COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McFarlane, 2012 ONCA 355

DATE: 20120530

DOCKET: C49922

Doherty, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Delroy L. McFarlane

Appellant

P. Andras Schreck and Candice Suter, for the appellant

Randolv Schwartz, for the respondent

Heard: May 11, 2012

On appeal from the conviction entered on October 24, 2008 by a jury presided over by Justice Robert A. Clark of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of first degree murder. Counsel, in his helpful submissions, advanced two related submissions. He abandoned a third arising out of the instruction on first degree murder. First, he argued that the trial judge should have excluded evidence that the police seized two loaded handguns from the appellant, neither of which was connected to the murder. Second, counsel submits that if the evidence was admissible, the jury should have been told that it could not confirm the evidence of the Vetrovec witness.

[2] The Crown alleged that the appellant and a partner executed the deceased in retaliation for his theft of their drugs. The Crown had a strong circumstantial evidence case against the appellant. They also had the evidence of a man named Cleveland Blackwood. Blackwood claimed that the appellant had confessed to him when the two met in jail shortly after the appellant’s bail hearing. Blackwood reported the “confession” to the authorities a few days later. Blackwood was a jailhouse informant with an established history of dishonesty and a clear motive to lie. Parts of his evidence were clearly inaccurate. Blackwood properly attracted a lengthy and forceful Vetrovec caution from the trial judge.

[3] According to Blackwood, during his conversation with the appellant, the appellant admitted he had killed the victim. He told Blackwood that the police could not prove the crime because they would never find the guns that “did the job”. The appellant told Blackwood that two guns had been used to kill the victim. He also indicated that the two guns seized from him were “clean as a whistle”. Blackwood testified that the appellant told him that the gun the authorities had seized in the United States from his partner was also not involved in the murder. In fact, neither of the weapons seized from the appellant, nor the particular weapon seized from the partner was involved in the murder.

[4] The defence argued that the appellant had not confessed to Blackwood, a virtual stranger, and that most of the information that Blackwood alleged he was told by the appellant came from the evidence given at the appellant’s bail hearing. Indeed, much of what Blackwood said the appellant told him was part of the evidence at the bail hearing. However, at the time of the bail hearing, the police had not determined that the weapons seized from the appellant were not connected to the murder, although the officer who gave evidence at the bail hearing testified that he doubted any connection. Forensic tests were not completed until after the bail hearing. The results of those tests indicated that the guns were not involved in the murder, but were as Blackwood said the appellant told him, “clean as a whistle”.

[5] The Crown argued that the appellant’s comments about the two guns seized from him, placed in the context of the entire conversation with Blackwood, constituted evidence of the appellant’s participation in the murder. The Crown argued that the appellant’s comments indicated that he knew which guns had been used in the murder and which had not been used. On the Crown’s argument, he obtained that knowledge through his involvement in the murder. If the jury accepted that argument, the appellant’s knowledge as to what guns had been used in the murder became powerful evidence of his guilt.

[6] The Crown further argued that the evidence that two guns were seized from the appellant and were not connected to the murder provided some confirmation of Blackwood’s testimony that the appellant told him that the guns were not connected to the murder. The confirmatory value of this evidence was enhanced because, unlike much of Blackwood’s testimony, it could not be argued that he became aware that the guns were not connected to the murder through his knowledge of the testimony at the bail hearing.

I

was the evidence of the appellant’s possession of the two guns that were unconnected to the murder admissible?

[7] We agree with the Crown’s argument. The appellant’s statement concerning the two weapons seized from him cannot be viewed in isolation. It was one of several statements allegedly made by him to Blackwood about his knowledge of the weapons that were used in the murder. Those statements, viewed as a whole, were capable of supporting the inference that the appellant knew which weapons had not been used in the murder because he was involved in the murder. The evidence was properly admitted unless its prejudicial effect outweighed its probative value.

[8] If the jury believed that the appellant made the statements about his knowledge of the murder weapons to Blackwood, that evidence had significant potential probative value. There is also no denying that the evidence carried with it a real danger that a jury would misuse the evidence and treat it as evidence demonstrating the appellant’s disposition for violence, particularly violence involving firearms.

[9] The trial judge was alive to the potential prejudice. He eventually chose to admit the evidence and give a strong limiting instruction. In our view, the trial judge acted within his discretion in such matters in determining that the potential prejudice could be adequately addressed by an appropriate limiting instruction. The trial judge did not err in admitting the evidence.

II

did the trial judge misdirect the jury on the potential confirmatory value of that evidence?

[10] The trial judge told the jury that evidence that the guns seized from the appellant were not used in the robbery was capable of confirming Blackwood’s testimony that the appellant told him that those guns were “as clean as a whistle” and could not be connected to the robbery. Counsel for the appellant argues that assuming the appellant made the statement to Blackwood, it is equally consistent with his innocence as with his guilt. Counsel argues that a statement by the appellant that his guns were not used in the robbery could indicate knowledge of the murder weapon, but equally could indicate that the appellant had nothing to do with the murder and, hence, knew that his guns had not been used in the murder.

[11] In his factum, counsel submitted that because the evidence was “equally consistent with guilt or innocence”, the trial should not have left it with the jury as potentially confirmatory evidence. In oral argument, counsel made a slightly different alternative submission. He argued that the jury should have been told that if in their assessment, the statement was equally consistent with guilt or innocence, it could not confirm Blackwood’s testimony.

[12] We cannot accept either submission. As Crown counsel correctly observes, the question in the context of a Vetrovec instruction is not whether the potentially confirmatory evidence is consistent with guilt or innocence, but whether it confirms or supports relevant parts of the Vetrovec witness’s testimony. Thus, evidence that does not implicate an accused can be confirmatory of the credibility of a Vetrovec witness on a relevant matter as can evidence which goes to an element of the offence that the defence has chosen not to dispute at trial.

[13] Evidence that was independent of Blackwood’s testimony could be confirmatory for the purposes of the Vetrovec warning if that evidence increased the jury’s confidence that Blackwood was telling the truth in that part of his evidence relating to the appellant’s knowledge of and/or involvement in the events culminating in the murder. Statements by the appellant potentially relating to his knowledge of the murder weapon fall within that category. The forensic evidence showing that the two guns seized from the appellant were not involved in the murder was clearly independent of Blackwood’s testimony. It was capable of confirming a relevant part of Blackwood’s testimony and, therefore, increasing the jury’s confidence in the reliability of Blackwood’s testimony. The trial judge did not err in including the evidence within the category of potentially confirmatory evidence.

[14] The variation in the argument made during oral submissions requires a further brief comment. If a jury decides that evidence left with it as potentially confirmatory of a Vetrovec witness is equally consistent with the truth or the falsity of the Vetrovec evidence, then that evidence, as a matter of logic, cannot confirm the credibility of the Vetrovec witness. A trial judge may choose to give this instruction to a jury. We would not, however, make it mandatory. It is difficult to see how a jury could use evidence that it had found to be equally consistent with truth as with falsity to confirm the credibility of the witness. How could that evidence increase the jury’s confidence that the Vetrovec witness was telling the truth? Articulation of the self-evident will usually do no harm and can, on occasion, help. We would not, however, go so far as to say that the failure to articulate the self-evident constitutes reversible error.

[15] The appeal is dismissed.

“Doherty J.A.”

“Janet Simmons J.A.”

“H.S. LaForme J.A.”