Court of Appeal for Ontario

Date: 2025-03-12
Docket: C68981
Coram: Gillese, Coroza and Dawe JJ.A.

Between:
His Majesty the King (Respondent)
and
Mauro Granados-Arana (Appellant)

Counsel:
Dirk Derstine and Anita Nathan, for the appellant
Katie Doherty, for the respondent

Heard: 2024-09-11

On appeal from the conviction entered on May 13, 2017 and the sentence imposed on March 29, 2018 by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting with a jury.

Coroza J.A.:

I. OVERVIEW

[1] In August 2012, the body of George Fawell (the “deceased”) was found close to the train tracks in Toronto’s East End. He had been stabbed to death.

[2] At trial, the Crown’s case relied on the testimony of several witnesses who had interacted with the appellant and/or the deceased. The appellant and the deceased had been involved in the drug subculture, as were several of these witnesses. The trial judge, at the request of the parties, gave a clear and sharp warning to the jury that there were risks in adopting, without more, the evidence of these witnesses. The trial judge told the jury to look for evidence from another source tending to show that the witnesses were telling the truth about the guilt of the appellant: Vetrovec v. The Queen, [1982] 1 S.C.R. 811. The appellant did not testify or call any evidence.

[3] The jury convicted the appellant of first degree murder. Pursuant to s. 745.51 of the Criminal Code, RSC 1985, c C-46, the trial judge ordered that the mandatory 25 years of parole ineligibility should run consecutively to a period of parole ineligibility that the appellant was already serving in relation to a prior second degree murder conviction.

[4] At issue on this appeal is the trial judge’s treatment of two of the Vetrovec witnesses: Lori Crook and Kim Forsyth. Ms. Crook was one of the appellant’s girlfriends at the time, and Ms. Forsyth was her roommate. Ms. Crook was initially also charged with the murder of the deceased. She was provided disclosure and a year after she was charged gave a statement to the police. Ms. Crook subsequently pleaded guilty to the offence of manslaughter and testified for the Crown. Ms. Forsyth also testified for the Crown.

[5] It was the defence position at trial that the appellant was not guilty of the murder but that it was either Ms. Crook, or an unnamed Black man referred to by Ms. Crook in her testimony, who had killed the deceased.

[6] On appeal, the appellant argues that the trial judge made errors in his Vetrovec instructions relating to the assessment of the evidence of Ms. Crook and Ms. Forsyth. He asks this court to order a new trial.

[7] If his conviction appeal fails, the appellant argues that the trial judge’s order that the period of parole ineligibility in this case run consecutively to the prior sentence must be quashed considering the Supreme Court of Canada’s subsequent decision in R. v. Bissonnette, 2022 SCC 23, declaring s. 745.51 of the Criminal Code to be of no force or effect. The Crown concedes the sentence appeal.

[8] For the reasons that follow, I would dismiss the conviction appeal. I would allow the sentence appeal and quash the trial judge’s order under s. 745.51 of the Criminal Code. The period of parole ineligibility imposed by the trial judge will run concurrently to the appellant’s prior sentence.

II. BACKGROUND

(1) The summer of 2012

[9] In the summer of 2012, the appellant was working as a drug dealer. He was romantically involved with Ms. Crook. The appellant was also dating other women, including a woman named Ashley Andrews.

[10] A few weeks before the deceased’s murder, the appellant was attacked by a group of men that included Burton Parlee, the deceased’s cousin. The appellant was knocked to the ground, had his shirt pulled over his head, and he lost his eyeglasses. The Crown’s theory of the case is that the appellant attacked and killed the deceased to get back at Mr. Parlee.

(2) The evening of August 23, 2012

[11] Ms. Crook was at her apartment on the evening of August 23, 2012. The appellant called her and told her he was coming over. He arrived between 6 and 9 p.m. with three or four male friends. Ms. Crook testified that she knew three of these men by their nicknames, but did not know the fourth person, who was a Black male. The men went to the kitchen to smoke marijuana while Ms. Crook went to her bedroom to drink and smoke crack cocaine. Occasionally, she went into the kitchen to socialize with the men.

