CITATION: R. v. Stoddart, 2007 ONCA 139

DATE: 20070302

DOCKET: C42447

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CLIFFROY STODDART (Applicant/ Appellant)

BEFORE:

O’CONNOR A.C.J.O., LANG and ROULEAU JJ.A.

COUNSEL:

Brian McAllister and C. Verner for the appellant

Alexander Hrybinsky for the respondent

HEARD & RELEASED ORALLY:

February 27, 2007

On appeal from the conviction entered by Justice Dyson of the Superior Court of Justice on March, 27, 2004.

E N D O R S E M E N T

[1] The appellant raised six grounds of appeal. At the outset, he abandoned two. We found it necessary to call on the Crown only on two of the remaining grounds. We address those two grounds below:

Admissibility of the statements

[2] The appellant raises three arguments on the admissibility of the statements. First, the trial judge did not apply the proper burden of proof. Second, he failed to adequately consider the appellant’s explanation and the other evidence favouring the defence. Third, the trial judge failed to attach sufficient weight to the police failure to follow their guidelines for videotaped statements.

[3] While the trial judge never made specific reference to the test in R. v. W.(D). (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), he was clearly alive to the obligation on the Crown to prove beyond a reasonable doubt that the statement was voluntary. On a fair reading of the trial judge’s reasons as a whole, we see no error in the way he approached the burden of proof.

[4] In eight pages of his eleven-page ruling, the trial judge canvassed all the evidence, including that of the police officers at the station, as well as the appellant’s evidence, that of his relatives and the medical evidence. If not explicitly, then at least implicitly, the trial judge accepted the evidence of the police officers and the video, in which the appellant exhibited no signs of injury. Moreover, the trial judge’s reasons for not relying on the evidence of the doctor or the brother (as supporting the appellant’s evidence that he was beaten) are implicit both in his comments in his ruling and in his comments made during the submissions leading up to that ruling. In our view, his ruling taken together with the exchanges during submissions, are also sufficient for the purpose of appellate review.

[5] We are not satisfied that the trial judge erred in the way he dealt with the failure of the police officers to follow the guidelines set out in the police manual regarding the taking of videotaped statements. That said, clearly, it is important that the procedures in the manual be followed. Had the police done so in this case, it may well have avoided the issues that consumed a considerable amount of trial and appeal court time. While we are not allowing the appeal in this case, we wish to emphasize, as this court has in the past, the importance of the police following the guidelines.

Vetrovec caution

[6] During the pretrial conference, the trial judge agreed to give a Vetrovec warning about the evidence of the accomplices. Apparently, through inadvertence, that warning was not included in the charge to the jury. The defence did not object to this omission.

[7] This was an unusual case because, while both accomplices gave K.G.B. statements implicating the appellant, they resiled from those statements at trial. Instead, at trial, the accomplices gave evidence that, if accepted, fully exculpated the appellant, explaining, in the case of one accomplice, that the K.G.B. statement had been physically coerced and, in the case of the other, that he gave his statement while on drugs and angry and with the belief that he would be given something in return.

[8] While it may have been preferable had the trial judge given the warning requested by the appellant, in our view, in the circumstances of this case, the failure to do so is not fatal. Any Vetrovec warning would undoubtedly have applied not only to the K.G.B. statements, but also to the trial statements that were favourable to the appellant.

[9] What the trial judge did do was to give a specific caution about the reliability of the K.G.B. statements, noting that the statements were not subject to cross-examination and may have been obtained by coercion.

[10] Moreover, the issues about the credibility and reliability of the accomplices, including their background and their lifestyle, were central to the case. The jury would have been alive to this evidence, which was reviewed during the submissions to the jury.

[11] As well, given the exculpatory nature of their trial evidence, the accomplices were more in the nature of defence witnesses, for which a Vetrovec warning would be inappropriate.

[12] The absence of any objection to the omission of the Vetrovec warning, while not determinative, appears to have been a strategic decision on the part of the appellant’s trial counsel.

[13] In these circumstances, we would not give effect to this ground of appeal.

[14] In the result, the appeal is dismissed.

“D. O’Connor A.C.J.O.”

“S.E. Lang J.A”

“Paul Rouleau J.A.”