COURT OF APPEAL FOR ONTARIO
Rosenberg, Sharpe and Juriansz JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
Bryan Andrew Peterman
Appellant
Delmar Doucette for the appellant
Christine Tier for the respondent
Heard: February 20, 2009
On appeal from the convictions entered by Justice Denis J. Power, sitting with a jury, in the Superior Court of Justice, June 28, 2004.
1The appellant appeals his convictions on one count of arson and two counts of arson with intent to defraud insurers. The theory of the Crown was that the appellant hired Dave Daye to set the fire and that Daye enlisted the assistance of James Morris and Kory Duff. Daye and Morris initially denied to the police any involvement in the fire, but immediately before the preliminary inquiry, they entered pleas of guilty and agreed to testify against the appellant. Both had criminal records. The appellant raises several grounds of appeal in relation to the manner in which the trial judge dealt with their evidence.
ISSUES AND ANALYSIS
1. Morris’s evidence concerning the conversation between Daye and the appellant.
2Morris is a developmentally challenged individual who had difficulty giving his evidence. He testified that a day or so before the fire, he overheard a conversation between the appellant and Daye during which the appellant agreed the pay Daye to set the fire. The appellant submits that Morris was ambiguous in his evidence as to whether he actually overheard that conversation or whether Morris was recounting hearsay evidence of what Daye later told him about that conversation. The appellant submits that if his evidence was based on what Daye told him, it should have been excluded as hearsay.
3The appellant submits that the trial judge erred by failing to make a threshold ruling as to the admissibility of this evidence. Alternatively, the appellant submits the trial judge should have given the jury a limiting instruction as to the use they could make of Morris’s evidence if they found he simply was repeating what Daye had told him.
4We do not agree that the trial judge was required to make a threshold ruling. In our view the proper procedure was to follow, by analogy, the direction given in R .v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653 at 668:
If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. While the contents of the statement may only be considered for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein.
5The trial judge did not follow that approach. However, we are not persuaded that the appellant suffered any prejudice thereby. No objection was taken at trial to the admission of Morris’s evidence, nor did the appellant’s counsel object to the failure of the trial judge to deal with the hearsay point in his charge. As we read the record there are two reasons which might have led defence counsel to take this approach. First, the clear preponderance of Morris’s evidence was to the effect that he had overheard the conversation and the issue now raised on appeal quite likely was simply not perceived to be a live issue at trial. Moreover, even if Morris could only testify that there was a conversation between the appellant and Daye at the house a day or so before the fire, that still amounted to powerful evidence against the appellant. Second, the appellant was relying on the hearsay evidence of another Crown witness, Kory Duff, who testified that Daye had told him that he was setting the fire because his family had lost the house and if they could not live there no one else could. Daye denied making that statement. An objection or an insistence on a direction in relation to Morris’s evidence would have invited the same treatment for Duff’s evidence.
6Given the nature of Morris’s evidence, the absence of any objection from defence counsel, and the fact that the ruling and direction now sought could have undermined the position taken by the defence at trial, we would not give effect to this ground of appeal.
2. Jury instructions in relation to credibility
(a) Prior convictions
7Daye, Morris and Duff all had criminal records that included crimes involving dishonesty. The trial judge gave the usual instruction with respect to the use that could be made of any witnesses criminal record in relation to credibility but he did not specifically state that crimes of dishonesty had a more direct bearing on credibility than certain other offences.
8While the distinction between the crimes of dishonesty and other crimes having less bearing upon credibility is often made in relation to the use to be made of witness’s criminal record, we do not agree that the trial judge was under an obligation to make that distinction in the circumstances of this case.
9First, this was not a case, like R. v. Brown, (1978) 38 CCC (3d) 339 (Ont. C.A.), where it was necessary to caution the jury about placing undue weight on a conviction for a crime that had little bearing on credibility.
10Second, no objection was raised to this aspect of the charge.
11Third, Duff, the Crown witness relied on by the defence for an alternate explanation for why Daye set the fire also had a record for crime of dishonesty and the direction now sought might well not have benefited the defence.
