



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Leary, 2019 ONCA 758

DATE: 20190927

DOCKET: C64084; C64154 and C64757

Juriansz, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis OLeary, Michael Doxtator
    and Charles Grebenchan

Appellants

Robert C. Sheppard, for the appellant
    Travis OLeary

Lance Beechener, for the appellant
    Michael Doxtator

Scott ONeill, for the appellant
    Charles Grebenchan

Ken Lockhart, for the respondent

Heard: September 18, 2019

On appeal from the convictions entered
    on January 11, 2017 and the sentence imposed on June 12, 2017 by Justice Jonathon
    C. George of the Superior Court of Justice.

REASONS FOR DECISION


[1]

These three appeals arise from a September 18, 2015
    bank robbery. Four disguised assailants had robbed a Scotiabank brandishing
    imitation firearms. The three appellants, who were tried together, were found
    guilty of various offences arising out of the robbery. Michael Doxtator and
    Charles Grebenchan were found to be two of the assailants who entered the bank.
    Travis OLeary was found to have conspired to commit the robbery and to have
    surveyed the bank about two hours before the commission of the robbery.

[2]

The Crown called Leigha Ainscow as a witness. She
    was the girlfriend of Doxtator at the time of the robbery. Her testimony was
    crucial to the Crowns case, which was otherwise circumstantial. She was
    arrested on October 9, 2015 and charged with an unrelated offence. At that
    time, she gave a video recorded statement to the police implicating the
    appellants. She had bipolar disorder and by the time of trial had suffered a
    permanent brain injury. The appellants sought to attack her reliability. The
    trial judge, however, relied on her testimony in convicting the appellants.

[3]

On appeal, the appellants submit that the trial
    judge erred in the treatment of and reliance on her evidence.

[4]

When Ainscow began her testimony, it became
    immediately apparent that she had to refresh her memory by relying on her
    statement to the police. A recess was taken so she could review the transcript
    of that statement. Then, as she testified, she refreshed her memory by
    referring to the transcript. The appellants submit that her evidence was not
    properly admissible because she had no present recollection of the events after
    referring to the transcript and was simply reading the transcript.

[5]

The trial judge said: Her examination was, I
    found, to be a painful exercise, which should not be confused with the
    rejection of her testimony. The Crown had a difficult task in managing and
    questioning her, its own witness. I, however, disagree entirely with the
    defence suggestion that she was just reading from her police statement when
    prompted, and that she was simply providing answers in order to satisfy the
    Crown. The trial judge, in fact, stated that he believed she was attempting to
    favour the defence.

[6]

Counsels review of passages of the trial
    transcripts did not persuade us there was any basis to interfere with the trial
    judges finding that Ainscow was not just reading from the statement. The
    trial judge was totally alive to the difficulties resulting from her
    disabilities and it was his role to assess her reliability. Moreover, the trial
    judge relied on evidence of Ainscow when she clearly stated that her review of
    the transcript had refreshed her memory. The trial judge expressly did not rely
    on those parts of Ainscows evidence that she indicated were not refreshed by
    her reading of the transcript.

[7]

At trial, the appellants urged the trial judge
    to give himself a
Vetrovec
warning in relation to Ainscows testimony
    because she had given her police statement while she was in custody hoping for
    release. The trial judge determined this was unnecessary. In reaching that
    conclusion, he said her initial account to the police did not strike him as
    self-serving, given with the sole purpose of getting her released from custody.
    He found that she had, in her examination-in-chief, adopted the relevant
    points from her police statement, twice confirming she had been truthful at the
    time she gave it.

[8]

The appellants submit that the trial judges use
    of the word adopted shows he unjustifiably considered Ainscows evidence as
    past recollection recorded, rather then present memory revived. We disagree.
    Considering his reasons as a whole, it is clear the trial judge was not using
    the term adopted in the strict legal sense. Rather he was responding to the
    defence submission that he should instruct himself in accordance with the
    principles concerning the caution to be exercised when considering the evidence
    of untrustworthy witnesses, as articulated in
R. v. Vetrovec
, [1982] 1
    S.C.R. 811. Moreover, it is readily apparent from his reasons that he
    appreciated the difference between past recollection recorded and present
    memory revived.

[9]

The trial judge also found that the reliability
    of Ainscows testimony was corroborated by the evidence of bank employees that
    a red dye pack had gone missing at the time of the robbery and that Ainscow
    testified seeing $20 bills with red stains at the Oakville address.

[10]

Ainscows evidence combined with the
    circumstantial evidence provided overwhelming support for the trial judges
    inference that Doxtator and Grebenchan were two of the four robbers who had
    entered the bank. We reject out of hand the argument that the Crowns case
    against Grebenchan foundered because Ainscow failed at trial to identify
    Grebenchan, who was a passing acquaintance. The trial judge carefully set out
    the evidence that supported the identification of Grebenchan, including
    evidence that his DNA was on a hat in the getaway car.

[11]

Similarly, there is ample evidence to support
    the finding of guilt against OLeary. The cumulative circumstantial evidence
    against him provided a solid base for the trial judges conclusion that the
    only reasonable inference that could be drawn was that he was a party to the
    robbery. His cell phone demonstrated the other appellants were well known to
    him. The banks video surveillance cameras established he was at the bank two hours
    before the robbery even though he was not a customer of that bank. An
    independent witness testified OLeary acted so suspiciously it prompted the
    witness to report his conduct to the bank. Four hours before the robbery, an
    Internet search for police scanners had been conducted on his cell phone. The
    cell phone had hardware enabling it to act as a police scanner. The cell
    phone also contained thumbnail photos of red stained $20 bills and an activated
    dye pack. Shortly after acting suspiciously at the bank, OLeary had gone and
    met with Doxtator.

[12]

We do not accept the submission that the trial
    judge applied the wrong test in assessing the effect of the circumstantial
    evidence. He was able to reject the myriad of coincidences that would have been
    necessary to explain the cumulative effect of all the circumstantial evidence.

[13]

The appellants moved to admit the criminal
    record of Ainscow as fresh evidence. They point out that in explaining why he
    did not instruct himself in accordance with
Vetrovec
, the trial judge
    had observed that Ainscow had no criminal record. Had the criminal record been
    before him, they contend it would have materially damaged Ainscows credibility
    and would have undermined the Crowns case.

[14]

Ainscows criminal record was disclosed to the
    defence before trial. Moreover, it is clear from their cross-examination of
    Ainscow that they had made a tactical decision not to refer to it. Their focus
    was on undermining the reliability of her evidence rather than her credibility.
    In light of all the evidence, we are not persuaded that the fresh evidence
    could reasonably be expected to have affected the trials result.

[15]

We agree with the Crown that this was a factual
    appeal in which the appellants sought to relitigate the case. The trial judges
    factual findings were reasonable and grounded in the evidence. The verdict is
    entirely reasonable.

[16]

We see no merit in Doxtators sentence appeal.
    The trial judge considered the relevant aggravating factors, including that
    Doxtator played a leadership role in the robbery. We are satisfied that finding
    was open to him on the evidence. He also gave appropriate consideration to the
Gladue
report. We are not persuaded that the sentence is demonstrably unfit or
    reflected any error in principle.

[17]

The appeals as to conviction are dismissed.
    Doxtator is granted leave to appeal sentence, but the sentence appeal is
    dismissed.

R.G. Juriansz
    J.A.

S.E. Pepall
    J.A.

L.B. Roberts
    J.A.


