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Criminal - Jury - Vetrovec Caution. R. v. Granados-Arana
In R. v. Granados-Arana (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, this after "(t)he jury convicted the appellant of first degree murder".
The court considers the adequacy of jury charges, here specifically where the issue was a Vetrovec (unsavoury witness) instruction where no objection was raised at trial to it's use:[39] This court must take a functional approach in reviewing the trial judge’s instruction. As with all jury instructions, “the question is not whether the trial judge uttered specific words or followed a specific formula, but whether the charge as a whole, in the context of the particular case, served its purpose by delivering the necessary message”: R. v. Dadollahi-Sarab, 2021 ONCA 514, at para. 112. See also R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 13-15, 47; R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at paras. 151-52. This approach was reiterated by Rowe J. in R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 36: “when reviewing a charge to a jury for potential legal error, appellate courts need to read the charge as a whole and determine whether the overall effect of the charge properly equipped the jury in the circumstances of the trial to decide the case according to the law and the evidence.”
[40] In my view, when the functional approach is applied to the trial judge’s Vetrovec instruction, there were no reversible errors. This conclusion is bolstered by defence counsel at trial’s lack of objection to the Vetrovec instruction. None of the complaints made in this appeal about the Vetrovec caution were raised by trial counsel. When an appellate court is asked to review the choice made by the trial judge, that court is entitled to take into account the positions taken by counsel at trial. These positions are particularly important when, as here, counsel had an opportunity to vet the proposed charge and make detailed submissions: see Dadollahi-Sarab, at para. 127. The inherently strategic decision about whether to request a Vetrovec caution and to voice no complaint about its content is relevant. In Abdullahi, Rowe J. said that the lack of objection, while not determinative, is a factor that informs the review of a jury charge. The lack of objection “may be particularly relevant” in the case of a contingent instruction, like the Vetrovec caution, and it “may indicate the sufficiency of a judge’s Vetrovec instruction”: Abdullahi, at para. 68.
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[54] As noted above, Doherty J.A. in Rowe held that the content and format of the Vetrovec instruction are left to the discretion of the trial judge. He explained that the instruction will be sufficient if, considered in its entirety, it “makes clear to the jury both that it is dangerous to rely on the inculpatory portion of the Vetrovec witness’s evidence without confirmatory support, and that the jury must acquit if the exculpatory portions of that witness’s evidence, alone or taken in combination with the rest of the evidence, leave the jury with a reasonable doubt”: Rowe, at para. 33. . R. v. Shi [judge-only trial]
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. . 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).
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