R. v. Chartrand, 2014 MBCA 87

Citation: R. v. Chartrand, 2014 MBCA 87 Date: 20140924 Docket: AR 12-30-07851 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN: HER MAJESTY THE QUEEN ) R. T. Amy and ) N. R. Boucher ) for the Appellant Respondent ) ) A. Y. Kotler- and - ) for the Respondent ) ) Appeal heard:RAYMOND GASPARD CHARTRAND ) April 29, 2014 ) ) Judgment delivered: (Accused) Appellant ) September 24, 2014 MacINNES J.A. [1] After trial before judge and jury the appellant (the accused) was convicted of second degree murder.

He appeals thatconviction. [2] Jeffrey Bruyere (Bruyere) and Travis Personius (Personius) testified on behalf of the Crown. The Crown’s case wasdependent upon their evidence.

It was agreed that both were unsavoury witnesses, for each of whom a Vetrovec warning (see Vetrovec v.The Queen, (SCC), [1982] 1 S.C.R. 811) to the jury was necessary. [3] The principal issues on this appeal, in respect of which the accused asserts that the judge erred, relate to the adequacyof the Vetrovec warning and whether the judge’s charge to the jury was unfairly imbalanced towards the Crown. [4] I am not persuaded that the judge erred as asserted by the accused. Accordingly, for the reasons which follow, Iwould dismiss the accused’s appeal.

Facts [5] On the evening of May 2, 2006, the victim, Sheldon McKay (McKay), was murdered in Stony MountainPenitentiary. At the material time, he was an inmate and member of the Indian Posse street gang. The gang had a significant presencewithin the penitentiary. [6] McKay, along with other inmates, each of whom was a member of the gang, was housed within the penitentiary inUnit 5, Range F. Members of other gangs in the penitentiary had no access to that unit or range.

When not locked down at night or forhead counts, the Indian Posse inmates were free to move about Unit 5, Range F and enter into one another’s cells. [7] The Indian Posse members within the penitentiary were governed by a council of seven. McKay was the leader. Theother six council members, including the accused, were not happy with McKay and went to McKay’s cell to remove him as leader. Removal (called “rolling out”) would entail beating up McKay and kicking him out of the gang.

All six were involved in the beatingduring which McKay was hit, stomped, and, in a manner consistent with the use of a towel, strangled until he died. His body was notdiscovered until midday May 3, 2006. [8] After investigation, four of the six, including Bruyere, were charged with murder. The accused was ultimately

charged with murder, but not until April 19, 2010, some four years later. [ 9 ] The only evidence linking the accused to the murder was that of Bruyere and Personius. [ 10 ] Bruyere, a co-accused and member of the council, was present in McKay’s cell at the time of the murder. He originally denied his own involvement in the murder, but decided a couple of years later to try to negotiate a deal with the police to give evidence and resolve his charges. The police refused to do so.

Notwithstanding, Bruyere admitted to his role in the murder and agreed to testify, hoping to receive some leniency on sentencing as a result of his co-operation with the Crown. He had not been tried at the time of the accused’s trial. [ 11 ] At the accused’s trial, Bruyere testified that he had been a member of the Indian Posse since age 15. Leading up to McKay’s murder, Bruyere was told that McKay was going to “roll out” him and Daniel Wolfe (Wolfe), another inmate and council member of the gang.

As a result, a meeting was set up with the six council members other than McKay, where it was decided that that group would “roll out” McKay, which Bruyere understood to mean “beating him” or “maybe hurting him badly,” and then kicking him out of the gang. [ 12 ] Bruyere testified that, when McKay returned to his cell on the evening of May 2, 2006, after attending the exercise yard, the six of them, including Bruyere and the accused, rushed into McKay’s cell. The accused got behind McKay, putting him into a “sleeper hold” while the others began to hit McKay.

McKay fell to the floor, at which time Wolfe grabbed a towel, wrapped it around McKay’s neck, directed the accused to come and grab the towel and pull it with him, stating, “everyone is pulling on this thing.” Bruyere said that Wolfe and the accused pulled on the towel for two to three minutes before handing the towel to Bruyere and another, who did likewise and then handed it to two others, who did the same. [ 13 ] Personius was also a member of the Indian Posse, although not a member of council. He said nothing at the time of the murder.

He was released from the penitentiary after serving his sentence. [ 14 ] He was later convicted of a robbery for which he received a five-year sentence. While serving that sentence, he was charged with an earlier murder (the Woodhouse murder), which he admitted having committed on the instructions of another Indian Posse member. [ 15 ] Shortly after being charged with the Woodhouse murder, he gave a statement to the police admitting particulars of his criminal history, including his role in the McKay murder, which was that of standing watch outside McKay’s cell.

