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PROVINCE OF PRINCE EDWARD ISLANDPRINCE EDWARD ISLAND COURT OF APPEAL

Citation: R. v. Chappell 2012 PECA 10 Date: 20120628Docket: S1-AD-1104

Registry: Charlottetown

BETWEEN:

DEAN CARL CHAPPELLAPPELLANT

AND:HER MAJESTY THE QUEEN

RESPONDENT

Before: Justice John A. McQuaid Justice Michele M. Murphy Justice Gordon L. Campbell

E R R A T U M

Appearances:Dean Carl Chappell, acting on his own behalf

Gerald K. Quinn, Q.C., counsel for the Respondent

Place and Date of Hearing Charlottetown, Prince Edward IslandFebruary 14, 2012

Place and Date of Judgment Charlottetown, Prince Edward IslandJune 27, 2012

Place and Date of Erratum Charlottetown, Prince Edward IslandJune 28, 2012

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CRIMINAL LAW - Offences Against Property - Appeals, Indictable Offences

CRIMINAL LAW - Sentencing - Robbery with a weapon - Disparity of sentences -Appeals, variation of sentence

Reasons for judgment:

BY THE COURT:

[1] In paras. 48, 65, and 66 reference to the date of May 5, 2004, as the date ofthe statement given to police should read May 5, 2006.

[2] In para.87, reference to the transcript of trial proceedings of May 19, 2004,should be May 19, 2006.

_______________________________________Justice John A. McQuaid

_______________________________________Justice Michele M. Murphy

_______________________________________Justice Gordon L. Campbell

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PROVINCE OF PRINCE EDWARD ISLANDPRINCE EDWARD ISLAND COURT OF APPEAL

Citation: R. v. Chappell 2012 PECA 10 Date: 20120627Docket: S1-AD-1104

Registry: Charlottetown

BETWEEN:

DEAN CARL CHAPPELLAPPELLANT

AND:HER MAJESTY THE QUEEN

RESPONDENT

Before: Justice John A. McQuaid Justice Michele M. Murphy Justice Gordon L. Campbell

Appearances:Dean Carl Chappell, acting on his own behalf

Gerald K. Quinn, Q.C., counsel for the Respondent

Place and Date of Hearing Charlottetown, Prince Edward IslandFebruary 14, 2012

Place and Date of Judgment Charlottetown, Prince Edward IslandJune 27, 2012

Written Reasons by:Justice John A. McQuaid

Concurred in by:Justice Michele M. MurphyJustice Gordon L. Campbell

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CRIMINAL LAW - Offences Against Property - Appeals, Indictable Offences

In 2006 the appellant, after a trial by a judge with a jury, was convicted of being aparty to robbery with a weapon contrary to ss. 343(d) and 21(1)(b) of the CriminalCode. He appealed to the Court of Appeal from the conviction. The appeal from theconviction is dismissed. The jury’s verdict was not reached as the result of a wrongdecision on a question of law or as the result of a miscarriage of justice. It was areasonable verdict which is supported by the evidence.

CRIMINAL LAW - Sentencing - Robbery with a weapon - Disparity of sentences -Appeals, variation of sentence

The appellant applied for leave to appeal the sentence imposed by the trial judge andif leave was to be granted, the appellant appealed from the sentence imposed. TheCourt of Appeal granted leave to appeal the sentence but denied the appeal. TheCourt affirmed the sentence of seven and a half years in prison imposed by the trialjudge even though it was more severe than the sentences imposed on some of the co-accused. Having regard to the mitigating and aggravating factors in the context of theappellant’s participation in the offence, the sentence imposed by the trial judge was inaccord with the principles and objectives of sentencing. Accordingly, the Court ofAppeal did not have jurisdiction to vary the sentence.

Authorities Cited:

CASES CONSIDERED: R. v. Cleghorn, [1995] 3 S.C.R. 175; [1995] S.C.J. No. 73; R.v. W.(D.), [1991] 1 S.C.R. 742 (SCC); R. v. Palmer, [1980] 1 S.C.R. 759 at p. 775; R.v. Angelillo, [2006] 2 S.C.R. 728 (SCC); R. v. West 2010 NSCA 16; R. v. G.D.B. 2000SCC 22; [2000] 1 S.C.R. 529; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Yebes, [1987]2 S.C.R. 168 (SCC); R. v. Biniaris 2000 SCC 15; [2000] 1 S.C.R. 381; R. v. Cullen2000 PESCAD 16; [2000] P.E.I.J. No. 66; R. v. Matwiy, [1996] A.J. No. 134; (1996),105 C.C.C. (3d) 251 (Alta C.A.); R. v. Douglas, [1996] O.J. No. 2091 (Ont. C.A.); R. v.F., [1982] A.J. No. 731 (Alta. C.A.); R. v. Sharpe, [2008] M.J. No. 300; 2008 MBQB227; R. v. Knife, [1982] S.J. No. 443 (Sask. Q.B.); R. v. O'Keefe 2007 NLCA 58;[2007] N.J. No. 323; R. v. Hewlett (2002), 167 C.C.C. (3d) 425. Also see: R. v.O'Keefe 2007 NLCA 58; [2007] N.J. No. 323; R. v. Hatt 2002 PESCAD 4; (2002),163 CCC (3d) 552

STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, C-46, ss.21(1)(b),

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145(3)(b), 264.1(1)(a), 266(b), 343, 343(d), 344(a), 348.1, 675(1)(a)(i) and (ii),675(1)(b), 683, 684, 687(1), 686(1)(a)(i) to (iii), 718.1, 718.2(a) and (b); CanadianCharter of Rights and Freedoms, s.52 of the Constitution Act, 1982, s. 7, 11

TEXTS CONSIDERED: Ruby, Clayton C: Sentencing 7th ed. (Butterworths/LexisNexisMay 2008)

Reasons for judgment:

McQUAID J.A.:

BACKGROUND

[1] The appellant Dean Carl Chappell was charged that on July 11, 2004, at ornear Milton Station in Queens County, Prince Edward Island, with the use of a firearmhe robbed Andrew Frizzell contrary to s. 343(d) and 21(1)(b) of the Criminal Code.He entered a plea of not guilty and was tried by a Supreme Court judge and jury. OnMay 19, 2006, following a seven-day trial, the jury found him guilty on both counts.

[2] On July 14, 2006, the trial judge imposed a sentence of seven and one-halfyears in prison. The trial judge gave the appellant six months credit for time served incustody prior to the sentence, and as a result, he sentenced the appellant to serveseven years in a federal penal institution.

[3] On August 6, 2006, the appellant filed a prisoner appeal from both theconviction and sentence.

[4] The appellant was represented by counsel at trial; however, at all times afterthe conclusion of the trial, including his sentencing hearing, the appellant representedhimself. After filing a Notice of Appeal, the appellant made two applications to thisCourt pursuant to s. 684 of the Criminal Code for the appointment of counsel. Themotions were denied. In deciding one of those motions, I provided written reasonswhich chronicle the history of the appeal to that point in time. See: R. v. Chappell2010 PECA 18; [2010] P.E.I.J. NO. 46.

[5] The appellant was given a number of opportunities to perfect his appeal byfiling a written factum. In the above noted decision, I allowed the appellant untilJanuary 31, 2011, to perfect the appeal. When he did not comply and the Crown didnot move to have the appeal dismissed, the Court set the appeal down for an oralhearing. At the hearing of the appeal, the Court permitted the appellant to present hisargument orally. In the course of making his oral submissions, the appellant made anapplication to admit fresh evidence on the appeal. The Court took the application

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under advisement. A decision on the application is included in these reasons.

