R. v. Harriott (A.), (2002) 168 O.A.C. 342 (CA)

• Judge: Doherty, Charron and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 07, 2002
• Jurisdiction: Ontario
• Citations: (2002), 168 O.A.C. 342 (CA)

R. v. Harriott (A.) (2002), 168 O.A.C. 342 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. FE.073

Her Majesty The Queen (respondent) v. Allan Harriott (appellant)

(C33886)

Indexed As: R. v. Harriott (A.)

Ontario Court of Appeal

Doherty, Charron and MacPherson, JJ.A.

February 7, 2002.

Summary:

The accused was involved in a robbery at a private residence. He was convicted of two counts of robbery, two counts of forcible confinement, one count of possession of a weapon for the purpose of committing an indictable offence, and one count of wearing a disguise with the intent to commit an indictable offence. He was sentenced to eight years in prison. The accused appealed his convictions and applied for leave to appeal his sentence.

The Ontario Court of Appeal, Doherty, J.A., dissenting, dismissed the conviction appeal. The court also granted leave to appeal the sentence, but dismissed the appeal.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused was convicted of six criminal offences arising from his alleged involvement in a robbery at a private residence - He appealed his conviction, arguing that the trial judge failed to adequately give the jury a clear and sharp warning about relying on the testimony of accomplices (i.e., a Vetrovec warning) - His accomplice in the actual robbery testified for the Crown - Also his former girlfriend testified that she had perjured herself at a previous trial on these charges by giving alibi evidence and at this trial testified that she had provided masks and gloves to the two robbers - The Ontario Court of Appeal held that the judge's instructions were adequate - The court commented that the absence of an objection at trial, especially on such a well-known matter, should be regarded as a strong sign that the language employed by the trial judge was appropriate, at least from the perspective of the accused - See paragraphs 29 to 41.

Criminal Law - Topic 4372

Procedure - Charge or directions - Jury or judge alone - Directions respecting alibi evidence or explanation by accused - The accused was convicted of six criminal offences arising from his alleged involvement in a robbery at a private residence - He appealed his conviction, arguing that the trial judge failed to give an instruction relating his alibi evidence to the principle of reasonable doubt - The Ontario Court of Appeal rejected the accused's argument - The trial judge effectively charged the jury in accordance with guidance previously provided by the Court of Appeal - The court stated that the trial judge's instruction on the alibi issue was appropriately brief, sound in law and, if anything, favourable to the accused - See paragraphs 13 to 28.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4354 ].

Criminal Law - Topic 5801.1

Sentencing - Proportionality - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5816.3

Sentencing - Sentencing procedure and rights of the accused - On new trial - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5855

Sentence - Robbery - The accused was involved in a robbery at a private residence - He was convicted of two counts of robbery, two counts of forcible confinement, one count of possession of a weapon for the purpose of committing an indictable offence, and one count of wearing a disguise with the intent to commit an indictable offence - He was sentenced to eight years in prison - The accused appealed the sentence arguing that it was too high in light of the fact that he was given only four years following his first trial (the conviction from which was overturned) - The accused argued also that the sentence was disproportionate to that given to his accomplices (four months' closed custody and 10 months' open custody for one accomplice who was a young offender and a two year penitentiary term for the other accomplice who drove the get-a-way car) - The Ontario Court of Appeal dismissed the sentence appeal - See paragraphs 49 to 55.

Cases Noticed:

R. v. Parrington (1985), 9 O.A.C. 76; 20 C.C.C.(3d) 184 (C.A.), refd to. [paras. 17, 68].

R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), refd to. [para. 20].

R. v. Coutts (S.) et al. (1998), 110 O.A.C. 353; 126 C.C.C.(3d) 545 (C.A.), refd to. [para. 20].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [paras. 22, 69].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; 67 C.C.C.(2d) 1; 27 C.R.(3d) 304, refd to. [paras. 31, 79].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 104 D.L.R.(4th) 180; 82 C.C.C.(3d) 310; 21 C.R.(4th) 277, refd to. [para. 32].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 129 O.A.C. 205; 250 N.R. 103; 30 C.R.(5th) 201, refd to. [paras. 32, 79].

R. v. Winmill (T.E.) (1999), 116 O.A.C. 201; 131 C.C.C.(3d) 380 (C.A.), refd to. [para. 37].

R. v. C.D. (2000), 132 O.A.C. 331; 145 C.C.C.(3d) 290 (C.A.), refd to. [para. 39].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 52].

R. v. Soares, [1998] O.J. No. 3274, refd to. [para. 53].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289, refd to. [para. 58].

R. v. Ferguson (L.) (2000), 130 O.A.C. 253; 142 C.C.C.(3d) 353; 35 C.R.(5th) 290 (C.A.), affd. [2001] 1 S.C.R. 281; 265 N.R. 201; 142 O.A.C. 92; 152 C.C.C.(3d) 95, refd to. [para. 59].

R. v. Binet, [1954] S.C.R. 52, refd to. [para. 87].

R. v. Rosenberg, [1969] 2 O.R. 54 (C.A.), leave to appeal refused, [1969] 2 O.R. 60 (S.C.C.), refd to. [para. 87].

R. v. Crosby (W.S.) (1994), 130 N.S.R.(2d) 61; 367 A.P.R. 61; 88 C.C.C.(3d) 353 (CA.), revd. [1995] 2 S.C.R. 912; 183 N.R. 22; 143 N.S.R.(2d) 57; 411 A.P.R. 57; 98 C.C.C.(3d)225, refd to. [para. 87].

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. 88].

R. v. Mullins-Johnson (W.) (1996), 96 O.A.C. 212; 112 C.C.C.(3d) 117 (C.A.), affd., [1998] 1 S.C.R. 977; 226 N.R. 365; 110 O.A.C. 1, refd to. [para. 90].

R. v. Chambers [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 90].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 90].

Counsel:

Howard Leibovich, for the respondent;

Christopher Hicks, for the appellant.

This appeal was heard on November 14 and 15, 2001, before Doherty, Charron and MacPherson, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was delivered on February 7, 2002, and the following opinions were filed:

MacPherson, J.A. (Charron, J.A., concurring) - see paragraphs 1 to 56

Doherty, J.A., dissenting - see paragraphs 57 to 92.