The Crown decided to use his testimony in respect of the charges against the accused. [ 16 ] Personius entered into an immunity agreement in which he received immunity from prosecution in respect of anything he told the police, and a number of other significant concessions. The Woodhouse murder charge was reduced from first to second degree with a penalty of life imprisonment without eligibility for parole for 15 years.

A sexual assault charge against him was dropped and protection and financial assistance were provided for a number of members of his family. [ 17 ] Personius testified that on the evening of the murder, the accused told him to use the pay phone which was located on Range F, from where he could see both the range and McKay’s cell door. He was to watch for guards. He said he could not see what exactly went on in McKay’s cell, but he heard squeaking on the floor like on a basketball court, as well as a rustling or pounding sound coming from the cell.

He did not see people enter McKay’ s cell, but he did see and was able to identify the six men who left the cell. [ 18 ] Personius testified that the accused’s cell was next to his, the two cells sharing an air vent. He said that later that night the accused told him that “Sheldon was gone,” that he had “schwacked him” (which Personius took to mean that he had killed McKay), that he “gave him a sleeper hold” and that “He’s done.” Personius said that McKay’s body was not discovered until the next day when a guard entered McKay’s cell.

The accused then told Personius that, “it’s on now,” meaning that the murder was about to be discovered. [ 19 ] The jury returned a verdict of guilty to second degree murder and it is from that conviction that the accused appeals. Grounds of Appeal [ 20 ] The accused originally raised seven grounds of appeal. The Crown, in its factum, distilled the seven into two, which defence counsel appeared to accept in his oral argument on appeal before us. The two grounds of appeal are as follows: 1. Did the learned trial judge err in her Vetrovec warning to the jury in relation to Personius and/or Bruyere? 2.

Was the learned trial judge’s charge unfair and unbalanced? Standard of Review [ 21 ] Defence counsel argues that issues relating to the judge’s instruction with regard to a Vetrovec warning are questions of law to which the applicable standard of review is one of correctness and that issues relating to whether a judge’s charge to the jury is fair and balanced are questions of mixed fact and law for which the applicable standard of review is one of adequacy and fairness. [ 22 ] The Crown agrees with the standards of review set out by defence counsel subject to comments of the Supreme Court of Canada in R. v.

Khela , 2009 SCC 4 at paras. 37 , 44, [2009] 1 S.C.R. 104; and R. v. Daley , 2007 SCC 53 at paras. 31 , 54-58, [2007] 3 S.C.R. 523. [ 23 ] In this case, there is no issue as to whether a Vetrovec warning should have been given in respect of Bruyere and Personius. Rather, the issue relates to the judge’s instructions as to possible confirmatory evidence which might be accepted by the jury and, if accepted, might provide comfort to the jury as to the truth and reliability of the evidence given by the Vetrovec witnesses (Bruyere and Personius) notwithstanding their unsavoury character.

[24] A critical part of the Vetrovec warning given by the judge in her charge to the jury is the giving of guidance as toevidence which the jury may consider as being possibly confirmatory of the evidence of the Vetrovec witness, so as to assist the jury indetermining whether to accept as truthful and reliable, the evidence of the Vetrovec witness. [25] In that regard, the evidence to which the jury is referred must be capable of being confirmatory.

Whether such evidenceis capable of being confirmatory is a question of law for which the standard of appellate review is correctness. [26] That aside, it is my view that the standard of review in respect of a Vetrovec warning is as was stated in R. v. Richard(D.R.) et al., 2013 MBCA 105, 299 Man.R. (2d) 1 (leave to appeal to S.C.C. refused, R. v. Sanford, [2014] S.C.C.A. No. 206 (QL)),where Cameron J.A. wrote (at para. 85): The decision of a trial judge about whether to give a Vetrovec warning, and the nature and extent of the warning, is discretionary andtherefore entitled to deference.

A discretionary decision should be interfered with only “if the trial judge misdirects himself or if hisdecision is so clearly wrong as to amount to an injustice” [R. v.

Regan, 2002 SCC 12 at para. 117, [2002] 1 S.C.R. 297]. …. [27] Thus, where evidence is legally capable of confirming a witness’s evidence and the judge refers the jury to suchevidence, an appellate court must give deference to the judge’s decision and instruction and should not interfere unless the judge hasmisdirected herself or her decision is so clearly wrong as to amount to an injustice. [28] As to the issue of whether the judge’s charge to the jury was fair and balanced, I agree with counsel that that is aquestion of mixed fact and law and the applicable standard of review is one of adequacy and fairness (see R. v.

