





CITATION: R. v. Serre, 2011 ONCA 586



DATE: 20110909



DOCKET: C51031



COURT OF APPEAL FOR ONTARIO



Weiler, Cronk and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Marcel Serre



Appellant



J. Scott Cowan, for the appellant



Dena Bonnet, for the respondent



Heard and released orally: September 6, 2011



On appeal from the conviction
          entered by Justice Patricia C. Hennessy of the Superior Court of Justice,
          sitting with a jury, on June 16, 2008.



ENDORSEMENT



[1]

There is one issue on this appeal.  The appellant argues that the trial
    judge erred in her
Vetrovec
warning to the jury concerning the witness
    Hash Richard Danis by including in that instruction a direction that the jury
    should look for confirmatory evidence of that part of Mr. Danis evidence that
    assisted the defence.  As the appellant acknowledges, Mr. Danis was a mixed
    witness, in the sense that he gave evidence favourable both to the Crown and
    the defence.  As at trial, the appellant does not challenge the need for a
Vetrovec
warning concerning the witness testimony.

[2]

For the reasons that follow, we reject the appellants argument.

[3]

The content of a trial judges
Vetrovec
warning is a matter
    clearly within the trial judges discretion and therefore should generally be
    respected.  In this case, when the charge is read as a whole, it is apparent
    that the trial judge made it clear to the jury  at least four times  that the
    jury was free to accept Mr. Danis testimony without confirmatory evidence.

[4]

Further, the defence was aware of the nature of the
Vetrovec
instruction from the time of the pre-charge conference and sought no
    modification of it.  Nor did the defence register any objection to it after the
    charge to the jury.

[5]

More importantly, in our view, the
Vetrovec
instruction was fair
    to the appellant for two reasons.  First, the trial judge did not repeat the
    strong inculpatory evidence that confirmed Mr. Danis
KGB
statement (
i.e.
the trail, gun and knapsack evidence).  This was to the appellants benefit. 
    Second, the instruction gave the jury a path to accept Mr. Danis exculpatory
    trial evidence without confirmation.  This was also favourable to the
    appellant.  There was, therefore, no injustice or prejudice to the appellant
    from the
Vetrovec
warning.

[6]

The appeal is dismissed.

E.A. Cronk J.A.

K.M. Weiler J.A.

David Watt J.A.


