



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Raia, 2020 ONCA 132

DATE: 20200219

DOCKET: C66017 & C66019

Hoy A.C.J.O., Feldman and
    Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Salvatore Raia and Michael
    Vitello

Appellants

Salvatore Raia, acting on his own
    behalf

Amy Ohler for the appellant, Michael
    Vitello

Hannah Freeman, for the respondent

Heard and orally released:
    February 12, 2020

On appeal from the convictions entered by
    Justice C. McKinnon of the Superior Court of Justice, dated July 13, 2018.

REASONS FOR DECISION

[1]

Mr. Raia and Mr. Vitello appeal their
    convictions for conspiring to kidnap, sexually assault and murder Mr. Vitellos
    spouse, Sonia Bernard. Neither Mr. Raia nor Mr. Vitello testified on his own
    behalf at trial.

[2]

In convicting Mr. Raia and Mr. Vitello, the
    trial judge relied on the evidence of Chris Richards, an employee of Mr.
    Vitello, about the conspiracy. The trial judge found that there was elaborate
    corroborative evidence and that Mr. Richards was a credible witness. The trial
    judge considered that Mr. Richards evidence that he, Mr. Raia, and Mr. Vitello
    stopped in a parking lot for about two to three minutes on the planned date of
    the murder was clearly mistaken, but concluded that it was not a foundation
    for reasonable doubt about Mr. Richards evidence.

[3]

On appeal, Mr. Raia and Mr. Vitello argue that
    the trial judge erred in finding that Mr. Richards was a credible and reliable
    witness. They argue that the evidence that the trial judge relied on as
    corroborative was not corroborative of their alleged agreement to kidnap,
    sexually assault and murder Ms. Bernard.

[4]

Further, they say that the trial judge made
    several errors in his reasons. For example: 1) he wrote that Mr. Vitellos
    first wife called him in jail, whereas he called her; 2) he referred to Oscar Giroux
    looking at a photo lineup, but Oscar Giroux did not look at a photo lineup; 3)
    he wrote that Mr. Vitellos son, Nicholas, testified that Mr. Raia seemed
    drunk, when Nicholass evidence was only that Mr. Raia smelled of alcohol; and
    4) he wrote that, during his police interview, Mr. Raia stated that he did not remember
    going anywhere else on the morning of the planned date of the murder, whereas
    Mr. Raia testified that he could not remember where they went.

[5]

The trial judges finding that Chris Richards
    was a credible and reliable witness is entitled to deference on appeal barring
    palpable and overriding error. On this appeal, we do not consider afresh
    whether Chris Richards was a credible and reliable witness.

[6]

We are not persuaded that there is any basis for
    this court to interfere with the trial judges finding that Chris Richards was
    a credible and reliable witness. The trial judge was entitled to rely on the
    extensive corroborating evidence that supports Chris Richards account,
    including the text messages exchanged between Chris Richards and Sonia Bernard
    and a number of security surveillance videos that tracked the movements of Mr.
    Vitellos truck, essentially as Chris Richards described it. As noted by the
    trial judge, Chris Richards was unaware of this video surveillance when he gave
    his statements to the police.

[7]

In our view, the errors in the trial judges
    reasons identified by the appellants go to peripheral matters and had no impact
    on the trial judges credibility assessment. For example, while the trial judge
    referred, in one sentence at para. 90 of his reasons, to Oscar Giroux looking
    at a photo lineup, the significant part of para. 90 is that Oscar Giroux
    described the passenger in the front seat of Mr. Vitellos truck on the morning
    of the planned date of the murder, and his description matched Mr. Raia.
    Moreover, Chris Richards, who was also in the truck, testified Mr. Raia was in
    the front seat and, in his statement to the police, Mr. Raia said he was the
    passenger in the front seat of Mr. Vitellos truck that morning.

[8]

Accordingly, the appeals against conviction are
    dismissed.

Alexandra Hoy A.C.J.O.

K. Feldman J.A.

Eileen E. Gillese J.A.


