



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Brown, 2013 ONCA
    128

DATE: 20130304

DOCKET: C52423 and C54708

MacPherson, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Creg Brown and Richard Rak

Appellants

Misha Feldmann, for the appellant Creg Brown

Mark Halfyard, for the appellant Richard Rak

Grace Choi, for the respondent

Heard: February 25, 2013

On appeal from the conviction entered on April 16, 2010
    by Justice J. Robert MacKinnon of the Superior Court of Justice, sitting with a
    jury.

By
    the Court
:

[1]

The appellants Creg Brown and Richard Rak appeal their convictions for
    various offences following a two-week trial by MacKinnon J. of the Superior
    Court of Justice, sitting with a jury. Brown was convicted of break and enter
    with intent to commit an indictable offence, robbery and assault. The break and
    enter and assault convictions were stayed pursuant to
R. v. Kienapple
,
    [1975] 1 S.C.R. 729. Rak was convicted of break and enter with intent to commit
    an indictable offence, robbery and criminal harassment. The break and enter
    charge was stayed pursuant to
Kienapple
.

[2]

The appellants were convicted of breaking into a motel where a couple,
    Janet Nichols and Jody Ekman, were staying and robbing them of money and
    personal effects, including pills.

[3]

The appellant Brown raises two issues relating to the trial judges
    instruction to the jury regarding identification evidence.

[4]

Both appellants raise issues relating to the number and content of
Vetrovec
warnings provided to the jury by the trial judge in his jury charge and to the
    manner in which the trial judge dealt with one witnesss prior inconsistent
    statement.

A.

Browns
    appeal

(1)

Jury instruction about identification

[5]

The appellant Brown submits that the trial judge erred in his
    instruction to the jury regarding identification evidence. Specifically, Brown
    contends that the trial judge erred by instructing the jury to consider how
    certain the complainants were about the accuracy of their in-dock
    identification of Brown as one of the people who robbed them at the motel:

Consider how certain were the witnesses about the description?
    Nichols told you the black man she saw on May 16 was one and the same as the
    one that she saw on May 14 in her home.

...

Has the witness ever expressed uncertainty about the
    identification? I do not believe that there has.

[6]

The appellant also submits that the trial judge provided an insufficient
    warning about the dangers of an in-dock identification and did not properly
    warn the jury about the dangers of the vagueness and generality of the
    eyewitnesses description of the appellant.

[7]

We begin with two contextual observations. First, the trial judges
    charge about identification evidence tracked very closely the specimen charge
    in
Watts Manual of Jury Instructions
. Second, Browns identity as one
    of the perpetrators did not primarily flow, in the Crowns view of the case,
    from the in-dock identification of the complainants. Rather, it was premised on
    Jason Shelswells acquaintance with Brown and his testimony that Brown was
    known as Matrix, which was the name used by two of the robbers to refer to
    the third robber during the robbery.

[8]

Against this backdrop, we do not accept Browns submissions on this
    point. The charge, and especially the re-charge, sufficiently warned of the dangers
    of in-dock identification. In addition, the trial judge carefully reviewed the
    complainants description of the perpetrator known as Matrix, and, read as a
    whole, the trial judges charge did not communicate that the jury could simply
    accept the identification based on the complainants certainty.

(2)

The references to the nickname Matrix in the jury charge

[9]

The appellant Brown points to the complainants testimony that two of
    the robbers referred to the third robber as Matrix. The appellant states that
    the trial judge referred to him as Matrix throughout the charge, which had the
    effect of telling the jury that Matrix and the appellant were the same person.
    This, says the appellant, went beyond referring to the evidence and usurped the
    fact finding function of the jury. Whether the appellant was Matrix was a critical
    question of fact to be determined by the jury.

[10]

We
    disagree. In each instance identified by the appellant in which the trial judge
    referred to Matrix, he did so in the course of summarizing the testimony of
    various witnesses, primarily Nichols and Ekman, who testified that one of the
    robbers was called Matrix by the other robbers.  This was a perfectly fair
    summary and did not usurp the function of the jury to determine whether in fact
    Matrix was the appellant.

B.

Both
    appeals

(3)

Vetrovec
warnings

(a)

Nichols and Ekman

[11]

The
    appellants contend that, although the trial judge was correct to provide
Vetrovec
warnings concerning the complainants Nichols and Ekman, he erred by saying that
    you are permitted to conclude that the evidence of one of them confirms the
    evidence of the other of them.

[12]

We
    disagree. As expressed by this court in
R. v. Drabinsky
, 2011 ONCA
    582, 107 O.R. (3d) 595 at para. 140:

There is, however, no prohibition against the evidence of one
Vetrovec
witness confirming the evidence of another
Vetrovec
witness.... The
    question is not whether the witness is him or herself a
Vetrovec
witness, but whether the evidence of each witness is sufficiently independent
    of the evidence of the other to provide confirmation.

[13]

Recently,
    in
R. v. Pelletier
, 2012 ONCA 566, 295 O.A.C. 200 at para. 69, Watt
    J.A. stated that at least in the absence of evidence of collusion or
    collaboration, the evidence of one unsavoury witness can confirm the testimony
    of another.

[14]

In
    this case, there is no live issue of collusion or tainting of the complainants
    evidence. Therefore, the general rule from
Drabinsky
and
Pelletier
applies and the trial judge did not err in the passage set out above.

(b)

Shelswell

[15]

The
    appellants complain that the trial judge did not provide a
Vetrovec
warning relating to the Crown witness Shelswell.

[16]

We
    do not accept this submission.  The jury knew Shelswell had a criminal record
    and had been instructed on how to address credibility and the evidence of
    witnesses with criminal records.  Furthermore, during the discussion between
    the trial judge and counsel about the contents of the jury charge, which
    involved an extensive dialogue on the
Vetrovec
issue, none of the
    three defence counsel requested a
Vetrovec
warning for Shelswell.
    After the charge was delivered, no counsel objected to the absence of such a
    warning relating to Shelswells testimony. In these circumstances, what Doherty
    J.A. said in
R. v. Glasgow
(1996), 93 O.A.C. 67 (C.A.), at para. 3, is
    apposite:

If a trial judge was not asked to give a warning, it is
    difficult to understand how the trial judge can be said to have erred in the
    exercise of her or his discretion.

(4)

Prior inconsistent statement of Danny Steeves

[17]

The
    appellants contend that the trial judge erred by not providing a mid-trial
    instruction about a prior inconsistent statement by the Crown witness Danny
    Steeves.

[18]

We
    disagree. No counsel requested such an instruction when Steeves was testifying.
    Moreover, the trial judge provided an appropriate instruction on this point in
    his jury charge:

Danny Steeves testified at this trial. He was cross-examined by
    Crown counsel about the audio/video police statement he gave and in which he
    used words or responded to questions in relation to Jay, Rak and Matrix. He
    did not accept any of those pre-trial statements when he testified at trial....

Any parts of his pre-trial statement which were not accepted by
    him at trial as true, cannot be used by you as proof of the facts stated.

[19]

No
    defence counsel objected to this component of the jury charge. In our view, the
    trial judges instruction on this issue was both timely and correct.

Disposition

[20]

Both
    appeals are dismissed.

Released: March 4, 2013 (J.C.M.)

J.C. MacPherson J.A.

J. MacFarland J.A.

S.E. Pepall J.A.