[12] Around 9 p.m., Ms. Crook left the apartment to buy cigarettes. She ran into the deceased on her way back to the apartment. Ms. Crook testified that the deceased was looking to buy drugs from Ms. Forsyth, her roommate. When Ms. Crook ran into the deceased, she was on the phone with the appellant. Following the call, the appellant texted Ms. Crook to “bring” the deceased back to the apartment as he was “going to mincemeat him”. Ms. Crook believed this message to mean that the appellant was going to “punch out” the deceased. Ms. Crook warned the deceased about the message but the deceased assured her that he did not have any issues with the appellant. Ms. Crook and the deceased both proceeded back to the apartment.

[13] Upon arriving at the apartment, the appellant and his friends immediately attacked the deceased. Ms. Crook testified that they beat the deceased severely and she observed some of this beating before the appellant ordered her to her room, where she continued to hear noises from the beating. While in her room, Ms. Crook continued to drink alcohol and smoke crack cocaine. She also snorted a line of OxyContin. She described herself as “wasted”.

[14] After the beating subsided, the appellant sent Ms. Crook on an errand to purchase a marijuana grinder. When she returned, she saw the deceased seated on a kitchen chair with his hands and ankles bound with duct tape. He had blood on his face, was bleeding from his nose, and had some visible bruising.

(3) The morning of August 24, 2012

[15] Sometime after midnight, the appellant told Ms. Crook to summon his regular driver, Michael Martins. Mr. Martins often drove the appellant in exchange for drugs. When Mr. Martins arrived, the appellant ordered Ms. Crook into the passenger seat and she instructed Mr. Martins not to look back. According to Ms. Crook, the appellant and the unnamed Black man escorted the deceased to the back seat of the vehicle. A hooded sweatshirt had been put over the deceased’s torso to conceal his face and his hands which were still bound together. The appellant directed Mr. Martins where to drive. Mr. Martins dropped them off in a parking lot near the train tracks in Jimmie Simpson Park. The appellant paid Mr. Martins with crack cocaine and told Ms. Crook to return to her apartment because he had changed his mind about her attending. The appellant and the unnamed Black man then took the deceased up an embankment next to the parking lot that led to the train tracks.

[16] While she was on her way home, the appellant called Ms. Crook and told her to buy some gasoline with “Joe”, one of the men who had been at Ms. Crook’s apartment earlier. She did as instructed and returned with the gasoline to the apartment.

[17] Around 4 or 5 a.m., the appellant attended the apartment of his other girlfriend, Ms. Andrews, to change his clothes. At her apartment, he showered and discarded a blood-stained T-shirt.

[18] The appellant then returned to Ms. Crook’s apartment with the unnamed Black man. The appellant was wearing different clothes from the night prior. The unnamed Black man had blood on his clothing. Ms. Crook gave the man some clean clothes and a plastic bag for his bloody clothing.

[19] Ms. Crook asked the appellant what happened at the train tracks. The appellant told her he stabbed the deceased to death in order to teach Mr. Parlee and the others a lesson and to set an example for them.

[20] The appellant then ordered Ms. Crook to take the can of gasoline to the train tracks and burn the deceased’s body. Ms. Crook proceeded to the train tracks with the can of gasoline. However, when she arrived, she saw two “outreach” workers and decided to abandon the can of gasoline under a billboard. She called the appellant to pick her up. The police later found a can of gasoline under a billboard on the northeast corner of Dundas Street East.

(4) Discovery of the body

[21] In the morning of August 24, 2012, Salvation Army workers discovered the body of the deceased on an embankment near the train tracks behind Jimmie Simpson Park. The deceased’s hands were bound together and it was immediately apparent that he had suffered a large number of sharp force injuries to his head, neck, torso, and extremities. A grey Edmonton Oilers sweatshirt was located near his body. Ms. Crook testified at trial that the sweatshirt belonged to her. Around the deceased’s neck were three layers of loose binding including a floral-patterned sheet, a purple garment, and a piece of duct tape.

[22] The post-mortem examination concluded that the cause of death was multiple stab wounds to the chest, which penetrated the deceased’s heart, and chopping wounds to the back of his head and neck, which resulted in skull and neck fractures. The stab wounds were “predominantly paired”, indicating that they may have been caused by an instrument with two pointed tips such as a pair of scissors. At trial, a forensic expert testified that the chopping wounds may have been caused by a meat cleaver, an axe or a hatchet. A pair of scissors was found adjacent to the deceased’s body. Forensic testing showed that blood and the deceased’s DNA were on the scissors.

[23] After the discovery of the deceased’s body, the appellant told Ms. Crook that he wanted to be a “ghost” and that he was going to “lay low”. Ms. Crook suggested that they go to Winnipeg because she had family there. The appellant and Ms. Crook travelled to Winnipeg where they stayed for five days before returning to Toronto.

