R. v. Price

R. v. Price Collection Decisions of the Court of Appeal Date 2000-03-23 Docket numbers C31540 Judges McMurtry, Roy; Moldaver, Michael James; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 20000323 DOCKET: C31540 COURT OF APPEAL FOR ONTARIO McMURTRY C.J.O., MOLDAVER and GOUDGE JJ.A. BETWEEN: ) ) FRED JAMES PRICE ) Miriam Saksznajder ) for the appellant (Appellant) ) ) and ) Philip Downes ) for the respondent HER MAJESTY THE QUEEN ) ) (Respondent)) ) Heard: February 1, 2000 ) On appeal from conviction by Thompson J. without a jury on September 15, 1997 and from sentence on October 23, 1997. McMURTRY C.J.O.: [1] The appellant, together with one Jerome Montgomery, was convicted by the Honourable Mr. Justice Thompson without a jury on September 15, 1997 of robbery while armed with a weapon, namely a handgun. [2] The appellant was sentenced on October 23, 1997 to a term of imprisonment for nine years. The appellant appeals from both conviction and sentence. Overview [3] On Saturday, September 7, 1996 at about noon, two armed men robbed a jewellery store of a quantity of jewellery. The armed men then exited the store and entered a waiting vehicle registered to the appellant. Shortly thereafter this vehicle was found parked in front of the appellant’s residence and the appellant was arrested nearby. The other two accused Jerome Montgomery and one Vincent Price, were arrested later that evening. The three men arrested were first cousins. One gun was recovered at the house of Vincent Price’s girlfriend and a second gun was recovered at the appellant’s residence following a warrantless search. [4] Vincent Price entered a guilty plea and was the Crown’s principal witness in the trial against the appellant and Jerome Montgomery, both of whom advanced alibi defences. Warrantless Search [5] Vincent Price told the police that one of the guns used in the robbery was in the appellant’s apartment. Subsequent to the appellant’s arrest on September 7, 1996, two officers forcefully entered his residence without a warrant in a search for persons. An officer was placed at the door to ensure the security of the scene as a further search was anticipated. The apartment was secured from 12:42 p.m. on September 7, 1996 to approximately 7:00 a.m. on September 8, 1996, at which time a purported shortage of police personnel resulted in the officers’ withdrawal. [6] At 1:50 p.m. on September 8, 1996 the officer in charge of the investigation, Sergeant Jessop, authorized the warrantless search of the appellant’s residence which had been left unsecured for six hours. He testified that he did not wish to request his detectives to attempt to “put a search warrant together” and remain on duty for another four to five hours when they had already been on duty for twenty-four hours. Sergeant Jessop also believed that it would have been difficult to locate a Justice of the Peace on a Sunday afternoon. As a result of the warrantless search, a Luger P38 nine mm handgun with a clip and ammunition was located in the appellant’s apartment, hidden in a chair. Testimony of the Appellant and the other Alibi Evidence [7] The appellant testified that he lived alone in an apartment and that his mother and young siblings resided close by. On the day of the robbery, the appellant drove to a pharmacy and en route he saw a man that he recognized and offered him a ride as it was raining. He had not seen this man for some time, nor did he make efforts to determine his identity. He arrived back home at around 12:00 p.m. to find that the other two accused had arrived unexpectedly. The appellant agreed to lend them his car and he gave them his key chain which included keys to his home and apartment. After Montgomery and Price left, the appellant went for his weekly Saturday haircut. The part-owner of the salon, Dave Butler, who is also a friend of the appellant, advised him that he could not be accommodated. The appellant then walked to his mother’s home, arriving between 12:10 and 12:20 p.m., where he spoke to his brother Travis. As he was walking home he saw a friend, Sandy Butler, and her boyfriend on her porch and spoke with them for about five minutes. The other two accused were back at his apartment upon his return. They returned his keys and said that they would see him later. Shortly thereafter he exited his building and was arrested. The appellant denied any involvement in the robbery or in its planning. He also testified that he did not know how the handgun had become concealed in the chair in his apartment. [8] The appellant’s sister Danielle testified that on September 7, 1996, at about 11:45 a.m. she saw the appellant driving his automobile. She initially stated that no one else was in the car and then said that there were two people other than the appellant in the car. She ultimately adopted her statement to the police that the only passenger was a bald