Daley at para. 57). [29] I turn now to consider the grounds of appeal. Ground One: Did the learned trial judge err in her Vetrovec warning to the jury in relation to Personius and/or Bruyere? Argument [30] The accused argues that Bruyere and Personius each required a very strong Vetrovec warning. He submits that therewere errors in the warnings which necessitate a new trial. [31] The accused refers to Bruyere’s lifelong criminal activity from the time he joined the Indian Posse at age 15.

He pointsout that, along with the accused, Bruyere was charged with first degree murder and conspiracy to commit first degree murder in thedeath of McKay. [32] The accused says that Bruyere admitted that he had at first refused to cooperate with the police to provide informationrelating to McKay’s death, that he lied while speaking with the police in respect of the matter, and that he made several attempts to makea deal to reduce or drop the charges against him and to be put into witness protection, in exchange for information pertaining to McKay’sdeath. [33] The accused submits that Bruyere was attempting to obtain an immunity agreement from the Crown when he gave aK.G.B. statement (R. v.

B.(K.G.), (SCC), [1993] 1 S.C.R. 740) relating to McKay’s death and admitted that even at thetime of his testimony at trial, he was still hoping for leniency with respect to his charges relating to McKay, as his trial on the McKaymatter had not yet begun. [34] The accused submits that on cross-examination, it became clear that Bruyere was neither credible nor reliable such thatany Vetrovec warning to the jury in relation to Bruyere had to be clear, concise and point out the aspects of Bruyere’s evidence andcharacter that would affect his credibility and reliability. [35] The accused makes a similar argument with respect to Personius, tailored to the evidence of his life of criminality and,in addition, the fact that he had entered into an immunity agreement with the Crown respecting several crimes, including the McKaymurder, and had received other benefits from the Crown, including a reduced offence and penalty for the Woodhouse murder, the stay ofa sexual assault charge, and the provision of compensation and protection for members of his family. [36] The accused asserts that the judge failed to adequately point out and emphasize to the jury the various aspects of thepoor character of both of the unsavoury witnesses, which brings the credibility of their evidence into serious question.

He submits thatsuch lack of emphasis on the overriding issue of credibility constitutes an error in law. [37] In addition, the accused argues that, when providing the jury with direction as to evidence which might be considered tosupport or restore the jury’s faith in the evidence of an unsavoury witness, the judge must also guide the jury to evidence that contradictsor opposes the evidence of the unsavoury witness. [38] The accused says that the judge failed to appropriately point to evidence that suggested the unsavoury witnesses werenot to be believed, or that did not support their testimony, and thus could not restore the jury’s faith in the truthfulness of the witnesses’testimony. [39] The accused asserts that some of the evidence referred to as possibly supportive or confirmatory of the testimony ofeach of Bruyere and Personius came directly from Bruyere and Personius; that such evidence is tainted by connection to the other andthus is not legally capable of being independent as is required in order to be confirmatory or corroborative of the other.

This tainting orlack of independence argument is based upon the connection of Bruyere to Personius through a third party, Rodney Flett (Flett).

[ 40 ] The accused says that both Bruyere and Personius knew Flett. On cross-examination, Bruyere admitted that it was possible Flett could have overheard him talking to one Tyson Roulette (Roulette) about McKay being put in a “sleeper hold” at the time of the murder. [ 41 ] As well, he says that Personius admitted that Detective Mirwaldt allowed him to speak to Flett prior to giving a statement to the police regarding his knowledge of McKay’s death and as to the accused’s involvement. Personius testified that he spoke to Flett in the presence of Det. Mirwaldt using Det. Mirwaldt’s cell phone.

That conversation lasted for approximately 24 minutes with the phone in conference mode for most, if not all, of the conversation. [ 42 ] The accused asserts that the evidence offered by both Bruyere and Personius cannot be deemed independent for the purpose of being confirmatory of the evidence of each other, by reason of the potential for collusion between the two by way of Flett.

The accused submits that the potential for collusion between Bruyere and Personius was significant and the judge did not appropriately put that issue before the jury. [ 43 ] The Crown argues that the issues of the poor character of Bruyere and Personius, to which the accused refers, were pointed out to the jury by the judge.

It says that the judge cautioned the jury on several occasions that both Personius and Bruyere had long histories of lying and had in fact lied to police while under oath. [ 44 ] The Crown submits that the judge warned the jury that both witnesses had motives to say things that were not true in order to assist the Crown, and specifically warned them about how easy it would have been for Bruyere to lie about the accused’s involvement in the murder since, by his own admission, he clearly had been present for it. [ 45 ] It asserts that she referred the jury to the lengthy criminal histories of each, both as to their formal records for conviction and penalties, and as to the crimes for which they had not been convicted but to which each had admitted in the course of his evidence, and that she told the jury that it would be dangerous to convict on the basis of the unconfirmed testimony of either of them. [ 46 ] The Crown states that the judge gave three Vetrovec warnings during the course of the trial.

