COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Illes,

 

2013 BCCA 169

Date: 20130417

Docket: CA039213

Between:

Regina

Respondent

And

Mihaly Illes

Appellant

Before:

The Honourable Madam Justice Levine

The Honourable Madam Justice Garson

The Honourable Mr. Justice Hinkson

On appeal from: Supreme Court of British Columbia, July 11, 2011
(R. v. Illes, 2011 BCSC 934, Vancouver Docket No. 20516)

Counsel for the Appellant:

D.M. Layton

Counsel for the Respondent:

W.J.S. Bell

Place and Date of Hearing:

Vancouver, British Columbia

March 1, 2013

Place and Date of Judgment:

Vancouver, British Columbia

April 17, 2013

Written Reasons by:

The Honourable Mr. Justice Hinkson

Concurred in by:

The Honourable Madam Justice Levine
The Honourable Madam Justice Garson


Reasons for Judgment of the Honourable Mr. Justice Hinkson:

Introduction

[1]             Mr. Mihaly Illes was convicted by a jury of the first degree murder of his associate in illegal drug trafficking, Mr. Javan Dowling, between April 20 and 30, 2001, at or near Vancouver, British Columbia. He appealed his conviction to this Court, and a majority of the Court dismissed his appeal, with Madam Justice Rowles dissenting. The reasons for judgment on his conviction appeal are indexed at 2007 BCCA 125. On his further appeal to the Supreme Court of Canada, Mr. Illes’ appeal was allowed and a new trial ordered. Those reasons for judgment are reported at [2008] 3 S.C.R. 134.

[2]             Mr. Illes was retried before a judge sitting alone and on July 11, 2011, he was convicted on the charge of first degree murder. The judge’s reasons for judgment are indexed at 2011 BCSC 934. Mr. Illes now appeals that conviction.

Background

[3]             Mr. Dowling died as a result of four gunshots to the back of his head from a .22 caliber weapon. His body was subsequently dismembered, and his dismembered limbs and torso were buried in one location near Squamish, British Columbia. His head was later buried in a separate location also near Squamish.

[4]             At para. 4 of his reasons for judgment, the trial judge described the genesis of the police investigation into Mr. Dowling’s death:

Mr. Dowling’s killing first came to the attention of the police on May 8, 2001. This came through contact with a Mental Health worker who had been told a disturbing story about a killing involving a “head in a bucket”, by someone she was dealing with. The police circulated a brief report of this communication internally, but it did not lead to anything. There was a further contact on July 16 and a meeting was arranged with the woman, Melanie Ovalle, on July 17, 2001. A series of communications followed which ultimately led police to the witness, Derrick Madinsky, the recovery of body parts near Squamish, British Columbia, and to the identification of the body parts as those of Mr. Dowling.

[5]             The theory of the Crown at trial was that the appellant resolved to kill Mr. Dowling because he was using their cocaine intended for trafficking purposes and had become a liability in the conduct of their business.

[6]             The trial judge heard evidence from various witnesses, including Garry Favell, Mr. Madinsky, and Ms. Ovalle. Messrs. Favell and Madinsky acknowledged that they were involved in the illegal drug trade with the appellant and others.

[7]             The police had initially arrested Mr. Madinsky for the murder of Mr. Dowling, but ultimately gave him immunity from prosecution in exchange for his cooperation, principally in leading the police to the sites where parts of Mr. Dowling’s dismembered body were found. Mr. Madinsky’s narrative was given to the police after they had disclosed to him the story they had been told by Ms. Ovalle.

[8]             At trial, Mr. Madinsky gave evidence that he and Mr. Dowling dealt drugs together. Mr. Madinsky said that at first Mr. Dowling was not using the drugs they were dealing but that he had begun to do so before the appellant joined them in drug dealing.

[9]             At para. 236 of his reasons, the trial judge summarized Mr. Madinsky’s evidence at trial:

... Mr. Madinsky’s evidence as it relates to the offence charged against the [appellant] is very simple: the [appellant], sitting in the back seat, shot Mr. Dowling, who was sitting in the front passenger seat in the minivan while Mr. Madinsky was driving. Mr. Dowling’s body slumped onto Mr. Madinsky, but the [appellant] righted it and, apparently prepared for what had occurred, covered it with plastic bags he had brought, while Mr. Madinsky drove out to Burnaby where they met Mr. Favell.

