



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McFarlane, 2012
    ONCA 355

DATE: 20120530

DOCKET: C49922

Doherty, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Delroy L. McFarlane

Appellant

P. Andras Schreck and Candice Suter, for the appellant

Randolv Schwartz, for the respondent

Heard:  May 11, 2012

On appeal from the conviction entered on October 24, 2008
    by a jury presided over by Justice Robert A. Clark of the Superior Court of
    Justice.

ENDORSEMENT

[1]

The appellant was convicted of first degree murder.  Counsel, in his
    helpful submissions, advanced two related submissions.  He abandoned a third
    arising out of the instruction on first degree murder.  First, he argued that
    the trial judge should have excluded evidence that the police seized two loaded
    handguns from the appellant, neither of which was connected to the murder. 
    Second, counsel submits that if the evidence was admissible, the jury should
    have been told that it could not confirm the evidence of the
Vetrovec
witness.

[2]

The Crown alleged that the appellant and a partner executed the deceased
    in retaliation for his theft of their drugs.  The Crown had a strong
    circumstantial evidence case against the appellant.  They also had the evidence
    of a man named Cleveland Blackwood.  Blackwood claimed that the appellant had
    confessed to him when the two met in jail shortly after the appellants bail
    hearing.  Blackwood reported the confession to the authorities a few days
    later.  Blackwood was a jailhouse informant with an established history of
    dishonesty and a clear motive to lie.  Parts of his evidence were clearly
    inaccurate.  Blackwood properly attracted a lengthy and forceful
Vetrovec
caution from the trial judge.

[3]

According to Blackwood, during his conversation with the appellant, the
    appellant admitted he had killed the victim.  He told Blackwood that the police
    could not prove the crime because they would never find the guns that did the
    job.  The appellant told Blackwood that two guns had been used to kill the
    victim.  He also indicated that the two guns seized from him were clean as a
    whistle.  Blackwood testified that the appellant told him that the gun the authorities
    had seized in the United States from his partner was also not involved in the murder. 
    In fact, neither of the weapons seized from the appellant, nor the particular weapon
    seized from the partner was involved in the murder.

[4]

The defence argued that the appellant had not confessed to Blackwood, a
    virtual stranger, and that most of the information that Blackwood alleged he was
    told by the appellant came from the evidence given at the appellants bail
    hearing.  Indeed, much of what Blackwood said the appellant told him was part
    of the evidence at the bail hearing.  However, at the time of the bail hearing,
    the police had not determined that the weapons seized from the appellant were
    not connected to the murder, although the officer who gave evidence at the bail
    hearing testified that he doubted any connection.  Forensic tests were not
    completed until after the bail hearing.  The results of those tests indicated
    that the guns were not involved in the murder, but were as Blackwood said the
    appellant told him, clean as a whistle.

[5]

The Crown argued that the appellants comments about the two guns seized
    from him, placed in the context of the entire conversation with Blackwood, constituted
    evidence of the appellants participation in the murder.  The Crown argued that
    the appellants comments indicated that he knew which guns had been used in the
    murder and which had not been used.  On the Crowns argument, he obtained that
    knowledge through his involvement in the murder.  If the jury accepted that
    argument, the appellants knowledge as to what guns had been used in the murder
    became powerful evidence of his guilt.

[6]

The Crown further argued that the evidence that two guns were seized
    from the appellant and were not connected to the murder provided some
    confirmation of Blackwoods testimony that the appellant told him that the guns
    were not connected to the murder.  The confirmatory value of this evidence was
    enhanced because, unlike much of Blackwoods testimony, it could not be argued
    that he became aware that the guns were not connected to the murder through his
    knowledge of the testimony at the bail hearing.


I



was the evidence
    of the appellants possession of the two guns that were unconnected to the
    murder admissible?

[7]

We agree with the Crowns argument.  The appellants statement
    concerning the two weapons seized from him cannot be viewed in isolation.  It
    was one of several statements allegedly made by him to Blackwood about his
    knowledge of the weapons that were used in the murder.  Those statements,
    viewed as a whole, were capable of supporting the inference that the appellant
    knew which weapons had not been used in the murder because he was involved in
    the murder.  The evidence was properly admitted unless its prejudicial effect
    outweighed its probative value.

