



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Granados-Arana, 2018 ONCA 826

DATE: 20181012

DOCKET: C61437

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Mauro Granados-Arana

Respondent

R. Posner and E. Taché-Green, for the appellant

Deborah Krick, for the respondent

Heard: October 1, 2018

On appeal from the conviction entered on April 23, 2015
    and the sentence imposed on July 23, 2015 by Justice M.D. Forestell of the
    Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant appeals his
    conviction for second degree murder. The deceased was shot and killed leaving a
    New Years Eve party. Prior to the shooting, the deceased was involved in an
    argument with two women at the party about a missing cell phone. When he
    threatened to slap one of the women and to retrieve a gun and return, the
    appellant and his friend, Baptists Bernier, confronted him outside the party.
    Four shots were fired as the deceased ran away. One of the bullets struck the
    deceased in his right upper back and caused his death. The central issue at
    trial was whether Bernier or the appellant fired the fatal shot. While one
    witness thought both men fired guns, forensic evidence suggested that only one
    gun was used.

[2]

Bernier was initially charged with
    the murder. The appellant was charged during Berniers preliminary inquiry, at
    which Bernier was committed for trial. Bernier subsequently testified as a
    Crown witness at the appellants preliminary inquiry and then pled guilty to
    being an accessory after the fact to murder. He identified the appellant as the
    shooter and stated that he observed the appellant hide the murder weapon.

[3]

The evidence of two eyewitnesses
    placed both men at the scene but was contested as to the identity of the
    shooter. It is common ground that Berniers evidence was the critical element
    in the Crowns case.

Issues

[4]

The appellant raises three grounds
    of appeal.

1.

Did the trial judge err
    by failing to instruct the jury that Berniers guilty plea could not be used as
    evidence against the appellant?

2.

Did the trial judge err
    by failing to give an adequate
Vetrovec
instruction with respect to
    Berniers evidence?

3.

Did the trial judge err
    by failing to adequately relate the evidence to the issue of intent for the
    included offence of manslaughter?

Analysis

(1)

Did the trial judge err by failing to instruct the jury that Berniers
    guilty plea could not be used as evidence against the appellant?

[5]

The trial judge did not instruct
    the jury that Berniers guilty plea to accessory after the fact to murder was
    only relevant to Berniers credibility but could not be used to determine the
    guilt of the appellant. The appellant argues that this failure prejudiced the
    appellant as the trial Crown submitted to the jury that Berniers plea was
    based on the same evidence as the jury had heard at the appellants trial. The
    appellant contends that the jury would be loath to second-guess the wisdom of
    the verdict in Berniers case and that, without a limiting instruction, there
    is a risk that the jury would use that verdict as evidence against the
    appellant. The appellant relies on
R. v. MacGregor
(1981), 64 C.C.C. (2d) 353 (Ont. C.A.), leave to
    appeal refused, [1982] S.C.C.A. No. 246, among other cases, in support of this
    argument.

[6]

We do not accept this submission.

[7]

While a caution to the jury is
    ordinarily required to ensure that the jury does not rely on the guilty plea of
    an accomplice or former co-accused, the lack of an instruction is not fatal in
    the absence of prejudice to the accused:
MacGregor
, at p. 358, followed in
R. v. Simpson
, [1988] 1 S.C.R. 3, at p. 19.

[8]

The relevance of Berniers guilty
    plea and any danger it posed in the specific circumstances of this case were
    inextricably bound up with the fact that he was a person with a motive to lie
    and to point to the appellant as the shooter. That issue was fully vetted by
    counsel and by the trial judge, a factor that this court found significant in
    reducing the risk of prejudice in
R. v. Berry
, 2017 ONCA 17, 345 C.C.C. (3d) 32, at paras. 40-41.
    For the following reasons, we conclude that the complaint the appellant now
    makes did not result in any prejudice to him.

