R. v. Truelove, 2010 ONCA 608

CITATION: R. v. Truelove, 2010 ONCA 608

DATE: 2010-09-21

DOCKET: C48932

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Simmons and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyson Truelove

Appellant

Victoria Rivers, for the appellant

Shelley Maria Hallett, for the respondent

Heard and orally released: September 10, 2010

On appeal from the convictions entered by Justice Ray Harris of the Superior Court of Justice, sitting with a jury, on July 13, 2007 and the sentence imposed dated April 25, 2008.

ENDORSEMENT

[1] The appellant was charged and convicted by a jury of attempted murder and several other charges that arose out of a shooting at a nightclub. The Crown called 22 witnesses. The defence called no evidence.

[2] The appellant raised five grounds of appeal as to conviction and sought leave to appeal sentence. We called on the respondent in respect of only one issue – the alleged errors relating to the Vetrovec caution given.

[3] One of the Crown witnesses, Thomas, testified that he and not the appellant was the shooter. In other respects, he confirmed much of the Crown’s circumstantial evidence. Previously, at the preliminary inquiry, Thomas had testified that he was not present at the nightclub at the time of the shooting. When he changed his story at trial, he was found to be a hostile witness and the Crown was permitted to cross-examine him at large.

[4] During the pre-charge conference, the defence requested a W.D. instruction with respect to Thomas’s evidence. Following discussion with the trial judge, both counsel agreed that a modified Vetrovec caution should be given followed by a W.D. instruction. The trial judge instructed the jury in accordance with the agreement and defence counsel made no objection to his charge in this respect.

[5] On appeal, the appellant argues first, that a Vetrovec caution should not have been given, second, if one were given, it should have been focused exclusively on the inculpatory evidence, and third, that the trial judge failed to identify confirmatory evidence to support Thomas’s exculpatory testimony.

[6] A trial judge’s decision to give a Vetrovec caution is discretionary and subject to deference. In this case, the defence counsel specifically agreed that a Vetrovec caution would be given immediately followed by a W.D. instruction applying specifically to Thomas’s exculpatory testimony. In our view, this appears to have been a reasonable tactical position for the defence to have taken. We see no reason to interfere with the trial judge’s decision to give a Vetrovec caution.

[7] The appellant submits that the trial judge’s Vetrovec caution might have been interpreted by the jury to apply to his entire testimony, including its exculpatory aspects. Even if that is the case, the appellant did not suffer any prejudice in our view.

[8] The Vetrovec caution was followed immediately by a clear W.D. instruction in regard to Thomas’s exculpatory evidence. Further, the frailties in Thomas’s exculpatory evidence, standing alone, rendered it incapable of belief. In this regard, it follows that the trial judge’s failure to allude specifically to particular confirmatory evidence, even if that were required, did not cause the appellant prejudice. Finally, the trial judge, in the Vetrovec caution, left it open to the jury to rely on Thomas’s evidence even without confirmatory evidence.

[9] In the result, we do not give effect to the appellant’s arguments in regard to the Vetrovec caution. We do not find it necessary to comment on the remaining grounds of appeal regarding conviction.

[10] The appellant also sought leave to appeal the sentence imposed of 13 years imprisonment less 1 for 1 credit for time served. The trial judge also delayed the appellant’s parole eligibility pursuant to s. 743.6 of the Criminal Code. The appellant’s primary argument is that the trial judge erred by failing to give the appellant enhanced credit for time served.

[11] We do not accept those submissions. The credit given for time served is a matter of discretion for the trial judge. That said, even if the trial judge erred by denying enhanced credit, we consider that the effective sentence imposed was fit in the circumstances of this case. We see no basis to interfere with the trial judge’s exercise of discretion under s. 743.6.

[12] Consequently, the appeal against the convictions is dismissed and we grant leave to appeal sentence but dismiss that appeal.

“Dennis O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“R.G. Juriansz J.A.”