Court of Appeal for Ontario

Date: 2018-10-12 Docket: C61437

Judges: Sharpe, Lauwers and van Rensburg JJ.A.

Between

Her Majesty the Queen Appellant

and

Mauro Granados-Arana Respondent

Counsel

R. Posner and E. Taché-Green, for the appellant

Deborah Krick, for the respondent

Heard: October 1, 2018

On appeal from: The conviction entered on April 23, 2015 and the sentence imposed on July 23, 2015 by Justice M.D. Forestell of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Background

[1] The appellant appeals his conviction for second degree murder. The deceased was shot and killed leaving a New Year's Eve party. Prior to the shooting, the deceased was involved in an argument with two women at the party about a missing cell phone. When he threatened to slap one of the women and to retrieve a gun and return, the appellant and his friend, Baptists Bernier, confronted him outside the party. Four shots were fired as the deceased ran away. One of the bullets struck the deceased in his right upper back and caused his death. The central issue at trial was whether Bernier or the appellant fired the fatal shot. While one witness thought both men fired guns, forensic evidence suggested that only one gun was used.

[2] Bernier was initially charged with the murder. The appellant was charged during Bernier's preliminary inquiry, at which Bernier was committed for trial. Bernier subsequently testified as a Crown witness at the appellant's preliminary inquiry and then pled guilty to being an accessory after the fact to murder. He identified the appellant as the shooter and stated that he observed the appellant hide the murder weapon.

[3] The evidence of two eyewitnesses placed both men at the scene but was contested as to the identity of the shooter. It is common ground that Bernier's evidence was the critical element in the Crown's case.

Issues

[4] The appellant raises three grounds of appeal:

1. Did the trial judge err by failing to instruct the jury that Bernier's guilty plea could not be used as evidence against the appellant?

2. Did the trial judge err by failing to give an adequate Vetrovec instruction with respect to Bernier's evidence?

3. Did the trial judge err by failing to adequately relate the evidence to the issue of intent for the included offence of manslaughter?

Analysis

(1) Did the trial judge err by failing to instruct the jury that Bernier's guilty plea could not be used as evidence against the appellant?

[5] The trial judge did not instruct the jury that Bernier's guilty plea to accessory after the fact to murder was only relevant to Bernier's credibility but could not be used to determine the guilt of the appellant. The appellant argues that this failure prejudiced the appellant as the trial Crown submitted to the jury that Bernier's plea was based on the same evidence as the jury had heard at the appellant's trial. The appellant contends that the jury would be loath to second-guess the wisdom of the verdict in Bernier's case and that, without a limiting instruction, there is a risk that the jury would use that verdict as evidence against the appellant. The appellant relies on R. v. MacGregor (1981), 64 C.C.C. (2d) 353 (Ont. C.A.), leave to appeal refused, [1982] S.C.C.A. No. 246, among other cases, in support of this argument.

[6] We do not accept this submission.

[7] While a caution to the jury is ordinarily required to ensure that the jury does not rely on the guilty plea of an accomplice or former co-accused, the lack of an instruction is not fatal in the absence of prejudice to the accused: MacGregor, at p. 358, followed in R. v. Simpson, [1988] 1 S.C.R. 3, at p. 19.

[8] The relevance of Bernier's guilty plea and any danger it posed in the specific circumstances of this case were inextricably bound up with the fact that he was a person with a motive to lie and to point to the appellant as the shooter. That issue was fully vetted by counsel and by the trial judge, a factor that this court found significant in reducing the risk of prejudice in R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, at paras. 40-41. For the following reasons, we conclude that the complaint the appellant now makes did not result in any prejudice to him.

[9] The appellant contended at trial that the guilty plea was a quid pro quo deal with the Crown. However, Bernier denied this and there was no evidence to support it. Bernier did admit that he did hope to obtain some benefit from his guilty plea. The appellant's trial counsel argued this gave him a motive to lie in order to escape the murder charge. The trial judge gave a Vetrovec caution, warning the jury in strong terms about the danger in relying on Bernier's evidence given that possible motive. She told the jury: "I am sure it will come as no surprise to you that the law requires me to caution you in the strongest terms about the dangers of relying on the evidence of a person of [Bernier's] background and circumstances". She cautioned the jury: "Mr. Bernier may have an interest in testifying in a manner that minimizes his involvement in the offence. He may have an interest in implicating [the appellant]". She added: "Experience has taught us that the testimony of witnesses like Mr. Bernier…who have an interest in gaining an advantage for themselves by implicating others must be approached with the utmost caution".

[10] The trial judge also instructed the jury not to speculate about the nature of prior proceedings and gave a thorough alternate suspect instruction. The appellant's trial counsel did not request a correction to the trial Crown's submission that Bernier's plea was based on the same evidence as the jury had heard at the appellant's trial. Nor did the trial judge repeat the trial Crown's submission on this point in her jury instructions. The trial judge also instructed the jury that it should ignore Bernier's out-of-court statements because they did not bolster his reliability or credibility. In MacGregor, this court found that a similar instruction diminished the risk of prejudice from the trial judge's failure to instruct on the guilty pleas of the co-accused persons: at p. 358.

[11] In our view, the trial judge's treatment of the relevance of Bernier's guilty plea was tailored to the circumstances of the case and did not prejudice the appellant. The trial judge and both parties made very clear to the jury that the issue was whether the appellant or Bernier fired the fatal shot.

[12] The appellant argues that the significance of the guilty plea was two-fold. It exculpated Bernier. And that exculpation had added weight because another judge had accepted the plea.