(5) The search of Ms. Crook’s apartment

[24] Ms. Crook’s apartment was searched by the police on September 9, 2012. Among other things, the police discovered a roll of duct tape, floral-patterned bedding, and Greyhound bus tickets between Toronto and Winnipeg. The police also found an empty bleach bottle, but no traces of either blood or bleach were discovered when the apartment was tested.

(6) The trial

[25] At trial, the Crown’s theory was that the appellant murdered the deceased because he was angry and humiliated after being attacked by a group of men, including the deceased’s cousin Mr. Parlee, who considered the deceased to be “like a brother”. The Crown’s theory was that the appellant murdered the deceased to get back at Mr. Parlee. The defence theory was that someone else killed the deceased: either Ms. Crook or the unnamed Black man.

[26] As noted above, the Crown called several witnesses who had interactions with the appellant and/or the deceased on the night in question, including Ms. Crook, Ms. Forsyth, Ms. Andrews, and Mr. Martins. These four witnesses were all involved in the drug subculture and were either using and/or selling drugs during the relevant time. All four witnesses had criminal records.

[27] At the time of the murder, Ms. Crook was supporting herself through the Ontario Disability Support Program, prostitution, and selling drugs. She was addicted to alcohol and cocaine and used heroin and OxyContin. On the night the deceased was murdered, Ms. Crook was heavily intoxicated by alcohol and drugs.

[28] Ms. Crook was arrested on April 3, 2013, and charged with the first degree murder of the deceased. She did not give a statement at this time. On March 28, 2014, while still in custody, Ms. Crook provided a written statement through her lawyer. Based on Ms. Crook’s evidence, the Crown agreed to a plea to manslaughter. She pleaded guilty and received a sentence of four years. At the time of her testimony, Ms. Crook had an extensive criminal record.

[29] Ms. Forsyth had a lengthy criminal record dating back to 1990. At the time of the murder, she was using and dealing drugs and engaged in prostitution. She was not charged in relation to the index offence. Ms. Forsyth’s testimony varied from the account provided by Ms. Crook in some respects, namely, (i) there was no Black man or man named Joe at the apartment; (ii) she saw Ms. Crook with the deceased and he did not ask to buy drugs from her; (iii) the scissors found near the deceased were Ms. Crook’s; (iv) Ms. Crook did not own a grey Edmonton Oilers sweatshirt; and (v) there was no meat cleaver in the apartment.

[30] Mr. Martins was also charged in relation to the murder and gave a statement. His charges were stayed following his statement. Ms. Andrews pleaded guilty to accessory after the fact for disposing the appellant’s bloody T-shirt.

[31] The Crown argued that the jury could be satisfied beyond a reasonable doubt that the appellant was guilty of first degree murder either because the murder was planned and deliberate, or committed in the context of an unlawful confinement. It relied heavily on Ms. Crook’s testimony. The Crown argued that the jury’s faith in the testimony of the unsavoury witnesses could be restored through confirmatory evidence. The defence argued that the jury should be cautious of the testimony provided by the unsavoury witnesses, particularly Ms. Crook.

[32] The trial judge conducted a pre-charge conference with the parties and canvassed several aspects of the proposed instructions, including the Vetrovec instruction. At the pre-charge conference, the Crown initially proposed giving a Vetrovec caution in relation to the four witnesses discussed above. The defence objected to parts of the caution and whether the witnesses could corroborate each other, but did not suggest that any of the four witnesses be excluded from the caution. No objections were raised by either side to the ultimate charge.

[33] In his jury charge, the trial judge gave a Vetrovec caution with respect to the testimony of the Crown’s four unsavoury witnesses. In explaining that the jury should look for confirmatory evidence of their testimony, the trial judge gave several examples of what could be considered as confirmatory evidence. He used the testimony of Ms. Crook for his examples, laying out portions of her testimony and giving an example of other evidence that could confirm her evidence.

III. ANALYSIS

(1) Conviction Appeal

[34] On the conviction appeal, the appellant raises three issues.

[35] First, the appellant submits, for the first time on appeal, that the trial judge erred by subjecting Ms. Forsyth’s evidence to a Vetrovec caution.

