R. v. Carroll (R.), (2014) 314 O.A.C. 281 (CA)

• Judge: Laskin, Goudge and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 28, 2013
• Jurisdiction: Ontario
• Citations: (2014), 314 O.A.C. 281 (CA);2014 ONCA 2

R. v. Carroll (R.) (2014), 314 O.A.C. 281 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JA.007

Her Majesty the Queen (respondent) v. John Reginald Carroll (appellant)

(C52102; 2014 ONCA 2)

Indexed As: R. v. Carroll (R.)

Ontario Court of Appeal

Laskin, Goudge and Watt, JJ.A.

January 2, 2014.

Summary:

The accused was convicted of two counts of first degree murder. He appealed, alleging evidentiary errors.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused was convicted of two counts of first degree murder - The victims were his estranged wife and her boyfriend - At trial, Crown counsel sought to introduce a wide range of evidence that showed that the accused was controlling in the marital relationship and mistreated his spouse, especially in the late stages of the marriage - The principal sources of this evidence were two close friends of the wife who had witnessed the conduct - On appeal, the accused submitted that this was evidence of bad character that should not have been admitted - The Ontario Court of Appeal rejected the submission - First, the evidence was properly admitted on the basis of a substantial and unbroken line of authority in the province - Despite its incidental effect of showing that the accused engaged in prior disreputable conduct, the evidence elucidated the nature of the marital relationship, which was relevant to proof of animus or motive - Evidence of animus or motive was relevant, in turn, to proof of the identity of the wife's killer and the legal character of the unlawful killing - Second, the trial judge carefully considered where the balance settled between probative value and prejudicial effect - His analysis revealed no legal or other error - Third, even if the evidence was admitted in error, the trial judge's limiting instructions, which were unduly favourable to the accused if the evidence was properly admitted, enjoined propensity reasoning and attracted no objection from trial counsel - See paragraphs 113 to 127.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The accused was convicted of two counts of first degree murder - The victims were his estranged wife and her boyfriend - The accused appealed, submitting, inter alia, that the trial judge should have given the jury a Vetrovec warning regarding his girlfriend's (Moncion's) evidence - The Ontario Court of Appeal rejected the submission - First and foremost, whether to include a Vetrovec caution in final instructions fell squarely within the trial judge's discretion and was entitled to substantial deference on appellate review - The trial judge's reasons reflected an understanding of the relevant principles and a measured consideration of them, unadulterated by extraneous considerations, improper weighing or misapprehensions of the evidence - Second, a Vetrovec caution was not mandatory where Moncion was not a "typical Vetrovec witness" - She was not an accomplice, a jailhouse informant, career criminal or drug addict - She did not have a history of psychiatric illness impairing reliability, nor did she seek tangible benefits - She had no motive to incriminate the accused - Third, Moncion's evidence was important, but not essential to the Crown's case - Further, even if her evidence was elevated to "essential" status, no authority compelled a Vetrovec caution on this basis alone - Fourth, the factors that could be considered relevant to impair Moncion's worth as a witness did not support a Vetrovec caution - They related to the manner in which Moncion's final account developed through her various police interviews - These circumstances were fully explored during cross-examination and were routine fare for jurors to evaluate - The rationale that underpinned a Vetrovec caution originated in the concern that, for certain types of witnesses, lay members of the jury simply lacked the critical experience to adequately gauge the credibility of these types of witnesses and the reliability of their evidence - No such concerns emerged regarding Moncion's testimony - Finally, the instructions given by the trial judge regarding Moncion's testimony adequately equipped the jury to perform its task - See paragraphs 41 to 50 and 68 to 80.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The Ontario Court of Appeal summarized the principles at play when a trial judge was asked to include a Vetrovec caution (1982 S.C.C.) in the jury charge - First, at least as a general rule, whether a Crown witness' testimony should be subject to a Vetrovec caution was within the trial judge's discretion - Second, two factors were prominent in the trial judge's decision about whether to include a Vetrovec caution about a Crown witness' testimony in final instructions: the witness' credibility and the importance of the witness' evidence to the Crown's case - Where a witness' evidence occupied a central position in the demonstration of guilt, yet might be suspect because of a disreputable and untrustworthy character, a clear and sharp warning (i.e., a Vetrovec caution), might be appropriate to alert the jury to the risks of adopting the evidence without more; but where the evidence was important, but not dispositive of guilt, and where the witness' evidence merely furnished additional support for the prosecution's case, a Vetrovec warning might not be required and its absence confirmed on appellate review - Third, in assessing the credibility of a Crown witness to determine whether to include a Vetrovec warning, a trial judge was not to slot the witness into a particularized category (e.g., jailhouse informants, drug addicts, particeps criminis) - Where the judge concluded that the witness could be trusted, no Vetrovec caution was necessary, regardless of whether the witness was an accomplice or a jailhouse informant - In addition, consistent with the flexibility that was the badge of Vetrovec, the fact that a witness sought to avoid incarceration, and prosecution, by testifying was a factor which might undermine credibility but, on its own, was not enough to require a Vetrovec caution - Finally, as a general rule, a trial judge's discretion whether to include a Vetrovec caution in final instructions was to be accorded wide latitude and substantial deference on appellate review - See paragraphs 59 to 67.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused was convicted of two counts of first degree murder - The victims were his estranged wife and her boyfriend - The trial judge admitted evidence of what the accused's wife told several witnesses about her fear of the accused and the nature of their relationship as their marriage came undone - The trial judge invoked the common law state of mind exception to the hearsay rule to admit evidence of the fear expressed by the deceased of the accused - The trial judge also admitted the deceased's statements under the principled exception to the hearsay rule (necessary and reliable) - On appeal, the accused submitted that the trial judge erred in admitting the evidence - The Ontario Court of Appeal rejected the submission - See paragraphs 81 to 112.

