Court File and Parties

Citation: R. v. Proctor, 2008 ONCA 717 Date: 2008-10-20 Docket: C46872

Court of Appeal for Ontario Gillese, Blair and Watt JJ.A.

Between: Her Majesty the Queen, Respondent and Mark Proctor, Appellant

Counsel: Joseph Di Luca and A. McEwan for the appellant Michael Bernstein for the respondent

Heard and released orally: October 16, 2008

On appeal from the conviction entered on November 23, 2006 and the sentence imposed on March 27, 2007 by Justice Emile R. Kruzick of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The complainant, Marita Archibald, was born in Curaçao. Her native language is Papiamentu. She came to Canada in 1974 and settled in Montreal where she worked as a chambermaid in Queen Elizabeth Hospital for over two decades, before retiring. She moved to Ontario from Quebec in 2000 so that she could help her daughter care for her grandson. She lived with her daughter and her family in Mississauga. She was 72 years old at the time she moved to Ontario, and 80 years of age at the time of trial.

[2] The complainant met the appellant at the Church of Jesus Christ of Latter Day Saints in Mississauga where he served as a Melchizedek priest. The appellant drove her home from church on a regular basis.

[3] The complainant gave the appellant $30,000 from a GIC and $60,000 from the sale of a condominium that she owned in Montreal. She testified that she believed that she gave the appellant the $30,000 to invest in real estate on her behalf and that she gave him the $60,000 so that he could purchase a condominium for her in the “Edinborough” condominium complex. The appellant used most of the funds for his personal benefit.

[4] At trial, it was the defence position that the $30,000 had been given to the appellant to buy shares in his company, and that the Crown had failed to prove that the $60,000 had not been invested in the Edinborough project.

[5] The complainant made a number of statements at trial which were allegedly inconsistent with statements that she made at the preliminary hearing. The impugned statements related to her level of literacy, whether she understood there was risk in investing in real estate, whether she understood the meaning of the word “collateral”, whether the appellant told her that he was a lawyer, and whether she had been left penniless as a result of having given the appellant the monies in question.

[6] The trial judge described the inconsistencies in his charge to the jury. For example, he said this in relation to the literacy statements:

At the preliminary hearing Ms. Archibald testified under oath that she could not read or write. She said at this trial that that was a half truth. She also said under oath that she was illiterate. At trial she admitted that she could read and write. With respect to being illiterate, she admitted she was not telling the truth when she said that under oath. She said she was illiterate compared to her children. She also said that if there were words she did not understand she goes to the dictionary or to her children to help her out.

[7] After describing the other inconsistencies with a similar level of detail, he concluded with the following:

These are a few of the inconsistencies for you to consider in assessing the credibility and reliability of the evidence of Marita Archibald. If you are satisfied that Ms. Archibald testified untruthfully, that should give you some concern in relying on her evidence in deciding this case. To make your decision, use your common sense and experience in assessing the evidence of Ms. Archibald.

[8] The appellant was convicted of fraud over $5000. He appeals the conviction on the basis that the trial judge failed to properly caution the jury on the dangers of relying on the complainant’s testimony. He submits that the charge was inadequate and did not go far enough in warning the jury about the dangers of accepting the complainant’s evidence, given how crucial her testimony was to the Crown’s case. He points particularly to the words “should give you some concern”, in arguing that the warning was insufficient.

[9] We do not accept this submission.

[10] The trial judge provided the jury with instructions on the assessment of credibility and reliability of witnesses generally, and on the law as it relates to prior inconsistent statements of non-accused witnesses. He identified and described the inconsistencies in the complainant’s testimony and directed the jury on the effect of the discrepancies on the complainant’s credibility. In reviewing the inconsistencies, the trial judge included any admissions the complainant had made that she was not telling the truth or telling half-truths at the preliminary hearing. Both of those aspects of the instruction distinguish this case from R. v. Sood, [1997] O.J. No. 73 (C.A.). In Sood at paras. 9 and 10, this court identified two defects in the charge. First, only two of many inconsistencies in the witness Lamba’s testimony were mentioned and the trial judge gave an insufficient review of them. Second, the trial judge “watered down” the significance of the inconsistencies by leaving it to the jury to determine whether Lamba had given false evidence at the preliminary hearings when Lamba had admitted that he had done so. As mentioned, neither criticism is fairly levelled against the instruction in the present case.

[11] The authorities are clear that the trial judge has the discretion to determine whether the evidence of a witness is untrustworthy to such an extent that a warning is necessary: see R. v. Bevan (1993), 82 C.C.C. (3d) 82 (S.C.C.). It was neither necessary nor appropriate in the circumstances to provide the jury with a classic Vetrovec warning. The complainant was not an unsavoury witness, she is not disreputable and the discrepancies in her evidence do not constitute perjury. Indeed, defence counsel did not seek a Vetrovec warning per se. Rather, he asked for a “Vetrovec-esque” instruction given her “admitted lies under oath”.

[12] In our view, the charge was fit and proper given the characteristics and testimony of the witness, the nature of the inconsistencies and the circumstances of the case. The complainant was subject to comprehensive cross-examination, including rigorous cross-examination on each of the alleged inconsistencies. Whatever discrepancies there were in her testimony would have been evident to the jury. The effect of the instruction was to alert the jury to the need for caution in approaching the complainant’s evidence.

[13] Accordingly, the appeal is dismissed.

“E.E. Gillese J.A.”

“R.A. Blair J.A.”

“David Watt J.A.”