She gave one with respect to Personius immediately upon the close of his evidence; she gave one with respect to Bruyere immediately upon the close of his evidence; as well, she gave such a warning in respect of both in her charge to the jury. [ 47 ] The Crown asserts that, read together, the three Vetrovec warnings easily met the legal standard by focussing the jury’s attention on the inherently unreliable evidence (that is, the evidence of Bruyere and Personius), by referring to the characteristics of each of those two witnesses that bring his credibility into question, and by emphasizing the dangers inherent in convicting the accused upon the evidence of either Bruyere or Personius standing alone.

In fact, asserts the Crown, the judge went further and suggested that judicial experience demonstrated that witnesses such as Bruyere and Personius are untrustworthy. [ 48 ] The Crown submits that the accused has misapprehended the nature of the Vetrovec warning in arguing that, when complying with the requirement of outlining for the jury possible confirmatory or corroborating evidence, the judge is required to point out to the jury evidence that contradicts or opposes the testimony of the Vetrovec witness. [ 49 ] The Crown argues that, where there is something about a witness’s background or role in the given case which establishes a need for caution in respect of his evidence, the judge should bring this need for caution to the attention of the jury and highlight the importance of looking for support from other independent evidence before relying on the evidence of the unsavoury witness to convict.

Indeed, the judge should refer the jury to the kind of evidence which can provide this support and where it might exist in the body of evidence before them. [ 50 ] The Crown argues, however, that Vetrovec does not instruct a judge to provide “mini charges” for each Vetrovec witness in which all of the positive and negative evidence in relation to the witness’s testimony is reviewed.

Rather, it asserts that a judge may undertake a general review of the evidence that supports or contradicts the Crown’s case or the evidence of its witnesses, as may be required, as a part of the charge generally. [ 51 ] Moreover, the Crown says that, in its closing submission, it should point out to the jury the evidence that supports the testimony of its witnesses, and defence counsel, in his submission, should do likewise as regards the evidence that casts doubt upon the testimony of such witnesses. [ 52 ] Finally, the Crown argues that there is no basis for concluding that the evidence of Bruyere and Personius was the result of collusion or was in any way tainted.

It says that Bruyere testified that, while he did not remember discussing the murder with Flett, it was possible that Flett overheard him discussing it with Roulette at a party. As well, Personius testified that he spoke to Flett before deciding to co-operate with the authorities and provide a statement, but there was no suggestion that they discussed the murder.

Indeed, that specific question was never put to Personius in cross-examination and his evidence on direct-examination and on cross- examination was that he and Flett discussed family matters and the impact of becoming an informant. [ 53 ] The Crown asserts that there is no evidence that Flett overheard Bruyere’s discussion with Roulette or that he passed information concerning that to Personius.

It was never suggested to Personius that Flett did so. [ 54 ] Moreover, says the Crown, common sense suggests that it would have been impossible since Personius and Flett were effectively talking on the speaker phone with a senior police officer, Det. Mirwaldt, sitting next to Bruyere throughout the conversation.

For the police to have allowed that kind of discussion between Personius and Flett would have greatly reduced Personius’s usefulness as an informant and/or witness for the Crown. [ 55 ] The Crown argues that speculation and innuendo are not evidence and asserts that there is no basis to conclude that Bruyere and Personius did not provide independent evidence capable of addressing Vetrovec concerns. [ 56 ] The Crown says that, although there was no reason to suspect collusion, the judge instructed the jury on the concerns

raised by the accused. She referred to the conversations at issue and specifically advised the jury that, if they concluded “[that Bruyereand Personius] had talked to each other about what had happened, if they had seen each other’s statements, or if they were told by a thirdparty what the other was saying, then their evidence would not be independent, and it would not be capable of being confirmatory of theother. It would be considered tainted.” [57] The Crown thus asserts that there is no merit to the arguments of the accused in respect of ground one of his appeal.

Analysis [58] There is considerable jurisprudence with respect to a Vetrovec warning including its rationale, when it should be given,what needs to be accomplished by its content, and the requirement that the judge assist the jury with direction as to evidence that mayassist the jury in its deliberations. [59] The Supreme Court of Canada in Khela, provided direction on these points.

Fish J. wrote (at paras. 11, 13): The central purpose of a Vetrovec warning is to alert the jury to the danger of relying on the unsupported evidence of unsavourywitnesses and to explain the reasons for special scrutiny of their testimony. In appropriate cases, the trial judge should also draw theattention of the jurors to evidence capable of confirming or supporting the material parts of the otherwise untrustworthy evidence. The crafting of a caution appropriate to the circumstances of the case is best left to the judge who has conducted the trial. No particularset of words is mandatory.

