R. v. Yeo, 2016 PECA 3 (CanLII)
PROVINCE OF PRINCE EDWARD ISLAND
PRINCE EDWARD ISLAND COURT OF APPEAL
Citation: R. v. Yeo, 2016 PECA 3err Date: 20160418
Docket: S1-CA-1295
Registry: Charlottetown
BETWEEN:
APPELLANT
AND:
RESPONDENT
(Appeal from conviction for offence of armed robbery)
Before: Chief Justice David H. Jenkins
Justice Michele M. Murphy
Justice Nancy L. Key
Appearances:
Mikaël H. H. Bernard, counsel for the Appellant
Gerald K. Quinn, Q.C., counsel for the Respondent
Place and Date of Hearing Charlottetown, Prince Edward Island
Place and Date of Judgment Charlottetown, Prince Edward Island
March 17, 2016
Place and Date of Erratum Charlottetown, Prince Edward Island
April 18, 2016
Written Reasons by:
Justice Michele M. Murphy
Concurred in by:
Chief Justice David H. Jenkins
Justice Nancy L. Key
MURPHY J.A.:
[1] This erratum is made to correct the date of conviction which was March 3, 2014.
_____________________________________
Justice Michele M. Murphy
I AGREE: ______________________________________
Chief Justice David H. Jenkins
I AGREE: _______________________________________
Justice Nancy L. Key
PROVINCE OF PRINCE EDWARD ISLAND
PRINCE EDWARD ISLAND COURT OF APPEAL
Citation: R. v. Yeo, 2016 PECA 3 Date: 20160317
Docket: S1-CA-1295
Registry: Charlottetown
BETWEEN:
JASON NORMAN YEO
APPELLANT
AND:
HER MAJESTY THE QUEEN
RESPONDENT
(Appeal from conviction for offence of armed robbery)
Before: Chief Justice David H. Jenkins
Justice Michele M. Murphy
Justice Nancy L. Key
Appearances:
Mikaël H. H. Bernard, counsel for the Appellant
Gerald K. Quinn, Q.C., counsel for the Respondent
Place and Date of Hearing Charlottetown, Prince Edward Island
January 19, 2016
Place and Date of Judgment Charlottetown, Prince Edward Island
March 17, 2016
Written Reasons by:
Justice Michele M. Murphy
Concurred in by:
Chief Justice David H. Jenkins
Justice Nancy L. Key
CRIMINAL LAW - Armed Robbery - Aiding and abetting - Unreasonable verdict - Vetrovec warning
The Court of Appeal concluded after review of the record that a case for finding an unreasonable verdict had not been made out and dismissed the appeal. The Court found that, on the totality of the evidence, the verdict was reasonable.
The Court found that the trial judge scrutinized the evidence, addressed the Vetrovec concerns, and was entitled to accept the evidence of unsavoury witnesses if he was satisfied that the witness was truthful.
Authorities Cited:
CASES CONSIDERED: R. v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168; A.G. v. R., 2000 SCC 17 (CanLII), [2000] 1 S.C.R. 439; R. v. Smith, 2016 ONCA 25; R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656; R. v. Beaudry, 2007 SCC 5 (CanLII), 2007 S.C.C. 5; R. v. Sinclair, 2011 SCC 40 (CanLII), 2011 S.C.C. 40; R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Khela, 2009 SCC 4; Vetrovec v. R., 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811; R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321; R. v. Kehler, 2004 SCC 11.
STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, C-46, ss.343(d), 344(1)(a.1), 686(1)(a)(i).
Reasons for judgment:
MURPHY J.A.:
[2] The old adage “there is no honour among thieves” is an apt one for this case. All those involved in the robbery testified against one another and most ended up receiving lengthy prison sentences.
[3] On March 3, 2012, the appellant was convicted as a party to an offence of robbery contrary to s.343(d) and s.344(1)(a.1) of the Criminal Code of Canada and sentenced to a nine-year term of imprisonment. The trial judge’s reasons for judgment can be found at R. v. Yeo, 2014 PESC 11.
[4] The appellant appeals from his conviction only.
Appellant’s Position
[5] The appellant submits pursuant to s.686(1)(a)(i) of the Criminal Code on appeal that the trial judge, in finding the appellant guilty as a party to the offence of robbery, erred by rendering an unreasonable verdict. He argues that the guilty verdict was unreasonable due to reliance on untrustworthy evidence from accomplices to the robbery which was not corroborated with independent evidence capable of confirming suspect testimony.