man. [9] The appellant’s brother Travis testified that he saw the appellant on September 7, 1996 between 11:00 and 11:30 a.m. enter a corner store by his home and then return to his car. At 12:15 p.m. the appellant told him that if their mother was looking for him to tell her he had gone to Detroit. [10] The appellant’s friend, Sandy Lee Butler, testified that she had seen the appellant at 12:15 p.m. on September 7, 1996. She and her boyfriend were on her porch when the appellant walked by, away from the direction of his home. They did not speak, although she waved to him and he waved back. She told the police that she remembered the incident as she had read an article in the paper about the robbery the next day, on Sunday, when in fact there was no Sunday paper. She further admitted in May, 1997 when she spoke to the police that she did not recall the day of the week that she saw the appellant, although she remembered it at trial. Grounds of Appeal as Against Conviction (i) That the trial judge erred in admitting evidence seized from the appellant’s residence pursuant to a warrantless search. (ii) That the trial judge erred, having disbelieved the appellant’s alibi, in concluding that the appellant’s alibi was concocted, and using this as affirmative evidence of guilt, in the absence of evidence establishing that the alibi was deliberately fabricated and that the appellant was a party to the fabrication. (iii) That the trial judge erred in concluding that the evidence of Vincent Price, reviewed in its totality, was capable of supporting a conviction. Warrantless Search [11] The respondent Crown conceded that the appellant’s section 8 Charter rights were violated by the warrantless search. [12] In admitting the evidence of the finding of the gun in the appellant’s apartment, the trial judge noted that Sergeant Jessop “readily agreed, upon my questioning, that he could have ordered an officer to attend the location and maintain security while the appropriate steps were taken to obtain a search warrant”. [13] The trial judge also stated as follows: There is little question the warrantless entry into Price’s apartment was a breach and a serious one as it involved the entry into a private residence. There is also no question that the gun was discoverable. In my view the exclusion of the evidence would have a negative effect upon the administration of justice. This evidence is essential to the prosecution of this case against Fred Price. It is reliable evidence. The consequences of this case are serious to the accused. The test for exclusion under section 24(2) of the Charter appears to be whether the conscience of all fair minded people in the community would be shocked by the actions of Mr. Jessop. In my view they would not be. If these fair minded people were apprised of the facts of this case and were asked if the exclusion of this gun, allegedly involved in an armed robbery where shots were fired in the presence of a number of members of the public, would create a negative view of the administration of justice, I believe they would answer “yes”. [14] In R. v. Silveira (1995), 97 C.C.C. (3d) 450, the Supreme Court of Canada considered the issue of exigent circumstances where police officers entered an accused’s home without a search warrant to secure the premises until the arrival of a search warrant. [15] Writing for the majority of the court, Cory J. referred to R. v. Collins (1987), 33 C.C.C. (3d) 1, in considering the factors to be taken into account in relation to s. 24(2) of the Charter in determining whether evidence should be admitted or excluded under s. 24(2) of the Charter. These factors are: (a) does the admission of the evidence affect the fairness of the trial? (b) how serious was the Charter breach? (c) what would be the effect on the system’s repute in excluding the evidence? [16] It is conceded by the appellant in this case that the admission of the evidence of the finding of the handgun would not affect the fairness of the trial. It existed prior to the search and would inevitably have been discovered upon a search of the premises. [17] In Silveira, Cory J. found it “significant that the police did not take any steps to search the premises before the warrant arrived”. [18] In relation to the seriousness of the Charter violation, Cory J., at para. 147 summarized the factors to be considered in assessing the gravity of the breach, as follows: - was the violation inadvertent or committed in good faith or was it willful, deliberate and flagrant;… - was the violation motivated by a situation of urgency or necessity; - were there other investigative means available to the police which would not infringe the Charter of Rights. [19] In considering the nature of the breach in Silveira, Cory J. at para. 148 made the following observation: The police, without warrant or authority, entered a dwelling-house… It is hard