[10]         Mr. Madinsky’s evidence at trial was that he heard two clicks, which he perceived to be shots, at the time that the appellant shot Mr. Dowling and that immediately after that, the appellant pulled the lever of the seat which then came down. The appellant started putting bags over Mr. Dowling’s head. Mr. Madinsky said that he then drove the van to a marijuana growing house in Burnaby, where they were met by Mr. Favell. Mr. Madinsky said that within a day or two of the killing, the appellant talked to him about dismembering Mr. Dowling’s body, and wanted his and Mr. Favell’s help to get some things to facilitate that process. Mr. Madinsky said he and Mr. Favell obtained some tools, saws, plastic sheeting and a duffel bag.

[11]         Mr. Madinsky gave evidence at trial that approximately the day after the appellant finished the process of dismembering Mr. Dowling’s body, he, Mr. Favell and the appellant drove to Squamish. Leaving Mr. Favell to stand as a lookout, he and the appellant dug a hole into which they deposited Mr. Dowling’s body parts other than his head. Mr. Madinsky also gave evidence at trial that Mr. Dowling’s head was later disposed of by him, Mr. Favell and the appellant in the same vicinity.

[12]         Mr. Favell gave evidence that he learned about Mr. Dowling’s death when Mr. Madinsky asked him to meet at the marijuana growing house in Burnaby. He said that when Mr. Madinsky pulled up to the house in a van, he opened the garage door and was told by Mr. Madinsky to wait in the house. Mr. Favell did so and said that when Mr. Madinsky came into the kitchen, he looked pale and said that “Jay” had been shot. He also said that the appellant then came into the kitchen holding a gun and that the appellant told them to keep their mouths shut or the same thing would happen to them.

[13]         Mr. Favell gave evidence at trial that he was subsequently called out to the Burnaby marijuana growing house by Mr. Madinsky. He said he followed Mr. Madinsky and the appellant to Squamish in his vehicle. At that point Mr. Madinsky and the appellant stopped and got into Mr. Favell’s jeep to drive up into the hills on logging roads, with a hockey bag containing Mr. Dowling’s remains. Mr. Favell said he was the lookout and stayed at the road with the vehicle. He said that when Mr. Madinsky returned to the vehicle, he looked sick.

[14]         Mr. Favell said they stopped at another location further down the road and burned the hockey bag. He said that some time later he went to the same area again with Mr. Madinsky and the appellant to get rid of Mr. Dowling’s head. Again he said his role was to stand by the vehicle. Mr. Favell said he did not see the head that day and had never been shown it. He said that they burned the bucket at the same place they had burned the hockey bag.

[15]         At trial, Ms. Ovalle described meeting the appellant through his girlfriend, Lee-Ann Price. She and Ms. Price had attended elementary school together, and re-connected as adults. Ms. Price was working in Victoria at the time and would periodically visit Ms. Ovalle. On one of these visits in about January of 2001, the appellant attended Ms. Ovalle’s residence to pick up Ms. Price who introduced him as her boyfriend. She estimated that she saw the appellant ten to fifteen times before Mr. Dowling was killed. She said that she never met Mr. Madinsky or Mr. Favell before Mr. Dowling was killed.

[16]         The trial judge summarized the thrust of Ms. Ovalle’s evidence at paras. 81 – 89 of his reasons:

[81]      [T]he [appellant] drove them downtown in a rented gray Ford Focus station wagon, and took them to the apartment where he said he was living. She said Mr. Madinsky and Mr. Favell were there. She said the men went into the bedroom and then brought out a large sum of cash and asked Ms. Price and Ms. Ovalle to count it. She thought that they counted out something like $35,000.

[82]      Ms. Ovalle said they left the apartment together with Mr. Madinsky, but that he got out on the ground floor while they proceeded to the parking garage. In the parking garage Ms. Ovalle says the [appellant] went somewhere out of sight and then returned with a Home Depot bucket and put it down in front of her and Ms. Price. She says Ms. Price said “are you not going to show her?” and that the [appellant] said “sure” and then lifted the lid to reveal Mr. Dowling’s head in the bucket.

[83]      Ms. Ovalle said she said “I guess he should not have done what he did,” because she was frightened and did not know what else to say. She said the [appellant] talked about “skimming off the top” and then asked Ms. Ovalle if he could store the head at her house. She says she agreed.