Crown Evidence(i) The robbery

[6] On July 10, 2004, Andrew Frizzell attended a car show in Moncton. Hereturned to his home at approximately one a.m. on July 11th. At home with him weretwo of his three children, a son and a daughter. At the time they were 16 and 13 yearsof age respectively. All three retired for the night around two a.m. At approximatelyfour a.m. Ryan Mutch, David Salman and Stacey Blackmore entered the residence. Mr. Salman was carrying a loaded gun. All three were wearing camouflage clothingand masks.

[7] Mr. Salman approached Mr. Frizzell who grabbed the barrel of the gun anddrove it into Salman's face. Mr. Frizzell was assaulted and pepper sprayed by one ofthe other two individuals.

[8] Mr. Frizzell's daughter was sleeping on a couch in the room where the threeindividuals entered the residence. The gun was pushed toward her face and she washeld against the wall. The intruders threatened Mr. Frizzell that if he did not open thesafe in his residence, somebody was going to get hurt. Mr. Frizzell complied andopened the safe. The intruders used a pillow case to gather some of the items thatwere in the safe, and after doing so they left the premises.

[9] Mr. Frizzell immediately alerted two individuals who had been workingthroughout the night in Mr. Frizzell's autobody shop located adjacent to hisresidence. Mr. Frizzell testified that he observed the three intruders leaving in aturquoise Mazda truck. One of the men working in the body shop gave chase in hisvehicle, and Mr. Frizzell also gave chase in his vehicle. They did not catch the threeintruders.

[10] Subsequently, the truck driven by the three broke down. Messrs. Salman andBlackmore were separated from Mutch. They broke into a vacant home and werelater picked up by another co-accused, William David MacDonald. Mr. Mutch hadfled on foot, and he was later apprehended by the police.

[11] According to the evidence of Messrs. Blackmore and MacDonald, later thatsame morning Salman, Blackmore, and MacDonald met the appellant at a residencein Charlottetown. They realized that the heist of Mr. Frizzell's safe was not fruitful. There were a few five and two dollar bills. Blackmore, Salman and MacDonald alltestified that the appellant burned the $5. bills that had been carried away from theFrizzell residence by Salman.

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(ii) Planning the robbery

[12] Prior to committing the robbery Messrs. Mutch, Salman, Blackmore andMacDonald met with the appellant at the appellant's residence. The appellant alsooperated an auto body shop adjacent to his residence.

[13] The plan they formulated was to break into Mr. Frizzell's residence, gainaccess to the safe and remove a large sum of money, which they speculated to be inthe vicinity of $50,000. All five agreed they would proceed to a cabin in the woodsnear York, P.E.I., owned by the appellant and a number of his friends. From thereBlackmore, Salman and Mutch would proceed to the Frizzell residence. The appellantand Mr. MacDonald were to stay behind at the cabin to meet the three when theyreturned with the cash.

[14] After arriving at the cabin from the appellant's residence, Mr. Salman and theappellant left. They both proceeded a few kilometers down the York Road where theystole a turquoise Mazda truck. The vehicle was started by the appellant and drivenback to the cabin by Mr. Salman. The appellant followed. Salman, Mutch andBlackmore left to undertake the robbery.

[15] Eventually all five were charged with robbery. Messrs. MacDonald, Mutch,Salman and Blackmore all entered guilty pleas and were sentenced to terms ofimprisonment in federal institutions.

[16] Messrs. Salman, Blackmore, Mutch and MacDonald all gave evidence at thetrial of the appellant. Their evidence was relatively consistent on the material factsand inconsistent on some other less material facts. They all testified the appellantparticipated in the planning of the robbery. They also all testified that they were all ofthe understanding there would be nobody in the Frizzell home at the time and thatthey expected the safe to contain $50,000.

[17] The appellant continues to take the position he is innocent. He denies takingany part in the planning of the robbery or in being an accessory to the robbery in anyway. He says that he was home in bed when the robbery occurred, and he was at acar show in Moncton, New Brunswick, the morning of the robbery when the moneywas burned at the apartment in Charlottetown. He would not agree with my summaryof the facts set forth above, and he would assert vigorously that the evidence ofMessrs. MacDonald, Mutch, Blackmore and Salman as it related to his involvement isconcocted and absolutely untrue. I will review the appellant’s evidence and theevidence given by others in his defence.

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The Appellant's Evidence

[18] The appellant gave evidence at trial in his own defence.

[19] The appellant stated that he knew Mr. Mutch through a Mr. Justin Bradley whowas living with the appellant around the time of the robbery.

[20] Mr. MacDonald was known to the appellant as a person who would visit theappellant’s shop from time to time. Mr. MacDonald bought a vehicle through theappellant, and he would come to the appellant's shop to work on the vehicle. Hesated that he had previously met Mr. MacDonald in 1995. The appellant stated thathe and MacDonald got along reasonably well except they did argue about one ormore individuals MacDonald was referring to as a "rat."

[21] Through Mr. MacDonald the appellant knew Mr. Salman and Mr. Blackmore.On two occasions he requested Mr. MacDonald to bring Mr. Blackmore to his shop. A woman the appellant was seeing had been a previous girlfriend of Mr. Blackmore,and she alleged that Blackmore had assaulted her on occasion. She lived in fear ofhim, and the appellant wanted to ensure that Mr. Blackmore did not harm thewoman. On another occasion the appellant asked Mr. MacDonald to bring Mr.Blackmore to his shop because Mr. Blackmore was allegedly making claims aroundthe City that he was going to kill the appellant.

[22] The appellant knew Mr. Frizzell as he had worked for him in 1992. Theappellant was familiar with the premises of Mr. Frizzell. He frequently attended at hisshop to have paint mixed for vehicles the appellant was repairing. He had been to theFrizzell shop two to three weeks prior to the robbery for that purpose. The appellantdenied any knowledge of a safe being on the property of Mr. Frizzell. He deniedbeing in the living quarters of Mr. Frizzell's property two to three weeks prior to therobbery. The appellant also denied any previous confrontation, argument or disputewith Mr. Frizzell.

[23] On July 10, 2004, the appellant stated he went to breakfast with his son whowas nine years of age at the time. When they returned home, a friend of his soncame to the residence. The appellant worked on a car throughout the rest of themorning.

[24] The appellant had lunch around noon and then took his son and the friend foran ice cream. They returned home and later that afternoon Mr. MacDonaldaccompanied by Mr. Mutch came by the appellant's residence and auto body shop. The appellant chatted with Mr. MacDonald about the vehicle he was working on. Mr. Mutch asked about Justin Bradley and whether he was at home. The appellant

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assumed Mr. Mutch went into the residence although he could not say for certain asthe appellant's view of the residence was obstructed from where he was located inthe shop. Mr. Mutch returned to the shop a short time later - 10 to 15 minutes - heand MacDonald departed and there were no plans to meet later.

[25] The appellant returned to his residence, and present at that time were JustinBradley, his girlfriend as well as the appellant's son and his friend.

[26] The appellant had supper and after supper he went to the shop again. Around8:30 p.m., the appellant testified that two friends, Bruce Duck and Sean Henneberry,arrived to assist the appellant with work on the vehicle.

[27] Later in the evening three friends of Justin Bradley's girlfriend arrived at theresidence. At or about midnight the appellant drove them to a nightclub inCharlottetown. The appellant testified the three friends were at the residence between10 p.m. and midnight.

[28] After driving the three young women to Charlottetown, the appellant returnedto his shop. He testified that Mr. Duck and Mr. Henneberry left the autobody shopbetween one and 1:30 a.m. on July 11th.

[29] The appellant cleaned up the shop and when returning to his residence, heobserved one of the young women returning to the residence with two young men. The appellant had a conversation with them and did not allow one of the young mento enter the residence as he thought the young man was intoxicated. The appellanttestified that he went to sleep around two a.m. and woke the next morning aroundeight a.m.

[30] The appellant also testified that the next morning, July 11, 2004, he took avehicle he had been working on to a residence in Charlottetown. He also testified thathe met Mr. Duck at this residence around 9:30 to 10 a.m. The appellant, Mr. Duck,Mr. Henneberry and four other young people who were children of the three orfriends of their children, departed for the car show in Moncton. They were inMoncton for the day returning home at approximately seven p.m.

