Court of Appeal for Ontario

CITATION: R. v. Serre, 2011 ONCA 586

DATE: 20110909

DOCKET: C51031

Weiler, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcel Serre

Appellant

J. Scott Cowan, for the appellant

Dena Bonnet, for the respondent

Heard and released orally: September 6, 2011

On appeal from the conviction entered by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting with a jury, on June 16, 2008.

ENDORSEMENT

[1] There is one issue on this appeal. The appellant argues that the trial judge erred in her Vetrovec warning to the jury concerning the witness Hash Richard Danis by including in that instruction a direction that the jury should look for confirmatory evidence of that part of Mr. Danis’ evidence that assisted the defence. As the appellant acknowledges, Mr. Danis was a “mixed witness”, in the sense that he gave evidence favourable both to the Crown and the defence. As at trial, the appellant does not challenge the need for a Vetrovec warning concerning the witness’ testimony.

[2] For the reasons that follow, we reject the appellant’s argument.

[3] The content of a trial judge’s Vetrovec warning is a matter clearly within the trial judge’s discretion and therefore should generally be respected. In this case, when the charge is read as a whole, it is apparent that the trial judge made it clear to the jury – at least four times – that the jury was free to accept Mr. Danis’ testimony without confirmatory evidence.

[4] Further, the defence was aware of the nature of the Vetrovec instruction from the time of the pre-charge conference and sought no modification of it. Nor did the defence register any objection to it after the charge to the jury.

[5] More importantly, in our view, the Vetrovec instruction was fair to the appellant for two reasons. First, the trial judge did not repeat the strong inculpatory evidence that confirmed Mr. Danis’ KGB statement (i.e. the trail, gun and knapsack evidence). This was to the appellant’s benefit. Second, the instruction gave the jury a path to accept Mr. Danis’ exculpatory trial evidence without confirmation. This was also favourable to the appellant. There was, therefore, no injustice or prejudice to the appellant from the Vetrovec warning.

[6] The appeal is dismissed.

“E.A. Cronk J.A.”

“K.M. Weiler J.A.”

“David Watt J.A.”