R. v. Wang (J.) et al., (2001) 144 O.A.C. 115 (CA)

• Judge: McMurtry, C.J.O., Finlayson and Labrosse, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 29, 2001
• Jurisdiction: Ontario
• Citations: (2001), 144 O.A.C. 115 (CA)

R. v. Wang (J.) (2001), 144 O.A.C. 115 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. AP.058

Her Majesty the Queen (respondent) v. John Wang (appellant)

Her Majesty the Queen (respondent) v. Norman Siu Kee Lo (appellant)

(C27509; C27646)

Indexed As: R. v. Wang (J.) et al.

Ontario Court of Appeal

McMurtry, C.J.O., Finlayson and Labrosse, JJ.A.

April 23 and May 29, 2001.

Summary:

Wang appealed his convictions on five counts of robbery, six counts of unlawful confinement, three counts of using a firearm during the commission of an indictable offence and three counts of uttering threats. Lo appealed his convictions on two counts of robbery, two counts of forcible con­finement and one count of dangerous driv­ing. Wang also appealed his sentence of 10 years' imprisonment.

The Ontario Court of Appeal dismissed the conviction appeals, but allowed Wang's sentence appeal and reduced the sentence to five years' imprisonment.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - An ac­cused appealed his convictions, asserting that the trial judge failed to distinguish between the criminal standard of proof and the civil standard of proof - The Ontario Court of Appeal rejected the assertion - The trial judge's caution to the jury to approach the evidence, coupled with her instructions regarding the presumption of innocence, conveyed to the jury the high standard of proof required to convict - In any event, while the trial judge did not compare and contrast the different stand­ards in the burden of proof, the defence made this point clear - Although it would have been preferable for the jury to have received all of its instructions on the law, and, in particular, on the issue of reason­able doubt, from the trial judge, the jury was adequately equipped to apply the correct burden of proof - See paragraphs 45 to 49.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding iden­tification - An accused appealed his con­victions arising out of three home in­vasions, asserting that identity evidence should not have been admitted nor found capable of supporting the convictions - The Ontario Court of Appeal rejected the asser­tion - This was a case of direct evidence not identification - The evidence of an admitted accomplice and a person of un­savoury character was central to the Crown's case - At issue was the credibility of that witness - The trial judge accepted this approach and properly concentrated on the warning the jury and drawing its atten­tion to evidence that was capable of sup­porting the witness's reliability - However frail the identification evidence, it was open to the jury to consider it and decide how, if at all, to make use of it - It was a matter of weight, not admissibility - The trial judge cautioned the jury about the frailties of the evidence and did not err in admitting it as part of the victims' nar­rative evidence - See paragraphs 21 to 39.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - General - An accused sought to introduce fresh evidence on his appeal from convictions arising out of a home invasion - The accused deposed that the testimony of an accomplice who was called by the Crown was a revelation to him - Defence counsel at trial regarded the ac­complice as "an extremely dangerous witness" who would say anything that he perceived to be in his own interest - The accomplice's testimony in chief minimally implicated the accused as the driver, but defence counsel intentionally avoided cross-examining respecting the accused's knowledge of his passengers' intention - Instead defence counsel challenged the accomplice's credibility and suggested that he would implicate another to save himself - The Ontario Court of Appeal refused to admit the fresh evidence - The element of incompetence going to due diligence was not present - Further, there was no danger of a miscarriage of justice - See paragraphs 52 to 64.

Criminal Law - Topic 5240

Evidence and witnesses - Identification - General - [See Criminal Law - Topic 4361 ].

Criminal Law - Topic 5314

Evidence and witnesses - Inferences - From silence of accused or failure to ex­plain - The Ontario Court of Appeal stated that "[w]hile an accused's failure to testify is not an independent piece of evidence that can be placed on the evidentiary scale, the absence of an explanation can be a feature of the trial which can assist the triers of fact in determining what reason­able inferences can be drawn from the evidence adduced. Furthermore, the appel­lants' failure to testify can also be a con­sideration by this court in determining whether the convictions based on the evi­dence are reasonable and whether any error of law could have resulted in a substantial wrong or miscarriage of justice." - See paragraph 44.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4361 ].

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - An accused was sentenced to 10 years' imprisonment for two counts of robbery, two counts of forcible con­finement, and one count of dangerous driving - At the time of sentencing, the accused was 19 years old and had a minor record - The accused appealed and was released on bail - He was required to live at home, report weekly to the police and observe a curfew from 8:00 p.m. to 6:00 a.m. - While on interim release for almost four years, the accused obtained employ­ment and completed a grade 12 English credit and a computer programming course - Had made inquiries about entering uni­versity as a mature student and wanted to become a paramedic - The Ontario Court of Appeal held that the trial judge had erred in ignoring the appropriate range of sentences - The court considered the ac­cused's age at the time of sentencing and his rehabilitation and reduced the sentence to five years' imprisonment - See para­graphs 65 to 77.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5865

Sentence - Dangerous driving - [See Crim­inal Law - Topic 5806.1 ].

Criminal Law - Topic 5868

Sentence - Forcible confinement - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sen­tence - Considerations - Rehabilitation of accused pending appeal - [See Criminal Law - Topic 5806.1 ].

Evidence - Topic 1176

Relevant facts, relevance and materiality - Res gestae - Narrative - General - [See Criminal Law - Topic 4361 ].

Cases Noticed:

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 20].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 25].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 28].

R. v. Gagnon (Y.R.J.) et al. (2000), 136 O.A.C. 116; 147 C.C.C.(3d) 193 (C.A.), refd to. [para. 28].

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; 101 C.C.C.(3d) 193, refd to. [para. 29].

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 117 C.C.C.(3d) 481 (C.A.), refd to. [para. 30].

R. v. Buric (G.J.) et al. (1996), 90 O.A.C. 321; 106 C.C.C.(3d) 97 (C.A.), affd. [1997] 1 S.C.R. 535; 209 N.R. 241; 98 O.A.C. 398, refd to. [para. 33].

R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 40].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1; 114 C.C.C.(3d) 385, refd to. [para. 44].

R. v. Johnson (P.D.) (1993), 61 O.A.C. 189; 79 C.C.C.(3d) 42 (C.A.), refd to. [para. 44].

R. v. Boss (1988), 30 O.A.C. 184; 46 C.C.C.(3d) 523 (C.A.), refd to. [para. 44].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 45].

R. v. Beauchamp (A.) (2000), 262 N.R. 119; 149 C.C.C.(3d) 58 (S.C.C.), refd to. [para. 45].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 55].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 56].

R. v. Hieronymi (F.) (1995), 84 O.A.C. 321; 101 C.C.C.(3d) 31 (C.A.), refd to. [para. 72].

R. v. Hachez - see R. v. Hieronymi (F.).

R. v. Ferreira (W.), [1995] O.J. No. 287 (Gen. Div.), varied [1997] O.A.C. Uned. 109 (C.A.), refd to. [para. 74].

Counsel:

Feroza Bhabha, for the Crown;

Frank Addario and Andras Schreck, for Wang;

Matthew T. McGarvey, for Lo.

These appeals were heard on March 21 and 22, 2001, by McMurtry, C.J.O., Finlayson and Labrosse, JJ.A., of the Ontario Court of Appeal. Finlayson, J.A., for the court, delivered the fol­lowing reasons and supplementary reasons on April 23 and May 29, 2001.