[31] On his return home, the appellant noticed that $800. was missing from hisbedroom.

[32] The appellant testified that he first learned of the robbery a few days after July11, 2004. The appellant's gun or one registered in his name had been recoveredfrom Messrs. Mutch, Blackmore and Salman.

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[33] On July 29, 2004, the RCMP came to the appellant's residence with a searchwarrant. He was arrested shortly thereafter. While being interrogated by the police inMontague, he had a conversation with his mother who advised him of damage to hisgun cabinet which was located in a closet in his bedroom. The appellant testified hewas not aware of damage to the gun cabinet prior to that time. Two photos taken bythe appellant's mother showing the damage to the cabinet were introduced intoevidence.

[34] The appellant gave evidence that he had shown his gun collection to Mr.MacDonald in June 2004. He testified that when he showed the collection to Mr.MacDonald, there was no damage to the cabinet. He also testified that he never metMacDonald after he left his property on July 10, 2004.

[35] During cross-examination the appellant confirmed he had a criminal record. In 1987 he was convicted of assault with a weapon and assault causing bodily harm. In 1988 he was convicted of assault. In 1991 he was convicted of contempt of court,and in 1992 he was convicted of the dangerous operation of a motor vehicle.

[36] The appellant was cross-examined on why he did not tell the police instatements and the court in appearances at his preliminary inquiry and at variousshow cause hearings that he was home in bed the night of the robbery. He admittedthat he did not tell the police about the three young women he had driven to thenightclub in Charlottetown or about any of the other individuals who were around hisresidence that day. The appellant also admitted that he never told the police about thetheft of $800. from this home, and he confirmed he did not report the gun stolen fromhis property.

[37] The appellant was released from custody on bail awaiting trial on thesecharges. After he was released, he received legal advice and disclosure from theCrown within two weeks. He stated that he did not give a statement explaining to thepolice his whereabouts because, when he was interrogated and he told the policeabout the conversation with his mother, the police did not acknowledge this, and hewas ignored and that bothered him quite a bit.

[38] He was asked to explain why the four individuals, three of whom he did notknow well, would implicate him as they did in their evidence. The appellant did notoffer an explanation.

[39] Mr. Clay Meron gave evidence on behalf of the appellant. He was an inmateat the Sleepy Hollow Correctional Institute when he overheard a conversationbetween Mr. Mutch and another inmate he identified as Tyler Bradley. Mr. Merontestified that he overheard Mr. Mutch telling Mr. Bradley that he had a quantity of

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drugs, and $800. in a wallet hidden between a VCR and TV in a cottage.

[40] Mr. Meron understood the cottage to be one owned by Mr. Mutch and not theappellant. On cross-examination, he admitted he was unsure of the amount of moneyMr. Mutch had mentioned. Mr. Meron was also unsure about the shotgun. He wasalso unsure as to precisely what Mr. Mutch was referring to or that Mr. Mutch waslinking it to the robbery; however, Mr. Meron testified that Messrs. Mutch andBradley were speaking about why Mr. Mutch was in jail and thus Mr. Meron assumedthe hidden items related to the robbery at the Frizzell residence. Mr. Meron says thisconversation took place in June or July 2004.

[41] Mr. Meron said he couldn't be sure but he also thought he heard Mr. Mutchmention that he also had a gun hidden in the same cottage.

[42] Mr. Meron spoke to the appellant after his release. He spoke to him aboutpurchasing a car. He and the appellant had spoken while both were in custody. They spoke after their release and it was in May of 2006 that Mr. Meron learned hewould be a witness.

[43] Bruce Duck and the appellant were friends who had known each other forseven to 10 years. Mr. Duck testified that on a Saturday night in July 2004 (he did notprovide a specific date), he was with the appellant and Sean Henneberry working ona car in the appellant's autobody shop. Mr. Duck testified that he saw DavidMacDonald at the shop earlier in the evening of the same day. Mr. Duck was notsure of the dates; however, he was certain it was the day before the robbery which helearned of after it occurred.

[44] The appellant stated that he never told Mr. Duck to go to the police andaccount for the appellant's whereabouts on the night of July 10, 2004, and the earlymorning of July 11th.

[45] Mr. Duck recalled the appellant leaving the shop to drive three individuals toCharlottetown. He testified he was not sure of the time.

[46] About two weeks before giving evidence, Mr. Duck spoke with the appellantconcerning the evidence he was to give at trial. Mr. Duck gave a statement to theappellant's counsel.

[47] At trial and in the course of his direct examination, counsel for the appellantshowed Mr. Duck a statement he had given to the police for purposes of refreshingMr. Duck’s memory. When this statement failed to refresh his memory, counselcontemplated making a K.G.B. application to have the statement admitted for the

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truth of its contents.

[48] Counsel for the Crown and the appellant subsequently agreed on theadmission of parts of the statement for the truth of its contents. The statement wasgiven to the police on May 5, 2004. The trial judge satisfied himself with the consentof counsel that the prerequisites for the admission of the statement were met and theagreed upon segments of the statement were admitted into evidence.

[49] In his evidence at trial Mr. Duck could not remember when he left theappellant's shop the night/early morning of July 10th/11th. In his statement to thepolice he said categorically it was 12:30 to one a.m. At trial he also couldn'tremember the time the appellant left to take the young women to town. In thestatement he said it was around midnight and that the appellant was away from theshop approximately 30 minutes.

[50] Mr. Duck corroborated most of the evidence of the appellant regarding the tripto Moncton beginning with the two of them meeting at the appellant's shop thatSunday morning, dropping off a car and proceeding to Moncton.

[51] Mr. Duck testified there were approximately 15 people involved with theownership and use of the cabin in York where the robbery had been staged. Hetestified that he and his friends, including the appellant, used the cabin mostly in thewinter when they were on their snowmobiles or four wheelers. MacDonald, Salman,Blackmore and Mutch were not members of that group. Mr. Duck confirmed in hisevidence that the appellant was part of the group.

[52] A month or so after the robbery, Mr. Duck learned the cabin had been used asa staging venue for the robbery. He testified he did not learn this from the appellantand that he had not had any conversation with the appellant about the fact that it hadbeen so used.

[53] After Mr. Duck learned about the robbery, the only conversation he had withthe appellant was about who could have possibly carried out the robbery. He alsotestified that he spoke to the appellant after the appellant was charged and theappellant confirmed he was not involved.

[54] Mr. Duck recalled the appellant telling him that his gun was stolen but doesnot remember when the appellant relayed this information to him. Also, he testifiedthat he was told by the appellant that $800. had been stolen from the appellant'shome; however, Mr. Duck was also not sure when he received that information. Mr.Duck testified that he did not think it was important to provide the police with all thisinformation when he gave his statement under oath to the police.

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[55] Messrs. Mutch, MacDonald and Salman all put themselves at the appellant'sproperty between 12:30 a.m. and one a.m. in the early morning of July 11th. Blackmore does not state a time as to when they were there. MacDonald says that theappellant wanted them to leave the property because he was expecting someone tocome there and MacDonald suspected that to be Bruce Duck. That doesn't match upwith the evidence of the others or with Mr. Duck. However, the other co-accusedwere all consistent that they were there 12:30 to 1:00 a.m.

[56] The gun recovered from the Mazda truck was a gun registered in the name ofthe appellant.

The Appeal

[57] The notice of appeal prepared by the appellant without the assistance ofcounsel is not clear in setting out the grounds of appeal which might be consideredby the Court.

[58] The appellant has indicated in his notice of appeal that he is appealing fromthe conviction and from the sentence imposed.