to imagine a more serious infringement of an individual’s right to privacy... The unauthorized presence of agents of the state in a home is the ultimate invasion of privacy. It is the denial of one of the fundamental rights of individuals living in a free and democratic society… This is why for centuries it has been recognized that a man’s home is his castle. and at para. 149: The entry onto the property by the police was thus a very serious breach of a Charter right. It remains to be seen if there are other factors which can mitigate the seriousness of the Charter violation. [20] In Silveira, Cory J. found that the violation was committed in good faith and motivated by circumstances of urgency or necessity. He held at para. 151 that there was “strong and persuasive evidence upon which the trial judge and majority of the Court of Appeal could properly find that there were exigent circumstances” which required the police to enter the premises to protect the evidence. Cory J. emphasized at para. 152 that notwithstanding the fact that the police had a serious and valid concern pertaining to the preservation of evidence, that as “a result of this case, police officers will be aware that to enter a dwelling-house without a warrant, even in exigent circumstances, constitutes such a serious breach of Charter rights that it will likely lead to a ruling that the evidence seized is inadmissible.” [21] In R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.), the accused had been charged with several offences. The police seized the accused’s rifle from his home in the course of a warrantless search conducted immediately after his arrest just outside of his home. At trial, the accused successfully moved to exclude the rifle from evidence, arguing that it was seized in violation of his s. 8 rights and that s. 24(2) of the Canadian Charter of Rights and Freedoms mandated its exclusion. In writing for this court, Doherty J.A. stated that the police searched the residence because they perceived a threat to their safety and the safety of others. In his view, the police acted in good faith and assuming the police violated the accused’s s. 8 rights when they entered and searched the apartment, the rifle should not have been excluded from evidence under s. 24(2) of the Charter. [22] At para. 59, Doherty J.A. stated: If there was a violation of s. 8, it flowed from an honestly held mistaken belief by the police that the danger inherent in the circumstances justified the entry into and the search of the home. That assessment had to be quickly made as events were unfolding. In my view, the police conduct, at worst, reveals an error in judgment and in no way indicates any disrespect for the appellant’s constitutional rights. [23] Doherty J.A. emphasized the importance of constitutional rights in the context of s. 24(2) at para. 60, as follows: In addressing the effect of the exclusion of the evidence on the repute of the administration of justice, I bear in mind the comments of Iacobucci J. in R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (S.C.C.) at 408: … we should never lose sight of the fact that even a person accused of the most heinous crime… is entitled to the full protection of the Charter. Short- cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques, are of fundamental importance in applying s. 24(2). Iacobucci J. reveals the heart of the third part of the s. 24(2) inquiry in this passage. The moral authority to apprehend and punish those who commit crimes rests on the community’s commitment to the rule of law. Convictions procured by state violations of our most fundamental law lack that moral authority. Respect for the rule of law and the long-term viability of the justice system suffers where the police engage in “short cuts” or fail to respect the constitutional rights of those they encounter in the course of the exercise of their duties. The long-term harm to the justice system is not worth the short-term gain made by the admission of evidence which was obtained in a manner that ignores the rule of law. [24] The trial judge in this appeal described the warrantless entry into the appellant’s apartment as a serious one. He concluded that as the “gun was discoverable … the exclusion of the evidence could have a negative effect on the administration of justice. The evidence is essential to the prosecution against Fred Price.” [25] In their investigation, the police admittedly engaged in “short-cuts”. The officer in charge was, of course, aware of the requirement of a search warrant. He ordered the warrantless search because he did not want to burden his officers with additional duties after having worked for a number of hours without sleep, given the difficulty of locating a Justice of the Peace on a Sunday. In my view, these circumstances do not mitigate the seriousness of the breach. To the contrary, they lead one to