DATE:  20041221
DOCKET: C36628

COURT OF APPEAL FOR ONTARIO

On appeal from conviction by Justice Peter B. Hockin of the Superior Court of Justice, sitting with a jury, dated March 19, 2001 and sentence imposed by Justice Hockin on March 19, 2001.

ENDORSEMENT

[1]               The appellant only pursued three grounds of appeal in oral argument.  We would not give effect to those grounds of appeal.

The W. (D.) Instruction

[2]               The appellant submits that the trial judge should have given instructions to the jury in accordance with R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) in respect of two bodies of evidence.  The first body of evidence consists of those statements by the appellant in which he purported to give an innocent explanation for the disappearance of his wife.  The second piece of evidence is the testimony of Mr. Gillingwater concerning his spotting of the appellant’s wife two weeks after her disappearance.

[3]               In our view, there was no obligation on the trial judge to give the directions sought.  The appellant did not testify and his trial counsel did not seek these directions.  The trial judge instructed the jury with respect to reasonable doubt and the presumption of innocence and expressly instructed the jury that evidence that is neither accepted nor rejected may still give rise to a reasonable doubt.  The jury was also told that the defence position was that the appellant’s statements could give rise to a reasonable doubt.  In the circumstances, there is no possibility that the jury would have convicted had they entertained a reasonable doubt that the appellant’s explanation for his wife’s disappearance was true.

[4]               This was not a case where a special instruction was required as in R. v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.) because of the sighting of Ms. MacDonald after her disappearance.  Mr. Gillingwater only caught a fleeting glance of the side of the head of a woman whom he believed might have been Ms. MacDonald.  The trial judge fairly summarized this evidence and related it to the issue of whether the Crown had proven beyond a reasonable doubt that Ms. MacDonald was dead.  This evidence could not be taken in isolation, but rather, had to be seen in the context of the entire case.  Contrary to R. v. Jack, the trial judge’s instructions were not confounded by an instruction about the frailties of relying on  identification evidence helpful to the defence.

Teresa Laidlaw

[5]               While we have some doubt about the admissibility of this evidence, neither its admission nor the absence of a limiting instruction prejudiced the appellant.  Ms. Laidlaw herself did not take the remark seriously and even at trial still thought that the appellant was joking.  The evidence did not carry such a serious prejudicial effect that failure to give a limiting instruction could have affected the verdict.

Vetrovec Warning

[6]               The appellant submits that the trial judge erred in failing to give an adequate warning in accordance with Vetrovec v. The Queen (1982), 67 C.C.C. (3d) 1 (S.C.C.) with respect to Ms. McCoy and in failing to give any warning with respect to Mr. Tanton.

[7]               With respect to McCoy, the trial judge set out in great detail the problems with her evidence, including the fact that she was facing an obstruction of justice charge.  The jury was clearly alive to the importance of this latter issue since they asked to have this part of the witness’s evidence read back during their deliberations.  The trial judge told the jury to consider McCoy’s evidence with care and caution and to seek confirmation of the evidence before relying on it.  We are satisfied that this was an adequate direction.  We note that experienced counsel did not seek any stronger direction.

[8]               As to Mr. Tanton, we think it was open to the trial judge to find that a Vetrovec warning was not necessary.  The trial judge did single this witness out for special consideration. He fairly and in considerable detail set out the specific problems with his evidence, namely his criminal record for crimes of dishonesty and the inconsistencies in his testimony.  There were not, however, any special problems with his evidence such as a motive to fabricate or seeking a benefit that may have made a warning mandatory.  In the circumstances, and especially that no Vetrovec warning was sought by the defence, whether to give the warning was a matter of discretion. In that regard, we take into account that even a brief review of confirmatory evidence would have seriously disadvantaged the defence position.

[9]               Accordingly, the appeal is dismissed.

Signed:           “Marc Rosenberg J.A.”

                        “M.J. Moldaver J.A.”

                        “J.C. MacPherson J.A.”