[59] Pursuant to s. 675(1)(a)(i) and (ii) of the Criminal Code, the appellant has theright to appeal from the conviction entered against him on any ground that relates to aquestion of law alone. With leave of the court, he also has the right to appeal fromthe conviction on a question of fact or a question of mixed fact and law.

[60] Pursuant to ss. 675(1)(b) the appellant has the right to seek leave to appealfrom the sentence imposed upon him. If leave is granted, he may appeal from thesentence.

Appeal From The Conviction

[61] Pursuant to s. 686(1)(a)(i) to (iii) of the Criminal Code, the Court may allow theappeal from the conviction if the Court is of the opinion the conviction should be setaside on the ground that it is unreasonable or cannot be supported by the evidence. The Court may also set aside the conviction if the Court is of the opinion theconviction was entered as the result of a wrong decision on a question of law. Finally, the Court may also set aside a conviction on the ground that there was amiscarriage of justice.

[62] I would dismiss the appellant's appeal from the conviction. The convictionwas not entered as the result of a wrong decision on a question of law. The

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conviction is not unreasonable, and it is supported by the evidence. The convictiondid not result from a miscarriage of justice.

(i) Was there a wrong decision on a question of law?

[63] First, I will address whether the conviction resulted from a wrong decision on aquestion of law.

[64] The appellant's defence at trial was that he did not participate in planning ofthe robbery or in aiding its commission. The appellant states he did not meet the fourco-accused to plan the robbery. At the time the four co-accused said they met withhim to plan the robbery, the appellant says that he was working in his auto body shopwith Bruce Duck and Sean Henneberry. At the time of the robbery he was at home inhis bed. The next day when three of the co-accused met to divide the paltry proceedsthe appellant says he was on his way to a car show in Moncton, New Brunswick, inthe company of Mr. Duck and Mr. Henneberry. In other words, the appellant put analibi defence before the jury.

[65] The jury heard the evidence of Mr. Duck. They also heard the contents of hissworn statement to the police. In his evidence he was unable to state when he left theproperty of the appellant on the night of July 10th or the early morning of July 11th. Inhis sworn statement to the police on May 5, 2004, he stated that he left between12:30 and one a.m.

[66] While the appellant told the police on a couple of occasions that he did notparticipate in the robbery, the details of his alibi were not provided to the police untilMr. Duck gave a statement to the police on May 5, 2004. This statement was takenafter counsel for the appellant made available to the Crown a sworn statementcounsel had taken from Mr. Duck two or three days previous. The trial was scheduledto commence and it did commence on May 15, 2006.

[67] At the same time the potential evidence of Mr. Duck was disclosed to theCrown, counsel for the appellant also disclosed that Mr. Henneberry would giveevidence supporting the appellant's alibi. Mr. Henneberry was working in Albertaand an issue arose as to both the timing of the request to bring him forward as awitness and the provision of funding by legal aid for him to travel to Prince EdwardIsland. A pre-trial conference was held before the trial judge and the appellant hasfiled a copy with the Court of the transcript of that pre-trial conference. Attendingwere counsel for the Crown, counsel for the appellant, and the Director of Legal Aid. The result of the pre-trial conference was that legal aid agreed to provide funding fortravel to Prince Edward Island if Mr. Henneberry could be located and served. Mr.

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Henneberry did not give evidence at the trial.

[68] At trial there was an issue as to the timeliness of the appellant's disclosure ofhis alibi witnesses. The disclosure was made some two years after the commission ofthe crime and at a time, at least with respect to Mr. Henneberry, when it would bevirtually impossible to have his story investigated by the police and to have himattend at trial.

[69] When the appellant was cross-examined by Crown counsel, he was asked if hehad ever disclosed his alibi on the number of occasions he attended at court for bailhearings or at the conclusion of his preliminary inquiry. The appellant confirmed thathe did not disclose the alibi on those opportunities. He also confirmed that he did notmake the police aware of the identity of the young women he drove to the nightclubin Charlottetown or the names of their friends.

[70] At the hearing of his appeal, the appellant referred the court to the decision ofthe Supreme Court of Canada in R. v. Cleghorn, [1995] 3 S.C.R. 175; [1995] S.C.J.No. 73. This case is authority for the principles applicable to the disclosure of an alibi.

[71] The defence of an alibi must meet two requirements. First, it must bedisclosed in time to permit the Crown an opportunity to investigate. Secondly, theparticulars of the alibi must be such that the investigation can be conducted in ameaningful fashion. The failure to give adequate notice does not mean the alibievidence cannot be received by the court, but it is a factor to be considered by thetrier of fact in considering how much weight should be given to the evidence. Indeedthe trier of fact may draw an adverse inference from the lack of adequate notice whenweighing the alibi evidence. See: R. v. Cleghorn, at paragraphs 3 and 4.

[72] In R. v. Cleghorn, Major J. wrote a dissenting opinion with which Sopinka J.concurred. Their departure with the majority opinion of the Court rested on whetherdisclosure by the mother of the accused was sufficient. As for the principles generallyapplicable to the evaluation of alibi evidence, there does not appear to have beendisagreement within the Court.

[73] Major J. makes the point at paragraph 22 of his reasons that the principalreason a negative inference may be drawn from less than adequate notice of alibievidence is because such evidence can be easily fabricated. He also cautions that therules relating to the disclosure of alibi evidence must now be considered in thecontext of the accused’s right to silence protected by the Charter.

[74] The court should not draw an adverse inference from an accused person's

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failure to disclose the alibi immediately upon his or her arrest. Unless there is an issueas to the timeliness of the disclosure of the alibi or the adequacy of the alibi,cross-examination of an accused as to why disclosure was not made immediatelyupon arrest is not proper. Where disclosure is made sufficiently early to allowinvestigation, no questions on that issue should be allowed and no reference shouldbe made to it in the charge to the jury. See: R. v. Cleghorn at paragraphs 23-25.

[75] Finally, with respect to the particulars of the disclosure Major J. states that toconstitute sufficient disclosure the disclosure must contain a statement that theaccused was not present at the location of the crime at the time it was committed, thewhereabouts of the accused at the time, and the names of any witnesses to the alibi.

[76] In the case at bar, there was an issue with respect to the timeliness of thedisclosure of the alibi less than two weeks before the trial and almost two years afterthe commission of the offence. While the police did have an opportunity to take astatement from Mr. Duck ten days before the commencement of the trial, there waslittle time to further investigate. The other alibi witness, Mr. Henneberry, was neverbrought forward despite the agreement of legal aid to provide funding for histransportation if he could be located and served with a subpoena.

[77] There was an issue as to the adequacy of the alibi evidence. Mr. Duck couldnot definitively say when he left the premises of the appellant on the night the fourco-accused testified they attended there to plan the robbery. The police were neverinformed of many other individuals named by the appellant in his evidence as beingcapable of providing support for his alibi.

[78] Furthermore, the evidence of Mr. Duck does not place the appellant at hishome when the staging of the robbery took place at the cabin in York. In this respectthe alibi evidence does not disclose the names of the three or four young people theappellant allegedly drove to Charlottetown around the same time the co-accused metat the appellant's property.

[79] Over the course of the almost two years between the commission of theoffence and the trial, the appellant made a number of appearances in court for showcause hearings, bail release hearing and a preliminary inquiry. At no time in theformal settings available to him and well after the commission of the offence did theappellant disclose the alibi evidence he caused to be brought forward less than twoweeks prior to the trial.

[80] The trial judge, over the objection of counsel for the appellant, allowed theCrown to cross-examine the appellant as to why he did not bring forward the alibievidence on the above occasions. Having due respect to the appellant's right to

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remain silent, I am not satisfied that the trial judge's decision or ruling to allow thecross-examination to continue constituted an error of law. There was clearly an issueas to the timeliness of the disclosure of the alibi evidence as well as an issue withrespect to the adequacy of the alibi. The Crown was entitled to seek an explanationfrom the appellant as to the reasons for the delay.