Evidence - Topic 1631.1

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - State of mind - [See Evidence - Topic 1527 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 60].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 60].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [para. 60].

R. v. M.M. (2007), 223 O.A.C. 308; 220 C.C.C.(3d) 74; 2007 ONCA 329, refd to. [para. 60].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 64].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 64].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), refd to. [para. 78].

R. v. Welsh (J.) (2013), 304 O.A.C. 201; 115 O.R.(3d) 81; 2013 ONCA 190, refd to. [para. 78].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 99].

R. v. Singh (P.) (2010), 270 O.A.C. 293; 266 C.C.C.(3d) 466; 2010 ONCA 808, refd to. [para. 103].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 104].

R. v. Moo (K.S.) (2009), 253 O.A.C. 106; 247 C.C.C.(3d) 34; 2009 ONCA 645, refd to. [para. 104].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 105].

R. v. Pasqualino (C.) (2008), 239 O.A.C. 59; 223 C.C.C.(3d) 319; 2008 ONCA 554, refd to. [para. 59].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 111].

R. v. J.M. (2010), 258 O.A.C. 81; 251 C.C.C.(3d) 325; 2010 ONCA 117, refd to. [para. 111].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 112].

R. v. Polimac (M.) (2010), 262 O.A.C. 91; 254 C.C.C.(3d) 359; 2010 ONCA 346, refd to. [para. 112].

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 2009 ONCA 543, refd to. [para. 122].

R. v. Van Osselaer (P.) (2002), 172 B.C.A.C. 58; 282 W.A.C. 58; 5 B.C.L.R.(4th) 73; 2002 BCCA 464, refd to. [para. 122].

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 46 O.R.(3d) 161 (C.A.), refd to. [para. 123].

Counsel:

Jonathan Dawe, for the appellant;

Jamie Klukach, for the respondent.

This appeal was heard on May 28, 2013, by Laskin, Goudge and Watt, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following decision for the court on January 2, 2014.