In evaluating its adequacy, appellate courts will focus on the content of the instruction and not on its form. Intervention on appeal will not be warranted unless a cautionary instruction should have been given but was not, or the cautionaryinstruction that was given failed to serve its intended purpose. [60] Fish J. went on to write (at para. 34): Since Vetrovec, this Court and several appellate courts have provided guidance on the appropriate form and content of the “clear, sharpwarning”.

In Brooks, Justice Major wrote (at para. 94) that while no particular language is required, “[a]t a minimum”, the caution must focus the jury’s attention specifically on the inherently unreliable evidence. It should refer to the characteristics of the witness that bringthe credibility of his or her evidence into serious question. It should plainly emphasize the dangers inherent in convicting an accused onthe basis of such evidence unless confirmed by independent evidence. [61] In Khela, Fish J. referred to R. v.

Sauvé (J.) et al., (ON CA), 182 O.A.C. 58 at para. 82 (at para. 37): In Sauvé, at para. 82, the Ontario Court of Appeal set out a principled framework that will assist trial judges in constructing Vetrovecwarnings appropriate to the circumstances of each case.

That proposed framework, which I adopt and amplify here, is composed of fourmain foundation elements: (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining whythis evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort,though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspectevidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guiltof the accused .... [62] After confirming that individual items of confirmatory evidence need not implicate the accused, Fish J. went on to write(at paras. 46-47): … [T]he absence or presence of confirmatory evidence plays a key role in determining whether it is safe to rely on the testimony of animpugned witness (Harris [Nikos Harris, “Vetrovec Cautions and Confirmatory Evidence: A Necessarily Complex Relationship”(2005), 31 C.R. (6th) 216], at p. 222).

Accordingly, the instruction to the jury must make clear the type of evidence capable of offeringsupport. It is not sufficient to simply tell the jury to look for whatever it feels confirms the truth of a witness’ testimony (see R. v.Chenier (2006), (ON CA), 205 C.C.C. (3d) 333 (Ont. C.A.), at para. 34). It is not “overly formalistic” to ensure that triers of fact attain the appropriate level of comfort before convicting an accused on the basisof what has for centuries been considered unreliable evidence.

A truly functional approach must take into account the dual purpose ofthe Vetrovec warning: first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain

the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identifyevidence capable of enhancing the trustworthiness of those witnesses. [63] Additional direction was provided in R. v. Monkman (G.S.) et al., 2012 MBCA 87, 288 Man.R. (2d) 1, where MonninJ.A. wrote (at paras. 70-75): While there is an obligation on the trial judge to guide the jury to evidence that is capable of being confirmatory, it is up to the jury todecide whether the confirmatory evidence relates to important or merely peripheral points. In R. v.

Thomas (E.T.) (2008), 2008 MBCA75 , 228 Man.R.(2d) 289; 427 W.A.C. 289; 2008 MBCA 75, a decision of this court, although pre-Khela, Freedman, J.A., stated(at para. 61): … I will reiterate that the judge has a wide discretion in her determination of how best to assist the jury. She made it explicitly clear thatit was important for the jury to consider whether or not the evidence confirmed material points in issue, and she then gave them examplesof potentially confirmatory evidence.

It was for the jury to decide the extent to which the potentially confirmatory evidence tended tosupport Hocaluk’s credibility on the key elements in the case. Even weak confirmatory evidence is properly left with a jury. See R. v. Dhillon (S.) (2002), (ON CA), 161 O.A.C.231; 166 C.C.C.(3d) 262 (C.A.), at para. 26. …. ….

I therefore take the more stringent approach that seems indicated by Khela and ask whether the jury was adequately instructed tolook for evidence from another source that when considered as a whole, gives comfort or confidence that the accused committed theoffence. (Khela, para. 37.) Common sense suggests that the more problematic the evidence of the Vetrovec witness, the greater the need for the trial judge tohighlight the need to find evidence capable of “restoring the trier’s faith in relevant aspects of the witness’s account” (Kehler at para.34).

This has been referred to as a form of proportionality principle. See Harris; and R. v. Malik (R.S.) et al., 2005 BCSC 350 ,[2005] B.C.T.C. 350; 2005 BCSC 350. In short, the important elements with respect to the characteristics of confirmatory evidence are:

a) individual items of confirmatory evidence need not implicate the accused;

b) the materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to the trierof fact that the Vetrovec witness can be trusted in his or her assertion that the accused committed the offence charged;

c) the confirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness's account and, where theonly issue is whether the accused committed the offence, the trier of fact must be comforted that the witness is telling the truth in thatregard before convicting on the strength of that witness’s testimony; and

d) the confirmatory evidence must relate to an important and relevant aspect of the witness’s testimony. In conclusion, two things should be noted with respect to confirmatory evidence. Firstly, the presence of confirmatory evidence does notremove the obligation of the trial judge to tell the jury that it should consider the evidence of the Vetrovec witness with caution. See R.v. Fraser (G.) et al. (1997), (NL SC), 151 Nfld. & P.E.I.R. 141; 471 A.P.R. 141 (Nfld. T.D.), at para. 10.