[36] Second, the appellant argues that even if a Vetrovec caution was proper for Ms. Forsyth, the caution in this case was deficient because the trial judge failed to tell the jury that it did not apply to the parts of Ms. Forsyth’s evidence that were helpful to the appellant. Although Ms. Forsyth was a Crown witness, the appellant argues that her evidence supported his defence by: (1) contradicting some aspects of Ms. Crook’s testimony, supporting the conclusion that Ms. Crook was misleading the jury; and (2) providing circumstantial evidence that supported the defence position that Ms. Crook killed the deceased herself. The appellant argues that the lack of objection by his defence counsel at trial cannot make up for these deficiencies.

[37] Third, the appellant submits the trial judge’s Vetrovec caution was deficient in relation to Ms. Crook’s evidence because it did not properly explain why her evidence needed special scrutiny, given her plea agreement with the Crown, and because the instructions about confirmatory evidence were unbalanced.

[38] For ease of reference, I set out the relevant portion of the trial judge’s Vetrovec caution:

Experience has taught us that testimony from these types of Crown witnesses, with these types of personal backgrounds, criminal records, and direct connection with, or involvement with, the alleged offence in question, must be approached with the greatest care and caution. Your own common sense will tell you that, in these circumstances, there is good reason to look at their evidence with the greatest care and caution. That said, you are entitled to rely on their evidence, even if it is not confirmed by another witness or other evidence, but it is dangerous for you to do so. Accordingly, when you are considering their evidence, you should look for some confirmation of their evidence from somebody else, or something else, before you rely upon their evidence in deciding whether the Crown has proven its case against the accused beyond a reasonable doubt. [Italics in original.]

[39] This court must take a functional approach in reviewing the trial judge’s instruction. As with all jury instructions, “the question is not whether the trial judge uttered specific words or followed a specific formula, but whether the charge as a whole, in the context of the particular case, served its purpose by delivering the necessary message”: R. v. Dadollahi-Sarab, 2021 ONCA 514, para 112. See also R. v. Khela, 2009 SCC 4, paras 13-15, 47; R. v. Vassel, 2018 ONCA 721, paras 151-52. This approach was reiterated by Rowe J. in R. v. Abdullahi, 2023 SCC 19, para 36: “when reviewing a charge to a jury for potential legal error, appellate courts need to read the charge as a whole and determine whether the overall effect of the charge properly equipped the jury in the circumstances of the trial to decide the case according to the law and the evidence.”

[40] In my view, when the functional approach is applied to the trial judge’s Vetrovec instruction, there were no reversible errors. This conclusion is bolstered by defence counsel at trial’s lack of objection to the Vetrovec instruction. None of the complaints made in this appeal about the Vetrovec caution were raised by trial counsel. When an appellate court is asked to review the choice made by the trial judge, that court is entitled to take into account the positions taken by counsel at trial. These positions are particularly important when, as here, counsel had an opportunity to vet the proposed charge and make detailed submissions: see Dadollahi-Sarab, at para. 127. The inherently strategic decision about whether to request a Vetrovec caution and to voice no complaint about its content is relevant. In Abdullahi, Rowe J. said that the lack of objection, while not determinative, is a factor that informs the review of a jury charge. The lack of objection “may be particularly relevant” in the case of a contingent instruction, like the Vetrovec caution, and it “may indicate the sufficiency of a judge’s Vetrovec instruction”: Abdullahi, at para. 68.

Issue 1: The trial judge did not err in providing a Vetrovec caution to Ms. Forsyth’s evidence

[41] To begin, for two reasons, I do not accept the appellant’s submission that Ms. Forsyth’s evidence should not have been subject to a Vetrovec caution.

[42] First, the appellant relies on Scanlan J.A.’s dissent in R. v. Riley, 2019 NSCA 94, which was adopted in its entirety by the Supreme Court of Canada in R. v. Riley, 2020 SCC 31. Counsel on appeal argues that Riley fortifies the submission that Ms. Forsyth’s evidence should not have been subject to a Vetrovec caution. I do not agree. The facts of Riley are distinguishable.

[43] In Riley, the appellant and Nathan Johnson were charged with first degree murder of the deceased. Their cases were severed and Mr. Johnson was tried by jury. At Mr. Johnson’s trial, his ex-girlfriend testified that he had admitted to her that he and the appellant killed the deceased. Mr. Johnson was convicted. Since the Crown could not call Mr. Johnson’s ex-girlfriend at the appellant’s trial to give evidence about Mr. Johnson’s hearsay statements, which were not admissible against the appellant, it called Mr. Johnson. He testified that he alone had killed the deceased, and that while he did tell his ex-girlfriend that the appellant was involved, he was lying to cover up the fact that he alone was the killer. At trial, the trial judge gave the following Vetrovec warning for the exculpatory evidence provided by Mr. Johnson:

To be confirmatory, the testimony of another witness or other witnesses or other evidence need not itself implicate Nathan Johnson in the commission of the offence, but it must give you the comfort that Nathan Johnson can be trusted when he says that he, Nathan Johnson, committed the offence.

