




CITATION: R. v. Deleon, 2011 ONCA 752



DATE: 20111130



DOCKET: C50346, C50350 and C50360



COURT OF APPEAL FOR ONTARIO



MacPherson, Blair and Epstein JJ.A.



C50346



BETWEEN



Her Majesty the Queen



Respondent



and



Zacky Deleon



Appellant



C50350



AND BETWEEN



Her Majesty the Queen



Respondent



and



Michael Allen



Appellant



C50360



AND BETWEEN



Her Majesty the Queen



Respondent



and



Jaime Humberto Restrepo



Appellant



Philip Campbell and Zachary Kerbel, for the appellant Zacky
          Deleon



Heather McArthur and Victoria Rivers, for the appellant
          Michael Allen



P. Andras Schreck and Candice Suter, for the appellant Jaime
          Restrepo



Deborah Calderwood, for the respondent



Heard:
November 22, 2011



On appeal from the conviction entered on July 10, 2008 by
          Justice Ronald G. Thomas of the Superior Court of Justice, sitting with a
          jury.



ENDORSEMENT



[1]

The appellants were convicted of first degree murder for the
    execution-style shooting of Mauricio Castro.

[2]

Jaime Restrepo was the leader of a Toronto drug distribution network
    that owed approximately $1 million to Castro.  The Crown argued that Restrepo
    arranged the murder to extinguish the debt and to steal cocaine belonging to
    Castro, that Michael Allen was the actual killer, and that Zacky Deleon was
    deeply involved in the enterprise both before and after the killing took place.

[3]

The Crown relied on the testimony of three main witnesses.  Jorge
    Restrepo, Jaimes brother, was the number two person in the Restrepo drug
    network.  Jorge Acosta was involved in the Restrepo network and drove the
    getaway car after the murder.  Ronny Khananisho put the Restrepo network in
    touch with the shooter, Allen.

[4]

In his address to the jury, the trial judge issued a strong
Vetrovec
warning for Acosta, a milder warning for Jorge Restrepo, and declined to warn
    the jury about Khananishos evidence.  All three appellants contend that the
    trial judge erred in his treatment of the
Vetrovec
issue.

[5]

The appellants contend that the trial judge erred not only in failing to
    issue strong and sharp
Vetrovec
warnings for both Jorge Restrepo and
    Khananisho, but also in comparing the witnesses according to the extent to
    which they could be classified as unsavoury.  The appellants contend that this
    continuum approach interfered with the purpose of the
Vetrovec
warning
    by inviting the jury to find credibility by comparison.

[6]

We do not accept this submission.  In
R. v. Khela
(2009), 238
    C.C.C. (3d) 489 (S.C.C.) at para. 13, Fish J. stated:

The crafting of a caution appropriate to the
    circumstances of the case is best left to the judge who has conducted the
    trial.  No particular set of words is mandatory. In evaluating its
    adequacy, appellate courts will focus on the content of the instruction and not
    on its form.

[7]

In this case, we can see no error in the continuum adopted by the trial
    judge in his treatment of the three main Crown witnesses.  The warning about
    Acosta was very strong indeed.  The appellants do not challenge it.  The
    warning about Restrepo was milder but encompassed all four elements of the
    standard
Vetrovec
warning.  The absence of a warning about Khananisho
    was justified by his very peripheral role in the murder enterprise (he provided
    Allens phone number to the Restrepo network and attended a meeting with Allen
    during which Deleon spoke to Jaime Restrepo) and the absence of a history of
    lying or other dishonest behaviour.  In our view, it may be preferable to give
    discrete
Vetrovec
warnings that do not specifically involve a comparison
     particularly in the positive terms employed by the trial judge.  However,
    given the nature and extent of the trial judges references to the unsavoury
    characteristics of these witnesses, the jury would clearly understand that they
    had to examine their evidence with caution.

[8]

The appellant Jaime Restrepo submits that the trial judge erred in his
    treatment of the confirmatory evidence component of the
Vetrovec
warning.  He says that there was no confirmatory evidence independent of the
    three unsavoury witnesses relating to his involvement in the planning and
    execution of the murder.

[9]

We disagree.  The trial judge provided the standard jury charge on this
    issue.  Restrepos counsel made no objection to this component of the charge.

[10]

In
R. v. Kehler
, [2004]¸1 S.C.R. 328 at paras. 15-16, Fish J.
    stated:

The appellant wrongly equates relevant with
    disputed.  Mr. Greenwoods detailed account of the robbery, though
    undisputed, was no less relevant to the offences charged than his implication
    of the appellant in their commission.  And while confirmatory evidence
    should be capable of restoring the triers faith in relevant aspects of the
    witnesss account, it hardly follows that the confirmatory evidence must, as a
    matter of law, implicate the accused where the only disputed issue at trial is
    whether the accused was a participant in the crimes alleged.

As the appellant himself concedes, it is clear from
Vetrovec
,
supra
, that independent evidence, to be considered
    confirmatory, does
not
have to implicate the accused.  There is no
    separate rule in this regard for cases where the only evidence of the accuseds
    participation in the offence is that of a tainted witness.
[
Emphasis
    in original.]

[11]

In keeping with this principle, there was nothing wrong with directing
    the jury that they could consider evidence implicating Allen and Deleon in the
    murder  as confirmatory evidence in relation to Acostas and Jorge Restrepos
    identification of Jaime Restrepo as the mastermind behind Castros murder.  For
    example, it was appropriate for the jury to consider for this purpose evidence
    relating to a meeting by several participants in a park and cellphone records
    that placed people in specific locations near the time of the murder.  Indeed,
    the fact that Acosta and Jorge Restrepo could be proven, by independent
    evidence, to be telling the truth about Allens and Deleons involvement was
    relevant to an assessment of whether these witnesses were also telling the
    truth about Jaime Restrepos involvement.

[12]

Finally, the appellant Deleon contends that the trial judges charge on
    abandonment was flawed in two ways.  First, the abandonment charge failed to
    direct the jury to consider the depth of Deleons involvement in the conspiracy
    when assessing sufficient notice of intent to withdraw.  Second, the charge
    improperly restricted the operation of the defence to a factual finding that
    Deleon had participated in a common venture, foreclosing a jury finding that he
    had committed discrete acts of aiding and abetting but had abandoned his
    involvement.

[13]

We do not accept this submission.  Deleons trial counsel did not
    propose the defence of abandonment because it had the potential disadvantage of
    undermining his principal submission that he was not involved in the Castro
    murder enterprise at all.  After the trial judge chose to charge on
    abandonment, and did so in accordance with the standard jury charge, Deleons
    trial counsel made no objection.  Moreover, the trial judges focus on a common
    venture merely reflected the reality of Deleons participation, both before and
    after the murder, even though he was not present at the murder scene.  Deleon
    was deeply involved in the planning of the murder, he paid Allen after the
    murder, and he received a substantial amount of money for his role.  There was
    virtually no air of reality to this possible defence and, in any event, the
    trial judges charge on this issue was error-free.

[14]

The appeals are dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

G.J. Epstein
    J.A.


