



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Garrell, 2020 ONCA 127

DATE: 20200214

DOCKET: C65211

Lauwers, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Garrell

Appellant

Jessica Zita, for the appellant

Catherine Weiler, for the respondent

Heard and released orally: February 10, 2020

On appeal from the conviction entered on February 16,
    2018 and the sentence imposed on May 14, 2018 by Justice Michael R. Dambrot of
    the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

This is an appeal from conviction for one count of robbery involving a
    home invasion where one of the home occupants was shot. One of the robbers
    pleaded guilty to the offence, at which time he gave evidence of the
    appellants role in the offence. At trial, that individual testified and gave a
    more exculpatory version of events. The facts on the guilty plea were admitted
    for the truth of their contents.

[2]

The trial judge properly gave a
Vetrovec
instruction:
R. v.
    Vetrovec
, [1982] 1 S.C.R. 811. Given the exculpatory nature of the witnesss
    trial evidence and the inculpatory nature of the agreed upon facts at the guilty
    plea, the appellant says that a mixed witness
Vetrovec

instruction
    should have been given:
R. v. Murray
,
    2017 ONCA 393, 138 O.R. (3d) 500, at paras. 125, 126
.

[3]

We are satisfied that, when read as a whole, the charge adequately
    conveyed to the jury that they were to look for independent confirmatory evidence
    only in relation to the inculpatory aspects of the witnesss evidence. Although
    not a mixed witness instruction, the trial judge was clear that his
Vetrovec
instruction only applied to that evidence that supported the Crowns case. The
    absence of any defence objection at trial demonstrates the adequacy of the
    charge when read as a whole.

[4]

The appellant also objects to the absence of a
W.(D.)
instruction, specifically in relation to the exculpatory aspects of the same
Vetrovec

witness:
R. v. W.(D.)
,
[1991] 1 S.C.R. 742
. Again, when read as a whole, the
    charge properly reflects all concerns underlying a
W.(D.)
instruction,
    and there was no objection to the charge on this basis at trial.

[5]

The appellant also seeks leave to appeal sentence. The primary complaint
    concerns the process used to reach the findings of fact that were not inherent
    in the jurys verdict, specifically the appellants knowledge relating to
    whether a firearm was to be used during the robbery.

[6]

Consistent with what had been discussed with counsel ahead of time, the
    trial judge conveyed his finding of fact on this point to counsel by email. All
    were content with this manner of proceeding given that full submissions had
    been previously made on a directed verdict application. We note that the trial
    judge properly expressed his reasons for the finding of fact disputed by the
    appellant in his reasons for sentence.

[7]

In light of all these circumstances, we do not accede to this submission
    and see no error.

[8]

Finally, the respondent concedes that the appellant should be credited
    90 days of pre-sentence custody to be removed for the custodial disposition
    imposed. We agree.

[9]

The conviction appeal is dismissed. Leave to appeal sentence is granted.
    The sentence appeal is granted only to the extent of crediting 90 days
    pre-sentence custody, reducing the appellants custodial term by 90 days.

P. Lauwers J.A.

G.T. Trotter J.A.

Fairburn J.A.