Secondly,confirmatory evidence is not necessary for the jury to accept the Vetrovec evidence as long as there has been a proper Vetrovec warning. See R. v. Sanderson (R.K.) (2003), 2003 MBCA 109 , 177 Man.R.(2d) 260; 304 W.A.C. 260; 2003 MBCA 109, and R. v.Roks (A.) (2011), 2011 ONCA 526 , 281 O.A.C. 235; 2011 ONCA 526.

[ 64 ] As I have previously stated in these reasons, there is no dispute as to the need for a Vetrovec warning relating to each of Bruyere and Personius. They were the only witnesses who could give evidence as to the involvement of the accused in the murder. They were clearly unsavoury witnesses. [ 65 ] The accused argues that the evidence of Bruyere and Personius is not independent of the other and is therefore tainted and not capable of confirming the other’s evidence.

The basis of his assertion is the evidence that Flett knew both Bruyere and Personius, that he had learned of Bruyere’s role in the murder and that he had communicated that information to Personius prior to Personius giving his statement to the police. [ 66 ] In my view, an assessment of the evidence does not support the argument of the accused. [ 67 ] Bruyere denied that he had spoken with Flett. He did, however, admit that it was possible that Flett could have overheard him telling another person, Roulette, about his involvement in the murder.

Personius admitted speaking to Flett by telephone for approximately 24 minutes before giving his statement to the police. However, Personius testified that in that conversation, he and Flett spoke of family matters (they had known each other since both were very young) and what it was like to be a witness who was prepared to testify against former associates.

Of note, while Personius was exposed to a lengthy and aggressive cross-examination, he was never asked whether he had asked Flett, or whether Flett had told him, what, if any, knowledge he had about Bruyere’s involvement in the murder. [ 68 ] Just as significant, Personius conducted the telephone conversation with Flett using the cell phone of Cst. Mirwaldt, in the presence of Cst. Mirwaldt, and with the phone on conference mode for most, if not all, of the conversation. As the Crown asserts, it is most unlikely that Cst.

Mirwaldt would have permitted the exchange of such information between Flett and Personius, knowing that it would compromise the use of Personius and Bruyere as witnesses. [ 69 ] Lastly, Flett did not testify at the trial. [ 70 ] Clearly, if the evidence of Bruyere and Personius was not independent, then it would not be capable in law of providing confirmation to the evidence of each other. This, however, is not a case where the judge erred in failing to find that the evidence was tainted and, therefore, not capable of providing confirmation.

Indeed, on the evidence, it was not tainted. [ 71 ] The judge ought to have left the evidence to the jury for determination as to whether or not the evidence was tainted, giving the jury appropriate instructions in that regard. This she clearly did. In my view, there is no merit to the argument that the evidence of Bruyere and Personius was tainted and not independent of each other, and thus, it was properly available to the jury for its consideration. [ 72 ] The judge gave an in-trial warning with respect to Personius upon conclusion of his evidence.

She did likewise in trial upon conclusion of Bruyere’s evidence. In that warning, she referred back to Personius and the fact that it had been necessary for her to give a warning in respect of Personius. [ 73 ] In addition, she gave a lengthy and a very complete warning in respect of both Personius and Bruyere in her charge to the jury. [ 74 ] She then went on immediately in her charge to refer to evidence which the jury might look to as supportive or confirmatory of the otherwise untrustworthy evidence of each of Personius and Bruyere.

In so doing, she drew their attention to evidence of Personius which might provide confirmation as to the evidence of Bruyere, and to evidence of Bruyere which might provide confirmation as to the evidence of Personius.

As well, she went beyond that and provided examples of evidence independent of Bruyere which might be considered confirmatory of the evidence of Personius and examples of evidence independent of Personius which might be confirmatory of the evidence of Bruyere. [ 75 ] I do not propose to go into detail with respect to the content of the Vetrovec warnings, both in trial and in the charge, or with respect to the examples of the evidence which the jury might consider as confirmatory of the evidence of the Vetrovec witnesses except to say that, in my opinion, the content of the warnings amply met the jurisprudential requirements of a Vetrovec warning. [ 76 ] The warnings informed the jury of unsavoury characteristics of both Bruyere and Personius including their lives of crime, each having a lengthy criminal record and having admitted to offences for which they had not been charged or convicted, the fact that they were admitted liars, including under oath, and the fact that each had a self-serving motive for testifying; in the case of Bruyere, for the purpose of hopefully receiving a benefit; and, in the case of Personius, in exchange for benefits received.