[84]      Ms. Ovalle said that they proceeded back to her house, with Mr. Madinsky following in another car. Mr. Favell did not come along. She said they went into her garage and there was a discussion about how to dissolve the head. Ms. Ovalle said she suggested wood stripper, because she was familiar with its effects, and all four of them went to a Home Depot store to get some. When they got back to the garage she said she saw the [appellant] pour the wood stripper into the bucket.

[85]      Ms. Ovalle said that while they were in the parking garage in Vancouver, she had also been shown a Thunderbird vehicle containing several bags of marijuana that the [appellant] said they had grown.

[86]      Ms. Ovalle says they then proceeded to a house in Burnaby where they met up with Mr. Madinsky again. They entered a detached garage containing a Honda Odyssey Van and she says Mr. Madinsky asked Ms. Price and Ms. Ovalle to check for any blood that they had missed when they cleaned it. She said the covers had been removed from the seats and the foam picked in places where there had been blood.

[87]      Ms. Ovalle also said there were clothes and personal possessions in the van. She understood these were Mr. Dowling’s belongings from a question Mr. Madinsky posed to the [appellant] about what they were going to do with “Javan’s” things. She said another bag apparently containing bloody clothes was the subject of a similar query and the [appellant] said they would burn them. She also said the [appellant] told her that the premises they were in were leased by Mr. Madinsky for a grow operation.

[88]      Ms. Ovalle says that the [appellant] and Mr. Madinsky then put Mr. Dowling’s belongings in the Focus and they drove back to her house. She said the vehicle also contained a bag of lime and three shovels. When they got to the house the [appellant] and the two women divided up Mr. Dowling’s belongings.

[89]      Ms. Ovalle said that the [appellant] told her that he and Mr. Madinsky and Mr. Favell had gone to Squamish that day to bury Mr. Dowling’s body parts. She also said that she asked why Mr. Dowling could not have just been sent away and she says the [appellant] said that they needed “physical evidence”. She says he also told her that Mr. Dowling was not wearing a seatbelt so that when he was shot he fell over on to Mr. Madinsky. She says the [appellant] said that Mr. Madinsky was freaking out, saying “get him off me, get him off me”. She said the [appellant] was laughing about this...

[17]         The trial judge then quoted at length from Ms. Ovalle’s evidence regarding her conversation with the appellant. Summarizing the quotation, it included her evidence of the manner in which the appellant described Mr. Madinsky’s reactions to Mr. Dowling’s body falling onto him after the shooting and to the burial of Mr. Dowling’s body parts; the type and effect of the bullets used to shoot Mr. Dowling; Mr. Dowling’s sexual orientation; and who was present at the time Mr. Dowling was killed.

[18]         The trial judge also received forensic evidence, and letters authored by the appellant following Mr. Dowling’s murder. The trial judge summarized the forensic evidence in his reasons for judgment at paras. 150 – 157. After Mr. Madinsky led police to the two burial locations near Squamish, British Columbia in March and April 2002, dental records and palm prints were used to confirm that the recovered body parts and head were those of Mr. Dowling. Samples taken from one of Mr. Dowling’s workout gloves provided to police by his family matched blood samples taken from the minivan. An autopsy confirmed that Mr. Dowling’s cause of death was multiple gunshot wounds to the back of his head. There were two holes in the back of his skull, one larger than the other, consistent with more than one entrance wound coming together. Four partially deformed .22 calibre bullets were recovered from the skull. Apart from the post-mortem saw marks, there were no other visible injuries to the body parts.

[19]         The trial judge discussed the letters put into evidence before him by the Crown at paras. 265 – 267:

[265]    The letters are post offence conduct of a particular kind. They all appear to be attempts, in line with the [appellant]’s gathering appreciation of the evidence the police were assembling, to create plausible scenarios raising, as the [appellant] specifically put it in one of the Kent letters, a reasonable doubt. The letters are “exculpatory” only in the very limited sense that they do not constitute direct admissions. Taken together they do not contain anything like a consistent alternative to the case that was being assembled. In the early going of the first “Madinsky” letter, the [appellant] outlines possible theories, including that Ms. Ovalle killed Mr. Dowling or that he had simply run off, while coaching his confederates on what to watch for from the police, and urging them to remember that nothing ever happened. There is no hint that he blames anyone else for what happened.

