Court of Appeal for Ontario

Date: 20200219 Docket: C66017 & C66019

Before: Hoy A.C.J.O., Feldman and Gillese JJ.A.

Between: Her Majesty the Queen, Respondent and Salvatore Raia and Michael Vitello, Appellants

Counsel: Salvatore Raia, acting on his own behalf Amy Ohler for the appellant, Michael Vitello Hannah Freeman, for the respondent

Heard and orally released: February 12, 2020

On appeal from the convictions entered by Justice C. McKinnon of the Superior Court of Justice, dated July 13, 2018.

Reasons for Decision

[1] Mr. Raia and Mr. Vitello appeal their convictions for conspiring to kidnap, sexually assault and murder Mr. Vitello’s spouse, Sonia Bernard. Neither Mr. Raia nor Mr. Vitello testified on his own behalf at trial.

[2] In convicting Mr. Raia and Mr. Vitello, the trial judge relied on the evidence of Chris Richards, an employee of Mr. Vitello, about the conspiracy. The trial judge found that there was “elaborate corroborative evidence” and that Mr. Richards was a credible witness. The trial judge considered that Mr. Richards’ evidence that he, Mr. Raia, and Mr. Vitello stopped in a parking lot for about two to three minutes on the planned date of the murder was “clearly mistaken”, but concluded that it was not a “foundation for reasonable doubt” about Mr. Richards’ evidence.

[3] On appeal, Mr. Raia and Mr. Vitello argue that the trial judge erred in finding that Mr. Richards was a credible and reliable witness. They argue that the evidence that the trial judge relied on as corroborative was not corroborative of their alleged agreement to kidnap, sexually assault and murder Ms. Bernard.

[4] Further, they say that the trial judge made several errors in his reasons. For example: 1) he wrote that Mr. Vitello’s first wife called him in jail, whereas he called her; 2) he referred to Oscar Giroux looking at a photo lineup, but Oscar Giroux did not look at a photo lineup; 3) he wrote that Mr. Vitello’s son, Nicholas, testified that Mr. Raia seemed drunk, when Nicholas’s evidence was only that Mr. Raia smelled of alcohol; and 4) he wrote that, during his police interview, Mr. Raia stated that he did not remember going anywhere else on the morning of the planned date of the murder, whereas Mr. Raia testified that he could not remember where they went.

[5] The trial judge’s finding that Chris Richards was a credible and reliable witness is entitled to deference on appeal barring palpable and overriding error. On this appeal, we do not consider afresh whether Chris Richards was a credible and reliable witness.

[6] We are not persuaded that there is any basis for this court to interfere with the trial judge’s finding that Chris Richards was a credible and reliable witness. The trial judge was entitled to rely on the extensive corroborating evidence that supports Chris Richards’ account, including the text messages exchanged between Chris Richards and Sonia Bernard and a number of security surveillance videos that tracked the movements of Mr. Vitello’s truck, essentially as Chris Richards described it. As noted by the trial judge, Chris Richards was unaware of this video surveillance when he gave his statements to the police.

[7] In our view, the errors in the trial judge’s reasons identified by the appellants go to peripheral matters and had no impact on the trial judge’s credibility assessment. For example, while the trial judge referred, in one sentence at para. 90 of his reasons, to Oscar Giroux looking at a photo lineup, the significant part of para. 90 is that Oscar Giroux described the passenger in the front seat of Mr. Vitello’s truck on the morning of the planned date of the murder, and his description matched Mr. Raia. Moreover, Chris Richards, who was also in the truck, testified Mr. Raia was in the front seat and, in his statement to the police, Mr. Raia said he was the passenger in the front seat of Mr. Vitello’s truck that morning.

[8] Accordingly, the appeals against conviction are dismissed.

“Alexandra Hoy A.C.J.O.”

“K. Feldman J.A.”

“Eileen E. Gillese J.A.”