In addition, the warning instructed the jury that, while they could convict if they believed the evidence of Bruyere and Personius without confirmation, it would be very dangerous for them to do so. [ 77 ] The accused also argued that, in giving a Vetrovec warning, it is necessary for the judge to not only provide examples of evidence which might be confirmatory of the evidence of a Vetrovec witness, but also to give examples of contradictions and inconsistencies in that evidence.

Notwithstanding this argument, defence counsel admitted that there is no jurisprudence which supports that position, an admission with which I agree. [ 78 ] Fish J. made clear in Khela the purpose of the Vetrovec warning ( at para. 47 ): …. … [F]irst, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses.

[ 79 ] Accordingly, the judge may, in appropriate circumstances, provide examples of inconsistencies or contradictions in evidence as between the Vetrovec witnesses, but should do so as part of the overall charge.

However, there is no requirement for the judge to do so as part of the Vetrovec warning or as part of the provision of evidentiary examples brought to the attention of the jury for the purpose of assisting it in finding comfort as to the credibility and reliability of the evidence of the Vetrovec witnesses. [ 80 ] The accused raised two specific examples of errors by the judge in evidence to which she directed the jury as offering support for the evidence of Bruyere and Personius.

The first was the issue of Bruyere’s shoes and the second was the issue as to the state of the window flap on McKay’s cell at the time of the murder. [ 81 ] As to the former, Bruyere’s testimony was that he had given his shoes to one Todd Dreaver (Dreaver) and that Dreaver left the penitentiary the next morning wearing the shoes. The evidence of Personius was that he had cut up Bruyere’s shoes. He had flushed the uppers down the toilet, had given the soles to Dreaver and Dreaver left the penitentiary the next morning with the soles.

The inconsistencies in their evidence on this issue were pointed out clearly by the judge to the jury in the charge. [ 82 ] Having said that, it is my view that that evidence was not material and that the jury should not have been referred to it as possible confirmatory evidence.

Aside altogether from the inconsistencies as to the state of the shoes, the accused argues that everyone in the unit would have been aware that Dreaver was leaving the next morning and, thus, the fact that both Bruyere and Personius had so stated would provide no comfort as to the credibility of their evidence regarding the involvement of the accused in the murder. Were that the only possible confirmatory evidence referred to by the judge would be one thing.

Clearly, however, it was not; there was considerably more. [ 83 ] As to the latter, the accused argues that Personius could not have seen into McKay’s cell when he was standing watch on the range at the time of the murder. The accused refers to Bruyere’s evidence that the window flap was closed and to the evidence of Correctional Officer McIntosh, who testified that he had closed the window flap upon discovering McKay’s body. But, Personius’s evidence of being able to see into the cell referred to when he was standing watch while the murder was taking place; that is, on the evening of May 2, 2006.

Of note, Correctional Officer Svenson testified that when she did the head count on the night of May 2, 2006, she was able to see into the cell and could see McKay lying on his bed.

More importantly, the evidence is clear that McKay’s body was not found until midday May 3, 2006 and Correctional Officer McIntosh testified that it was only then that he closed the window flap. [ 84 ] In conclusion, I am satisfied that, from a functional perspective, the Vetrovec warnings given by the judge amply satisfy the jurisprudential criteria in drawing to a jury’s attention the requisite concerns and in providing the jury with examples of evidence to which the jury could look so as to gain comfort in deciding whether to find the evidence of Bruyere and Personius credible and reliable. [ 85 ] I would therefore dismiss ground one of the accused’s appeal.

Ground Two: Was the learned trial judge’s charge unfair and unbalanced? [ 86 ] The accused argues that the judge in her charge has a duty to put forth the theories of both defence and Crown in a fair and balanced manner.

He argues that, while addressing the evidence of both Bruyere and Personius and how the evidence of one might be confirmatory of the evidence of the other, the judge de-emphasized the possibility of collusion as it pertained to the testimony of both individuals and, as well, put into question the accused’s argument relating to that potential collusion. [ 87 ] The accused also submits that the judge erred in not properly addressing the issue of independence as it related to evidence acting as confirmation of the individual testimony of each unsavoury witness.

The judge, says the accused, overemphasized the evidence that was potentially confirmatory of Vetrovec witnesses while not giving the same emphasis to the evidence that was either non-confirmatory or inconsistent with regard to the evidence of those witnesses. [ 88 ] The accused reiterated in respect of this ground of appeal the arguments he made regarding ground one pertaining to the state of the flap on McKay’s cell window at the time of the murder and to Bruyere’s shoes. [ 89 ] The accused also argues that the testimony of Bruyere and Personius was inconsistent with other evidence presented.

