Cautioning the Jury About Unsavoury Witnesses: The Vetrovec Warning

Last Thursday, the Supreme Court released its rulings on R v Khela, 2009 SCC 4 [Khela], and R v Smith, 2009 SCC 5 [Smith], two companion cases involving allegations of first-degree murder. In both proceedings, the Crown’s case relied on the testimony of witnesses who had a motive to lie and who were therefore considered unsavoury. As per Vetrovec v The Queen, [1982] 1 SCR 811 [Vetrovec], when an unsavoury or untrustworthy witness gives testimony, the trial judge must warn the trier of fact of the risks inherent in accepting such evidence. At issue in both Khela and Smith was whether the respective trial judges included sufficient information in their Vetrovec warning to the jury.

Facts

In Khela, the accused allegedly hired two assassins to commit a murder. The Crown’s case relied on the testimony of two witnesses who had lengthy criminal records and who had previously belonged to a prison gang with one of the assassins. The accused claimed that the witnesses had framed him for the murder. The trial judge gave a Vetrovec warning to the jury, cautioning them of the dangers of relying on the testimony of the two witnesses and telling the jury to look for other corroborating evidence that could confirm the testimony’s truthfulness. The accused was eventually convicted. On appeal, he argued that the trial judge’s Vetrovec warning was insufficient because it did not make clear to the jury that any corroborating evidence confirming the truthfulness of the witnesses’ testimony must be independent and material.

In Smith, the two accused were charged with involvement in a murder conspiracy. The Crown relied on two witnesses who had participated in the murder and in the subsequent cover-up. The accused was convicted. He appealed on the ground that the trial judge’s Vetrovec caution to the jury failed to explain in sufficient detail the risks surrounding the witnesses’ testimony and why they had a motive to mislead the court.

Framework For A Vetrovec Warning

The Court dismissed both appeals, stating that in both instances the trial judge’s Vetrovec warnings were adequate and had included sufficient information.

In Khela, the Court outlined the principles that should inform a Vetrovec warning. In his majority opinion, Justice Fish stated that the warning had two purposes:

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.

A proper Vetrovec warning should ensure that both purposes are served. Justice Fish adopted the framework laid out by the Ontario Court of Appeal in R v Sauvé (2004), 182 CCC (3d) 321, and held that a Vetrovec warning should have the following four elements:

1. drawing the attention of the jury to the testimonial evidence requiring special scrutiny;
2. explaining why this evidence is subject to special scrutiny;
3. cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and
4. that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.

Regarding the fourth element of this framework, the jury should look for confirmatory evidence that “can provide comfort […] that the witness is telling the truth.” Confirmatory evidence is independent if it is not tainted by its connection to the unsavoury witness. It is also is material if it bolsters the jury’s confidence in the witness’s testimony; however, such evidence does not necessarily have to implicate the accused. Its main role is support the credibility of the witness.

Justice Fish made clear that the form and content of a trial judge’s warning to the jury is specific to the circumstances of the case. Furthermore, a Vetrovec warning that does not follow the above four-part framework may still be sufficient if the two purposes behind giving such a warning are ultimately satisfied. Counsel on both sides also have a responsibility to raise objections if they feel the charge is inadequate.

Justice Fish found that the trial judge’s warning in Khela did not “clearly convey to the jury the message that not all evidence is capable of providing a level of comfort or confidence required for conviction.” The trial judge should have stressed the importance of independent confirmative evidence, since there was a risk of collusion in this case. However, despite this shortcoming, Justice Fish still found the trial judge’s warning sufficient when read in its entirety.

Applying the above principles to Smith, Justice Fish stated that a trial judge does not need to provide a detailed explanation on how and why an unsavoury witness may mislead the court. A trial judge only has to identify why a witness’s testimony may be unreliable. As such, the trial judge’s warning to the jury in Smith was sufficiently thorough.

Justice Deschamps’ “Dissent”

In both cases, Justice Deschamps dissented in principle but not in outcome. She specifically took issue with the fourth element of the framework espoused by Justice Fish. Instead of trying to determine whether confirmative evidence is independent and material, the trier of fact should instead focus on credibility. Rather than be preoccupied with such vague concepts as evidentiary independence and materiality, the trier of fact should simply ask whether, given the evidence adduced, a witness is to be believed.

Justice Deschamps believed that the majority’s framework for Vetrovec warnings would impose formal requirements on what a trial judge must include in her charge, thereby sacrificing the flexibility that has long been the virtue of Vetrovec warnings. Justice Deschamps advocated that the law should move towards simplifying evidentiary principles, not further complicating them and making truth-finding more cumbersome for the trier of fact.

Both judicial opinions, however, give trial judges significant latitude in crafting a Vetrovec warning to the jury. Both justices make clear that any framework for the Vetrovec warning can only serve as guidance, and that a trial judge should customize the warning to fit the circumstances in which it arises. This approach to jury charges is consistent with the Court’s statements in R v Lifchus, [1997] 3 SCR 320, regarding jury charges in general.

Although that case dealt with instructing the jury on what constitutes a reasonable doubt, the Court suggested that, as a general rule, there should be no check list of requirements for any jury charge, and instead trial judges should be free to tailor instructions to the jury within the parameters set by the Supreme Court. The developing jurisprudence surrounding jury charges indicates an increasing deference to trial judges and a reluctance to allow an accused to challenge a jury charge.