conclude that the violation of s. 8 was deliberate, flagrant and one not committed in good faith. The violation was not merely of a technical nature. It was not motivated by a situation of urgency or necessity. It would have been quite feasible for the police to secure the premises until a search warrant had been obtained. The fact that the trial judge regarded the evidence as “essential to the prosecution of the appellant” at the time that the evidence was admitted was not a relevant factor that should be considered in the mitigation of the seriousness of the Charter breach. [26] Having considered the factors outlined by Cory J. in Silveira, it is my view that there were no relevant facts which could mitigate the seriousness of the Charter breach. It is, therefore, my conclusion that the trial judge made an error in his application of the tests for exclusion under s. 24(2) of the Charter. [27] However, I agree with the submission of the respondent that there “is a tension between the reasons on the voir dire and the reasons for judgment as to the importance of the gun to the ultimate finding of guilt”. While in the voir dire the trial judge found that the gun was “essential to the prosecution of this case against Fred Price”, in his reasons for judgment he found that “the fact that the black Luger type pistol was found is not seminal in my determination or findings in this case. It is just merely one of the circumstances that went into the hopper when I considered all of the evidence.” [28] The diminished importance of the finding of the gun in the reasons for conviction can be explained by the fact that at the time of the voir dire the trial judge had heard less than half of the evidence in the case. The Crown’s case was largely dependant on the credibility of Vincent Price’s evidence. The acceptance of Vincent Price’s evidence by the trial judge would indicate that the appellant would have been convicted if the gun had not been admitted. [29] This is, therefore, an appropriate case for the application of the proviso. Alibi Evidence [30] In his reasons for judgment, the trial judge made the following observation with respect to the alibi evidence: If I find the alibi unbelievable or untruthful, then I do not have to consider it in deciding if an accused is guilty or not guilty. If, on the other hand, I find beyond a reasonable doubt that the alibi was false, fabricated and was concocted to mislead or deceive me, then I am able to draw an inference against that accused that he is guilty. [31] After reviewing the alibi evidence in relation to both the appellant and his co-accused, the trial judge rejected the evidence tendered by and on behalf of the appellant. He commented specifically on the following facts: that the appellant did not attempt to find the man that he drove the morning of the robbery, that the appellant’s friend, Dave Butler, did not give evidence about seeing the appellant at the hair salon and that the witness Sandy Butler’s evidence contradicted that of the appellant in relation to the direction that he was walking and that she did not recall any conversation with the appellant, as he testified. [32] The trial judge concluded by stating that the inconsistencies led him “to conclude beyond a reasonable doubt that I cannot believe or have any faith in that alibi. In fact, it is clear to me beyond a reasonable doubt that the alibi was false and was concocted to mislead or deceive me and, therefore, it allows me to draw the adverse inference against Fred Price.” [33] The appellant submits that it is only where there is evidence from which it can be reasonably inferred that the alibi evidence was deliberately fabricated and that the accused was a party to the fabrication that there may be the basis from which an inference of consciousness of guilt may be drawn. [34] In R. v. Coutts (1998), 126 C.C.C. (3d) 545 (Ont. C.A.), Doherty J.A., writing for the court, discusses the distinction between the testimony of an accused and other witnesses which is disbelieved and testimony which can be found to be concocted in an effort to avoid culpability. The former has no evidentiary value while the latter can constitute circumstantial evidence of guilt. [35] In Coutts, at para. 13 Doherty J.A. refers to the “oft- quoted” passage from R. v. Mahoney (1979), 50 C.C.C. (2d) 380 (Ont. C.A.) where Brooke J.A. stated at p. 389: If the jury accepted the evidence of the Crown witnesses that the appellant was the killer, disbelief of the appellant’s denial was inevitable, but that disbelief could not be treated as an additional item of circumstantial evidence to prove guilt. In my view, the jury ought not, routinely, to be instructed with respect to the inferences that may be drawn from the fabrication of a false alibi in the absence of a proper basis for the instruction, as for example, where there is extrinsic evidence of fabrication, or