[8]

If the jury believed that the appellant made the statements about his
    knowledge of the murder weapons to Blackwood, that evidence had significant
    potential probative value.  There is also no denying that the evidence carried
    with it a real danger that a jury would misuse the evidence and treat it as
    evidence demonstrating the appellants disposition for violence, particularly
    violence involving firearms.

[9]

The trial judge was alive to the potential prejudice.  He eventually
    chose to admit the evidence and give a strong limiting instruction.  In our
    view, the trial judge acted within his discretion in such matters in
    determining that the potential prejudice could be adequately addressed by an
    appropriate limiting instruction.  The trial judge did not err in admitting the
    evidence.


II



did the trial
    judge misdirect the jury on the potential confirmatory value of that evidence?

[10]

The
    trial judge told the jury that evidence that the guns seized from the appellant
    were not used in the robbery was capable of confirming Blackwoods testimony that
    the appellant told him that those guns were as clean as a whistle and could
    not be connected to the robbery.  Counsel for the appellant argues that assuming
    the appellant made the statement to Blackwood, it is equally consistent with
    his innocence as with his guilt.  Counsel argues that a statement by the
    appellant that his guns were not used in the robbery could indicate knowledge
    of the murder weapon, but equally could indicate that the appellant had nothing
    to do with the murder and, hence, knew that his guns had not been used in the
    murder.

[11]

In
    his factum, counsel submitted that because the evidence was equally consistent
    with guilt or innocence, the trial should not have left it with the jury as
    potentially confirmatory evidence.  In oral argument, counsel made a slightly
    different alternative submission.  He argued that the jury should have been
    told that if in their assessment, the statement was equally consistent with guilt
    or innocence, it could not confirm Blackwoods testimony.

[12]

We
    cannot accept either submission.  As Crown counsel correctly observes, the
    question in the context of a
Vetrovec
instruction is not whether the
    potentially confirmatory evidence is consistent with guilt or innocence, but
    whether it confirms or supports relevant parts of the
Vetrovec
witnesss testimony.  Thus, evidence that does not implicate an accused can be confirmatory
    of the credibility of a
Vetrovec
witness on a relevant matter as can
    evidence which goes to an element of the offence that the defence has chosen
    not to dispute at trial.

[13]

Evidence
    that was independent of Blackwoods testimony could be confirmatory for the
    purposes of the
Vetrovec
warning if that evidence increased the jurys
    confidence that Blackwood was telling the truth in that part of his evidence relating
    to the appellants knowledge of and/or involvement in the events culminating in
    the murder.  Statements by the appellant potentially relating to his knowledge
    of the murder weapon fall within that category.  The forensic evidence showing
    that the two guns seized from the appellant were not involved in the murder was
    clearly independent of Blackwoods testimony.  It was capable of confirming a
    relevant part of Blackwoods testimony and, therefore, increasing the jurys
    confidence in the reliability of Blackwoods testimony.  The trial judge did
    not err in including the evidence within the category of potentially
    confirmatory evidence.

[14]

The
    variation in the argument made during oral submissions requires a further brief
    comment.  If a jury decides that evidence left with it as potentially
    confirmatory of a
Vetrovec
witness is equally consistent with the
    truth or the falsity of the
Vetrovec
evidence, then that evidence, as
    a matter of logic, cannot confirm the credibility of the
Vetrovec
witness.  A trial judge may choose to give this instruction to a jury.  We
    would not, however, make it mandatory.  It is difficult to see how a jury could
    use evidence that it had found to be equally consistent with truth as with falsity
    to confirm the credibility of the witness.  How could that evidence increase
    the jurys confidence that the
Vetrovec
witness was telling the
    truth?  Articulation of the self-evident will usually do no harm and can, on
    occasion, help.  We would not, however, go so far as to say that the failure to
    articulate the self-evident constitutes reversible error.

[15]

The
    appeal is dismissed.

Doherty J.A.

Janet Simmons J.A.

H.S.
    LaForme J.A.