[81] The trial judge also gave the jury specific instructions on the issue of alibievidence. He instructed the jury they were at liberty to accept or reject the evidence. The trial judge affirmed and impressed upon the jury that the appellant had the rightto remain silent. He asked the jury to consider whether the disclosure of the alibievidence was in sufficient time for the police to investigate the evidence. Heinstructed the jury they should not draw an inference the appellant was guilty as theresult of his failure to disclose the alibi evidence at an earlier date.

[82] The trial judge's complete instruction on this issue is set out below. See: thetranscript May 19, 2006 at pp. 835 to 838 where the trial judge stated as follows:

. . . . .

Now I want to tell you a little bit more about the defence of alibi. You'veheard evidence that Mr. Chappell had other people at his place where it'salleged that the staging took place. Those are the material times. If youbelieve that evidence, and believe that that puts it in such a way that thatcouldn't have happened or didn't happen, then you'd acquit for thatparticular incident. If you still don't believe it, but the evidence leaves youin reasonable doubt, then you'd still acquit regarding that particularincident. But remember, you need one or more incidents. But Mr.Hornby's theory is you either believe everything or believe nothing. So hesaid the house of - he suggests, I think, the house of cards falls if you findthat they were lying about, the four robbers were lying about being at Mr.Chappell's garage. So that's how the alibi evidence works. Now after - thisalibi was provided fairly late in the day, but on the other hand, it wasprovided within a sufficient time for the police to have done theirinvestigation of the alibi, or not their investigation, but to check on thevalidity of the alibi. So here's what the law says about that. Afterconsidering the alibi evidence, you may decide not to believe the alibi. There are many reasons why you may not believe the alibi evidence, forexample, you may be of the opinion that the witnesses, including theaccused, who testified in support of the alibi were imprecise orinconclusive, that their recollection was unreliable, or that they were simplymistaken. That does not mean that the evidence was falsely fabricated orconcocted to mislead you, although you can draw whatever conclusionsyou want. You've heard evidence that the alibi of the accused was notdisclosed to the Crown until weeks before the trial. You should know thatan accused person has the right to remain silent when charged with acriminal offence. An accused person has no legal duty to come forwardand offer an explanation, however, if you find that the alibi evidence was

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not disclosed in time to permit the Crown and police to make a meaningfulinvestigation of the alibi evidence, then you may take that delay intoaccount when deciding how much weight you'll give to the alibi evidence. In such circumstances, you may, but not necessarily must, choose not tobelieve the alibi evidence. However, you should not draw an inferencethat the accused is guilty from the fact that he delayed in disclosing the alibievidence to the Crown. That delay would only be a factor in deciding howmuch weight you give to the alibi evidence. So in the present case, thealibi evidence was raised, as I understand the evidence, with the Crown onMay 3rd and the police did their investigation, their K.G.B. statement onJuly - or May the 5th, and the trial started on May the 11th. In thecross-examination of Mr. Chappell, the accused, there was questions aboutopportunities in the various court procedures leading up to the trial for himto have said I was home in bed, there's people that can vouch for me, itcouldn't have been me involved, it must be a lie that they're doing. So, andhe acknowledged that he didn't tell and he had legal advice at the time,some of the time, and that advice was to hold his own counsel. Now onthe one hand, delay in disclosure makes a difference for the Crown's abilityto check out the alibi when I've already told you about that. On the otherhand, I want to tell you that you need to be - I'll repeat this from what I saidbefore - that an accused has a right to remain silent and has no duty tocome forward and offer an explanation. The Crown has the duty to provethe case. And it would be a contradiction of the right to remain silent if youwere to find that the accused is more likely to be guilty because he didn'tdisclose that early, and I've already said to you about late alibis. Anyway,almost done.

[83] The four co-accused who testified against the appellant fell short of even thelowest standard of what we might describe as a model citizen. Life endeavors, at leastuntil 2004, had garnered Messrs. Blackmore and MacDonald unenviable criminalrecords. All four were involved in the planning and carrying out a heinous crimewhich violated the sanctity of a man's home and placed his life and the lives of histwo children at risk. The evidence of the co-accused had to be treated with extremecaution. The jury had a full appreciation for the character of these four individuals. Itwas open to the jury to accept or reject their evidence and to accept or reject theevidence of the appellant. The jury chose to accept the evidence of the co-accusedand reject the evidence of the appellant. This court does not have any jurisdiction tointerfere, absent a wrong decision on a question of law.

[84] The trial judge instructed the jury to be careful when considering the evidenceof the co-accused, particularly Blackmore and MacDonald. The trial judge warned thejury to be careful with the evidence of the co-accused while at the same timeinstructing the jury that they were free to accept or reject it. See: Transcript ofproceedings May 19, 2006 at pp.804 and 805 where the trial judge stated:

... Two of the Crown witnesses had lengthy criminal records, so I'm goingto mention this to you. Where the evidence of a witness is highly important

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to your findings, you need to have in mind that there's a risk in adopting theevidence of a person considered - the law makes a classification called anunsavoury witness. So there's a risk of adopting the evidence of thatwitness, of such a witness, without more, without corroboration. You canaccept that person's evidence without corroboration, and you can also, ifthere's corroboration, you can look at the corroboration. Both StaceyBlackmore and David MacDonald are the people we're talking about withlengthy criminal records. You can assess all the other factors about theircredibility, you had the observation opportunity. So when you have aperson with a long criminal record giving important evidence, the care andcaution is that you should look for some confirmation from somebodyother. ....

[85] The trial judge also referred to the appellant's criminal record. He pointed outthat the fact the appellant had a criminal record did not make the evidence of theappellant less reliable or less believable than the evidence of the co-accused.

[86] The issues at trial raised significant questions of credibility. In the final analysisthe jury was left with the evidence of the appellant and the evidence of theco-accused. The jury had to decide which to accept. When this situation arises in atrial, it is important that the jury is properly instructed on how to resolve thiscredibility issue in the context of deciding whether the Crown has met the ultimateburden of proving the guilt of the accused beyond a reasonable doubt.

[87] The trial judge properly instructed the jury on this issue. He reinforced withthe jury that the appellant was entitled to the presumption of innocence. He alsoinstructed the jury that because the appellant gave evidence in his own defence thatwhen they considered whether the Crown had proven the guilt of the accusedbeyond a reasonable doubt, it was not a matter of deciding whether to accept theevidence of the Crown witnesses or the evidence of the appellant. The jury wasinstructed that if they believed the appellant they had to acquit; that even if they didnot believe the appellant, if his evidence left them with a reasonable doubt they couldnot convict and; even if the evidence of the appellant did not leave them with areasonable doubt they had to ask themselves whether on all the evidence they wereleft with a reasonable doubt as to the guilt of the appellant. See: the transcript of thetrial proceeding s May 19, 2004 at pp.795-796. The trial judge's total instruction wasmaterially in compliance with the direction provided in R. v. W.(D.), [1991] 1 S.C.R.742 (SCC).

[88] The inconsistent statements of Mr. Duck were also reviewed by the trial judge.He pointed out that he permitted reference to the statement given by Mr. Duck to theappellant's counsel for purposes of allowing Mr. Duck an opportunity to refresh hismemory. He also pointed out that he permitted the introduction into evidence of aportion of a statement given under oath by Mr. Duck to the police. He gave his

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reasons why he permitted the introduction of the statement for the proof of itscontents. He pointed out that Mr. Duck's evidence at trial regarding time wasdifferent than that given in both statements and that at trial Mr. Duck was notprepared say what time he left the appellant's property on the night of July 10th or theearly morning of July 11th.

[89] The trial judge reviewed with the jury the essential elements of the offence. He noted that the fact there was an armed robbery committed on the property of Mr.Frizzell was conceded. The charge against the appellant was that he was a party tothat offence or robbery by reason of the evidence that he aided in its commission orhe abetted its commission.

