|
Criminal - Jury - Vetrovec Caution. R. v. Tubic [Vetrovec caution to a judge]
In R. v. Tubic (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a second-degree murder conviction.
Here the court considered the doctrine of Vetrovec cautions, in this case to a judge not a jury:[28] Generally speaking, Vetrovec cautions are designed for juries, not judges. In R. v. Fuller, 2021 ONCA 888, Doherty J.A. said at para. 19:First of all, a judge conducting a judge-alone trial is not obliged to give herself a “Vetrovec” caution with respect to witnesses who could well attract that caution in a jury case. The “Vetrovec” caution is designed to educate jurors about the risks inherent in accepting the evidence of certain kinds of witnesses and the need to carefully examine the entire trial record for potential supporting evidence. Trial judges are well aware of those risks and the need to look for supporting evidence: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at paras. 23-25; R. v. KRR, 2020 ABCA 475, 398 C.C.C. (3d) 259, at paras. 56-58. See also R. v. Khan, 2022 ONCA 698, [2023] 1 C.T.C. 16, at para. 65, leave to appeal refused, [2022] S.C.C.A. No. 455; and R. v. Krawczyk, 2024 ONCA 196, 435 C.C.C. (3d) 468, at para. 49. Although this was a trial by judge alone, the trial judge applied the principles in Vetrovec. He did so free from error. . R. v. Ball
In R. v. Ball (Ont CA, 2024) the Ontario Court of Appeal dismisses a criminal appeal. Here the court considers the adequacy of a Vetrovec caution:(b) Adequacy of the Vetrovec Instruction
[17] The appellant submits that the Vetrovec instruction was inadequate in two respects.
[18] First, the appellant argues that the trial judge erred by failing to give a stronger Vetrovec instruction about Mr. Warwick’s evidence that included the following caution articulated by the Supreme Court in R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 15:In cases where the unsavoury witness is an accomplice, it may be useful for the trial judge to explain why that witness would be able to concoct a particularly compelling story that falsely implicates the accused. All that an accomplice must add to an otherwise truthful, and potentially confirmable story, is the participation of the accused. [19] I do not accept this submission. The Vetrovec warning in the jury charge fulfilled its objective. It strongly warned the jury that Mr. Warwick was an unsavoury, unreliable witness whose evidence had to be viewed with the greatest care and caution and that it would be very dangerous to accept his evidence without independent, confirmatory evidence: Vetrovec, at pp. 831-32; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 5, 11-14. It was made clear to the jury through the charge and through defence counsel’s extensive cross-examination that Mr. Warwick was an accomplice to the wrongful removal of Ms. Howlett’s body and that he had a motive to lie and implicate the appellant. There can be no doubt that the jury understood the negative aspects of Mr. Warwick’s character, background, and actions and that they seriously affected the credibility and reliability of his testimony.
[20] Moreover, it was unnecessary for the trial judge to include the specific language from Smith. In Smith, the appellants argued, as here, that a further accomplice instruction should be included in the charge. The Supreme Court reiterated that trial judges are afforded significant discretion in fashioning a Vetrovec caution and concluded that its omission was not a reversible error because, as here, the Vetrovec caution fulfilled its purpose of highlighting the reasons that the evidence in issue should be regarded with the greatest care and caution: Smith, at paras. 15-16. . R. v. Krawczyk
In R. v. Krawczyk (Ont CA, 2024) the Ontario Court of Appeal stated a point about cautions and reasons:[49] A trial judge in a judge alone trial is not required to specifically give himself a Vetrovec warning in his reasons because trial judges are presumed to know the law: R. v. Fuller, 2021 ONCA 888, at para. 19. ... . R. v. Odesho
In R. v. Odesho (Ont CA, 2023) the Court of Appeal considered Vetrovec jury charges (warnings):[64] In Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at p. 831, the Supreme Court held that trial judges may − and in some cases must − include in their charges “a clear and sharp warning” drawing to the attention of the jury the risks of adopting, without more, the evidence of an unsavoury witness. In R. v. Armstrong (2003), 2003 CanLII 29258 (ON CA), 179 C.C.C. (3d) 37 (Ont. C.A.), this court stated that a Vetrovec warning is not required for all such witnesses and that a trial judge has discretion whether or not to give a warning, though in some cases the circumstances are such that the judge has no discretion and failure to provide a warning is an error of law: at para. 14. Whether such a warning is mandatory depends on the witness's credibility and the importance of the witness's testimony to the Crown's case. . R. v. Cargioli
In R. v. Cargioli (Ont CA, 2023) the Court of Appeal considered appeals by three defendants from convictions, one for first-degree murder and two for second-degree murder. In this extract the court considers the deference to be accorded the trial judge in deciding when to issue a Vetrovec instruction to the jury:[50] Ultimately, it was for the trial judge in the exercise of his discretion to decide whether a Vetrovec instruction was necessary: R. v. Boone, 2016 ONCA 227, 28 C.R. (7th) 1, at paras. 50-51, leave to appeal refused, [2016] S.C.C.A. No. 238. The trial judge’s decision that a Vetrovec instruction would be inappropriate based upon a single feature of Ms. Taleb’s evidence falls within the scope of that discretion. . R. v. I.M.
In R. v. I.M. (Ont CA, 2023) the Court of Appeal commented on Vetrovec cautions, which are trustworthiness warnings that a trial judge can give regarding the evidence of co-defendants:[25] The appellant argues that the trial judge should have provided a Vetrovec warning concerning the evidence of G.D., emphasizing that his was the only evidence that the appellant was in the alleyway.[1] According to the appellant, although G.D. was not a classic Vetrovec witness, such as an accomplice or a jailhouse informant, his evidence was essential to the Crown’s case and he had a motive to lie and credibility problems. These factors, in combination, were sufficient to require a Vetrovec warning in the circumstances of this case. G.D. had a motive to lie because S.T. was within his circle of friends – S.T. was G.D.’s friend’s sister’s boyfriend, and a friend of G.D.’s friend Daniel. Moreover, G.D. believed he might be paid by the police. His credibility problems included a youth record for possessing a prohibited firearm. According to the appellant, G.D.’s evidence was riddled with inconsistencies and implausibility.
[26] We do not agree that a Vetrovec warning concerning G.D.’s evidence was mandatory in the circumstances of this case, and we are satisfied that the trial judge’s jury instructions were sufficient to equip the jury to properly assess his evidence.
[27] In general, the decision whether to provide a Vetrovec warning is a discretionary one: R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477, at paras. 32-34. Trial counsel did not take the position that a Vetrovec warning was required. This is not determinative, but it provides strong support for the trial judge’s view that a Vetrovec warning was not required. The trial judge specifically asked the appellant whether he wanted a Vetrovec warning in respect of two other witnesses. He did not. . R. v. Mohamed
In R. v. Mohamed (Ont CA, 2023) the Court of Appeal considered the nature of a Vetrovec witness and the caution that must be exercised with a jury:(1) A.A. was a Vetrovec Witness
[18] Where there are objective reasons to suspect the credibility of the testimony of a Crown witness, the witness is a Vetrovec witness, and the trial judge must, within the bounds of reasonable discretion, warn a jury to view their evidence with caution: R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252; R. v. Deol, 2017 ONCA 221, 352 C.C.C. (3d) 343. In R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 69, Karakatsanis J. noted, for the majority, that, “[g]iven that a Vetrovec witness cannot be trusted to tell the truth, even under oath …, establishing that hearsay evidence from a Vetrovec witness is inherently trustworthy will be extremely challenging” (citations omitted).
|