where the appellant has given different versions as to his whereabouts, one of which must be concocted. [Emphasis added.] [36] In R. v. Coutts at para. 15-16, Doherty J.A. remarks on this distinction as follows: This distinction between statements which are disbelieved and, therefore, rejected and those which can be found to be concocted and capable of providing circumstantial evidence of guilt cannot be justified as a pure matter of logic. In many, if not most cases, the inference of concoction flows logically from the disbelief of an accused’s statements or testimony. The distinction made in Mahoney is, however, fully justified and, indeed, essential to ensure that the trier of fact properly applies the burden of proof in cases where statements of an accused are tendered or an accused testifies. If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events: R. v. Tessier (1997), 113 C.C.C. (3d) 538 (B.C.C.A.), per Ryan J.A. at 556, per Southin J.A. at 561; R. v. Pleich (1980), 55 C.C.C. (2d) 13 (Ont. C.A.). The principle set down in Mahoney and repeatedly accepted by this court is sound. An instruction that the trier of fact may find that a statement made by an accused or the testimony of an accused is concocted and, therefore, capable of constituting circumstantial evidence of guilt should only be given where there is some evidence of actual concoction. Evidence that supports the case for the Crown, which if accepted would result in the rejection of accused’s evidence as unworthy of belief, should not be equated with evidence of concoction. [37] It is my view that the trial judge erred in law in finding that the Crown had proven that the alibi evidence had been concocted and that therefore he was entitled to “draw the adverse interest against Fred price”. The trial judge’s conclusion in this regard was almost entirely based on his rejection of the appellant’s evidence. He also referred to the fact that the appellant did not attempt to find the person that he allegedly drove the morning of the robbery, that the hairdresser Dave Butler was not called as a witness and that there was some inconsistency between the evidence of the appellant and the witness Sandy Butler in relation to their encounter the same morning. [38] Trial judges should be very cautious in coming to the conclusion of concoction in the absence of some significant extrinsic evidence. While there may have been some evidence relevant to the issue of concoction, it was speculative at best and certainly did not go far enough to support a finding of concoction. Consistent with Mahoney and Coutts, the trial judge ought not to have drawn an inference of guilt that was based largely on his disbelief of the appellant’s evidence. [39] The Crown submits in its factum that “in circumstances where the accused himself is offering an alibi witness who directly contradicts the accused’s own alibi evidence, then the inference of concoction must at least be available to the trier of fact as circumstantial evidence of guilt.” I have considerable difficulty with this statement standing by itself as there could be many alibi witnesses who contradict an accused’s own alibi evidence for the simple reason that there are different recollections of events which are related to the frailty of individual memory, rather than to any deliberate concoction. [40] The prosecution’s evidence in this case relied almost entirely on the credibility of Vincent Price. The trial judge accepted Vincent Price’s evidence. He stated that Vincent Price “was believable, reliable and credible”. The acceptance of this evidence makes the prosecution’s case very strong and, in my view, it made the conviction of the appellant inevitable. [41] In my view, there has been no substantial wrong or miscarriage of justice as a result of the trial judge’s error. Did the trial judge caution himself adequately on the danger of relying on the evidence of Vincent Price? [42] The appellant submits that a conviction could not be founded on the evidence of Vincent Price unless it was confirmed in material respects by other reliable evidence. [43] In relation to Vincent Price’s evidence, the trial judge instructed himself as follows: As a result, I have scrutinized the evidence of Vincent Price carefully and recognize that I do not have to find other evidence confirming or supportive of his evidence before I can rely on his testimony if I am satisfied that his testimony was truly and accurately given. I accept the statement that it is dangerous to rely on such testimony unless there is some support for it. [44] In his reasons for judgment the trial judge further stated: [T]he evidence points unerringly at him [the appellant] as a participant. I have re-visited the Vetrovec decision and find that all of the circumstances of this case allow me to accept Vincent Price’s evidence that Fred Price was the driver of the car. On