Respondent’s Position
[6] The Crown submits that on the totality of the evidence, “the verdict was the only reasonable one” (Respondent’s factum, page 8). The Crown argues that the trial judge scrutinized the evidence, addressed the Vetrovec concerns, and was entitled to believe the evidence of disreputable witnesses if he was satisfied that the witness was truthful.
Disposition
[7] For the reasons which follow, I would dismiss the appeal.
Background
[8] As the appellant alleges that the verdict is unreasonable or not supported by the evidence, this court is required to re-examine and re-weigh the evidence for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion. I have reviewed the evidence in some detail. This review illustrates to me that the conviction is reasonable and amply supported by the evidence.
[9] It is the theory of the Crown’s case that the robbery was conceived by the appellant, who urged its commission on Chase Roper, one of the people who carried out the robbery. The Crown contends that the appellant held Roper responsible for the loss of $30,000. which was taken from him by the Montreal City Police in an incident which occurred in a guest room at a hotel in Montreal.
[10] Constable Campbell of the Montreal City Police testified that when he and his partner arrived at the hotel on April 28, 2012, the hotel manager identified two people in the lobby, who turned out to be Chase Roper and his girlfriend, Jennifer Wakelin. They had reported a fight between another man and his girlfriend in the guest room. The Police went to the room and found the appellant and Samantha Keenan. Her eyes were red, her face scratched and swelling and her hair was messed up. The room was completely destroyed: furniture was tipped over, the television was smashed, a mirror was shattered. There were clothes, beer bottles and hard liquor all over the floor. The appellant was sleeping on a mattress which was half way on the bed.
[11] The police officer observed a gym bag beside the appellant, who was pushing it away. The officer’s partner pulled a shirt out of the bag for the appellant to put on. Two big bundles of cash packed in little packets were revealed totalling over $30,000. The appellant would not answer any questions, so both he and Samantha Keenan were arrested and the money was seized.
[12] On May 28, 2012, a convicted drug dealer, Dean Fairhurst, was robbed at his home in Emyvale by two armed and masked men. They bound his feet and hands with duct tape, beat him severely, and threatened him, to get him to produce his drugs and money. They left with 150 grams of cocaine and 150 dilaudid pills. Mr. Fairhurst managed to get his hands free and called his mother on his cell phone. He was injured but recovered completely.
[13] The evidence at trial was that the robbery was committed by Chase Roper and Derry Bird; their girlfriends, Jennifer Wakelin and Kaylee McLean, were with them in the car; and Jennifer Wakelin drove the car.
[14] The appellant was not present at the armed robbery but he was charged with the offence, and following trial, he was convicted as the trial judge found he aided and abetted in the commission of the crime.
The witnesses
[15] The key witnesses at trial were all heavily impaired by drugs at the time of the commission of the offence. All admitted to using drugs prior to committing the robbery. They all have criminal records and at the time of trial, some were in prison. Chase Roper, Jennifer Wakelin, and Kaylee McLean were convicted of the robbery. Micah MacDougall has a criminal record and Dean Fairhurst is in prison for drug offences.
[16] The witnesses were excluded and gave testimony independently of one another. The trial judge found that the testimony of the key witnesses did not conflict on the major points.
(i) Chase Roper
[17] The Crown’s first witness was Chase Roper. He was sworn, stated he was 23 years old, and was presently imprisoned at Dorchester for the armed robbery of Dean Fairhurst. He started off by stating he had committed the robbery with an individual named “Slash” who he had just met a few days before the robbery. This caused the Crown to enter upon a “K.G.B.” process (R. v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740) to tender an earlier video statement for the truth of its contents. The Crown then requested Mr. Roper’s testimony be interrupted allowing it to proceed with the other witnesses.
[18] The testimony of the other witnesses proceeded, and was about half complete, when the Crown recalled Mr. Roper. He recommenced his testimony by saying he wanted to change what he had said the day before. He testified that he and Derry Bird committed the armed robbery to steal the drugs and money from Dean Fairhurst. He said he committed the crime to pay off a debt he owed to Jason Yeo. He testified that the debt arose from a trip to Montreal where an incident had occurred in which the police were called to a hotel and roughly $30,000. was seized from Jason Yeo. Jason Yeo asserted it was “half his fault the money was taken.” Roper said that Yeo decided he owed him for half the money, i.e. $15,000. Roper testified that Yeo had told him that the commission of the robbery would be an easy way for him to pay off the money he owed him.
