The accused, K and S, were charged with first degree murder. The Crown alleged that K paid two men to murder the victim, while S helped organize and coordinate the shooting. The Crown's case rested primarily on the testimony of two unsavoury witnesses who had lengthy criminal records and who were members of a prison based gang. The trial judge directed the jury to look at their testimony with the greatest care and caution and to look for confirmation of their testimony from somebody or something other than what the unsavoury witnesses themselves had to say. The trial judge also directed the jury that it was for them to decide whether any evidence confirms or supports the unsavoury witnesses' testimony. Both accused were convicted.
On appeal, they argued that the trial judge's Vetrovec warning failed to instruct the jury that to be confirmatory, evidence supporting the testimony of unsavoury witnesses must be independent and material. The Court of Appeal upheld the convictions. It found that, in the context of the trial as a whole, the Vetrovec warning sufficiently conveyed the concepts of materiality and independence, and the appropriate degree of caution required by the circumstances. Held: The appeals should be dismissed.
Although no single formula can be expected to produce an appropriate Vetrovec caution for every foreseeable situation, trial judges, who must craft the caution appropriate to the circumstances of their case, are entitled to guidance as to the general characteristics of a caution. The four main elements of a caution are: (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. This summary need not be applied in a rigid and formulaic fashion. Where a caution has these four elements, an appellate court, in the absence of some other flaw, will generally be expected to find the caution adequate. However, a failure to include any of these elements may not prove fatal if the charge read as a whole otherwise serves the dual purposes of a Vetrovec warning: first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses. In evaluating a caution, appellate courts should focus on the content of a caution and not on its form.
With respect to the fourth component of the summary, since not all evidence is capable of confirming the testimony of an untrustworthy witness, a Vetrovec caution should draw the jury's attention to evidence capable of confirming or supporting material parts of the witnesses' evidence. To be confirmatory, evidence should give comfort that the witness can be trusted. The attribute of independence defines the kind of evidence that can provide comfort that the witness is telling the truth. Evidence that is tainted by connection to the witness cannot serve to confirm his or her testimony Materiality is a more difficult concept. Evidence does not have to implicate the accused, but in the context of the case as a whole, it should give comfort that the witness was truthful in relevant aspects of his or her account.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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