R v KRR, 2020 ABCA 475
[34] The appellant submits the trial judge erred in that he was asked to apply the principles in Vetrovec and he failed to do so. The appellant argues the principles in Vetrovec were applicable to the case because the complainant was a crucial witness for the Crown and there were moderate problems with her credibility, namely:
1) her criminal record, which included a conviction for obstruction of justice;
2) her history of drug use; and
3) her lying to secure judicial interim release a number of years prior.
[35] To support his submission, the appellant relies upon R v Chau, 2010 ABCA 86 at para 21:
The decision whether a Vetrovec warning is required in respect of a witness’ testimony is based on two central criteria: the degree to which the credibility of the witness is suspect, and the importance of the witness’ evidence to the Crown’s case. The test was discussed in R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237 at para. 80:
In summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness’s credibility, and the importance of the witness’s testimony to the Crown’s case. No specific threshold need be met on either factor before a warning becomes necessary. Instead, where the witness is absolutely essential to the Crown’s case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown’s case is a strong one without the witness’s evidence. In short, the factors should not be looked to independently of one another but in combination.
[36] Further, the appellant submits that because a Vetrovec warning should have been given, and because there was no confirmatory evidence of the complainant’s evidence, he should have been acquitted.
[37] The Crown submits that a Vetrovec-type warning was not necessary in this case because there was no request to do so by trial counsel, and the trial judge was clearly alive to the complainant’s criminal record which included convictions for lying to police, and her past drug use. As observed by the Crown in its factum at para 34: “SR was a complainant in a sexual assault whose evidence was to be carefully scrutinized as it was the only evidence of the offences – as in most sexual assaults. The trial judge did that. Nothing more was required of him.”
[38] The Crown, in its factum at para 35, also submitted:
Moreover, contrary to the Appellant’s assertion at paragraph 63, there is no express reference to Vetrovec in the transcript or in written submissions. Rather, trial counsel argued that SR’s prior criminal record and admissions of lying to police undercut her credibility such that she should be deemed incredible by the court. A formal Vetrovec caution was never requested by counsel at trial.
[39] While not argued before us, we question whether Vetrovec, a judge made rule of evidence, has application to any of the sexual offences listed in s 274 of the Criminal Code: see R v Chahal, 2018 ABCA 132 at paras 52-53, as well as s 246.4 (now s 274 (as amended)), which was proclaimed on January 4, 1983, six months after Vetrovec was released on May 31, 1982. This might well be a complete answer to this ground of appeal.
[40] Nonetheless, we consider the argument advanced which raises two issues: 1) who is a Vetrovec witness under the rule itself and did the complainant fall within this rule, and 2) whether a judge must give him or herself a Vetrovec warning in a judge alone trial.
[41] In Vetrovec, the Supreme Court of Canada revisited what had become a “rule of law” that in a judge and jury trial, the trial judge had to warn the jury that it is dangerous to convict on the evidence of an accomplice unless the evidence is “corroborated in a material particular implicating the accused”: Vetrovec at 818.
[42] After examining the rationales for the rule, Dickson J (as he then was) held at 823:
None of these arguments can justify a fixed and invariable rule regarding all accomplices. All that can be established is that the testimony of some accomplices may be untrustworthy. But this can be said of many other categories of witness. There is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy. To construct a universal rule singling out accomplices, then, is to fasten upon this branch of the law of evidence a blind and empty formalism. Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an 'accomplice' no warning is necessary. [emphasis added]
[43] Since Vetrovec, the Supreme Court of Canada has had a number of occasions to consider the issue again. One of course was in Brooks, cited above in para 21 of Chau. The summary from Brooks at para 80 must be read in context. Mr. Books appealed his conviction for first degree murder. Two of the witnesses at his trial were jail house informants for which the trial judge did not provide the jury with a Vetrovec warning. The jail house informants were described at paras 49-50 as:
…of unsavoury and infamous character. Both had lengthy criminal records of dishonesty. King had informed the police that in coming forward he was seeking a lighter sentence for his most recent conviction, although that did not happen.