For example, Bruyere testified that the guards on duty on Range F mostly did not sit at the desk on the range to supervise as required, while Correctional Officer McIntosh testified that there was always at least one person supervising the range at any given time. [ 90 ] These, asserts the accused, are inconsistencies that the judge failed to put to the jury and were evidence crucial to the issue of reliability as it pertained to the Vetrovec witnesses. [ 91 ] Lastly, the judge, while directing the jury that it could find each Vetrovec witness reliable without any confirmatory evidence, did not appropriately advise the jury that it was dangerous to do so given the inherent issues related to their character. [ 92 ] The accused thus asserts that, for the reasons detailed above, the jury charge was not fair and balanced as required. [ 93 ] The Crown submits it is well settled that jury charges are to be reviewed according to a functional standard and that an accused is entitled to a properly instructed jury, not a perfectly instructed jury. [ 94 ] Further, argues the Crown, judges are not required to undertake an exhaustive review of the evidence or put to the jury all of the facts on which the accused relies.

Rather, it argues that, as long as the jury is informed of the evidence in a manner sufficient to allow it to appreciate the issues and the defence presented, the charge will be adequate. [ 95 ] The Crown also asserts that non-direction on a matter of evidence is a reversible error only where the single item of evidence in question forms the foundation of the defence. The Crown submits that, in this case, the trial was relatively brief. The evidence took seven days and nearly half of that involved the evidence of Bruyere and Personius. Moreover, the evidence was

straightforward and the issues for the jury were uncomplicated. [ 96 ] The Crown also submits that the adequacy of the charge must be reviewed in the context of the trial as a whole, including the submissions of counsel.

In this case, cross-examination of Bruyere and Personius by defence counsel consisted of prolonged attacks on their credibility, including their unsavoury characters, and the submission to the jury at the conclusion of the case reviewed at length every inconsistency that contradicted the evidence of the Crown’s principal witnesses. [ 97 ] In the circumstances of this case, submits the Crown, the judge’s charge adequately presented the theory of the defence that Bruyere and Personius, the Crown’s two main witnesses, were unreliable liars whose evidence should be rejected, including the evidence that supported the defence theory. [ 98 ] The Crown argues that the judge referred the jury to “various inconsistencies both within Bruyere’s statement and between his statement and other evidence - including [that of] Mr.

Personius, the correctional officers, and the Agreed statement of facts.” As well, she reminded the jury of the factors that made Bruyere and Personius unreliable, including their gang membership, their histories of lying and the presence of the motive to assist the Crown. [ 99 ] The Crown submits that, while the judge might have said more about the evidentiary points raised by the accused, her not doing so did not make the charge unfair or unbalanced.

Indeed, while not determinative, the accused’s counsel did not object in any way to the charge following its delivery. [ 100 ] The Crown argues the accused is simply wrong in asserting that the judge failed to instruct the jury that it was dangerous to find Personius or Bruyere credible without confirming evidence.

It says that she did precisely that, not only in her final charge, but in her mid-trial instructions as well. [ 101 ] Lastly, the Crown argues that the jurors chose simply to accept the evidence of Bruyere and Personius, notwithstanding the criticisms of, and attacks upon their evidence, as the jury was entitled to do. Thus, it asserts there is no basis for appellate intervention and seeks dismissal of the second ground of appeal. Analysis [ 102 ] The trial was not lengthy and the issues for the jury to decide were simple and straightforward.

The defence thoroughly cross-examined Bruyere and Personius, covering at length all of the unsavoury aspects of each of them. The submissions of Crown and defence were given to the jury the day before the charge was delivered. [ 103 ] In his submission, defence counsel fully argued the unsavoury nature of the Vetrovec witnesses, the concerns about the credibility or reliability of their evidence and the various inconsistencies in their evidence; both the evidence of one to the other and the evidence of each of them to the evidence of other witnesses.

The judge then charged the jury. [ 104 ] In my opinion, the charge was both balanced and complete.

While, doubtless, more could have been said by the judge about the evidence, as is always the case, there is no question in my mind that the charge was more than adequate from a functional standpoint, particularly given the nature of the case, the full cross-examinations of the Vetrovec witnesses, the thorough submissions of both Crown and defence and the charge. [ 105 ] I am satisfied that the jury knew full well what its function was and that it was given appropriate instruction, both in the law and as to the evidence, in coming to the verdict which it reached. [ 106 ] I would therefore dismiss ground two of the accused’s appeal.

Conclusion [ 107 ] In all of the circumstances, it is my opinion that there is no basis for appellate intervention in respect of the accused’s appeal and I would therefore dismiss it. J.A. I agree: J.A. I agree: J.A.