[19] Roper stated the guns used in the robbery had been given to him by Yeo months before. He said Yeo also gave him batting gloves to wear during the robbery.
[20] He said a day before the robbery that Yeo drove him, Bird and McLean to Dean Fairhurst’s house in Emyvale. He said he did not remember if Wakelin was with them. They remained in the car when the appellant spoke to Mr. Fairhurst outside and then the appellant and Mr. Fairhurst went inside the home. When he came out, he said Yeo told him this was the house they were to rob and that was Dean Fairhurst, the man they were to rob.
[21] Roper testified that he and Bird robbed and beat Dean Fairhurst and took his drugs. He said they did not find any money. He said McLean and Wakelin waited for them in the car.
[22] He testified that he met with Yeo the next morning to tell him they had done the robbery and met with him the following week to give him the drugs. Mr. Roper said Yeo told him he would be forgiven $10,000. of his debt.
[23] It is to be noted that Roper was charged with perjury in relation to his testimony at the trial of the co-accused, Bird.
(ii) Micah MacDougall
[24] Micah MacDougall testified that he lived in a Charlottetown apartment, with Roper, Bird, and Yeo, for two months in 2012. He stated he overheard a general conversation about a robbery being planned by the above three where Yeo was saying something about the money Roper and Bird had lost. A second conversation occurred where Bird and Roper approached him to commit the robbery with them. He declined.
[25] MacDougall was also a drug user, and was convicted of trafficking in cocaine after entering a guilty plea. He was sentenced to 18 months, and at the time of testifying he was on parole.
[26] MacDougall was confused about the dates of the conversations. The trial judge reflected in his reasons about the mistaken dates but concluded that he believed MacDougall was telling the truth.
(iii) Kaylee McLean
[27] Kaylee McLean was 20 years old at the time of the trial and was dating a co-accused, Bird, at the time of the offence. She was present with Bird, Roper and Wakelin when they robbed Dean Fairhurst. She has a criminal record for impaired driving and served a four-month sentence for her part as the “look-out” in the offence. She admitted that at the time of the commission of the offence, she was in the throes of her addiction to cocaine.
[28] She gave two statements to the police. In her first statement she did not divulge much information and the police officer did most of the talking. She testified she gave the second statement because she was concerned about the weapons making it to the street so she thought she should inform the police. Yeo contends she provided the second statement in order to receive a lesser sentence. McLean was adamant this was not the reason.
[29] Her evidence was that the day before the robbery Yeo picked them up in a little red car and drove them to Dean Fairhurst’s home in Emyvale. Once there, Yeo talked to Dean Fairhurst outside first and then inside his home. Then Yeo got back in the car and told Roper and Bird to rob the place.
[30] There were a few errors in the testimony of McLean which the trial judge noted – one, that they attended at the Fairhurst residence the day before the robbery, and two, that Wakelin was with them. The trial judge did not believe the errors affected the evidence. He viewed her confusion as being shared: Mr. Fairhurst said there were a couple of girls and a guy or guys in the car along with Yeo; Roper did not remember if Wakelin was there or not.
(iv) Jennifer Wakelin
[31] Jennifer Wakelin testified she drove the car the night the armed robbery was committed. Like Ms. McLean, she ultimately provided two statements to the Police. Ms. Wakelin admitted the thought of jail time scared her and when she gave the second statement, she was aware she would have the ability to plead guilty to the lesser charge of break and enter, as opposed to the home invasion robbery. She too had been sentenced to four months in jail for her part in the crime.
[32] She provided details of the drive to Emyvale and the events surrounding the crime, including returning to Emyvale to retrieve the guns they had thrown in the ditch.
[33] Wakelin admitted she did not attend on the first trip with Yeo to stake the place out. She admitted to being heavily impaired by drugs the evening of the robbery, and also to using some of the drugs which were robbed.
(v) Dean Fairhurst
[34] Dean Fairhurst is presently serving a seven-year sentence for possession for the purpose of trafficking.