[90] The theory of the Crown’s case was that there were a number of ways theappellant aided or led in the commission of the offence.

(1) he supplied the gun;

(2) he stole the truck and supplied the truck;

(3) he provided camouflage clothing;

(4) he informed the co-accused as to the layout of Mr.Frizzell's residence;

(5) he provided the cottage as a staging area;

(6) he was intending to share in the proceeds;

(7) he burned money.

[91] The trial judge emphasized with the jury that if they were not satisfied theappellant did any of the above they should acquit the appellant. On the other hand,the trial judge instructed the jury that if they were satisfied the appellant performedany one of the above acts, they should find him guilty.

[92] The trial judge reviewed the evidence surrounding each of the above instancesthat could amount to aiding the co-accused. in the commission of the offence Thisreview of the evidence was adequate.

(ii) Reasonableness of the verdict

[93] I have also considered the verdict with respect to its reasonableness of the

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verdict and whether it can be supported by the evidence. To decide whether averdict is unreasonable or whether the verdict is supported by the evidence a court ofappeal must determine whether the verdict is one that a properly instructed jury or ajudge could reasonably rendered. The court of appeal does not have the jurisdictionin assessing the evidence and reviewing the record at trial to substitute its opinion ofthe evidence for that of the jury. See: R. v. Yebes, [1987] 2 S.C.R. 168 (SCC) and R. v.Biniaris 2000 SCC 15; [2000] 1 S.C.R. 381.

[94] I have reviewed all the evidence, and I am satisfied the verdict is one that ajury properly instructed could reasonably have reached. I am unable to conclude theverdict is unreasonable. The verdict of guilt is supported by the evidence.

[95] There was evidence from all co-accused that the appellant was involved in theplanning of the robbery. There is no question his gun was used in the robbery. Heknew all co-accused, and he was the only one with access to the cabin in York fromwhere the robbery was staged.

[96] While the appellant does not accept the evidence adduced against him, themembers of the jury did. Their verdict was reasonable, and it is supported by ampleevidence which establish the essential elements of the offence against the appellant. The verdict was also reached absent any errors of law. In the result, I would dismissthe appeal from the conviction and confirm the verdict of the jury.

Motion to Introduce Fresh Evidence(i) The motion

[97] At the commencement of the appeal hearing, the appellant made a motion tointroduce fresh evidence. The evidence he applied to introduce was:

(1) A handwritten statement by a Mr. Geoff Dobsondated December 1, 2005.

(2) A memo from Sgt. Kevin Baillie of the RCMP tothe attention of the appellant at the RenousCorrection Center dated March 31, 2008, andattached to the memo are two pages ofhandwritten notes made by Sgt. Baillie as theresult of an interview he had with the appellant onAugust 1, 2004.

(3) Notes or comments sent to the appellant by Sgt.Baillie January 13, 2012 as the result of the

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appellant's inquiry as to notes of the interview Sgt.Baillie had with the appellant.

(4) Handwritten notes of a Mr. Dennis Collins datedJanuary 3, 2007 which state that he wasapproached "by an individual" who inquired ofhim as they drove by the Frizzell property as towhether he wanted to join in doing a robbery. The "individual" who is not identified in thestatement says he knew where the money waslocated inside the residence.

[98] Pursuant to s. 683 of the Criminal Code, a court of appeal may receiveevidence either taken orally or in written form, provided it is in the interests of justiceto do so. The test for the admission of fresh evidence and what is in the interests ofjustice is governed by four factors as set down in R. v. Palmer, [1980] 1 S.C.R. 759 atp. 775. They are:

(1) The evidence should generally not be admitted if,by due diligence, it could have been adduced attrial provided that this general principle will not beapplied as strictly in criminal cases as in civilcases.

(2) The evidence must be relevant in the sense that itbears upon a decisive or potentially decisive issuein the trial.

(3) The evidence must be credible in the sense that itis reasonably capable of belief; and,

(4) The evidence must be such that if believed itcould reasonably, when taken with the otherevidence adduced at trial, be expected to haveaffected the result.

[99] In a criminal case the due diligence requirement should not be relied upon torefuse to admit fresh evidence on an appeal if the evidence is compelling, and it is inthe interests of justice to admit it. See: R. v. Angelillo, [2006] 2 S.C.R. 728 (SCC), atparagraph 15, cited in R. v. West 2010 NSCA 16, at paragraph 31.

[100] Also under the fourth factor, the fresh evidence can only affect the result if it is

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admissible under the normal rules of evidence. See: R. v. West supra, at paragraph34.

[101] Applied to the fresh evidence tendered by the appellant for admission in thisappeal, the evidence does not meet the first criterion. It is not so compelling that itwould be in the interests of justice to minimize the due diligence requirement andadmit the evidence. There is no evidence that the written notes the appellant nowseeks to introduce were unavailable to the appellant at the time of his trial. The notestaken by Sgt. Baillie do not assist the appellant in establishing or addressing the issuethat he raised the alibi defence at an opportunity earlier than two weeks prior to thetrial. The notes do not explain the appellant's whereabouts on the night of therobbery, they do not mention anything about the attendance of Messers. Duck andHenneberry at his shop or evidence on the night of the robbery. Interestingly, theymention that Mr. Mutch may have called the appellant to come pick him up when hebecame separated from Salman and Blackmore. This evidence is not compellingevidence for a different verdict than that reached by the jury.

[102] The evidence is not relevant and it is not credible. When taken with all theevidence at trial, it could not be expected to change the result. The evidence of thenotes of Mr. Dobson constitute hearsay statements of what was told to him by a Mr.Gallant. Under the normal rules of evidence, this evidence of Mr. Dobson would beinadmissible as hearsay. The evidence of the notes of Mr. Collins are of no relevance. They are hearsay, and they do not even identify the name of the individual involved.

[103] In the result, I would deny the application to admit the foregoing freshevidence.

(ii) Effective assistance of counsel and miscarriage of justice

[104] Although not set forth with particularity in his notice of appeal, the appellant urges the court to consider and adjudicate his appeal on the ground that he did notreceive effective assistance of counsel at trial. This request is somewhat related to theintroduction of fresh evidence but again the particulars are absent. The question isalso related to the court’s consideration of the appeal under ss. 686(1)(a)(iii) of theCriminal Code as to whether the Court should set aside the verdict on the groundthere was a miscarriage of justice.

[105] The appellant does not allege that the evidence which he seeks to introduce asfresh evidence and which is outlined above was not introduced as the result of theincompetency of counsel. However, in the event this is the substance of hisargument, I am not prepared to overlook the due diligence prong of the test for theintroduction of the evidence and allow for its admission on the ground that counsel

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was incompetent in not bringing it forward.

[106] If the assistance of counsel was ineffective and the evidence was not broughtforward as a result, the court might consider this in the application of the duediligence requirement which in a criminal case as I have stated is not always crucial.The Court would also consider whether this was a factor resulting in a miscarriage ofjustice. See: R. v. G.D.B. 2000 SCC 22; [2000] 1 S.C.R. 529, at paragraphs 17 to 22.

[107] The appellant's complaint with the effectiveness of his counsel is that therewere a number of witnesses the appellant wanted brought forward to testify in hisdefence and his counsel at trial did not bring them forward. Except for Mr. SeanHenneberry, the appellant has never identified these individuals.

[108] I have read the transcript of proceedings before the trial judge on June 26,2006, the date initially scheduled for the sentencing hearing. At that time theappellant's trial counsel made a motion to withdraw as counsel citing a breakdown inthe confidence between the appellant and himself. At this hearing the appellant askedfor an adjournment of his sentencing hearing, and the adjournment was granted bythe trial judge.

[109] I have also read the transcript of the proceedings before the trial judge wherethe appellant made a motion to have counsel appointed for him on sentencing. Thismotion was denied.

