DATE: 20050517
DOCKET: C37178
COURT OF APPEAL FOR ONTARIO
ROSENBERG, BLAIR and JURIANSZ JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Richard Litkowski
Respondent
for the appellant
- and -
John McInnes
RODERICK BROWN
for the respondent
Appellant
Heard: May 12, 2005
On appeal from conviction by Justice Christopher M. Speyer of the Superior Court of Justice, sitting with a jury, dated April 28, 1997 and sentence imposed on April 28, 1997.
BY THE COURT:
[1] The appellant appeals from his conviction for first degree murder following a trial before Speyer J. and a jury. The appellant’s sole ground of appeal concerns the adequacy of the trial judge’s Vetrovec warning (R. v. Vetrovec (1982), 1991 78 (SCC), 67 C.C.C. (3d) 1 (S.C.C.)) in relation to the Crown’s principal witness, Harry Tsoukalas. For the following reasons, we are satisfied that the direction was adequate in the circumstances and accordingly the appeal is dismissed.
[2] On September 26, 1995, Georgina Liu, a former girlfriend of the appellant, was shot dead in a bush area off Highway 401 in Mississauga. A day or two after the killing, Harry Tsoukalas approached the authorities through his lawyer. The lawyer negotiated an arrangement to the effect that if Tsoukalas cooperated with the police and was truthful, he would not be charged with any offence arising out of his involvement in the killing. Tsoukalas provided an affidavit to the authorities and a few days later the police located the deceased’s body. A detailed recitation of the facts is unnecessary to deal with the appeal. Suffice to say that according to Tsoukalas, he and the appellant picked up the deceased and went for a drive. At some point, they stopped at the side of the highway and the appellant and the deceased left the car, perhaps to do some target shooting. Tsoukalas heard several shots and then the appellant returned to the car and said that he had killed the deceased. Tsoukalas did not believe the appellant until the appellant led him to the body. The deceased had been shot in the side and twice in the back of the head. The appellant later told Tsoukalas that he killed the deceased because she refused to return some love letters he had sent her and because she threatened to implicate the appellant in a murder in “Chinatown”. The Crown conceded at trial that the appellant had no involvement in any such murder.
[3] The appellant testified and he confirmed most of Tsoukalas’ evidence about picking up the deceased, stopping at the highway and going into the bush with the deceased. He even admitted that he shot the deceased in the side, albeit accidentally. He claimed, however, that he then returned to the car and that it was Tsoukalas who went and shot the deceased in the head, killing her.
[4] Tsoukalas was only nineteen years of age at the time of the killing. He had known the appellant for many years. He was involved in selling marijuana and counterfeit money and had convictions for threatening and for trafficking in marijuana. He was not charged with any offence arising out of the killing.
[5] After referring to the use that could be made of Tsoukalas’ criminal record, the trial judge gave the following caution to the jury:
I now wish to give you what in law is referred to as a Vetrovec warning. I have reviewed with you the criminal record of Harry Tsoukalas. In addition to the evidence of the offences with which Mr. Tsoukalas has been convicted, you have also heard of his desire to rob drug dealers on the night that the deceased was killed. You have heard evidence of his use of a gun in threatening Andrew Espino.
You will also bear in mind that this individual has not been charged with any offence pertaining to Ms. Liu’s death, which may motivate him to lie about his and the accused’s participation in the killing of the deceased. Tsoukalas can accurately be described as a man of unsavoury or disreputable character.
I therefore direct you, as a matter of law, that you must carefully weigh and scrutinize Tsoukalas’ evidence and proceed with caution before acting upon his testimony. I am not saying that you cannot act upon Tsoukalas’ testimony, but before you do you must exercise caution. You will look to see if there is other evidence which you consider to be believable and reliable which serves to confirm his evidence in a material particular thereby rendering it more probable that his evidence is truthful and can safely be relied upon. The absence of such credible confirmatory evidence might leave you in a state where you consider it unsafe to found a conviction based on Tsoukalas’ testimony.
