; potentially confirmatory evidence did not lose that character simply because the accused provided a non-inculpatory expla­nation; and since guilt could be established by circumstantial evidence, a number of circumstances collectively viewed could constitute corroboration notwithstanding that none of the circumstances viewed independently were capable of constituting corroboration - See paragraphs 8 to 49.

Criminal Law - Topic 5640

Punishments (sentence) - Fines, penalties and compensation orders - Compensation order - Considerations - The accused was convicted in 1995 of one count of con­spiracy to commit robbery - The accused was involved in two 1991 robberies of armoured cars ($361,000 and $802,000) - None of the monies were recovered - The accused was also involved in the 1993 robbery of a pharmacy employee making a deposit ($4,400) - The accused was sen­tenced to 12 years' imprisonment and the trial judge imposed a compensation order exceeding $1 million - The accused ap­pealed the compensation order, submitting that it should not have been imposed with­out an inquiry into his ability to pay - The Ontario Court of Appeal dismissed the appeal - Ability to pay was not a precon­dition to a compensation order - See para­graphs 135 to 141.

Evidence - Topic 5203

Witnesses - Corroboration - General prin­ciples - What constitutes corroboration - [See Criminal Law - Topic 5515 ].

Evidence - Topic 5205

Witnesses - Corroboration - General prin­ciples - Circumstantial evidence as cor­roboration - [See Criminal Law - Topic 5515 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja (1982), 41 N.R. 606; 67 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 8].

R. v. McNamara et al. (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 12].

R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 13].

R. v. Murphy et al., [1977] 2 S.C.R. 603; 9 N.R. 329; 29 C.C.C.(2d) 417, refd to. [para. 14].

R. v. McCaw (W.D.), [1998] O.A.C. Uned. 62 (C.A.), leave to appeal dis­missed (1998), 234 N.R. 197; 118 O.A.C. 198 (S.C.C.) refd to. [para. 15].

R. v. Betker (A.) (1997), 100 O.A.C. 81; 115 C.C.C.(3d) 421 (C.A.), leave to appeal dismissed (1998), 227 N.R. 153; 113 O.A.C. 399 (S.C.C.), refd to. [para. 15].

R. v. Carter (1982), 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 67 C.C.C.(2d) 568 (S.C.C.), refd to. [para. 50].

R. v. Kane and Filiault (1981), 3 O.A.C. 155; 63 C.C.C.(2d) 321 (C.A.), affd. (1984), 52 N.R. 321; 3 O.A.C. 155; 15 C.C.C.(3d) 352 (S.C.C.), refd to. [para. 51].

R. v. White (H.S.) and Sennets (S.) (1997), 99 O.A.C. 1; 114 C.C.C.(3d) 225 (C.A.), refd to. [para. 60].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 63].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 64].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 65].

R. v. Corbett, [1988] 1 S.C.R. 70; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 68].

R. v. Saroya (I.S.) (1994), 76 O.A.C. 25 (C.A.), refd to. [para. 72].

R. v. McLeod (1983), 6 C.C.C.(3d) 29 (Ont. C.A.), refd to. [para. 79].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 42 C.R.(4th) 269, refd to. [para. 89].

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 117 C.C.C.(3d) 481 (C.A.), refd to. [para. 89].

R. v. R.P. (1990), 58 C.C.C.(3d) 334 (Ont. H.C.), refd to. [para. 89].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193, refd to. [para. 90].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161; 27 C.C.C.(3d) 97, refd to. [para. 91].

R. v. Miaponoose (A.) (1996), 93 O.A.C. 115; 110 C.C.C.(3d) 445 (C.A.), refd to. [para. 91].

R. v. Buric (G.J.) et al. (1996), 90 O.A.C. 321; 106 C.C.C.(3d) 97 (C.A.), affd. (1997), 209 N.R. 241; 98 O.A.C. 398; 114 C.C.C.(3d) 95 (S.C.C.), refd to. [para. 91].

R. v. Smith (1952), 103 C.C.C. 58 (Ont. C.A.), refd to. [para. 92].

R. v. Izzard (1990), 38 O.A.C. 6; 54 C.C.C.(3d) 252 (C.A.), refd to. [para. 92].

R. v. Reitsma (S.J.) (1998), 226 N.R. 367; 107 B.C.A.C. 161; 174 W.A.C. 161; 125 C.C.C.(3d) 17 (S.C.C.), refd to. [para. 92].

R. v. Williams (1982), 66 C.C.C.(2d) 234 (Ont. C.A.), refd to. [para. 93].

R. v. Maloney (No. 2) (1976), 29 C.C.C.(2d) 431 (Ont. Co. Ct.), refd to. [para. 94].

R. v. Brown, [1999] O.J. No. 4864 (Gen. Div.), refd to. [para. 94].

R. v. McLaughlin (1974), 15 C.C.C.(2d) 562 (Ont. C.A.), refd to. [para. 97].

R. v. Cotroni; R. v. Papalia, [1979] 2 S.C.R. 256; 26 N.R. 133; 93 D.L.R.(3d) 161; 45 C.C.C.(2d) 1, refd to. [para. 105].

R. v. Marks (O.) et al. (2000), 131 O.A.C. 376; 145 C.C.C.(3d) 569 (C.A.), refd to. [para. 110].

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201; 144 C.C.C.(3d) 481 (C.A.), refd to. [para. 111].

R. v. W.B. (2000), 134 O.A.C. 1; 145 C.C.C.(3d) 449 (C.A.), refd to. [para. 115].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 120].

R. v. Biniaris (J.) (2000), 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 120].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81; [1990] 4 W.W.R. 577; 77 C.R.(3d) 327; 56 C.C.C.(3d) 161, refd to. [para. 129].

R. v. Biegus (J.S.) (1999), 127 O.A.C. 239; 141 C.C.C.(3d) 245 (C.A.), refd to. [para. 137].

R. v. Fitzgibbon (C.D.), [1990] 1 S.C.R. 1005; 107 N.R. 281; 40 O.A.C. 81; 55 C.C.C.(3d) 449, refd to. [para. 137].

R. v. Gaudet (V.J.) et al. (1998), 109 O.A.C. 381; 125 C.C.C.(3d) 17 (C.A.), refd to. [para. 139].

Authors and Works Noticed:

Canada, Law Reform Commission, Study Paper on Pretrial Eyewitness Identifi­cation Procedures (1983), generally [para. 93].

Counsel:

David Finley, for the respondent;

Marie T. Henein, for the appellant, Yvon Roméo Joseph Gagnon;

David M. Tanovich and James Lockyer, for the appellant, André Donald Gagnon.

These appeals were heard on May 17-19, 2000, before Catzman, Weiler and Laskin, JJ.A., of the Ontario Court of Appeal.

On September 15, 2000, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Weiler, J.A. (Catzman, J.A., concurring) - see paragraphs 1 to 142;

Laskin, J.A. - see paragraphs 143 to 145.