[35] The only significant parts of his testimony are that he confirmed his home was invaded, he was beaten severely, and his drugs consisting of cocaine and dilaudid with a street value of $24,000-30,000. were stolen.
[36] He confirmed that Yeo attended at his residence before the robbery and that he was driving a red car. He said he never did suspect Yeo as the person who robbed him.
(vi) Linda Fairhurst
[37] Linda Fairhurst, the mother of Dean Fairhurst, confirmed in her testimony that her son had been beaten and robbed on May 28, 2012.
Key Evidence
[38] The appellant submits that the evidence of the police officers provides only context or narrative and does nothing to link Yeo to the robbery. I do not accept that contention. The trial judge could consider all the evidence. This includes evidence of the events leading up to the robbery itself. The Crown presented evidence of the Montreal hotel room incident for a purpose. Its theory is that this event created the “debt” owing by Roper to Yeo, and the motivation for Roper to carry out the robbery at Yeo’s behest.
[39] My review of the evidence suggests there is one piece of evidence referred to by Constable Van Westerneng that he and the Crown considered to be key in leading him to the appellant. He testified about a handwritten letter that was intercepted by a security officer at Springhill Penitentiary. The letter was written by Derry Bird and addressed to Jason Yeo at the Provincial Correctional Centre in Charlottetown. Cst. Van Westerneng testified that the letter advanced his investigation. In particular the following contents of the letter lead him to the person he considers was a pivotal witness, being Micah MacDougall:
J. [meaning Jason]
... Ya I got someone to talk to rat on FB and he said that guy who got robbed knows it was me and him. I was thinking that he obviously told him cuz I never told one person about that. He said Micah told him, but I wonder who told Micah. ...
[40] The officer stated that after his interview with Micah MacDougall he was satisfied grounds existed to arrest Roper and Bird. Later Wakelin and McLean were also arrested. He also confirmed this eventually led to the arrest of Yeo.
The Law
(i) Aiding and Abetting and Parties to an offence
[41] The trial judge explained the law applicable to the offence as follows:
1. The Criminal Code, R.S.C. 1985 Chap. C-46, as amended states at s.21(1):
Parties to Offences
PARTIES TO OFFENCE / Common intention
21.(1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. R.S., c. C-34, s.21.
The Supreme Court of Canada has analyzed s.21 in the case of R. v. Briscoe, 2010 SCC 13 (CanLII), [2010] 1 S.C.R. 411 and states at pp. 419 - 421:
Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders and abettors equally liable. ...
The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence.
The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, “[t]o aid under s.21(1)(b) means to assist or help the actor ... To abet within the meaning of s.21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed” ...
The mens rea requirement reflected in the word “purpose” under s.21(1)(b) has two components: intent and knowledge ...The Crown must prove that the accused intended to assist the principal in the commission of the offence.
(ii) Unreasonable verdict
[42] The reasonableness of a verdict, within the meaning of s.686(1)(a)(i) of the Criminal Code, involves a question of law. In assessing whether a verdict is unreasonable an appellate court must consider whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered (R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168). These comments were made in the context of the review of the verdict of a jury, but they apply equally to the judgment of a trial judge sitting alone (A.G. v. R., 2000 SCC 17 (CanLII), [2000] 1 S.C.R. 439, at para.29).
[43] The test requires an appellate court to determine what verdict a jury, properly instructed, could judicially have rendered. In doing so the court is required to review, analyze and, within the limits of appellate disadvantage, weigh the evidence (R. v. Smith, 2016 ONCA 25, at para.72). We are entitled to review the evidence, re-examine and re-weigh it for the purpose of determining whether it is reasonably capable of supporting the trial judge’s conclusion (R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p.663).
[44] The unreasonableness analysis required under R. v. Beaudry, 2007 SCC 5 (CanLII), 2007 S.C.C. 5, involves scrutiny of the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial (R. v. Sinclair, 2011 SCC 40 (CanLII), 2011 S.C.C. 40). Under this assessment an appellate court can interfere where a trial judge draws an inference or makes a finding of fact that is:
(i) plainly contradicted by the evidence relied upon by the trial judge for that purpose, or
(ii) is shown to be incompatible with evidence that is not otherwise contradicted or rejected by the trial judge (R. v. Sinclair, para.16).