[6] Later in the charge, in the course of his review of the evidence, the trial judge added this further caution concerning Tsoukalas:
The other matter which I ought to have addressed earlier relates to Mr. Tsoukalas. You are aware from the testimony that he has received a grant of conditional immunity from prosecution by the police and the Crown attorney’s office. That grant of immunity from prosecution is conditional upon his version of the facts being true and accurate. This will be a matter that I will deal with later on when I deal with the positions of the parties. This is an important matter from the defence perspective because this deal, as it was called by Mr. Nuttall [defence counsel], is one of the main reasons he contends that Tsoukalas’ evidence cannot be viewed as trustworthy and believable.
[7] Trial counsel for the appellant (not Mr. Litkowski) did not object to the Vetrovec charge. On behalf of the appellant, Mr. Litkowski submits that the warning was deficient in three respects. The trial judge did not instruct the jury to use extreme caution when considering the evidence of Tsoukalas, the trial judge did not tell the jury that it was dangerous to act on the unconfirmed evidence of Tsoukalas and the trial judge failed to link the immunity agreement with the danger of acting on Tsoukalas’ evidence.
[8] We are satisfied that the instructions provided to the jury with respect to the evidence of Tsoukalas was sufficient. As this court held in R. v. Sauvé (2004), 2004 9054 (ON CA), 182 C.C.C. (3d) 321 at para. 82, a proper Vetrovec warning has the following four characteristics:
(1) the evidence of certain witnesses is identified as requiring special scrutiny;
(2) the characteristics of the witness that bring his or her evidence into serious question are identified;
(3) the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and
(4) the jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given.
[9] The warning provided by the trial judge met these requirements. First, the evidence of Tsoukalas was identified as requiring special scrutiny.
[10] Second, in the main Vetrovec warning and in the additional instruction the trial judge directed the jury to the characteristics that brought Tsoukalas’ evidence into question. In particular, the trial judge drew the jury’s attention to the fact that Tsoukalas had not been charged with any offence and had been granted conditional immunity from prosecution and this provided him with a motive to falsely implicate the appellant. We do not accept the appellant’s submission that the grant of immunity was not linked to the Vetrovec caution. The trial judge implicitly referred to this issue in the main Vetrovec instruction when he reminded the jury that, “You will also bear in mind that this individual has not been charged with any offence pertaining to Ms. Liu’s death, which may motivate him to lie about his and the accused’s participation in the killing of the deceased.” The trial judge then made this reference express in his later addendum. This is not a case where the need for special caution was simply left to the jury as counsel’s submission. The trial judge told the jury that “as a matter of law” they must proceed with caution in dealing with Tsoukalas’ evidence.
[11] Third, the trial judge cautioned the jury about relying upon the evidence of Tsoukalas. As this court pointed out in Sauvé at para. 86, there is no requirement in law that in any Vetrovec warning the trial judge must use the word “dangerous”. The content of the warning is left to the reasonable discretion of the trial judge. The terms used by the trial judge in this case: “carefully weigh and scrutinize”, “proceed with caution”, and “you must exercise caution” were adequate given the context of this case to convey to the jury the appropriate level of caution required in approaching Tsoukalas’ testimony.
[12] Finally, the trial judge briefly mentioned some of the confirmatory evidence. The direction actually given by the trial judge on the possible confirmatory evidence was very limited and favourable to the appellant. The trial judge could have pointed out to the jury that in fact most of the important parts of Tsoukalas’ testimony was confirmed by the appellant’s own evidence. As the Supreme Court of Canada said in R. v. Kehler (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 at para. 15, evidence may be found to be confirmatory of the suspect witness’ evidence even if it does not relate to a disputed issue.
[13] In considering this aspect of the charge, it is appropriate to take into account the failure of experienced trial counsel to object. There was an obvious tactical advantage for the defence that the trial judge did not provide a more expansive Vetrovec warning that would have made reference to the more extensive confirmatory evidence.
[14] Accordingly, the appeal from conviction is dismissed.
Signed: “M. Rosenberg J.A.”
“R.A. Blair J.A.”
“R.G. Juriansz J.A.”
RELEASED: “MR” May 17, 2005