[44] The jury convicted the appellant of second degree murder.

[45] A majority of the Nova Scotia Court of Appeal dismissed the appeal. In his dissent, Scanlan J.A. would have allowed the appeal on the basis that the trial judge erred in giving a Vetrovec caution. Scanlan J.A. repeatedly referred to the nature and significance of Mr. Johnson’s evidence and held that the Vetrovec caution should not have been given because “[o]ne could hardly imagine a more crucial witness for the defence than Mr. Johnson” and that the evidence was “of vital importance to the issue of guilt or innocence”. Upon further appeal, the Supreme Court of Canada allowed the appeal and adopted Scanlan J.A.’s dissent.

[46] Scanlan J.A. disagreed with the majority that Mr. Johnson was a “mixed witness”, and found instead that he was a “purely exculpatory” witness. He also held that the law was clear that a Vetrovec warning should not be given in respect of a purely exculpatory witness. He relied on a decision of this court R. v. Chenier, para 46, that holds that it is “not permissible to give a Vetrovec caution in relation to a defence witness” and that the warning “should only be given where a witness is giving evidence that assists in the demonstration of guilt”. Scanlan J.A. held that the nature of the evidence (exculpatory, inculpatory, or mixed) drove the analysis as to whether a Vetrovec instruction should be given. Therefore, the fact that Mr. Johnson was a Crown witness did not mean that a Vetrovec caution was appropriate when his evidence was by its very nature purely exculpatory.

[47] While Mr. Johnson’s evidence in Riley was purely exculpatory, the same cannot be said of Ms. Forsyth. Ms. Forsyth was called by the Crown, who argued that her evidence, if accepted by the jury, bolstered the testimony of other Crown witnesses, including the main Crown witness, Ms. Crook. Although Ms. Forsyth contradicted some important aspects of Ms. Crook’s evidence, her testimony also supported other parts of Ms. Crook’s evidence, including that the appellant had been at their apartment that night with some friends, and that the deceased had also been there. The presence of inculpatory evidence in Ms. Forsyth’s testimony means that her evidence as a whole is of a different nature than Mr. Johnson’s evidence in Riley, which was entirely exculpatory. The current case is also unlike the facts of Chenier. In Chenier, the witness subject to a Vetrovec caution was a defence witness who provided exculpatory evidence. Blair J.A. held that a Vetrovec caution is inappropriate in this scenario because the instruction to look for confirmatory evidence impermissibly transfers the burden of proof to the accused: Chenier, at para. 46. This concern is not present for Ms. Forsyth since she provided both inculpatory and exculpatory evidence.

[48] Ms. Forsyth was what has been described in the jurisprudence as a “mixed witness”. The fact is, Ms. Forsyth provided some evidence that was helpful to the appellant and some evidence that implicated him. Her evidence helped the appellant by contradicting some aspects of Ms. Crook’s testimony. However, Ms. Forsyth also provided evidence that can be described as inculpatory. Most importantly, Ms. Forsyth confirmed Ms. Crook’s evidence that put the deceased at their apartment on the night in question. Ms. Forsyth also testified that the appellant and his friends came to their apartment on the evening of August 23; that Ms. Crook encountered the deceased and brought him to the apartment; that at the time of the murder Ms. Crook was on a binge and intoxicated; and that Ms. Crook and the appellant left Toronto for a period of time after the murder. These aspects of Ms. Forsyth’s evidence confirmed at least to some extent the testimony of the Crown’s key witness, Ms. Crook, even though they contradicted each other on certain details (for example, Ms. Forsyth testified that she ran into Ms. Crook and the deceased together on the street before the deceased arrived at the apartment, which Ms. Crook disputed). Her evidence cannot be described as entirely exculpatory.

[49] Doherty J.A. noted in R. v. Rowe, 2011 ONCA 753, para 33, that a Vetrovec caution will often be appropriate in respect of the testimony of a mixed witness. However, the “specifics of that caution and the format of the instruction are left very much in the discretion of the trial judge”: Rowe, at para. 33. Since Ms. Forsyth was a mixed witness, it was within the trial judge’s discretion to decide to include her in the Vetrovec caution.