[45] The advantaged domain of the trial judge cannot be disputed (R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at p.859). McLachlin J. (as she then was) for the majority also stated in the case at p.836:
A final factor which the court of appeal reviewing for unreasonableness must keep in mind, is that the jury may bring to the difficult business of determining where the truth lies special qualities which appellate courts may not share.
[46] The analysis required under s.686(1)(a)(i) must be on the totality of the evidence at trial as opposed to the piecemeal analysis of individual components of the evidence without a contemporaneous consideration of its totality (R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345). In R. v. Beaudry, supra, Justice Charron explained at para.58:
... In every case, the court must determine whether the verdict is unreasonable and, to do so, it must consider all the evidence. [Emphasis mine.]
(iii) Evidence of unsavoury or unreliable witnesses
[47] The second argument put forth by the appellant is that the trial judge’s verdict was unreasonable due to the reliance on untrustworthy, unreliable and unsavory witnesses which was not corroborated with independent evidence capable of confirming suspect testimony. He relies on R. v. Khela, 2009 SCC 4, which stands for the proposition that the testimony of one unsavory witness could not confirm the testimony of another.
[48] The law governing the warning that must be given concerning the evidence of unsavoury, untrustworthy, unreliable, or tainted witnesses has been outlined in a number of Supreme Court of Canada decisions. The seminal decision is Vetrovec v. R., 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at p.817, where Dickson J. (as he then was) stated (hence the term Vetrovec warning or caution):
I would hold that there is no special category for “accomplices”. An accomplice is to be treated like any other witness testifying at a criminal trial and the judge’s conduct, if he chooses to give his opinion, is governed by the general rules.
[49] He continued at pp.817-818:
I would only like to add one or two observations concerning the proper practice to be followed in the trial court where as a matter of common sense something in the nature of confirmatory evidence should be found before the finder of fact relies upon the evidence of a witness whose testimony occupies a central position in the purported demonstration of guilt and yet may be suspect by reason of the witness being an accomplice or complainant or of disreputable character.
. . . . .
Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness. [Emphasis mine.]
[50] The framework for approaching the warning required when considering the evidence of a Vetrovec witness was articulated by the Ontario Court of Appeal in R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321, leave to appeal to the Supreme Court of Canada refused, [2005] 1 S.C.R. and confirmed by the Supreme Court in R. v. Khela, 2009 SCC 4 (CanLII), 2009 S.C.C. 4, at para.37, where Fish J. referred to the case and adopted and amplified the framework as follows:
(1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny;
(2) explaining why this evidence is subject to special scrutiny;
(3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and
(4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.
[51] This fourth component is most germane to this appeal. It originated in the case of R. v. Kehler, 2004 SCC 11, also authored by Fish J. The facts of the case have similar characteristics with the case at bar: the accused was acquitted by the trial court judge on several counts relating to four armed robberies in Edmonton. He was, however, convicted on three counts concerning an armed robbery committed at Red Deer.
[52] The only evidence implicating the appellant in any of the offences was a disreputable accomplice who testified that he and the appellant had committed the robbery together.
[53] At the conclusion of the trial, the trial judge noted that the accomplice was a recidivist, a confirmed liar, a drug dealer, and a consumer of drugs himself. Understandably, the trial judge explained he felt bound “to view his evidence with a tremendous amount of scepticism and look for corroboration before he could act upon it.” At para.9 of the decision Fish J. stated “It is undisputed that there was independent evidence confirming Mr. Greenwood’s account of the robbery and his own involvement in it. None of this evidence, however, implicated the appellant.” The trial judge ultimately found the confirmatory evidence was sufficient to persuade him of the robbery at Red Deer and that the accomplice was telling the truth.
[54] In the final analysis, Fish J. stated at para.22:
However, even then, having considered the totality of the evidence the trier of fact is entitled to believe the evidence of the disreputable witness – even on disputed facts that are not otherwise confirmed – if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful.
The principles applied
[55] Upon my review of the evidence, I conclude that the appellant’s argument that the trial judge rendered an unreasonable verdict due to reliance on untrustworthy evidence from accomplices which was not corroborated with independent evidence capable of confirming suspect testimony should not succeed. My conclusion is based on the same reasoning as set out by Fish J. above.
