[11] The law about Vetrovec warnings was most recently set out by this Court in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, and R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146. As Fish J. put it in Khela, at para. 47:
A truly functional approach [to appellate review of the adequacy of a Vetrovec warning] must take into account the dual purpose of the 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.
[12] As noted, the trial judge's warning did caution the jury to be very careful in assessing Mr. Niemi's evidence and did refer to some reasons for that caution. However, the judge's warning did not point out to the jury that they should be cautious with Mr. Niemi's evidence because of his possible motive to lie in order to get some advantage for himself in his own legal troubles or to collect the reward. As Fish J. observed in Smith, at para. 14:
In order to assess the risk of accepting testimony from an unsavoury witness, a jury must understand the reasons for special scrutiny (R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 85). This requires identifying for the jury the characteristics of the witness that bring his or her credibility into serious question.
[13] As the disagreement between the majority and the dissent in the Court of Appeal demonstrates, it is debatable whether this omission in the judge's direction was sufficiently serious in the context of this trial so as to require appellate intervention. However the new evidence, in our view, makes it clear that a new trial is necessary.
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