Court of Appeal Decision of the Week

When Your Co-Accused Pleads Out & Takes the Stand Against You – Vetrovec Warnings

Case: R. v Arts, 2016 ABCA 369 (CanLII) 

Keywords: Assault Causing Bodily Harm; Assault with a Weapon; Unlawful Confinement; Co-Accused; R. v Vetrovec, 1982 CanLII 20 (SCC)

Synopsis:

The Appellant, Mr. Cory Arts and a co-accused (known as “Terrio”) assault another resident of the same four-plex. The co-accused pleads guilty and the Crown calls him to testify against the Appellant. The Appellant appeals against his conviction for assault causing bodily harm, assault with a weapon, unlawful confinement, and related offences.

In the Court of Appeal, the Appellant raises the following issues:

  • that the evidence of the various witnesses was inconsistent and the Trial Judge failed to discuss and reconcile all of these differences (See para. 2);
  • that the trial judge failed to self-instruct on the principle in v Vetrovec, 1982 CanLII 20 (SCC) with respect to the evidence of Terrio as an “accomplice” (See para. 4);
  • inadequate disclosure of the Crown’s intention to call Terrio (and the possible contents of his evidence) (See para. 6); and
  • abuse of process arising from an absence of prosecutorial impartiality (See para. 15).

The Court of Appeal finds no reviewable errors on the record and the appeal is dismissed.

Importance:

Citing R. v Dinardo, 2008 SCC 24 (CanLII) at para. 30, R. v M.(R.E.), 2008 SCC 51 (CanLII) at paras. 20 & 24, R. v Paxton, 2016 ABCA 361 (CanLII) at para. 32, and R. v R.P., 2012 SCC 22 (CanLII) at para. 9, the Court of Appeal stated that a Trial Judge is not required to mention every piece of evidence. Generally speaking, an appellate court will not review the Trial Judge’s assessment unless:

  • it reflects palpable and overriding error;
  • no reasonable trier of fact could have convicted;
  • or the verdict is otherwise unreasonable. (See para. 2).

The Appellant was suspicious of what was described as the Crown’s “leniency” towards the co-accused. (See para. 16). It was argued the Crown’s decision to proceed against the co-accused “Terrio” on a summary basis (opening the possibility of a conditional sentence), and the fact the co-accused testified after his conviction but before his sentencing hearing “taints the verdict” as against the Appellant.

With respect to the Vetrovec warning itself the Court of Appeal found a formalistic approach to Vetrovec is not required; it was not concerned with the veracity of “Terrio” the co-accused’s evidence (there was corroboration since the Crown called two separate witnesses to the assaults and confinement).

The Court also referred to the case of R. v M.R.W., 2013 ABCA 56 (CanLII) at para. 35 (see also R v Snyder, 2011 ONCA 445 (CanLII), at paras. 23–25) and found, notwithstanding the absence of a complete Vetrovec analysis in the reasons for judgment, the Trial Judge had been “…fully aware of the need to assess Terrio’s evidence with care”. (See para. 4). In any event, the Court of Appeal was satisfied the evidence of the co-accused was not critically important to the outcome. (See para. 14).

With respect to inadequate or late disclosure by the Crown, the Court of Appeal found “The Crown provided no satisfactory explanation why defence counsel was not advised, in advance, that Terrio would be testifying. Even if there was no “will say” to disclose, defence counsel was at least entitled to know that much.” (See para. 13).

The Court found that, pursuant to R. v McQuaid, 1998 CanLII 805 (SCC) at paras. 33-34 and R. v Taillefer, 2003 SCC 70 (CanLII) at para. 82, the Appellant was unable to show the deficiencies in Crown disclosure prevented the making of a full answer and defence or caused any prejudice.

Finally, the Court of Appeal dismissed the Appellant’s argument that the Crown’s treatment of “Terrio” the co-accused was actually a reflection of bias against the Appellant. Citing R. v Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, the Court pointed to the co-accused’s “serious cognitive difficulties” and affirmed the sentencing procedure is a highly personalized process. As such, it held no inference of bias could reasonably be drawn from the record. (See para. 15).

Counsel for the Appellant: John Kelly (J.J. Kelly Barristers, Calgary)

Counsel for the Respondent: Sarah Clive (Department of Justice and Solicitor General (AB), Calgary)

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Posted: Wednesday, November 30, 2016