Unsavoury Witnesses Vetrovec Warning

Concern Trustworthiness of accomplice testimony. Testimony of witnesses of highly questionable character and motivation. Trustworthiness of accomplice testimony. Testimony of witnesses of highly questionable character and motivation.

Vetrovec: Defined A special warning from the TOL to the TOF about how they should look at accomplice evidence in terms of assessing credibility. It told the TOF to be careful in relying on such evidence, that before it did, it should look for corroborative evidence.

History of Warning: To Whom it Applied Originally, directed at “accomplices.” Originally, directed at “accomplices.” Now directed to all untrustworthy witnesses who play an important role in the Crown’s case. Now directed to all untrustworthy witnesses who play an important role in the Crown’s case. Accomplices, unindicted co-conspirators, jailhouse informants. Those with strong motives to lie, those who have sold their testimony, significant criminal histories, perjury convictions, prior inconsistent statements, delay in coming forward. Accomplices, unindicted co-conspirators, jailhouse informants. Those with strong motives to lie, those who have sold their testimony, significant criminal histories, perjury convictions, prior inconsistent statements, delay in coming forward.

What warning Originally Required Mandatory, not discretionary Mandatory, not discretionary Asked the TOF to look for corroboration – ie. independent evidence confirming the witness’ story in a material particular, and in a way that implicates the accused. Told them it was dangerous to convict without. Asked the TOF to look for corroboration – ie. independent evidence confirming the witness’ story in a material particular, and in a way that implicates the accused. Told them it was dangerous to convict without. Evidence capable of being corroborative to be reviewed with jury. Evidence capable of being corroborative to be reviewed with jury.

Post 1982 Discretionary warning, not mandatory. Discretionary warning, not mandatory. Corroboration need only be evidence independent of the impugned witness confirming the story of the witness in a material particular, whether or not it implicates the accused. Corroboration need only be evidence independent of the impugned witness confirming the story of the witness in a material particular, whether or not it implicates the accused.

Post-Vetrovec TOL not to pigeon-hole witnesses. Rather than focus on category of witness, TOL to look at case-specific factors concerning the particular witness at issue, and those credibility factors which arise to decide if a warning is appropriate. TOL not to pigeon-hole witnesses. Rather than focus on category of witness, TOL to look at case-specific factors concerning the particular witness at issue, and those credibility factors which arise to decide if a warning is appropriate. Therefore, even if an accomplice, a warning may not be necessary in the circumstances of the case. Therefore, even if an accomplice, a warning may not be necessary in the circumstances of the case.

Current Warning Clear and sharp Clear and sharp Concerning dangers of accepting suspect evidence without more Concerning dangers of accepting suspect evidence without more The words “corroboration” or “confirmatory evidence” need not be used in warning. The words “corroboration” or “confirmatory evidence” need not be used in warning.

Proper Warning The evidence of a witness is singled out for the TOF as requiring special scrutiny. The evidence of a witness is singled out for the TOF as requiring special scrutiny. The characteristics of the witness that bring his evidence into question are identified for the jury. The characteristics of the witness that bring his evidence into question are identified for the jury. The jury is cautioned that although it is entitled to act on the unconfirmed evidence of an unsavoury witness, it is dangerous to do so. The jury is cautioned that although it is entitled to act on the unconfirmed evidence of an unsavoury witness, it is dangerous to do so. Look for other independent evidence that tends to confirm material parts of the testimony. Look for other independent evidence that tends to confirm material parts of the testimony.

Bevan (SCC) 1993 TOL’s review of evidence capable of corroboration discretionary, not mandatory TOL’s review of evidence capable of corroboration discretionary, not mandatory In some cases due to (a) the inherent suspect nature of a certain witness and (b) the centrality of the evidence to the case at bar; it would be an error of law for a TOL not to issue a warning to the TOF. In some cases due to (a) the inherent suspect nature of a certain witness and (b) the centrality of the evidence to the case at bar; it would be an error of law for a TOL not to issue a warning to the TOF.

Brooks (SCC) 2000: Confirmatory Evidence Must be independent Must be independent Capable of confirming credibility of witness’ testimony Capable of confirming credibility of witness’ testimony

Corroboration need not implicate accused, even if the impugned witness’ testimony is the only evidence the Crown has of the accused’s participation in the offence. Corroboration need not implicate accused, even if the impugned witness’ testimony is the only evidence the Crown has of the accused’s participation in the offence. Corroboration need not confirm the impugned evidence in every respect. Corroboration need not confirm the impugned evidence in every respect.

Corroboration The evidence of one suspect witness can confirm the evidence of another suspect witness, but where there is a danger of collusion, they cannot. The evidence of one suspect witness can confirm the evidence of another suspect witness, but where there is a danger of collusion, they cannot.

Other Considerations The trial judge should avoid asking the TOF to assess the demeanour of the impugned witness in assessing credibility, as such witnesses are notorious convincing liars. The trial judge should avoid asking the TOF to assess the demeanour of the impugned witness in assessing credibility, as such witnesses are notorious convincing liars.

Other Considerations Even where the trial is by judge alone, a warning may be required. Even where the trial is by judge alone, a warning may be required.

Role of TOL To assess the two factors: (a) whether significant questions have been raised as to credibility (ie. looking for hallmarks of unreliability, but not whether the TOL believes the witness); and (b) assessing the role of this witness in the case. To assess the two factors: (a) whether significant questions have been raised as to credibility (ie. looking for hallmarks of unreliability, but not whether the TOL believes the witness); and (b) assessing the role of this witness in the case. Finally, to rule whether a warning should be given. Finally, to rule whether a warning should be given.

Other Considerations Warning inappropriate for defence witnesses (burden of proof issue). Warning inappropriate for defence witnesses (burden of proof issue). Not applicable to defendant who testifies. Not applicable to defendant who testifies. Requires more than a mere challenge to a witness’ credibility. Requires more than a mere challenge to a witness’ credibility. Has been rejected in cases involving mere mental illness. Has been rejected in cases involving mere mental illness.

Ultimately … Even in the absence of confirmatory evidence, the TOF can rely on the evidence. The error only comes if the TOF has not been warned. Even in the absence of confirmatory evidence, the TOF can rely on the evidence. The error only comes if the TOF has not been warned.