[266]    In the second letter, the [appellant] takes responsibility for bringing Ms. Ovalle into the situation. It is notable that while he says that what Ms. Ovalle is saying is untrue and the product of a sick mind he does not suggest that she was not told anything. The implication is that she was close and proved not to be trustworthy from the [appellant]’s point of view. The letter also corroborates Ms. Ovalle’s evidence that she met Mr. Madinsky and Mr. Favell through the [appellant].

[267]    The final series of letters, the ones intercepted from Kent prison, are all clearly part of a plan to backdate a case creating “a reasonable doubt” about his involvement, in light of the fact that Mr. Madinsky had gone to the police.

[20]         The appellant did not call evidence at trial.

[21]         The trial judge summarized his conclusions at paras. 277 – 292 of his reasons as follows:

[277]    In conclusion, I am satisfied that Javan Dowling was shot four times in the back of the head between the dates set out in the indictment, probably more precisely on April 22nd or 23rd 2001, in the City of Vancouver, Province of British Columbia.

[278]    The killing was a planned and deliberate execution in the context of a criminal drug trafficking enterprise.

[279]    The issue before the court is whether the Crown has proved that the [appellant], Mihaly Illes, was the killer beyond a reasonable doubt.

[280]    There was one eyewitness to the killing, a confederate, Derrick Madinsky.

[281]    The killing took place in a Honda minivan in which the deceased, Mr. Illes and Mr. Madinsky were the only occupants. There is no suggestion, and no air of reality to any suggestion that the killer could be a person other than Mr. Illes or Mr. Madinsky.

[282]    Mr. Madinsky said that he was driving, that Mr. Dowling was in the passenger seat and that Mr. Illes, who was in the back seat, shot Mr. Dowling as they pulled away from an apartment where he lived with Mr. Illes.

[283]    Mr. Madinsky said that he did not expect the killing, although he was aware that Mr. Illes had previously expressed an intention to kill Mr. Dowling.

[284]    Mr. Madinsky was a manifestly unreliable witness. Just about every facet of his evidence was tainted by a motive to minimize his involvement, and he tended to act on that motive. Where his personal interests, as he saw them, were at stake, the oath meant nothing to him. In some respects his evidence was presently more complete than it has been in the past. I am satisfied that this was not due to any feat of recovered memory but to some relaxation, for reasons known only to him, in what he will now say of what he has always remembered. In many particulars it appeared that he was still not telling the whole truth in this trial.

[285]    Mr. Madinsky’s evidence is that he had no involvement in the killing itself. The Crown submits that this may put this evidence on a more reliable footing than most of the rest of his evidence. It would be unsafe, however, to rely on this evidence without corroboration.

[286]    Melanie Ovalle’s evidence was that Mr. Illes told her he had killed Mr. Dowling by shooting him in the back of the head four times in a minivan Mr. Dowling was driving. He explained why he felt it necessary to do so. This encounter with Mr. Illes occurred against a background of discussions with Lee-Anne Price, Mr. Illes’ girlfriend, and now wife, about what occurred. To the extent she heard these details from Ms. Price the evidence is inadmissible hearsay.

[287]    Ms. Ovalle’s relationship before and after the shooting with Ms. Price and Mr. Illes, as well as Mr. Illes’ candid behaviour about many matters relating to the shooting support a strong inference that Mr. Illes did, in fact, tell Ms. Ovalle that he killed Mr. Dowling. I have found that he did so.

[288]    Mr. Illes’ description of what occurred to Ms. Ovalle meshes with the description given by Mr. Madinsky. Mr. Madinsky’s evidence and Ms. Ovalle’s are mutually corroborative of the crucial event in this case.

[289]    The forensic evidence is corroborative of the evidence of Mr. Illes’ statement to Ms. Ovalle and substantially corroborative of the evidence given by Mr. Madinsky.

[290]    Mr. Illes’ post-offence letters are only exculpatory to the extent that they do not constitute actual admissions. Upon any reasonable interpretation they constitute highly inculpatory evidence of attempts to explain away and then to fabricate evidence that could create a reasonable doubt about Mr. Illes’ involvement in the killings.

[291]    Throughout the evidence, including what can be inferred from the letters, it is clear that as between Mr. Illes and Mr. Madinsky, Mr. Illes was the leader, the person who took the initiative and responsibility. There is no credible suggestion, and there is no support in the surrounding circumstances for an inference, that Mr. Dowling’s death took place at Mr. Madinsky’s initiative.

