DATE: 20060519

DOCKET: C39934

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. RANDY BIER (Appellant)

BEFORE: DOHERTY, LANG and JURIANSZ JJ.A.

COUNSEL: Diane Oleskiw and Renu Mandhane for the appellant

Jamie Klukach for the respondent

HEARD & ENDORSED: May 19, 2006

On appeal from the convictions entered by Justice G. Pardu, sitting with a jury, of the Superior Court of Justice dated February 5, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge gave a “Vetrovec” warning in respect of the Crown witness Gagnon. His evidence inculpated the co-accused but to some extent assisted the appellant. Counsel submits that the trial judge should have explicitly told the jury that the “Vetrovec” caution did not apply to the exculpatory evidence. We are satisfied that the instruction given clearly limited the “Vetrovec” caution to evidence that could assist the Crown (see pp. 634-36).

[2] We are also satisfied that the jury was told that it could only convict the appellant if it was satisfied that he was a party to the stabbing perpetrated by his co-accused. This was made clear in the instruction and the “decision tree” given to the jury. The reasons for sentence suggest that the trial judge may have misunderstood the basis for the verdict. Her comments on sentencing, however, cannot affect the correctness of her jury instruction.

[3] The appeal is dismissed.