[110] While the appellant insists he did not "fire" his counsel, it is clear from theappellant's submissions at these hearings the appellant had lost confidence in hiscounsel and counsel quite properly made the motion to withdraw. Also, I am unableto conclude the evidence the appellant referred to at these hearings and which hecontinues to refer to, was not brought forward as the result of the ineffectiveassistance of his counsel at trial.

[111] As for the evidence of Mr. Henneberry, it would appear from the record thatthe problem was contacting Mr. Henneberry particularly when the appellant’scounsel was only informed by the appellant of Mr. Henneberry’s presumedimportance a short time before the trial. Counsel did what he could to gain acommitment from Legal Aid to pay for Mr. Henneberry's attendance provided hisprecise whereabouts could be determined. Counsel acted reasonably and I amunable to say the evidence did not come forward as the result of his ineffectiveassistance.

[112] It almost goes without saying that all accused persons have the right toeffective assistance of counsel. It is a right protected by ss. 7 and 11(d) of the Charter.

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[113] If counsel is ineffective, there is an impact on the fairness of the trial, thereliability of the verdict, and the fairness of the process employed to arrive at theverdict. Counsel's effectiveness or competency is measured by the standard ofreasonableness. What would be considered reasonable judgment on the part ofcounsel? The objective of considering this issue on appeal is not to measure theperformance or professional conduct. These are issues which do not exist in this caseand in any event if they did exist they are left to the professional regulatory body. See: R. v. G.D.B. supra, at paragraphs 23 to 29.

[114] In the result on this issue I have considered the assistance provided to theappellant by his counsel at trial. In every respect I can come to no other conclusionthat the level of assistance more than meets any standard of reasonableness in termsof the decisions made in the course of the exercise of counsel’s professional judgmentthroughout the trial.

Appeal from Sentence

[115] The appellant was sentenced to 7 ½ years in a federal penal institution andgiven credit of six months for time served in pre-trial custody. He was sentenced,therefore, to serve seven years in a federal penal institution. The appellant's appealfrom this sentence is grounded on the principle that the disparity between hissentence and the sentences imposed on the co-accused is so great that his sentence isunfit.

[116] When initially charged, the appellant was remanded into custody from July 30,2004 to August 27, 2004. He was released from custody and when taken intocustody again on November 1, 2005, he was convicted of unrelated charges underthe Criminal Code. Although unrelated to the robbery of Mr. Frizzell’s home, thecharges relate to an incident between the appellant and one of the co-accused. Thesecharges were: (i) breach of an undertaking contrary to s-s. 145(3)(b); (ii) utteringthreats contrary to s-s.264.1(1)(a); and (iii) assault contrary to s-s. 266(b). The appellantwas subsequently sentenced to time served plus three years probation on all of thesecharges.

[117] The appellant had a previous criminal record.

Date/Locationof Sentence Offence Sentence

10 August 1987 One (1) Count Assault with weapon, Custody: One (1) dayCalgary, Alberta contrary to Section 245.1(1)(a), CCC Fine: $250.00

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One (1) Count Assault causing bodily harm, Custody: One (1) daycontrary to Section 245.1(1)(b), CCC Fine: $250.00

02 February 1988 One (1) Count Assault, Fine: $450.00Calgary, Alberta contrary to Section 245, CCC

17 April 1991 One (1) Count Dangerous operation Custody: Sixty (60) daysCharlottetown, PEI of motor vehicle, contrary to Section

249(1)(a), CCC

31 May 1991 One (1) Count Contempt of Court, Fine $200.00Charlottetown, PEI contrary to Section 708(1), CCC

03 January 1992 One (1) Count Dangerous operation of Custody: Sixty (60) daysCharlottetown, PEI motor vehicle, contrary to Section One year probation

249(2)(a), CCC

[118] The co-accused waived their preliminary inquiries, entered guilty pleas andthey were given the following sentences:

(1) Robert Ryan Mutch - entered a guilty on August27, 2004 and he was sentenced to 4 years in afederal penal institution.

(2) David Christopher Salman entered a guilty plea onSeptember 10, 2004 and he was sentenced to 4years in federal penal institution.

(3) Stacey Reid Blackmore entered a guilty plea onNovember 10, 2004 and he was sentenced to 6years in federal penal institution.

(4) David William MacDonald entered a guilty pleaon August 3, 2005 and he was sentenced to 4years in a federal penal institution.

[119] These sentences were imposed by judges sitting in both the Supreme Courtand the Provincial Court. All the sentences resulted from joint recommendationsmade by the Crown and the co-accused.

[120] Convictions were entered against the co-accused and the appellant for beingparty to a robbery with an offensive weapon, contrary to s. 343(d) of the CriminalCode. In 2006, when the appellant was sentenced, s. 344(a) of the Criminal Code

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provided that where the robbery was committed with a firearm, the minimumpunishment was four years in prison and the maximum punishment was life in prison. Section 344 has been subsequently amended; however, those amendments are notrelevant to this appeal.

[121] As noted above, three of the co-accused were sentenced to the minimumpunishment provided for at the time. Mr. Blackmore was sentenced to six years inprison. He had a more extensive criminal record than the other co-accused includingthe appellant.

[122] After hearing submissions from the appellant who appeared without counsel atthe sentencing hearing and after hearing counsel for the Crown, the trial judgeprovided reasons for the sentence he imposed.

[123] As I noted earlier, the appellant's right to appeal from sentence is grounded ins. 675(1)(b) of the Criminal Code. This section provides that with leave of the courtthe appellant has a right to appeal from the sentence imposed by the trial judge unlessthe sentence is one fixed by law or the sentence is a mandatory minimum sentence.

[124] The appellant's notice of appeal requests leave to appeal the sentence. I wouldgrant the appellant leave to appeal the sentence because the appeal from sentence isarguable, has merit and is not frivolous or vexatious.

[125] In accordance with the provisions of ss. 687(1) of the Criminal Code, thisCourt should consider the fitness of the sentence appealed from. The parameters ofthis review have been stated many times by this Court and by the Supreme Court ofCanada.

[126] This Court does not have the power to interfere with the sentence unless thesentencing judge made an error in principle. An error in principle occurs when thesentencing judge fails to take into account a relevant factor; takes into account anirrelevant factor; fails to give sufficient weight to relevant factors; overemphasizesrelevant factors and generally, when the sentencing judge commits an error of law.

[127] Also when the sentencing judge imposes a sentence which is outside thenormal range of sentence customarily imposed for a like offence, the appellate courthas jurisdiction to interfere. See: R. v. M. (C.A.), [1996] 1 S.C.R. 500.

[128] At the time of the appellant's sentencing in July 2006, s. 348.1 of the CriminalCode provided that the court, in imposing a sentence for a conviction under s. 343 ofthe Criminal Code in relation to an offence committed in a dwelling-house, shallconsider as an aggravating factor the fact that the house was occupied at the time of

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the commission of the offence. Furthermore, the court was also directed by thesection to consider as an aggravating factor that the person committing the offenceknew the house was occupied or was reckless in ascertaining whether it wasoccupied. Finally, the court was required to consider whether the person committingthe offence used violence or threats of violence in committing the robbery.

[129] The trial judge considered as an aggravating factor the fact that the robbery towhich the appellant was party occurred in a home. The trial judge noted that anadditional aggravating factor was that there were people in the home at the time ofthe offence and that the perpetrators knew those people were in the home, or theperpetrators were reckless in determining whether the residents were in fact at home.The trial judge also considered that violence or at least threats of violence were usedagainst the residents at the time of the commission of the offence.

[130] The trial judge did not refer to any mitigating circumstances. I agree there werenone.

[131] The trial judge considered the range of sentences imposed for armed robberyin this province, and he applied the range of sentence provided for in R. v. Cullen2000 PESCAD 16; [2000] P.E.I.J. No. 66, where the offender committed an armedrobbery in a public place. The sentence imposed on Mr. Cullen was eight years inprison.