[50] Second, all parties at trial agreed that Ms. Forsyth should be included in the caution, and with good reason. All four Crown witnesses who were subjected to the Vetrovec caution were classic “unsavoury witnesses”: they all had lengthy criminal records, involvement in the drug subculture and in criminal activity, and histories of drug use. In this context, to isolate Ms. Forsyth as a distinct Crown witness whose evidence did not call for caution would have been very confusing to the jury. Ms. Forsyth was an important witness for the Crown who provided some inculpatory evidence, and it is not surprising that defence counsel at trial did not object to the suggestion that she be included in the Vetrovec caution.

[51] In light of the above, I would reject the appellant’s first ground of appeal.

Issue 2: The content of the Vetrovec instruction reveals no error

[52] In the alternative, the appellant argues that the Vetrovec caution for Ms. Forsyth was deficient because the trial judge failed to tell the jury that the caution had no application to the parts of Ms. Forsyth’s evidence that were helpful to the appellant. He submits that by failing to distinguish between the inculpatory and exculpatory portions of Ms. Forsyth’s evidence, the trial judge would have left the jury with the understanding that it had to approach all of Ms. Forsyth’s evidence with caution, and search for confirmatory evidence before relying on any part of her testimony. He contends that this instruction could have led to the jury improperly rejecting exculpatory evidence, and that it accordingly undermined the presumption of innocence and the requirement that the Crown prove the appellant’s guilt beyond a reasonable doubt.

[53] I am not persuaded by this submission.

[54] As noted above, Doherty J.A. in Rowe held that the content and format of the Vetrovec instruction are left to the discretion of the trial judge. He explained that the instruction will be sufficient if, considered in its entirety, it “makes clear to the jury both that it is dangerous to rely on the inculpatory portion of the Vetrovec witness’s evidence without confirmatory support, and that the jury must acquit if the exculpatory portions of that witness’s evidence, alone or taken in combination with the rest of the evidence, leave the jury with a reasonable doubt”: Rowe, at para. 33.

[55] Based on these principles, I am satisfied that the instruction in this case was sufficient.

[56] First, I am satisfied that the jury would have understood that the Vetrovec caution applied only to the case against the appellant and had no application to the case for him. The trial judge made this clear in his Vetrovec instruction when he said the following:

Accordingly, when you are considering their evidence, you should look for some confirmation of their evidence from somebody else, or something else, before you rely upon their evidence in deciding whether the Crown has proven its case against the accused beyond a reasonable doubt. [Emphasis added.]

[57] While the trial judge did not explicitly say “you do not need confirmatory evidence of any exculpatory evidence given by the Crown’s unsavoury witnesses”, I am satisfied that this instruction as a whole conveyed that message. As Trotter J.A. explained in R. v. Wheatle, 2022 ONCA 591, para 26, when giving a Vetrovec caution “more can always be said, in a different way, with greater emphasis on different factors”. However, the question on appeal “is whether the instruction did its job by conveying the requisite degree of caution, within a proper framework, that assisted the jury in understanding how to approach the witness’ evidence”. Here, the caution was sufficient to instruct the jury how it should approach Ms. Forsyth’s evidence.

[58] Second, in addition to the above-noted passage, the trial judge continuously cautioned the jury about how they could use the evidence of the Vetrovec witnesses with respect to proving the Crown’s case, rather than using the evidence for other purposes (like finding the appellant not guilty). This can be seen in the trial judge’s instructions relating to confirmatory evidence. In that instruction, the trial judge selected Ms. Crook as an example to describe what would be confirmatory evidence [1]:

To be confirmatory of Ms. Crook’s testimony, again for example, the testimony of another witness, or other witnesses, or other evidence, must also tend to show that Ms. Crook is telling the truth about the guilt of the accused, or how the accused committed the alleged offence. To be confirmatory, the testimony of another witness, or other witnesses, or other evidence, need not, however, itself implicate the accused in the commission of the alleged offence, but it must give you comfort that Ms. Crook can be trusted when she says that the accused committed the alleged offence. Said another way, confirmatory evidence must help restore your faith in her testimony that the accused committed the alleged offence. [Emphasis added.]