12Accordingly, we would not give effect to this ground of appeal
(b) Instruction regarding Morris’s and Daye’s guilty pleas
13The trial judge instructed the jury as follows with respect to the guilty pleas entered by Morris and Daye
Now, pleas of guilty here. As we heard there were pleas of guilty by Mr. Morris and by Mr. Daye on the very circumstances that are behind the charges against Mr. Peterman. Their pleas of guilty, Mr. Morris’ plea and Mr. Daye’s plea, have absolutely no bearing on whether Mr. Peterman is guilty. You must not think that because Mr. Morris and Mr. Daye pleaded guilty, Mr. Peterman therefore must be guilty too. Mr. Morris and Mr. Daye may have had any number of reasons for pleading guilty. And they may have any number of reasons for testifying in this court and implicating Mr. Peterman however, the pleas of guilty of Mr Morris and Mr. Daye are something that you may take into consideration as you decide how much or how little their testimony you will believe or rely on in deciding this case. Okay? So it relates to what you are going to believe or not believe with regard to their evidence. [Emphasis added]
14The appellant submits that the italicized portion of this direction could have misled the jury into thinking that these witnesses were to be given credit for their guilty pleas because they had “owned up” to their part of the crime.
15We disagree. In our view, when this portion of the charge is read in the context of the charge as a whole, the trial judge properly instructed the jury not to assume that because Morrison day had pleaded guilty that the appellant must also be guilty and that the only bearing the guilty plea had was that it amounted to another conviction which, in accordance with the earlier direction, might have a bearing on the credibility of Daye and Morris.
(c) Vetrovec warning
16It is conceded by the appellant that the trial judge gave a Vetrovec warning in relation to the evidence of Daye, Morris and Duff. That warning concluded his warning as follows: “You should view the testimony of Messrs. Morris, Daye and Duff with great caution before convicting the accused.”
17The appellant complains that the warning was inadequate because it failed to draw sufficient attention to why the jury should exercise caution in relation to the evidence of these witnesses, including
that Morris had given contradictory evidence at the preliminary inquiry;
that Daye was an admitted liar;
that Daye was an admitted participant in the crime who had only changed his story to implicate the appellant the day before the preliminary inquiry after pleading guilty and receiving a conditional sentence on a joint submission.
18While the trial judge could have given a more pointed Vetrovec warning, particularly in relation to Daye as an accomplice and as a witness who had self-interest in testifying against the appellant, we do not accept the submission that the warning he gave was inadequate in the circumstances of this case.
19It has been repeatedly held that the crafting of an appropriate caution to the particular circumstances of each case is best left to the trial judge and that no particular formulation mandatory. An appellate court must focus on the content of the instruction, not its form, and appellate intervention is unwarranted absent a failure to give a cautionary instruction where one is required or, where an instruction fails to serve its intended purpose: see R. v. Khela 2009 SCC 4, 2009 SCJ No. 4, at paras. 13, 44- 45
20The trial judge reviewed the contradictions in Morris and Daye’s evidence in some detail. He also reviewed the evidence concerning the alleged deal made by Daye in order to avoid a long sentence. As the trial judge pointed out, there was no direct evidence of any such deal and Daye denied that a deal had been made. On the other hand, the trial judge did set out the facts from which the appellant invited the jury to find that Daye had made a deal to give evidence against the appellant to avoid a long sentence. In our view, it could not have been lost on the jury that the defence position was that Daye made a deal to get a lenient sentence and that his evidence was not to be trusted on that account. We are fortified in coming to this conclusion by that fact that the appellant’s trial counsel, who vigorously argued the point in his closing address to the jury, made no objection to this aspect of the charge.
21Accordingly, we would not give effect to this ground of appeal.
3. Other grounds
22While other grounds of appeal were asserted in the appellant’s factum, they were not pressed in oral argument and we are not persuaded that they have merit.
CONCLUSION
23For these reasons, the appeal is dismissed.
“M. Rosenberg J.A.”
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.”
RELEASED: February 25, 2009