DATE: 20050422

DOCKET: C38076

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. G.C. (Appellant)

BEFORE:

DOHERTY, MOLDAVER and GILLESE JJ.A.

COUNSEL:

Susan Mulligan

for the appellant

Riun Shandler

for the respondent

HEARD: April 18, 2005

RELEASED ORALLY: April 18, 2005

On appeal from the conviction entered by Justice Frank R. Caputo of the Superior Court of Justice, sitting with a jury, dated April 8, 2000.

E N D O R S E M E N T

[1] The appellant was convicted of two counts of first degree murder. He appeals both convictions.

[2] Counsel for the appellant raises two grounds of appeal. Both arise out of the charge to the jury. The first ground relates to the so called “Vetrovec” caution given with respect to M.L. The second ground of appeal arises out the instructions concerning the appellant’s potential liability for manslaughter.

Count 1

[3] It was the position of the Crown that the appellant, his nephew M.L., and M.L.’s brother R.G. had agreed to kill a man named Louis Gauthier. The Crown maintained that the appellant was angry with Gauthier because Gauthier had been engaged in a homosexual relationship with his nephew M.L.

[4] On the Crown’s theory, M.L. and R.G. actually committed the murder. The appellant was involved in the planning of the murder with the two actual perpetrators. He drove them to the scene, urged them to “finish the job” during the attack, provided a false alibi and directed the destruction of evidence.

[5] The appellant testified. He admitted that he was at the scene with the two perpetrators and he also admitted that he was involved in providing a false alibi and destroying evidence. He admitted that his conduct made him an accessory after-the-fact. He denied, however, that he was a party to any plan to kill or hurt Mr. Gauthier or that he was in any way involved in the homicide.

Count 2

[6] R.G. was killed about six months after the death of Mr. Gauthier. It was the position of the Crown that the appellant and M.L. became concerned that R.G. was telling people about the murder of Gauthier and, specifically, the involvement of the appellant and M.L. By this point in time, the police suspected that the appellant was involved in Mr. Gauthier’s murder. On the Crown’s theory, the appellant and M.L. decided that the best way to silence R.G. was to kill him.

[7] The appellant testified that M.L. murdered R.G. and that he, the appellant, had no involvement in the killing. He did acknowledge that M.L. told him about the killing and that he provided his car to M.L. so that M.L. could hide the body. Once again, the appellant acknowledged that he was an accessory after-the-fact to the murder, but denied any involvement in the actual homicide or any plan leading up to the homicide.

[8] The case against the appellant was a formidable one and included:

• M.L.’s detailed evidence as to circumstances surrounding the homicides;

• various admissions made by the appellant to friends and relatives;

• certain telephone communications between the appellant and M.L., after R.G. disappeared, intercepted by the police; and

• the appellant’s own admissions in the course of his evidence of his involvement in activity after the homicides which, if his explanations for that activity were rejected, were capable of supporting the Crown’s case.

The Vetrovec Caution

[9] An appeal court is not to review a Vetrovec warning in isolation. Rather, that warning must be assessed in the context of the entire charge and the evidence of the particular case. Here, the trial judge cautioned the jury of the danger of convicting the appellant on the evidence of M.L., whom he correctly referred to as a self-confessed murderer. The trial judge warned the jury that it would be dangerous to rely on M.L.’s testimony unless they found support for it in the rest of the evidence.

[10] The trial judge gave these reasons in cautioning the jury to apply special scrutiny to M.L.’s evidence:

• M.L. was a principal offender and an unsavoury character;

• M.L. was an admitted murderer;

• M.L. had, in providing information to the police, been bargaining for a benefit for himself; and

• M.L. may have acted in his own self-interest which would be served by implicating the appellant.