[59] In my view, these explicit instructions would have made it clear to the jury that the Vetrovec caution applied to the evidence that could be relied on to convict the appellant, but not to evidence that assisted him.

[60] Third, when the charge is read in its entirety, the trial judge did, in fact, demarcate a significant piece of exculpatory evidence provided by Ms. Forsyth: namely, her testimony that the scissors found at the scene belonged to Ms. Crook, and that Ms. Crook carried them in her purse. The scissors were potentially one of the murder weapons in this case, since they had blood and the deceased’s DNA on them, and some of his injuries were consistent with having been inflicted by scissors. The fact is that the trial judge did highlight for the jury how to assess this evidence that supported the defence position that it was Ms. Crook who killed the deceased. The trial judge said the following:

In this case, defence counsel expressly contended that it was Ms. Crook who committed the offence, and impliedly suggested the possibility that it may have been the nameless black man who committed the offence—and that it was not [the appellant].

Evidence that shows or tends to show that either Ms. Crook or the nameless black man committed this offence, taken together with the rest of the evidence, may cause you to have a reasonable doubt about whether [the appellant] committed the offence. [Emphasis added.]

[61] After reviewing the specific evidence that defence counsel relied on, including the evidence of Ms. Forsyth that the scissors belonged to Ms. Crook, the trial judge providing the following instruction:

First, if you believe the evidence that shows or tends to show that Ms. Crook or the nameless black man committed the offence, and not [the appellant], then you must find the accused not guilty of that offence.

Second, if you do not believe the evidence that shows or tends to show that Ms. Crook or the nameless black man committed the offence, but that evidence raises a reasonable doubt in your mind as to whether [the appellant] committed that offence, you must find [the appellant] not guilty of that offence.

Third, if you do not believe the evidence that shows or tends to show that Ms. Crook or the nameless black man committed the offence, and that evidence does not raise a reasonable doubt in your mind that [the appellant] committed that offence, you must consider whether the rest of the evidence that you do accept satisfies you beyond a reasonable doubt that [the appellant] committed the offence charged.

[62] Considering the charge as a whole, the trial judge’s instructions would not have led the jury to misapply the burden of proof by putting an onus on the appellant to show confirmation of exculpatory evidence. When I consider the specific instructions noted above, and the fact that the jury was also instructed several times about the burden of proof, I am satisfied that the jury understood that to the extent that some of Ms. Forsyth’s evidence helped the appellant, it did not need to be confirmed by other evidence.

[63] Fourth, I do not find the appellant’s reliance on Riley to be persuasive. The appellant relies on Riley for the proposition that the trial judge was required to distinguish between the inculpatory and exculpatory portions of Ms. Forsyth’s evidence when providing the Vetrovec instruction.

[64] This court has addressed Riley and its application to mixed witnesses. Doherty J.A. in Dadollahi-Sarab held that Riley does not represent a departure from the authorities of this court on the issue of whether a Vetrovec caution should be given in relation to a mixed witness. Doherty J.A., at paras. 117-27, held that it would not be a reasonable reading of Riley to impose a “single formula” on trial judges regarding Vetrovec instructions, given the “long-standing functional approach to the adequacy of jury instructions.” Crucially, he rejected the argument that an “exhaustive cataloging of inculpatory and exculpatory evidence” was always required in the case of a mixed witness. Doherty J.A. questioned “the practical value and workability” of such an exhaustive cataloging in every case, given that in some cases “the same evidence may be potentially exculpatory or inculpatory, depending on what the jury made of the totality of the evidence.” The helpfulness of such cataloging depends on the circumstances at hand, and it is “for the trial judge to decide which approach works best in any given case.”

[65] Fifth, as with the first ground of appeal, the lack of objection by defence counsel at trial to the Vetrovec instruction is a crucial factor. The experienced trial judge conducted a pre-charge conference with experienced counsel to canvass various aspects of the proposed instructions, including the content of the Vetrovec instruction. Neither party objected to the ultimate instruction. The fact that there was no objection to this instruction fortifies my conclusion that there was no misdirection.

[66] In sum, I am of the view that the Vetrovec instruction with respect to Ms. Forsyth’s evidence does not reveal reversible error and I would reject this ground of appeal.

Issue 3: The Vetrovec caution properly explained why Ms. Crook’s evidence needed special scrutiny

[67] The appellant argues that when giving the Vetrovec caution, the trial judge should have drawn special attention to the fact that the defence was alleging that Ms. Crook was the killer, and should have directed the jury that because she was initially also charged with the murder, her evidence presented a “special problem”. The appellant also complains that the instructions about confirmatory evidence were not balanced.