[292]    On the whole of the evidence, therefore, I am satisfied that the Crown has proved beyond a reasonable doubt that Mihaly Illes is guilty of the planned and deliberate killing of Javan Dowling and that he is therefore guilty of first degree murder as charged in the indictment.

Issues on Appeal

[22]         I would frame the issues on appeal as follows:

a)       Is there is an absolute bar to using the evidence of an unsavory witness to corroborate the evidence of a second unsavory witness on any matter if it is shown that their evidence on another matter material to the case has been tainted by collusion?

b)       Did the trial judge err in his use of the evidence of Mr. Favell to corroborate the evidence of Mr. Madinsky?

c)       Did the trial judge provide adequate reasons?

Discussion

a)       The Evidence of a “Tainted” and Unsavory Witness

[23]         The appellant argued, and there can be no doubt, that Messrs. Madinsky and Favell colluded in their evidence to avoid admitting their involvement in a drug transaction in California that led to the unrelated disappearance and murder of one of their associates, and further to spare Mr. Favell from becoming a witness in the case against the appellant, as such involvement would jeopardize Mr. Favell’s safety.

[24]         The trial judge referred to Mr. Madinsky’s explanation about sparing Mr. Favell from becoming a witness at para. 66 of his reasons for judgment:

Q         You know that Mr. Favell lied about it at the first trial because of the two of you decided to lie about it together, right?

A          Yes, we did have a conversation at one point to leave this out.

Q         Well, it wasn’t simply to leave it out. It was along the lines of, “When we testify at the murder trial, we will lie about this,” correct?

A          No. It was along the lines of the fact that Garry had concern that, if he had to stand as a witness in a murder trial, that he may have issues with people that he was dealing with at the time. Those issues being maybe him getting hurt or killed, so he had asked me to leave him out of this as much as possible.  

Q         Well, he was going to be a witness at the trial, too, right?

A          That was not the initial plan, no.

Q         So the extent of the -- the extent of what Mr. Favell asked you to do was simply to leave him out of it when you testified?

A          Yeah, he felt that if he had less involvement they wouldn’t need him as a witness.

Q         I see. So leave him out of it when you speak to the police is that what you mean?

A          With anything, yes.

Q         And that way he wouldn’t even have to be a witness?

A          Correct.

[25]         Mr. Madinsky admitted his involvement in the dismemberment of Mr. Dowling’s body, and the burial of the dismembered parts. He negotiated immunity and witness protection agreements with the police, based upon the proviso that all of the information that he provided would be truthful. Despite this proviso, Mr. Madinsky in fact lied about his involvement in the drug transaction in California, about Mr. Favell’s involvement in the dismemberment and burial of Mr. Dowling’s body parts, about his attendance at the burial of Mr. Dowling’s head and about other matters to the police, to Crown counsel, and under oath at both the preliminary hearing and the first trial.

[26]         Both at trial and in this Court, the Crown conceded that the evidence of Mr. Madinsky, Ms. Ovalle and Mr. Favell had to be approached in light of the cautions articulated in Vetrovec v. The Queen, [1982] 1 S.C.R. 811. It acknowledged that Mr. Madinsky was a “dreadful” witness, who admitted lying under oath at the preliminary hearing and at the jury trial. The Crown also acknowledged that Mr. Madinsky had difficulty recalling events that one would expect would be “etched” in his memory.

[27]         The trial judge was clearly well aware of the danger of convicting on the uncorroborated evidence of Mr. Madinsky. Preparatory to his conclusion set out above at para. 284 of his reasons, the trial judge wrote at para. 74 of his reasons:

Sorting through his evidence as a whole, and applying every allowance possible, however, the fact remains that Mr. Madinsky has been shown to be highly unreliable under oath and on other occasions and to be a witness whose evidence must be approached with the cautions set out in Vetrovec v. The Queen, [1982] 1 S.C.R. 811, fully in mind.

[28]         At para. 162 of his reasons, the trial judge accepted:

... that the testimony of Mr. Madinsky, Ms. Ovalle and Mr. Favell is the evidence of witnesses who, in varying degrees, have demonstrated combinations of amorality, engagement in criminality, past dishonesty, or interest in the outcome, that requires that the evidence given by each be approached with caution and subjected to a search for confirmation in the other evidence.