In addition, Balogh had a history of substance abuse and an alarming psychiatric history highlighted by three suicide attempts, paranoia, deep depression and a belief in clairvoyant ability. As well, both witnesses had histories of offering to testify against other accuseds...
[44] In analysing the need for a Vetrovec warning to the jury, Major J (dissenting in the result, but not on this principle) summarized the principles from Vetrovec, R v Bevan, [1993] 2 SCR 599, 1993 CanLII 101, and an article authored by M. Rosenberg (later Rosenberg JA) respecting Vetrovec and Bevan, and arrived at his summary above. It appears from a review of para 79 of Brooks that “the credibility problems” in the quote from Brooks at para 80 cited in Chau above, refers to factors why a trier of fact should approach a witness’s evidence with caution, such as criminal activities or a motive to lie by reason of connection to the crime.
[45] More recently in R v Khela, 2009 SCC 4, the Supreme Court of Canada explained that in a jury trial, it is necessary for a jury to understand the “when” and “why” it is unsafe to find an accused guilty on the unsupported evidence of a witness who is “unsavoury”, “untrustworthy”, “unreliable”, or “tainted”, and these terms include “all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth”: Khela at para 3.
[46] The reason for this, or the “why”, is “...meant to bring home to lay jurors the accumulated wisdom of the law’s experience with unsavoury witnesses”: Khela at para 4.
[47] While witnesses are not to be “pigeon holed”, witnesses who fall within this category are key witnesses who have one or more of the following characteristics:
1) a jail house informant;
2) a lengthy criminal record;
3) a criminal lifestyle, for example membership in a criminal gang;
4) a motive to lie by reason of a connection with the crime;
5) providing different accounts on other occasions;
6) telling lies under oath; and
7) receiving a benefit for testifying.
This list of characteristics is not exhaustive.
[48] This Court has also said in R v DSL, 2017 ABCA 161, a domestic violence case, at paras 15-17:
The appellant further argues that the trial judge erred in failing to give a Vetrovec warning given the complainant’s contradictions between her trial testimony and sworn affidavits and her admission she lied to the police. At trial, neither the Crown nor defence asked for a Vetrovec warning.
A Vetrovec warning is usually appropriate in cases dealing with “unsavory” witnesses such as a co-accused, accomplices, jail-house informants, admitted perjurers and witnesses with significant criminal records. By contrast, the sole reason the appellant is now arguing that a Vetrovec warning should have been given is owing to the inconsistencies in the complainant’s testimony. We have already ruled that these inconsistencies did not require a special instruction to the jury. Nor should we be taken as saying that if they did, it follows that a Vetrovec warning would be required. While a Vetrovec warning is not restricted to cases of traditional unsavory witnesses, it is not required in every case simply because the complainant’s credibility is in issue or there are inconsistencies in her evidence: R v AWB, 2015 ONCA 185 at paras 39-44, 322 CCC (3d) 130. A complainant in a domestic abuse case does not typically bear the hallmarks of classic Vetrovec witnesses. [emphasis added]
Moreover, whether to give a Vetrovec warning is discretionary and therefore entitled to deference: R v Ryan, 2014 ABCA 85 at para 25, 569 AR 376, leave to appeal to SCC refused, 35915 (9 October 2014); R v Rafferty, 2016 ONCA 816 at para 30, 33 CR (7th) 39. Such a decision will only be interfered with if the trial judge misdirected himself or herself or was so clearly wrong it amounted to an injustice: R v Fatunmbi, 2014 MBCA 53 at para 15, 310 CCC (3d) 93, leave to appeal to SCC refused, 36038 (15 January 2015). In the case at bar, a Vetrovec warning was neither required nor even appropriate. Accordingly, this ground of appeal too must fail.
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