COURT OF APPEAL FOR ONTARIO

DATE: 20040621

DOCKET: C40008

RE: HER MAJESTY THE QUEEN (Respondent) – and – RON WERDA (Appellant)

BEFORE: CATZMAN, WEILER and MACPHERSON JJ.A.

COUNSEL: Daniel F. Moore, for the appellant Roger A. Pinnock, for the respondent

HEARD: June 18, 2004

On appeal from the conviction entered on January 30, 2003 by Justice J. Robert MacKinnon of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

Released Orally: June 18, 2004

[1] The appellant is a paralegal and private investigator. He was charged with the offence of attempting to obstruct justice contrary to s. 139(2) of the Criminal Code. The charge arose out of his dealings with a complainant in a domestic assault case in which he had been retained by the accused. The accused had been released on an undertaking which prohibited him from contacting the complainant either directly or indirectly. In spite of this order, the appellant, after he was retained by the accused, tracked down the complainant and went to her residence to take a statement. The appellant was aware of the non‑communication order that bound his client.

[2] The appellant was tried before Justice J. Robert MacKinnon, sitting with a jury. He was found guilty and received a one year conditional sentence. The appellant appeals his conviction on three grounds. We note that defence counsel at trial made no objection with respect to any of these grounds.

[3] First, the appellant contends that the trial judge failed to give a Vetrovec warning with respect to the testimony of the complainant.

[4] We disagree. The complainant had a single criminal conviction for impaired driving, which hardly relates to her credibility. Moreover, defence counsel at trial did not seek a Vetrovec warning. In R. v. Glasgow (1996), 110 C.C.C. (3d) 59 at 60 (Ont. C.A.) Doherty J.A. said:

It is well established that a trial judge has a discretion as to whether to give a “Vetrovec” warning. An appellate court must show deference when reviewing the exercise of that discretion. If a trial judge was not asked to give the warning, it is difficult to understand how the trial judge can be said to have erred in the exercise of his or her discretion.

For these reasons, we see no merit in the first ground of appeal.

[5] The appellant contends that the trial judge failed to properly instruct the jury with respect to the theory of the defence as it related to the complainant’s motive to fabricate, and failed to outline the evidence supporting the theory.

[6] We disagree. In the context of a relatively short and uncomplicated trial, the trial judge’s summary of the defence evidence and theory was both full and accurate. In particular, the trial judge instructed the jury that if the complainant’s statement to the appellant was false that act would constitute an attempt to obstruct justice by her. He also instructed that the appellant denied threatening the complainant in any way or telling her not to go to court, and put the defence position that the appellant’s evidence should, at the very least, raise a reasonable doubt as to the essential elements of the offence.

[7] The appellant’s third submission is that the trial judge’s charge to the jury with respect to the actus reus of the offence was vague, imprecise and incorrect.

[8] We disagree. In our view, the trial judge’s identification of the aspects of the appellant’s conduct that could serve as the actus reus of the offence was entirely accurate.

[9] The appeal is dismissed.

“M. A. Catzman J.A.”

“K. M. Weiler J.A.”

“J. C. MacPherson J.A.”