[11] The trial judge also thoroughly reviewed the defence position with respect to the unreliability of the evidence given by M.L. That position included five reasons why the defence said that the evidence of M.L. should not be acted upon absent confirmatory evidence from independent sources, including the fact that M.L. had lied under oath. The trial judge concluded this part of his instruction by referring the jury back to his earlier cautions concerning the acceptance of the evidence of M.L.

[12] We are satisfied that these instructions adequately conveyed to the jury the dangers in acting on the evidence of M.L. alone and the caution which they should exercise before doing so.

[13] Counsel for the appellant also argued that the evidence that the trial judge suggested was potentially confirmatory of M.L.’s evidence was not in fact capable of being confirmative evidence.

[14] We disagree. The evidence that the trial judge referred to was, in our view, capable of supporting M.L.’s evidence. It is important in determining whether evidence is capable of being confirmatory, to bear in mind that the trial judge need only determine that the evidence was capable of strengthening the jury’s belief that the evidence of M.L. was in fact true on a relevant matter: R. v. Kehler (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.); R. v. Krugel (2000), 143 C.C.C. (3d) 367 (Ont. C.A.). The evidence did not have to be corroborative of material facts going to the appellant’s guilt as counsel for the appellant suggested in her submissions.

[15] If the appellant’s argument was that a more fulsome discussion of the items of evidence that were potentially confirmatory was required, we must once again disagree with that submission. A more detailed discussion of the evidence in the context of the Vetrovec caution was unnecessary. In any event, we do not think that a more detailed discussion of this evidence could have inured to the appellant’s benefit. There was in fact significant potential confirmatory evidence. We would not give effect to this ground of appeal.

The Instruction on Manslaughter

[16] With respect to the charge on manslaughter, no issue is taken with the trial judge’s statement of the applicable legal principles. Rather, counsel for the appellant submits that the trial judge did not adequately relate those principles to the facts relied on by the defence to support a conviction on manslaughter.

[17] We must reject this submission. The trial judge clearly told the jury in relation to the charge involving the killing of Gauthier that in deciding whether the appellant was guilty only of manslaughter, they were not to conclude “that if M.L. committed murder or manslaughter that Mr. G.C. must also be guilty”. Rather, the trial judge told the jury “the evidence and the issues relating to Mr. G.C. must be separately considered”.

[18] The trial judge went on to explain to the jury in some detail how the appellant could be convicted of manslaughter in relation to the charge involving Mr. Gauthier. In doing so, the trial judge tracked the positions that the defence had advanced in support of the manslaughter verdict in the defence of closing argument. Significantly, at p. 2311, the trial judge said:

… The alternative position is that, if you do not find Mr. G.C. not guilty, the most you can convict him of is manslaughter which is the only remaining verdict because you should not convict Mr. G.C. of first degree murder because the Crown has failed to prove that the plan with respect to Mr. Gauthier was to kill him as opposed to breaking his knees or beating him up. …

[19] In this passage, the trial judge summarized the appellant’s position in a way that brought home to the jury that they could not convict the appellant of murder, first or second degree, if they believed or had a reasonable doubt that he only engaged in a plan to cause bodily harm to Mr. Gauthier. Later in his instruction, the trial judge properly qualified this instruction by telling the jury that manslaughter would be the proper verdict so long as a plan to cause bodily harm did not evolve into a plan to kill during the attack on Mr. Gauthier. There was evidence capable of supporting this view of the events.

[20] With respect to the count involving R.G., the trial judge did leave the verdict of manslaughter to the jury and did set out the legal principles applicable to that verdict to the jury. His instruction as it related to manslaughter as a possible verdict on this count was adequate. We note that in her able argument, counsel for the appellant directed the bulk of her submissions on this ground of appeal to the count involving the killing of Mr. Gauthier. She candidly accepted that in respect of the count involving R.G., manslaughter was at best a weak, if viable, alternative verdict. We agree with that assessment. In our view, the instruction on manslaughter reveals no reversible error.

[21] Accordingly, we would dismiss the appeal.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“E.E. Gillese J.A.”