[9]

The appellant contended at trial
    that the guilty plea was a
quid pro quo
deal with the Crown. However, Bernier denied this and there was no
    evidence to support it. Bernier did admit that he did hope to obtain some
    benefit from his guilty plea. The appellants trial counsel argued this gave
    him a motive to lie in order to escape the murder charge. The trial judge gave
    a
Vetrovec
caution, warning the
    jury in strong terms about the danger in relying on Berniers evidence given
    that possible motive. She told the jury:  I am sure it will come as no
    surprise to you that the law requires me to caution you in the strongest terms
    about the dangers of relying on the evidence of a person of [Berniers]
    background and circumstances. She cautioned the jury: Mr. Bernier may have an
    interest in testifying in a manner that minimizes his involvement in the
    offence. He may have an interest in implicating [the appellant]. She added:
    Experience has taught us that the testimony of witnesses like Mr. Bernierwho
    have an interest in gaining an advantage for themselves by implicating others
    must be approached with the utmost caution.

[10]

The trial judge also instructed
    the jury not to speculate about the nature of prior proceedings and gave a
    thorough alternate suspect instruction. The appellants trial counsel did not
    request a correction to the trial Crowns submission that Berniers plea was
    based on the same evidence as the jury had heard at the appellants trial. Nor
    did the trial judge repeat the trial Crowns submission on this point in her
    jury instructions. The trial judge also instructed the jury that it should
    ignore Berniers out-of-court statements because they did not bolster his
    reliability or credibility. In
MacGregor
, this court found that a similar instruction diminished the risk of prejudice
    from the trial judges failure to instruct on the guilty pleas of the
    co-accused persons: at p. 358.

[11]

In our view, the trial judges
    treatment of the relevance of Berniers guilty plea was tailored to the
    circumstances of the case and did not prejudice the appellant. The trial judge
    and both parties made very clear to the jury that the issue was whether the
    appellant or Bernier fired the fatal shot.

[12]

The appellant argues that the significance
    of the guilty plea was two-fold. It exculpated Bernier. And that exculpation
    had added weight because another judge had accepted the plea.

[13]

The live issue in this case was
    whether the appellant or Bernier was the shooter. It was plain from the
    evidence, the jury addresses of counsel, and the trial judges charge, that it
    was open to the jury to decide that Bernier was the shooter and not the
    appellant. There was no risk that the jury could think that somehow Berniers
    guilty plea was an impediment to finding that he was the shooter.

[14]

We are fortified in this conclusion
    by the absence of any objection or request from the appellants trial counsel
    for the instruction now sought on appeal. In addition, we note that an explicit
    guilty plea instruction was neither requested nor given at the appellants
    first trial which resulted in a hung jury. While not fatal, the lack of
    objection supports our conclusion that the failure to give this instruction did
    not result in any prejudice to the appellant: see
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.

(2)

Did the trial judge err
    by failing to give an adequate Vetrovec instruction with respect to Berniers
    evidence?

[15]

As we have already noted, the
    trial judge gave the jury a strong
Vetrovec
caution. She referred to Berniers serious criminal
    record and his motive to lie as a person charged with the murder. The appellant
    complains that the trial judge failed to warn the jury that Berniers close
    involvement in the case and his access to the fruits of the police
    investigation through disclosure in his own case provided him with details
    about the crime that would allow him to tailor his evidence to falsely
    implicate the appellant.

[16]

We disagree.

[17]

In our view, the risk of Bernier
    tailoring or manipulating his evidence on account of disclosure or other
    related knowledge of the details of the case is purely speculative. He may have
    had the opportunity to tailor his evidence based on the disclosure. However, he
    denied that he had ever read the disclosure when the appellants trial counsel
    explored this issue with him during his cross-examination. The appellant came
    to a dead-end on this issue at trial and there is no factual basis to raise it
    again on appeal.

[18]

The appellant also argues that the
    trial judge erred by instructing the jury that the evidence of the two
    eyewitnesses was capable of supporting Berniers evidence. The appellant
    submits that the trial judge should have pointed out certain discrepancies
    between their evidence and Berniers, including parts of their evidence that
    implicated Bernier as the shooter.

[19]

We are satisfied that when the
    charge is read as a whole, the trial judge did explain the strengths and
    weaknesses of the evidence of the two eyewitnesses. She did not have to repeat
    that analysis when referring to confirmatory evidence in the course of her
Vetrovec
warning concerning Bernier.