[29]         The appellant contends that once it is shown that an unsavory witness has been tainted on a matter material to the case by connection to another unsavory witness, there is an absolute bar to using the evidence of the first witness to corroborate the evidence of the second witness. He relies on the decision of this Court in R. v. Illes, 2007 BCCA 125, and that of the Supreme Court of Canada in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at 123 for this contention.

[30]         Even before Khela, this proposition was rejected in R. v. Winmill (1999), 42 O.R. (3d) 582, 131 C.C.C. (3d) 380 (C.A.) at 608 and R. v. Soomel, 2006 BCCA 17, 205 C.C.C. (3d) 45 at para. 229.

[31]         Illes was also decided prior to Khela. In Illes, Mr. Justice Donald, for the majority, wrote at para. 30:

The appellant further submits that mutual confirmation is prohibited. I do not agree with that unqualified proposition. As long as the judge tells the jury that the value of confirmation is lost if the witnesses collaborated, the jury is entitled to use the evidence of one unsavoury witness to support the evidence of another.

[32]         This statement must, however, be considered in the context in which it was made. Two paragraphs later Donald J.A. wrote:

In my respectful view, the judge satisfactorily dealt with the collaboration issue when she said this to the jury:

[140]    I must give you a further instruction. There are numerous examples in the evidence of Mr. Favell and Mr. Madinsky which might be seen by you to confirm the evidence of the other. The Crown referred to examples in its address to you yesterday. You may use that evidence only if you are satisfied that there has been no collaboration between Mr. Madinsky and Mr. Favell as to what they said to you in evidence. If you are satisfied that there has been no collaboration between Mr. Madinsky and Mr. Favell in relation to evidence that you might use to confirm their testimony, you may, if you accept the confirmatory evidence, use it to support the testimony of the other. If, however, you are satisfied that they have collaborated in respect of that evidence, you must not use that evidence to confirm their testimony.

[141]    However, it’s a bit different with Ms. Ovalle. There is no evidence that Mr. Madinsky and Mr. Favell collaborated with Ms. Ovalle in any way. Therefore, you may use the evidence of Ms. Ovalle, which you accept, to support the evidence of Mr. Madinsky and Mr. Favell.

[142]    Please understand that any evidence that tends to strengthen your belief that the witness is telling the truth can be used by you to confirm their evidence so long as you accept that testimony and are satisfied that it is not the result of collaboration.

[Emphasis in original.]

[33]         Thus, Donald J.A. did not foreclose the use of part of the evidence of one unsavory witness to corroborate the evidence of a witness of similar ilk, where it was not the result of collusion.

[34]         This view of Illes is consonant with the view expressed by Mr. Justice Freedman, in R. v. Sanderson, 2003 MBCA 109, at para. 54:

But Vetrovec did not go so far as to make it mandatory that there be some supportive evidence before a witness of unsavoury character can be believed. A jury may choose to believe such a witness even with no supportive evidence, although they must be properly warned of the dangers in doing so.

[35]         In Khela, at p. 122, Mr. Justice Fish referred to the earlier decision of the Supreme Court of Canada in R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237 at 287, where, in reasons concurring with the majority, Mr. Justice Binnie commented that:

...Jailhouse informants presenting a profile such as Balogh and King, generally do, it seems to me, justify an inference of untrustworthiness, and as a general rule in such cases a Vetrovec warning should be given.

[36]         At the same page, Fish J. adopted the principled framework to assist trial judges in constructing Vetrovec warnings appropriate to the circumstances of each case articulated by the Ontario Court of Appeal in R. v. Sauvé (2004), 182 C.C.C. (3d) 321, leave to appeal ref’d [2004] S.C.C.A. No. 246, [2005] 1 S.C.R. xv. The framework is:

... composed of four main foundation elements: (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused (R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19).

[Emphasis in original.]

[37]         That framework was subsequently applied by the Ontario Court of Appeal in R. v. Roks, 2011 ONCA 526, where at paras. 65 – 66 Mr. Justice Watt held that:

[65]      To satisfy the materiality requirement, confirmatory evidence need not implicate the accused: Khela, at paras. 40-41; Kehler, at para. 16. The materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to the trier of fact that the Vetrovec witness can be trusted in his or her assertion that the accused is the person who committed the offence: Khela, at para. 42; Vetrovec, at p. 833. Where the only issue in dispute is whether the accused committed the offence, to be confirmatory, evidence must comfort the trier of fact that the Vetrovec witness is telling the truth in that regard before convicting on the basis of the Vetrovec witness’ evidence: Khela, at para. 43.

