In Juries We Trust: R v Magno
The Ontario Court of Appeal (“Court of Appeal”) decision in R v Magno, 2015 ONCA 111 [Magno], affirmed the law surrounding judges’ Vetrovec warnings in cases where co-conspirators serve as both witnesses against an accused and as independent corroboration for one another’s testimony. The appellant (“Magno”) appealed from trial convictions on charges of conspiracy, arson and manslaughter, as well as the length of his sentence. Finding that the trial judge gave an appropriate Vetrovec warning and that it was open for the jury to rely on hearsay testimony from Magno’s co-conspirators, the Court of Appeal dismissed each of these grounds of the appeal. By placing great trust in the jury’s assessment of witness credibility, this decision signals Canadian courts’ continued shift away from the “juror control” model of trial jurisprudence.
Magno was the owner of Woodbine Building Supply (“WBS”), a large hardware store in Toronto’s east-end that had been established by his father. On December 24, 2001, an attempt to set fire to the store led to an explosion that destroyed the building, killed one arsonist and left another seriously injured. The building had been insured and Magno made a claim for $3 million following the explosion. The insurance payment was never made, as Magno was arrested shortly after police had investigated the incident.
Magno was accused of conspiring with numerous others to orchestrate the arson. It was suspected that Magno had intended to fraudulently collect an insurance payout and fund a condo development to replace the struggling WBS business.
Because the incident had led to the death of one of the arsonists, Magno also faced a charge of second-degree murder.
The Decision at Trial
Alongside evidence of Magno’s financial motives and communications between Magno and alleged co-conspirators, the Crown’s evidence relied on the testimony of two of these alleged co-conspirators. The testimony was admitted as hearsay evidence under the co-conspirator exception and pointed to Magno as the controlling mind behind the arson.
The jury found Magno guilty on three arson offences as well as the lesser offence of manslaughter. In rendering his judgment, the trial judge strongly admonished Magno’s actions for their impact on both the community and his family. Magno’s sentence of 12 years’ imprisonment, minus two years’ time served, fell on the high end of sentence lengths applicable to his guilty verdict.
Magno appealed primarily on the ground that the trial judge had erred in his Vetrovec warning to the jury, and also on the ground that the length of his sentence was unfair.
The Trial Judge’s Vetrovec Warning
To qualify the testimony of the Crown’s witnesses, the trial judge provided careful instructions to the jury. These instructions included a Vetrovec warning, which cautioned the jury about the credibility of the “unsavoury witnesses” who testified as part of the Crown’s case. The warning called attention to the need for jurors to take care in determining whether the testimony of these witnesses was corroborated and reliable.
Following the Supreme Court of Canada’s decision in R v Vetrovec,  1 SCR 811 [Vetrovec], it has become standard practice for trial judges to issue Vetrovec warnings in trials where potentially untrustworthy witnesses testify against an accused. As set out by Justice Dickson in Vetrovec, such instructions are meant to serve as a “clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness” (Vetrovec at page 831)
The Decision of the Court of Appeal
The Court of Appeal dismissed all elements of Magno’s appeal, upholding both his convictions and the length of the sentence determined by the trial judge.
With respect to the trial judge’s Vetrovec warning, the Court of Appeal rejected Magno’s contention that the jury could not be permitted to determine whether witnesses who had colluded in Magno’s crime could serve to corroborate the truth of one another’s testimony.
Citing R v Roks, 2011 ONCA 526, the Court of Appeal agreed with Magno to the extent of recognizing that jurors who consider testimony from potentially untrustworthy witnesses should be instructed to look for confirmation of such testimony from some other source. In determining whether witnesses who have colluded in the accused’s crime could serve to confirm one another statements, the Court of Appeal turned to its prior decision in R v Winmill (1999), 42 OR (3d) 582 [Winmill]. In that decision, Justice Osborne stated that “It is for the jury to determine whether an untrustworthy witness’s evidence is so compromised by collaboration that it could not reasonably be used to support the evidence of another untrustworthy witness. The final credibility call is, I emphasize, for the jury” (Winmill at para. 115).
Agreeing that it is up to the jury to decide when one unsavoury witness cannot corroborate another, the Court of Appeal upheld the trial judge’s Vetrovec warning as being correct in law. So long as there is some basis for a witness to be found “independent” for the purposes of confirming another’s testimony, the trial judge “must allow the jury to exercise it fact-finding function” (Magno at para. 41).
Addressing the length of Magno’s sentence, the Court of Appeal focused on the “high degree of moral blameworthiness” (para. 82) that attached to Magno’s involvement in a long-term conspiracy, particularly considering his reckless disregard for the risks he had brought upon first responders and community residents who lived near WBS. As a result, the Court of Appeal upheld the trial judge’s decision despite its being on the high end of available sentences for Magno’s convictions.
While the Court of Appeal’s decision in Magno does not change the state of the law concerning Vetrovec warnings, it stands for courts’ continued shift away from juror control as a model for trial proceedings.
Prior to Vetrovec, Canadian courts dealt with testimony from unsavoury witnesses according to the standard set out in R v Baskerville,  2 KB 658, which required judges to instruct juries on the need for such testimony to be independently corroborated. A strict application of this standard would require a judge to provide the jury with a list of the sorts of evidence that may provide the necessary corroboration. The Supreme Court’s decision in Vetrovec signalled a shift away from such strict control and towards entrusting juries with greater discretion in determining the credibility and, ultimately, the weight to be assigned to the testimony of unsavoury witnesses.
When it comes to assessing witness testimony, Magno follows decisions such as Vetrovec and Winmill in assigning less control to judges at the admissibility stage and more control to jurors at the weighing stage. While it remains arguable whether this approach facilitates greater access to justice for accused individuals, there is little doubt that it enhances the quality and significance of public participation via the function of juries.