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Criminal - Judge-Only Trial. R. v. Smith ['self-instruction']
In R. v. Smith (Ont CA, 2025) the Ontario Court of Appeal considered the concept of judicial 'self-instruction', analogous to a jury charge but in a judge-only trial:[15] We agree that it would have been preferable for the trial judge to self-instruct on this risk and consider it. In oral argument, he suggested that the defence needed to adduce social science evidence before he could do so. This was incorrect because cross-racial misidentification is a well-recognized danger which is the subject of judicial notice and does not require expert evidence: see, e.g., R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 49; R. v. B.M. (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at pp. 29-30, 35; R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610. Failure to grapple with it can be a reversible error if it poses a serious danger in the circumstances of the case: R. v. Bao, 2019 ONCA 458, 146 O.R. (3d) 225, at para. 23. . R. v. Shi
In R. v. Shi (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here addressing Vetrovec cautions and judge-only trials:[38] The general rule is that, before relying on the evidence of an unsavoury witness to convict an accused, jurors are to be given a “Vetrovec” caution, including the direction that they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth about the guilt of the accused: Roks, at para. 63; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 37; and Kehler, at paras. 17-19. It is about whether the witness can be trusted in their assertion that the accused is the person who committed the offence: Roks, at para. 65.
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[41] As this court has repeatedly emphasized, there is no need to import the requirement of a Vetrovec caution, which is designed to alert juries to the danger of relying on the evidence of certain witnesses, into a trial judge’s reasons for judgment: judges know the risks inherent in relying on such witnesses: see e.g., R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 24; R. v. Pelletier, 2012 ONCA 566, 295 O.A.C. 200, at para. 65. As in Pelletier, the trial judge in this case was well aware of the need for caution in assessing Mr. Matthews-Bishop’s evidence. He was entitled to accept parts of it, including the specific relationship evidence that the appellant impugns, even in the absence of confirmatory evidence. And in any event, no rule of law requires confirmatory evidence before any part of the evidence of an unsavoury witness is accepted: Pelletier, at paras. 72-73.
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