[66]      It is worth reminder [sic] that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth: Khela, at para. 37; Kehler, at para. 22; Sauvé, at para. 82.

[Emphasis in original.]

[38]         In R. v. Drabinsky, 2011 ONCA 582, leave to appeal ref’d [2011] S.C.C.A. No. 491, a submission similar to that of the appellant here was rejected by the Ontario Court of Appeal, at para. 136:

Nor do we see any support in logic or law for the proposition that a finding that Messina lied about one part of the evidence demanded the rejection of the rest of her evidence. Certainly her collusion with Craib to give false testimony was yet another reason to view her evidence with great caution. It was not, however, a reason to reject the entirety of her evidence without careful scrutiny. The trial judge ultimately determined that her evidence about other meetings, particularly in October 1997 and February 1998, was credible not only because it was consistent with other testimony and documents but, perhaps most importantly, because it was “confirmed by the reality of Livent”.

[39]         In my opinion, Khela did not establish an absolute bar to the use of the evidence of one unsavory witness, even if tainted by collusion on some matters, to corroborate the evidence of a second unsavory witness on other matters. To the contrary, the case reminds us that a trier of fact must keep in mind that, while it is dangerous to convict on unconfirmed evidence of this sort, a jury or a judge is entitled to do so if satisfied that the evidence is true. This view accords with the reasoning of this Court in R. v. Tse, 2013 BCCA 121, delivered after the reasons for judgment of the trial judge.

[40]         In my opinion, having reminded himself of the cautions set out in Vetrovec, the trial judge committed no error in accepting, to the extent that he did, that despite their collusion on some of their evidence, Mr. Favell’s evidence could corroborate the evidence of Mr. Madinsky on other matters related to the murder. I would not accede to this ground of appeal.

b)       The Use of Mr. Favell’s evidence to corroborate the evidence of Mr. Madinsky

[41]         I am unable to accede to the submission of the appellant that the Crown’s case was a house of cards that collapsed once collusion on the parts of Messrs. Favell and Madinsky on other matters was proven.

[42]         The appellant contends that the trial judge used the evidence of Mr. Favell to corroborate that of Mr. Madinsky on three issues: that Mr. Madinsky was driving when the van arrived at the marijuana growing house; that the appellant held a gun when he spoke to Messrs. Madinsky and Favell at the house; and that Mr. Madinsky was pale when he and Mr. Favell were in the kitchen at the house. While the trial judge referred to the evidence of Mr. Favell on these points at para. 240 of his reasons, I am unable to see that he relied only on Mr. Favell’s evidence for corroboration on these matters.

[43]         At paras. 240 – 241 the trial judge wrote:

[240]    Chronologically, Mr. Madinsky’s evidence as to what occurred during that trip has some circumstantial support in the evidence of Mr. Favell. Mr. Madinsky says he was the driver. When Mr. Favell met him and the accused at the Burnaby grow house, Mr. Favell says Mr. Madinsky was driving. Mr. Madinsky says that the [appellant] had the gun. When the [appellant] came into the house from the garage, after Mr. Favell and Mr. Madinsky had gone ahead of him, Mr. Favell says the [appellant] had the gun in his possession. He also noted that Mr. Madinsky was “pale.”

[241]    The other evidence about what happened in the minivan, apart from what may be inferred from the significant physical evidence, comes from Ms. Ovalle. Whether this is evidence at all or is inadmissible hearsay depends on whether Ms. Ovalle heard what happened directly from the [appellant], and specifically what, if anything, he said.

[44]         At paras. 261 – 262 of his reasons, the trial judge wrote:

[261]    I am, on balance, satisfied that the [appellant] admitted to Ms. Ovalle that he killed Mr. Dowling. As I have outlined, the admission is set in a context of highly inculpatory behaviour he made no effort to cover up. There was, rather, an obvious pattern of including Ms. Ovalle in the criminal activity that followed the shooting. There was nothing secretive about the [appellant]’s behaviour. Indeed, one of the express purposes in killing Mr. Dowling was to demonstrate to others that he had taken care of the problem, by showing people the head. There is no question that he and Ms. Ovalle had the opportunity to talk. Without touching in any way on the content of his remarks to Ms. Price the one thing that is clear is that he did not keep things to himself. It is most improbable that he did not talk to Ms. Ovalle in all the circumstances.