[56] The trial judge imported the Vetrovec caution into his analysis of the evidence. He went to great length in his review of the evidence of the unsavoury witnesses. He explained why he considered each of them to be disreputable. And, in accordance with Vetrovec, he gave himself a “clear and sharp warning.” He stated:
[12] In the present case all of what I would call the key witnesses in this case have criminal records, and some of them are presently in prison. Mr. Roper, Ms. McLean and Ms. Wakelin are co-accused along with Mr. Yeo. Mr. MacDougall and Mr. Fairhurst have criminal records – Mr. Fairhurst is still in prison. The testimony of these witnesses does not conflict on the major points.
[57] The trial judge was aware of the danger of relying on evidence given by accomplices who have already been sentenced and where their sentence was favourable or some other personal advantage was gained by the accomplice. He addressed and dispelled this concern. He stated:
[44] All the witness who were involved in the robbery have already been sentenced. There is no evidence before the court that the testimony of any witness was given or changed as a result of promises of lenient treatment or threats of harsh treatment. Indeed, the limited evidence is that the RCMP got its evidence and admissions through hard work, persistence in questioning, and a good knowledge of how to get people talking without breaking the rules.
[58] The trial judge was alive to the need for confirmatory evidence to satisfy himself that the accomplices were testifying truthfully regarding the appellant’s participation in the robbery. The following passages of his judgment indicate this:
[25] Except for the mistake about the date, from my observation of Mr. MacDougall I believe he was telling the truth as best he knew it.
. . . . .
[29] ... Ms. McLean’s confusion is shared: Mr. Fairhurst said there were a couple of girls and a guy or guys in the car along with Mr. Yeo. Mr. Roper did not remember if Ms. Wakelin was there or not. Everyone agrees Mr. Yeo was driving the car on the visit to Mr. Fairhurst’s home the day before the night of the robbery except Ms. Wakelin, who could not know because she was not there. ...
[30] Ms. MacLean’s mistake does not affect the evidence about Mr. Yeo driving Mr. Bird, Mr. Roper and Ms. McLean out to Dean Fairhurst’s home to show them the place they were to rob. That event is confirmed by the evidence of Mr. Roper, Ms. McLean and Mr. Fairhurst, and I find it has been proven beyond a reasonable doubt.
. . . . .
[40] Mr. Roper, Ms. Wakelin and Ms. McLean were accomplices in the armed robbery, so their evidence needs scrutiny, but it was corroborated by Micah MacDougall and Dean Fairhurst in all the respects in which those two were involved.
[59] Determination of the credibility of witnesses is a matter which falls into the trial judge’s domain. After considering the confirmatory evidence, he stated:
[4] There were many inconsistencies amongst the witnesses’ testimony, but none were major, and from my observation of the witnesses, and barring a couple [of] mistakes which I have noted, I conclude that at the end, all of the witnesses were telling the truth as best they recalled it.
[60] The trial judge indicated he found comfort in the confirmatory evidence. He stated:
[54] ... there were no significant contradictions about the actual armed robbery, and defence did not challenge or in any way differ from the basic facts of the armed robbery as described by Mr. Fairhurst, Mr. Roper, Ms. McLean and Ms. Wakelin. I am satisfied beyond a reasonable doubt there was an armed robbery on May 28, 2012 as charged by the Crown, and I so find.
[61] The trial judge stated that he considered the evidence of what happened in Montreal, including the police evidence, as a small but significant piece of credible corroborating evidence that Yeo conceived the armed robbery and urged its commission on Roper.
[62] The trial judge was convinced that the appellant was implicated by the witnesses as to his motive, his planning, his involvement as well as his receipt of the spoils of the crime. The witnesses were excluded and gave testimony independently of one another. The trial judge, sitting without a jury, had the benefit of watching and hearing the witnesses testify. He was satisfied beyond a reasonable doubt, as to the appellant’s guilt. In reaching this conclusion, I too, am satisfied, after consideration of the totality of the record that a case for finding an unreasonable verdict has not been made out.
[63] The trial judge correctly instructed himself on the law and did not commit any reviewable error in assessing the evidence and determining the facts. The verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. Therefore, there is no basis upon which this court would intervene pursuant to s.686(1)(a)(i) of the Criminal Code.
_____________________________________
Justice Michele M. Murphy
I AGREE: ______________________________________
Chief Justice David H. Jenkins
I AGREE: _______________________________________
Justice Nancy L. Key