[20]

We note as well that the
    appellants trial counsel conceded that the evidence of the two eyewitnesses
    was capable of supporting Berniers evidence. He did not object to the
Vetrovec
instruction.

[21]

Finally, this court has held that
    deference is owed to trial judges in how best to frame a
Vetrovec
caution. Where the trial judge gives a
Vetrovec
caution, appellate intervention will be
    warranted only where the warning given clearly failed to convey to the jury
    the appropriate degree of caution required to meet the particular
    circumstances of the case:
R. v. Zebedee
(2006), 81 O.R. (3d) 583 (C.A.), at paras 83-4, motion to extend the
    time to apply for leave dismissed, [2006] S.C.C.A. No. 461. In our view, that
    test has not been met in this case. Unlike in
R. v. Kanagalingam
, 2014 ONCA 727, 315 C.C.C. (3d) 199, where this court
    found that a
Vetrovec
warning was
    inadequate because it failed to explain the witnesses motivation to lie, here
    the trial judge fully canvassed Berniers motivation to lie.

(3)

Did the trial judge err
    by failing to adequately relate the evidence to the issue of intent for the
    included offence of manslaughter?

[22]

The trial judge ruled she would
    leave the jury with manslaughter as a possible verdict, even though the number
    of shots fired and the fact that the deceased was struck in the back made it
    quite unlikely that the jury would not find the requisite intent for murder
    if they concluded that the appellant was the shooter. The appellant, relying on
R. v. MacKinnon
(1999), 43 O.R.
    (3d) 378 (C.A.), at pp. 386-387, complains that the trial judge erred by
    failing to provide the jury with the details of the evidence that could lead to
    a manslaughter verdict.

[23]

The trial judge provided the
    following instruction:

You have [the firearms experts] evidence that a gun would not
    have accidently discharged and that a considerable amount of pressure on the
    trigger was necessary to fire the gun each time. On the other hand, it is open
    to you to have a reasonable doubt based on a combination of factors, including
    the ingestion of drugs, the words of [the deceased], that He was going to get
    his ting, or a gun, the spontaneous nature of the confrontation and the fact
    that the fatal shot was fired from a considerable distance in a manner that,
    according to [the firearms expert], may have made accuracy difficult.

If those factors either
    individually or in combination leave you with a reasonable doubt as to whether
    he had either of the states of mind for murder then [the appellant] is entitled
    to the benefit of that doubt and you will return a verdict of manslaughter.

[24]

The appellant complains that this
    instruction was inadequate and that a more thorough review of the evidence
    capable of supporting a verdict of manslaughter was required. The appellant
    placed particular emphasis on evidence of two gouge marks in the pavement that
    could have indicated that two shots were fired into the ground rather than at
    the deceased.

[25]

We agree with the trial judge and
    the Crown that there was little possibility on this record that if the jury
    concluded the appellant was the shooter, he lacked the intent for murder. Four
    shots were fired in the direction of the deceased. The first ricocheted off the
    sidewalk and hit the deceased in the knee and the other three shots were fired
    in his direction as he ran away. We note that the appellants trial counsel did
    submit to the jury that manslaughter was a viable alternative verdict and
    referred to the evidence that could support that verdict. It is significant
    that he did not include the evidence of the gouge marks that the appellant
    relies upon on appeal.

[26]

While the trial judges review of
    the evidence supporting manslaughter was brief and less than complete, we are
    satisfied that, when read together with the closing submissions, her summary
    captured the essential facts that could have led to a manslaughter verdict.
    When the Crown objected to the draft instruction on manslaughter the
    appellants trial counsel asked the trial judge to leave it in or perhaps even
    reinforce it a bit. He did not object when the trial judge declined to
    reinforce it, and hence, took a position more or less accepting the instruction
    that was given.

Disposition

[27]

For these reasons, the appeal is dismissed

Robert J. Sharpe J.A.

P. Lauwers J.A.

K. van Rensburg J.A.