[13] The live issue in this case was whether the appellant or Bernier was the shooter. It was plain from the evidence, the jury addresses of counsel, and the trial judge's charge, that it was open to the jury to decide that Bernier was the shooter and not the appellant. There was no risk that the jury could think that somehow Bernier's guilty plea was an impediment to finding that he was the shooter.

[14] We are fortified in this conclusion by the absence of any objection or request from the appellant's trial counsel for the instruction now sought on appeal. In addition, we note that an explicit guilty plea instruction was neither requested nor given at the appellant's first trial which resulted in a hung jury. While not fatal, the lack of objection supports our conclusion that the failure to give this instruction did not result in any prejudice to the appellant: see R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.

(2) Did the trial judge err by failing to give an adequate Vetrovec instruction with respect to Bernier's evidence?

[15] As we have already noted, the trial judge gave the jury a strong Vetrovec caution. She referred to Bernier's serious criminal record and his motive to lie as a person charged with the murder. The appellant complains that the trial judge failed to warn the jury that Bernier's close involvement in the case and his access to the fruits of the police investigation through disclosure in his own case provided him with details about the crime that would allow him to tailor his evidence to falsely implicate the appellant.

[16] We disagree.

[17] In our view, the risk of Bernier tailoring or manipulating his evidence on account of disclosure or other related knowledge of the details of the case is purely speculative. He may have had the opportunity to tailor his evidence based on the disclosure. However, he denied that he had ever read the disclosure when the appellant's trial counsel explored this issue with him during his cross-examination. The appellant came to a dead-end on this issue at trial and there is no factual basis to raise it again on appeal.

[18] The appellant also argues that the trial judge erred by instructing the jury that the evidence of the two eyewitnesses was capable of supporting Bernier's evidence. The appellant submits that the trial judge should have pointed out certain discrepancies between their evidence and Bernier's, including parts of their evidence that implicated Bernier as the shooter.

[19] We are satisfied that when the charge is read as a whole, the trial judge did explain the strengths and weaknesses of the evidence of the two eyewitnesses. She did not have to repeat that analysis when referring to confirmatory evidence in the course of her Vetrovec warning concerning Bernier.

[20] We note as well that the appellant's trial counsel conceded that the evidence of the two eyewitnesses was capable of supporting Bernier's evidence. He did not object to the Vetrovec instruction.

[21] Finally, this court has held that deference is owed to trial judges in how best to frame a Vetrovec caution. Where the trial judge gives a Vetrovec caution, appellate intervention will be warranted only where the warning given "clearly failed to convey to the jury the appropriate degree of caution required" to meet the particular circumstances of the case: R. v. Zebedee (2006), 81 O.R. (3d) 583 (C.A.), at paras 83-4, motion to extend the time to apply for leave dismissed, [2006] S.C.C.A. No. 461. In our view, that test has not been met in this case. Unlike in R. v. Kanagalingam, 2014 ONCA 727, 315 C.C.C. (3d) 199, where this court found that a Vetrovec warning was inadequate because it failed to explain the witnesses' motivation to lie, here the trial judge fully canvassed Bernier's motivation to lie.

(3) Did the trial judge err by failing to adequately relate the evidence to the issue of intent for the included offence of manslaughter?

[22] The trial judge ruled she would leave the jury with manslaughter as a possible verdict, even though the number of shots fired and the fact that the deceased was struck in the back made it "quite unlikely" that the jury would not find the requisite intent for murder if they concluded that the appellant was the shooter. The appellant, relying on R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), at pp. 386-387, complains that the trial judge erred by failing to provide the jury with the details of the evidence that could lead to a manslaughter verdict.

[23] The trial judge provided the following instruction:

You have [the firearms expert's] evidence that a gun would not have accidently discharged and that a considerable amount of pressure on the trigger was necessary to fire the gun each time. On the other hand, it is open to you to have a reasonable doubt based on a combination of factors, including the ingestion of drugs, the words of [the deceased], that "He was going to get his 'ting'", or a gun, the spontaneous nature of the confrontation and the fact that the fatal shot was fired from a considerable distance in a manner that, according to [the firearms expert], may have made accuracy difficult.

If those factors either individually or in combination leave you with a reasonable doubt as to whether he had either of the states of mind for murder then [the appellant] is entitled to the benefit of that doubt and you will return a verdict of manslaughter.

[24] The appellant complains that this instruction was inadequate and that a more thorough review of the evidence capable of supporting a verdict of manslaughter was required. The appellant placed particular emphasis on evidence of two gouge marks in the pavement that could have indicated that two shots were fired into the ground rather than at the deceased.

[25] We agree with the trial judge and the Crown that there was little possibility on this record that if the jury concluded the appellant was the shooter, he lacked the intent for murder. Four shots were fired in the direction of the deceased. The first ricocheted off the sidewalk and hit the deceased in the knee and the other three shots were fired in his direction as he ran away. We note that the appellant's trial counsel did submit to the jury that manslaughter was a viable alternative verdict and referred to the evidence that could support that verdict. It is significant that he did not include the evidence of the gouge marks that the appellant relies upon on appeal.

[26] While the trial judge's review of the evidence supporting manslaughter was brief and less than complete, we are satisfied that, when read together with the closing submissions, her summary captured the essential facts that could have led to a manslaughter verdict. When the Crown objected to the draft instruction on manslaughter the appellant's trial counsel asked the trial judge to leave it in "or perhaps even reinforce it a bit". He did not object when the trial judge declined to reinforce it, and hence, took a position more or less accepting the instruction that was given.

Disposition

[27] For these reasons, the appeal is dismissed.

Robert J. Sharpe J.A.

P. Lauwers J.A.

K. van Rensburg J.A.