Today's decision in R. v. Gelle, 2009 ONCA 262 raises the difficult issue of whether a Vetrovec warning is properly given when exculpatory evidence is given by an unsavory witness.
Historically the Vetrovec warning emerges from the former need for corroboration for certain witnesses or crimes. As a result, even today, when the Vetrovec warning is given the usual warning suggests the trier of fact look for some confirming evidence for the unsavory witness's testimony.
In that context it seems to make little sense to require a warning where the evidence given favors an accused.
Indeed, the strong dissent of Armstrong JA holds that the warning ought not to be given for exculpatory evidence.
That said, in this particular case, an in part because of a lack of objection at trial, the majority found the warning for an exculpatory witness (here called by the Crown -- there was a recanted KGB statement) was not improper.
The issue, to this author's view, remains open. That said, the case is critical reading when considering an unsavory but exculpatory witness.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
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