[262]    Apart from that evidence, there has been no suggestion, and there is no air of reality to, any possibility that anyone other than Mr. Madinsky or the [appellant] killed Mr. Dowling. As between Mr. Madinsky and the [appellant] there is very little reason to believe that Mr. Madinsky was the killer other than the fact that he was present. The physical evidence is that Mr. Dowling was shot from behind, and the blood evidence suggests he was shot in the van. He could not realistically have been shot by the driver. Mr. Madinsky says he was the driver, and he was driving when they got to the grow house according to Mr. Favell.

[45]         In my view, the trial judge limited his reliance on the evidence of Mr. Favell to evidence that was also supported by the evidence of Ms. Ovalle. This is apparent from paras. 285 – 289 of his reasons for judgement:

[285]    Mr. Madinsky’s evidence is that he had no involvement in the killing itself. The Crown submits that this may put this evidence on a more reliable footing than most of the rest of his evidence. It would be unsafe, however, to rely on this evidence without corroboration.

[286]    Melanie Ovalle’s evidence was that Mr. Illes told her he had killed Mr. Dowling by shooting him in the back of the head four times in a minivan Mr. Dowling was driving [sic]. He explained why he felt it necessary to do so. This encounter with Mr. Illes occurred against a background of discussions with Lee-Anne Price, Mr. Illes’ girlfriend, and now wife, about what occurred. To the extent she heard these details from Ms. Price the evidence is inadmissible hearsay.

[287]    Ms. Ovalle’s relationship before and after the shooting with Ms. Price and Mr. Illes, as well as Mr. Illes’ candid behaviour about many matters relating to the shooting support a strong inference that Mr. Illes did, in fact, tell Ms. Ovalle that he killed Mr. Dowling. I have found that he did so.

[288]    Mr. Illes’ description of what occurred to Ms. Ovalle meshes with the description given by Mr. Madinsky. Mr. Madinsky’s evidence and Ms. Ovalle’s are mutually corroborative of the crucial event in this case.

[289]    The forensic evidence is corroborative of the evidence of Mr. Illes’ statement to Ms. Ovalle and substantially corroborative of the evidence given by Mr. Madinsky.

[46]         The evidence of Ms. Ovalle relied upon by the trial judge was not contended to be tainted by collusion and satisfies the requirement set out at p. 124 in Khela:

This passage was cited with approval in this Court’s unanimous judgment in Kehler, where the Court concluded that confirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness’ account (para. 15). As a matter of logic, where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that the impugned witness is telling the truth in that regard before convicting on the strength of that witness’s testimony.

[Underline emphasis added.]

[47]         What is compelling about the evidence of Ms. Ovalle is its consistency with the forensic evidence, particularly the recovery of four bullets from Mr. Dowling’s skull. Mr. Madinsky described only two shots to the back of Mr. Dowling’s head, but Ms. Ovalle said she was told by the appellant that he fired four shots into the head. While the skull was found to have only two holes, those holes were consistent with more than one entrance wound coming together and four deformed bullets were recovered from it.

[48]         While recognizing that there were difficulties with certain aspects of Ms. Ovalle’s evidence, the trial judge accepted much of her evidence as truthful. In my view it was open to him to do so, and having done so, it was then open to him to accept the evidence of Mr. Madinsky and Mr. Favell that was consistent with the evidence he accepted from Ms. Ovalle.

[49]         I would not, therefore, accede to this ground of appeal.

c)       Adequacy of Reasons

[50]         This ground of appeal was advanced on the basis that it only required resolution if this Court found that it was unclear whether the trial judge made a finding that Messrs. Favell and Madinsky colluded on material matters. In my view, it is clear that the trial judge found that the two witnesses colluded as I have described in para. 23 above.

[51]         As I have explained, the trial judge did not, in my view, rely upon the evidence of Mr. Favell to corroborate that of Mr. Madinsky, on matters other than those for which there was also corroboration from the evidence of Ms. Ovalle.

[52]         In my opinion, the reasons for the trial judge are clear on these matters, and meet the standard articulated by Mr. Justice Binnie in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at 892 – 893. I would not accede to this ground of appeal.

Conclusion

[53]         I see no basis upon which to interfere with the findings of the trial judge, and accordingly, I would dismiss the appeal.

“The Honourable Mr. Justice Hinkson”

I agree:

“The Honourable Madam Justice Levine”

I agree:

“The Honourable Madam Justice Garson”