Randy Desmond Riley v. Her Majesty the Queen

(Nova Scotia) (Criminal) (As of Right / By Leave)


Criminal law - Evidence, Unreasonable verdict - Criminal law - Evidence - Jury - Vetrovec warning - Verdict - Unreasonable verdict - Curative proviso - Whether a Vetrovec warning should have been provided to the jury regarding the exculpatory evidence of a Crown witness - Whether the curative proviso, per s. 686(1)(b)(iii) of the Criminal Code should have been applied to dismiss the appeal - Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).


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At trial before judge and jury, Mr. Riley was convicted of second degree murder and illegal possession of a firearm. On appeal before the Nova Scotia Court of Appeal, Mr. Riley argued that the trial judge erred by giving a Vetrovec warning to the jury regarding one of the Crown’s witnesses and that this error was critical. A majority of the Court of Appeal dismissed the appeal as it was satisfied that if the trial judge erred by giving a Vetrovec warning, the error was harmless and it would apply the curative proviso at s. 686(1)(b)(iii) of the Criminal Code if necessary. In its view, there was no reasonable possibility that a jury could believe or have a reasonable doubt based on the witness’s evidence. Scanlan J.A. would have quashed the convictions and ordered a new trial. In his view, the trial judge erred in its Vetrovec instruction and it would be inappropriate to apply the curative proviso since the legal error was in relation to a pivotal witness. Scanlan J.A. was not convinced that the verdict would have been the same with a properly instructed jury.