[132] The range of the sentence imposed by the trial judge is not an issue in thisappeal. Suffice it to say that the range of sentences for the type of offenders similar tothe appellant committing or being accessory to an offence committed in thecircumstances like the one he committed is in the range of eight to 10 years. See: R.v. Matwiy, [1996] A.J. No. 134; (1996), 105 C.C.C. (3d) 251 (Alta C.A.).

[133] The issue in the appellant’s appeal from the sentence is the disparity with thesentences imposed on the co-accused, particularly, MacDonald.

[134] In resolving the disparity in the sentences the trial judge stated as follows:

The most recent and similar offences are this one. For the same armedrobbery for which Mr. Chappell is being sentenced, the other fourparticipants all pleaded guilty, and they received sentences, which I'mgoing to state with the adjustment that was made for time served, and howthat converts, as far as I can interpret, based on the guilty plea. There'scaselaw in this jurisdiction, and it is my practice - it varies, depending onthe circumstances of the case - a genuine guilty plea made sufficiently earlycan often attract anywhere from 25% to a third off of what a sentencewould be otherwise. And there has to be adjustments for the level ofinvolvement in the event, and based on the criminal record of the offender.

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- Mr. Mutch, the young, youngest and the first to plead guilty, wassentenced to four years less time served. He had no criminal record.

- Mr. Salman was sentenced the minimum of four years less double timeserved. - Mr. MacDonald was sentenced to four years less time served.

- Mr. Blackmore was sentenced to six years less time served.

After adjustment for the guilty plea, to try to make some use of thosesentences, they range, in the case of Mutch and Salman, to something in therange of 5 and 3/4 years to Mr. Blackmore to something in the range of alittle over 8 ½ years. I also reflected on the different level of involvement ofthose various participants.

[135] In part, the trial judge resolved the disparity in the sentences on the basis thatguilty pleas were entered by the co-accused and the appellant chose to plead guiltyand proceed to trial. The trial judge concluded, generally speaking, that he wouldreduce the normal range of sentence for a particular offence by one-quarter to one-third should the offender enter a guilty plea. While the entry of a guilty plea is amitigating factor in sentencing it is but one factor having regard to all the otherprinciples of sentencing. The weight to be given to the entry of a guilty plea is not tobe reduced to only a mathematical calculation; however, it is a significant mitigatingfactor in the imposition of a sentence.

[136] Furthermore, it should always be borne in mind that an accused person isentitled to a trial and is entitled to have the Crown prove the charges beyond areasonable doubt. The entry of a plea of not guilty should not become an aggravatingfactor in sentencing.

[137] The trial judge did not err in principle when he considered that the entry ofguilty pleas by the co-accused may have been a mitigating factor in the length of thesentences they received.

[138] Pursuant to s. 718.2(b) of the Criminal Code "… a sentence should be similarto sentences imposed on similar offenders for similar offences committed in similarcircumstances; …". This principle must be considered in the context of an overridingprinciple that sentencing is an individualized process.

[139] This principle, which cautions against disparate sentences, is again only oneof the principles to be followed by the court in imposing a sentence. Thefundamental principle of sentencing as provided for in s. 718.1 of the Criminal Codeis that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. Furthermore, s.718.2(a) of the Criminal Code provides

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that a sentence should be increased or reduced having regard to the aggravating andmitigating circumstances.

[140] Keeping all the principles of sentencing in perspective, when sentences metedout for participation in the same offence are compared, it is not necessary that they beequal because sentencing is an individualized process having regard to all theprinciples of sentencing. Nevertheless, the sentences must be "understandable" in thecontext that in comparing them, a person does not come away with a sense ofinjustice. See: R. v. Douglas, [1996] O.J. No. 2091, at paras. 7 & 8. (Ont. C.A.); R. v.F., [1982] A.J. No. 731, at paras. 14 -16 (Alta. C.A.); R. v. Sharpe, [2008] M.J. No.300; 2008 MBQB 227, at para.12; R. v. Knife, [1982] S.J. No. 443, at para.13 (Sask.Q.B.); R. v. O'Keefe 2007 NLCA 58; [2007] N.J. No. 323, at paras. 26 to 33. Thedifferent sentences must be "rationally explicable." See: Ruby: Sentencing 7th ed.

[141] Naturally a convicted person with the more onerous sentence will feel that justice has not been done. That is not the test. The test is whether, considering allthe principles of sentencing, the sentence imposed on the offender appealing thesentence is fit.

[142] In some respects, the appellant and Mr. MacDonald are like offenders. Theywere both the master minds of the crime carried out by Messrs. Mutch, Salman andBlackmore. Their roles in the commission of the offence are similar. MacDonald’scriminal record is more serious and more extensive than that of the appellant.

[143] In this appeal there is a disparity between the sentence of four years imposedon Mr. MacDonald and seven and one-half years imposed on the appellant. Thedisparity must be supported on the basis of all the principles and objectives of sentencing, and not only the fact that the co-accused entered guilty pleas.

[144] The sentences imposed on the co-accused, particularly MacDonald wouldappear, at first glance, to be inadequate and unfit. On closer examination, however, itshould be noted that the sentences meted out to the co-accused were imposed as theresult of joint recommendations from the Crown and the accused. Neither the trialjudge nor this court has any knowledge of the background and the factors whichentered into the agreement between the Crown and the accused to present jointrecommendations to the sentencing judges. Furthermore neither does this Courthave, nor did the trial judge have, knowledge of the factors which the varioussentencing judges took into consideration when deciding to adopt the jointrecommendations.

[145] A sentencing judge must give a joint recommendations respect andconsideration. As well, if the joint recommendation is rejected the sentencing judge

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must give reasons as to why it was not suitable for acceptance. See: R. v. Hatt 2002PESCAD 4; (2002), 163 CCC (3d) 552. While the sentences imposed on the co-accused appear to be outside the range for those types of offenders committing theoffence of robbery, they must be considered in the context of all the circumstancesincluding the fact that the sentences were imposed as the result of jointrecommendations.

[146] The trial judge was not bound to accept these sentences in the sense that hewas bound to impose a similar sentence on the appellant. He was obligated toconsider those sentences and attempt to achieve some parity; however, he was alsobound to consider the remaining principles and objectives of sentencing and imposea sentence on the appellant which was adequate and fit for his involvement andparticipation in the offence.

[147] In addition to his guilty plea, MacDonald and the other co-accused cooperatedwith the police. They testified against the appellant. This would justify a reduction,below the normal range, in the sentence imposed upon all the co-accused includingMacDonald. See: R. v. Hewlett (2002), 167 C.C.C. (3d) 425. Also see: R. v. O'Keefe2007 NLCA 58; [2007] N.J. No. 323.

[148] The aggravating factors applicable to the participation of the appellant in thecommission of the offence are serious. The plan to undertake the robbery was madeinitially at his home and then staged from a property to which he, among theco-accused, had sole access. The firearm used in the commission of the offencebelonged to the appellant. The appellant was instrumental in stealing the vehicleused by Messrs. Salman, Mutch and Blackmore in carrying out the robbery. These areaggravating factors which serve to increase the sentence imposed on the appellant.The appellant also committed crimes after the offence.

[149] Considering all the objectives and principles of sentencing, the sentenceimposed on the appellant is a fit sentence. I would not vary the sentence even thoughit is significantly more severe than the sentences imposed on the co-accused.

CONCLUSION

[150] In conclusion, I would dismiss the appellant’s appeal from the guilty verdictdelivered by the jury. The verdict was not made as the result of a wrong decision ona question of law, it is reasonable and can be supported by the evidence, and it wasnot made as the result of a miscarriage of justice.

[151] I would also dismiss the appellant’s appeal from the sentence.

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_____________________________________Justice John A. McQuaid

I AGREE: ______________________________________ Justice Michele M. Murphy

I AGREE: _______________________________________ Justice Gordon L. Campbell