COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hines, 2007 ONCA 103

DATE: 20070216

DOCKET: C37569

RE: HER MAJESTY THE QUEEN (Respondent) – and – VERTON HINES (Appellant)

BEFORE: LASKIN, JURIANSZ JJ.A. and CUNNINGHAM A.C.J. (Ad hoc)

COUNSEL: David E. Harris for the appellant

Ian Bulmer for the respondent

HEARD & RELEASED ORALLY: February 8, 2007

On appeal from the conviction entered on May 5, 2001 by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] The appellant argues two grounds of appeal. On the first ground, the instruction on the intent for murder, the appellant argues that the trial judge should not have left with the jury the common sense inference that people normally intend the natural consequences of their acts. The appellant also argues that the trial judge wrongly left the inference as mandatory not permissive. We do not agree with these arguments.

[2] In our view, the trial judge did not err in law in instructing the jury on the common sense inference that persons intend the natural consequences of their acts. This court has approved this instruction for party liability. See R. v. Brown, [2002] O.J. No. 2338 (Ont. C.A.).

[3] Although on the bare transcript the words the trial judge used might be open to the suggestion he left the inference as mandatory, we think that read fairly and in context, the jury would have appreciated that the inference was permissive. The trial judge expressly instructed the jury to take account of the surrounding circumstances and he explained the one viable alternative inference: that the appellant gave the gun to N.W. for self-defence. Accordingly, we decline to give effect to this ground of appeal.

[4] On the second ground of appeal, the adequacy of the Vetrovec warning, the appellant argues that the warning was not strong enough and that the trial judge left with the jury as confirmatory evidence, pieces of evidence that in law were not capable of being confirmatory. We do not accept these arguments. The form of the warning was proper in this case, as both the defence and the Crown relied on parts of N.W.’s evidence. Moreover, our court has repeatedly said that there is no magic in the form of words used as long as those words convey the appropriate caution. The words used by the trial judge, “with great care and caution”, accomplished this objective.

[5] In his Vetrovec instruction, the trial judge cautioned the jury to look for confirmatory evidence of N.W.’s testimony before relying on that testimony to convict the appellant. Even if in law, N.W.’s statement that he shot the deceased was not potentially confirmatory because it was not truly independent, we do not think that the trial judge’s reference to this piece of evidence caused any miscarriage of justice. The illustrations of potential confirmatory evidence used by the trial judge, including N.W.’s statement, were approved of by both counsel. Moreover, neither counsel objected to the Vetrovec instruction. Accordingly, we decline to give effect to this ground of appeal.

[6] The appeal is dismissed.

“John Laskin J.A.”

“R. Juriansz J.A.”

“Cunningham A.C.J. S.C.J.”