[68] I see no error in the trial judge’s charge. When instructing the jury about Ms. Crook’s evidence, the trial judge specifically instructed the jury how to assess evidence that supported the defence argument that Ms. Crook was the real killer. He told the jury that if they believed any such evidence, including Ms. Forsyth’s evidence that the scissors belonged to Ms. Crook, or if this evidence raised a reasonable doubt, they had to acquit. Further, the trial judge outlined the various reasons that justified the need to be cautious of Ms. Crook’s evidence including her significant criminal record, her addiction to cocaine and alcohol, and the fact that she was originally charged with first degree murder of the deceased but pleaded guilty to a reduced charge of manslaughter.

[69] The jury charge also set out the position of the defence and the following references to the defence’s position that Ms. Crook had motivation to lie because she was originally charged with the murder of the deceased and had access to the disclosure:

[Defence counsel] argued that Ms. Crook fabricated her account of the case from all of this information, and did her best to make it convincing, as there was not yet "a deal on the table" when she first provided the statement to her lawyer, and she wanted to orchestrate a deal with the Crown.

[Defence counsel] reminded you that when she provided her statement to her lawyer, she was facing a charge of first degree murder, and he suggested to you that someone like Ms. Crook would do whatever was necessary to "get out from under" a life sentence. She knew that she had to prepare a "convincing story."

[Defence counsel] reminded you, as well, that she has now been a Crown witness on four different occasions, and was ultimately permitted to plead guilty to manslaughter, and was given a two-year credit for the cooperative assistance she provided with her testimony. [Defence counsel] said that, by the time Ms. Crook testified in this trial, she was an “experienced witness – she was a pro.”

[70] Moreover, the trial judge referred to Ms. Crook’s circumstances in his Vetrovec caution:

In addition, she was originally charged with first degree murder in connection with the killing of Mr. Fawell. She was provided with disclosure of the nature of the Crown's case against her. She was ultimately permitted, after providing her March 28, 2014 statement to her lawyer and, in turn, the Crown, to plead guilty to the reduced charge of manslaughter, and she received an effective sentence of some four years imprisonment.

[71] Nor do I see any merit to the appellant’s submission that the examples provided by the trial judge as potentially confirmatory evidence were unbalanced. Again, this issue was not raised by the defence during the pre-charge conference or when the final charge was delivered to the jury. In my view, the trial judge crafted an instruction that explained to the jury the kinds of evidence that could, as a matter of law, amount to confirmatory evidence. It was within his discretion to craft the contents of the instruction, and he did not need to exhaustively detail the parties’ positions about that evidence within the instruction. Counsel were content that the instruction as drafted was appropriate. Accordingly, I would reject this ground of appeal.

(2) Sentence Appeal

[72] The trial judge sentenced the appellant to life imprisonment without the possibility of parole for 25 years. This was a mandatory sentence pursuant to s. 745(a) of the Criminal Code. Pursuant to s. 745.51 of the Criminal Code, the trial judge determined that the period of parole ineligibility should be served consecutively to the 16-year period imposed on the appellant’s previous conviction for second degree murder. This resulted in a total parole ineligibility period of 41 years.

[73] The Crown concedes the imposition of a consecutive parole period is now unsupportable in light of the Supreme Court of Canada’s decision in Bissonnette, which declared s. 745.51 unconstitutional and made the declaration of invalidity retroactive to the date the section was first enacted.

[74] Consequently, the s. 745.51 order must be set aside. The sentence of life imprisonment without the possibility of parole for 25 years imposed by the trial judge is ordered to run concurrently to the appellant’s previous sentence for second degree murder.

IV. DISPOSITION

[75] I would dismiss the conviction appeal. I would grant leave to appeal sentence, allow the sentence appeal, and set aside the trial judge’s order under s. 745.51 that made the appellant’s parole ineligibility period run consecutively to his previous sentence for second degree murder. The appellant’s sentence for the murder of the deceased remains one of life imprisonment without the possibility of parole for 25 years. However, this period of parole ineligibility will now run concurrently to the appellant’s previous sentence for second degree murder.

Released: March 12, 2025

“E.E.G.”
“Steve Coroza”
“I agree. E.E. Gillese”
“I agree. J. Dawe”

[1] The trial judge explained that this instruction applied to all Vetrovec witnesses.