R. v. Deleon, 2011 ONCA 752

CITATION: R. v. Deleon, 2011 ONCA 752

DATE: 20111130

DOCKET: C50346, C50350 and C50360

COURT OF APPEAL FOR ONTARIO

MacPherson, Blair and Epstein JJ.A.

C50346

BETWEEN

Her Majesty the Queen

Respondent

and

Zacky Deleon

Appellant

C50350

AND BETWEEN

Her Majesty the Queen

Respondent

and

Michael Allen

Appellant

C50360

AND BETWEEN

Her Majesty the Queen

Respondent

and

Jaime Humberto Restrepo

Appellant

Philip Campbell and Zachary Kerbel, for the appellant Zacky Deleon

Heather McArthur and Victoria Rivers, for the appellant Michael Allen

P. Andras Schreck and Candice Suter, for the appellant Jaime Restrepo

Deborah Calderwood, for the respondent

Heard: November 22, 2011

On appeal from the conviction entered on July 10, 2008 by Justice Ronald G. Thomas of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellants were convicted of first degree murder for the execution-style shooting of Mauricio Castro.

[2] Jaime Restrepo was the leader of a Toronto drug distribution network that owed approximately $1 million to Castro. The Crown argued that Restrepo arranged the murder to extinguish the debt and to steal cocaine belonging to Castro, that Michael Allen was the actual killer, and that Zacky Deleon was deeply involved in the enterprise both before and after the killing took place.

[3] The Crown relied on the testimony of three main witnesses. Jorge Restrepo, Jaime’s brother, was the number two person in the Restrepo drug network. Jorge Acosta was involved in the Restrepo network and drove the getaway car after the murder. Ronny Khananisho put the Restrepo network in touch with the shooter, Allen.

[4] In his address to the jury, the trial judge issued a strong Vetrovec warning for Acosta, a milder warning for Jorge Restrepo, and declined to warn the jury about Khananisho’s evidence. All three appellants contend that the trial judge erred in his treatment of the Vetrovec issue.

[5] The appellants contend that the trial judge erred not only in failing to issue strong and sharp Vetrovec warnings for both Jorge Restrepo and Khananisho, but also in comparing the witnesses according to the extent to which they could be classified as unsavoury. The appellants contend that this continuum approach interfered with the purpose of the Vetrovec warning by inviting the jury to find credibility by comparison.

[6] We do not accept this submission. In R. v. Khela (2009), 2009 SCC 4, 238 C.C.C. (3d) 489 (S.C.C.) at para. 13, Fish J. stated:

The crafting of a caution appropriate to the circumstances of the case is best left to the judge who has conducted the trial. No particular set of words is mandatory. In evaluating its adequacy, appellate courts will focus on the content of the instruction and not on its form.

[7] In this case, we can see no error in the continuum adopted by the trial judge in his treatment of the three main Crown witnesses. The warning about Acosta was very strong indeed. The appellants do not challenge it. The warning about Restrepo was milder but encompassed all four elements of the standard Vetrovec warning. The absence of a warning about Khananisho was justified by his very peripheral role in the murder enterprise (he provided Allen’s phone number to the Restrepo network and attended a meeting with Allen during which Deleon spoke to Jaime Restrepo) and the absence of a history of lying or other dishonest behaviour. In our view, it may be preferable to give discrete Vetrovec warnings that do not specifically involve a comparison – particularly in the positive terms employed by the trial judge. However, given the nature and extent of the trial judge’s references to the unsavoury characteristics of these witnesses, the jury would clearly understand that they had to examine their evidence with caution.

[8] The appellant Jaime Restrepo submits that the trial judge erred in his treatment of the confirmatory evidence component of the Vetrovec warning. He says that there was no confirmatory evidence independent of the three unsavoury witnesses relating to his involvement in the planning and execution of the murder.

[9] We disagree. The trial judge provided the standard jury charge on this issue. Restrepo’s counsel made no objection to this component of the charge.

[10] In R. v. Kehler, [2004] 2004 SCC 11, 1 S.C.R. 328 at paras. 15-16, Fish J. stated:

The appellant wrongly equates “relevant” with “disputed”. Mr. Greenwood’s detailed account of the robbery, though undisputed, was no less “relevant” to the offences charged than his implication of the appellant in their commission. And while confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, it hardly follows that the confirmatory evidence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged.

As the appellant himself concedes, it is clear from Vetrovec, supra, that independent evidence, to be considered confirmatory, does not have to implicate the accused. There is no separate rule in this regard for cases where the only evidence of the accused’s participation in the offence is that of a tainted witness. [Emphasis in original.]

[11] In keeping with this principle, there was nothing wrong with directing the jury that they could consider evidence implicating Allen and Deleon in the murder as confirmatory evidence in relation to Acosta’s and Jorge Restrepo’s identification of Jaime Restrepo as the mastermind behind Castro’s murder. For example, it was appropriate for the jury to consider for this purpose evidence relating to a meeting by several participants in a park and cellphone records that placed people in specific locations near the time of the murder. Indeed, the fact that Acosta and Jorge Restrepo could be proven, by independent evidence, to be telling the truth about Allen’s and Deleon’s involvement was relevant to an assessment of whether these witnesses were also telling the truth about Jaime Restrepo’s involvement.

[12] Finally, the appellant Deleon contends that the trial judge’s charge on abandonment was flawed in two ways. First, the abandonment charge failed to direct the jury to consider the depth of Deleon’s involvement in the conspiracy when assessing sufficient notice of intent to withdraw. Second, the charge improperly restricted the operation of the defence to a factual finding that Deleon had participated in a common venture, foreclosing a jury finding that he had committed discrete acts of aiding and abetting but had abandoned his involvement.

[13] We do not accept this submission. Deleon’s trial counsel did not propose the defence of abandonment because it had the potential disadvantage of undermining his principal submission that he was not involved in the Castro murder enterprise at all. After the trial judge chose to charge on abandonment, and did so in accordance with the standard jury charge, Deleon’s trial counsel made no objection. Moreover, the trial judge’s focus on a common venture merely reflected the reality of Deleon’s participation, both before and after the murder, even though he was not present at the murder scene. Deleon was deeply involved in the planning of the murder, he paid Allen after the murder, and he received a substantial amount of money for his role. There was virtually no ‘air of reality’ to this possible defence and, in any event, the trial judge’s charge on this issue was error-free.

[14] The appeals are dismissed.

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”

“G.J. Epstein J.A.”