the evidence I accept, which is that of Vincent Price, I do so notwithstanding his lies and apparent dislike of Fred Price, as well as the fact that he is an unsavoury witness. [45] The trial judge mentioned the Vetrovec decision a second time when he stated “Again, I have charged myself with respect to Vetrovec respecting Vincent Price’s evidence regarding Jerome Montgomery…”. [46] It is obvious that the trial judge was alive to the indicia of unreliability attaching to Vincent Price. There was no obligation on him to comment on every aspect of the evidence as it related to the testimony of Vincent Price. As was stated in R. v. Morrisey (1995), 97 C.C.C. (3d) 193 at 204 by this court: A trial judge’s reasons cannot be read or analyzed if they were an instruction to a jury... They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [47] There is no merit to this ground of appeal. Sentence Appeal [48] The appellant concedes that the offence for which he was convicted carries a minimum punishment of imprisonment for a term of four years. [49] The appellant submits that the trial judge failed to give adequate consideration to the following factors in arriving at the appropriate sentence: (a) The appellant’s record did not include any offences of violence and also revealed that the appellant had never previously received an incarceratory sentence; (b) The appellant’s positive pre-sentence report; (c) Principles of parity, namely that: (i) The co-accused Vincent Price, who had a record consisting of eleven convictions, had been designated a “habitual offender” and received a sentence of five years on a guilty plea. (ii) The co-accused Jerome Montgomery, who had received a five-year sentence for possession of a narcotic, received a sentence of seven-and-a-half years, in addition to the year and six weeks of pre- trial custody he had already served, for a global sentence of nine years, nine months. [50] The pre-sentence report indicated that the appellant, who was 28 years old at the time, has a close relationship with his mother and all of his siblings. The appellant’s mother stated the appellant was never a behavioural problem during his early childhood or during his teenage years and that he had no emotional, alcohol or drug related problems. [51] The appellant had completed grade 12 and intended to return to school to complete a Tool and Die program. [52] The appellant and his girlfriend were expecting a child in 1988 and he apparently maintains a close relationship with a daughter from another relationship. [53] The trial judge described the robbery as “well planned and orchestrated” and that there were “four people in the store who were terrorized in the extreme”. The trial judge stated that: None of us in this room who have not been subjected to the terror of being involved in a robbery, where assaultive behaviour took place, threats of bodily injury or death were made, guns were brandished and shots were fired in close proximity to them, can know the terror and upset those activities created on that day. [54] The appellant was not in the store during the robbery. He was the driver of the car that transported all three accused to and from the robbery. There was no evidence that the appellant fired any of the shots. [55] It would appear that the trial judge was of the view that both the appellant and the co-accused Montgomery should be treated identically in so far as sentence was concerned. In my view, in so doing the trial judge erred in principle, given the disparity between the criminal records of the two and the different roles that the appellant and Montgomery performed with respect to the robbery. Although the appellant may have played a significant role in the planning of the robbery, he was not directly involved in the assaultive behaviour and threats of bodily harm which, according to the victim impact statements, so traumatized those present in the store at the time of the robbery. Nor is there any evidence that he either countenanced or envisaged the violence that occurred. [56] I am also concerned with the principle of parity, given the accused Vincent Price’s serious criminal record. While Vincent Price was entitled to a lesser sentence by reason of his plea of guilty and his co-operation with the police, it was harsh and excessive to sentence the appellant to a term of imprisonment of almost twice that of Vincent Price. [57] In all of the circumstances. I would grant leave to appeal the sentence and vary the sentence to one of six and a half years. Conclusion [58] The appeal as to conviction is dismissed. The appeal as to sentence is allowed and the sentence is varied as stated above. “R. R. McMurtry C.J.O.” “I agree. M. J. Moldaver J.A.” “I agree. S. T. Goudge J.A.” Released: March 23, 2000 “RRM” _______________________________ 1 Date format is yyyymmdd 2 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS