DATE: 20050425

DOCKET: C40103

COURT OF APPEAL FOR ONTARIO

DOHERTY, MOLDAVER and GILLESE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

John McInnes for the respondent

(Respondent)

• and -

RYAN RICARDO RICHARDS

Timothy E. Breen for the appellant

(Appellant)

Heard: April 21, 2005

On appeal from the conviction entered on February 25, 2003 by Regional Senior Justice Robert A. Blair of Superior Court of Justice, sitting with a jury.

BY THE COURT:

[1] Following a brief trial presided over by Blair R.S.J. (as he then was), a jury convicted the appellant of second-degree murder. He appeals against conviction on two grounds. First, he submits that the judge failed to adequately caution the jury as to the danger of acting on the evidence of Richard King, an admittedly unsavoury witness. Second, he argues that the finding of guilt was unreasonable.

OVERVIEW

[2] Mark Taverner was murdered in a back alley in South Etobicoke. A witness named Richard King saw the events immediately before and after the murder. He was acquainted with both the deceased and the appellant. He observed the events at close range and in good light. He testified that he saw the appellant move his arms up from behind his back to point at Taverner, as though the appellant were pointing a gun. He saw Taverner raise his arms to shoulder height, palms forward. At that point, he hid behind a wall in fear. Approximately 30 seconds later he heard two gunshots. He looked around the corner and saw the appellant pointing a gun at the deceased while the deceased clutched his chest. The appellant then fled.

[3] Mr. King identified the appellant as the shooter three days after the shooting when shown a photo line-up by the police and again at trial.

[4] Mr. King was a neighbourhood drug addict and petty criminal.

[5] At trial, the defence attacked Mr. King’s credibility without challenging the reliability of his identification of the appellant as the shooter. The defence did not suggest any motive that Mr. King might have had for falsely implicating the appellant. There was other evidence called by the Crown that was capable of confirming Mr. King’s evidence including that of Ms. Varcoe who saw a person matching the appellant’s description fleeing the area after the gunshots. Ms. Varcoe testified that she saw a young, short black male fitting the general description given by Mr. King running from the scene of the shooting in the same direction as Mr. King testified that he saw the appellant run in after the second shot.

[6] The appellant did not testify.

THE VETROVEC INSTRUCTION

[7] Counsel for the appellant submits that the trial judge failed to adequately caution the jury as to the danger of acting on Mr. King’s evidence. The essence of his argument is that within that portion of the charge that is entitled “Vetrovec Warning”, the trial judge failed to list the characteristics of Mr. King that brought his credibility into serious question.

[8] An appeal court is not to review a Vetrovec warning in isolation. The warning must be assessed in the context of the entire charge and the evidence of the particular case. We see nothing in R. v. Sauve and Trudell (2004), 182 C.C.C. (3d) 321 (Ont. C.A.) to the contrary. Indeed, at para. 86 of Sauve, the court affirms that “no particular formula is required” and the format of the caution lies in the discretion of the trial judge.

[9] Here, the trial judge reviewed Mr. King’s criminal record for the jury and stated that Mr. King had an addiction to Percocet and cocaine. He also mentioned Mr. King’s penchant for prostitutes. He then cautioned the jury of convicting, without more, on the basis of Mr. King’s evidence because Mr. King was of unsavoury character. He warned the jury that Mr. King’s evidence had to be considered with great care and that it would be dangerous to rely on Mr. King’s evidence unless the jury found support for it in the rest of the evidence.

[10] When reviewing the defence position, the trial judge summarized its position with respect to Mr. King’s unreliability and listed the items that the defence relied upon including Mr. King’s addiction to drugs, Percocet, cocaine and alcohol. The trial judge also listed some of the inconsistencies in the evidence that the defence had highlighted in its closing and recited a number of the various factors that the defence maintained ought to lead the jury to infer that Mr. King had been consuming drugs for a period time before the shooting. In the context of instruction on identification evidence, the trial judge also reviewed some of the inconsistencies surrounding Mr. King’s evidence.

[11] We are satisfied that the instructions adequately conveyed to the jury the dangers in acting upon Mr. King’s evidence. In our view, the jury must have known that it had to assess Mr. King’s testimony with care. The defence case hinged on Mr. King’s credibility. The defence closing highlighted the reasons why the jury should not accept Mr. King’s evidence. The trial judge cautioned them in respect of relying on Mr. King’s testimony. The jury even knew that Mr. King was in custody at the time that he testified. The jury could not have failed to have grasped that Mr. King had an unsavoury background and a criminal record and, for those reasons, they should proceed with care in acting on his evidence. Our view in this regard is reinforced by the absence of any objection on the part of experienced defence counsel to the instruction.

[12] We see nothing in the submission that the trial judge erred in failing to refer to possibly confirmatory evidence. Counsel for the appellant maintains that the trial judge should have told the jury that there was next to no potentially confirmatory evidence. We disagree. In our view, there was evidence capable of strengthening the belief that Mr. King’s evidence was true. One example of that is the evidence of Ms. Varcoe, as described above. As well, there was significant physical evidence capable of confirming Mr. King’s evidence. In this regard, we note that confirmatory evidence need not directly implicate the accused; it need only be capable of strengthening the trier’s faith in relevant aspects of the witness’s account. See R. v. Kehler (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.). As, in our view, there was possibly confirmatory evidence, a failure to refer to it could not have prejudiced the appellant.

THE REASONABLENESS OF THE VERDICT

[13] In our view, it cannot be said that a properly instructed jury, acting judicially, could not have convicted the appellant. The primary Crown witness, Richard King, had a good opportunity to see the events at close range and in good light. The appellant was known to the witness before the shooting. The witness identified the appellant in a proper photo line-up. No motive to fabricate was established or even suggested by the defence. The reliability of Mr. King’s observations and identification of the appellant was not challenged. Other evidence confirmed parts of Mr. King’s evidence.

[14] The jury was properly instructed. It was entitled to accept Mr. King’s testimony. It was not required to reject Mr. King’s evidence because of his background. The jury was in the best position to evaluate Mr. King’s credibility. It is precisely for that reason that this verdict, being based largely on Mr. King’s credibility, is to be accorded a very high degree of curial deference. See R. v. W(R) (1992), 74 C.C.C. (3d) 134 (S.C.C.).

[15] We see no merit in the appellant’s submission that the questions posed by the jury are to be taken as indicative that the jury had embarked on an erroneous chain of reasoning. The questions appear to be more about gaps in the narrative than the result of faulty reasoning. Both trial counsel agreed that there was no evidence that could assist the jury with their questions and that the jury should be instructed accordingly. That is what the trial judge did and concluded by reiterating that the jury was to decide the case on the basis of the evidence presented. Unlike R. v. Poirier (2000), 146 C.C.C. (3d) 437 (Ont. C.A.), this was not a situation where the question posed by the jury considered in the context of the proceedings suggested that the jury were operating under an erroneous legal premise which the trial judge needed to correct in the response to the jury’s question. Juries are presumed to follow the instructions that they have been given. It would be speculative and unwarranted to find, on the basis of the questions, that the jury engaged in impermissible reasoning.

DISPOSITION

[16] Accordingly, we would dismiss the appeal.

RELEASED: April 25, 2005 (“DD”)

“Doherty J.A.”

“M. J. Moldaver J.A.”

“E. E. Gillese J.A.”