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UNSAVORY WITNESS-VETROVEC WARNING

R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146  Clii


The accused were charged with first degree murder and conspiracy to commit murder.  The Crown’s case depended on the evidence of two alleged accomplices who had been involved in the killing of the victim and attempts to cover it up.  The accomplices were granted immunity and witness protection in exchange for assistance in the police investigation and their testimony.  


The trial judge warned the jury to be cautious in accepting their testimony and that it would be unsafe to rely on their evidence alone, but he also instructed them that they could rely on the testimony if they were convinced beyond a reasonable doubt that it was true.  The trial judge directed the jury to look for evidence that confirms or supports important parts of the accomplices’ testimony and he reviewed evidence that the jury might consider.  


The accused were convicted of both offences.  The Court of Appeal upheld the convictions, holding that the jury charge, read as a whole in the context of the record, satisfied the requirement for a suitable Vetrovec warning.

Held:  The appeals should be dismissed.

Per Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.: Appellate courts reviewing Vetrovec warnings should determine whether the jury was warned of the danger of relying on the witness’s testimony without being comforted, by some other evidence, that the witness is telling the truth about the accused’s involvement in the crime.  The warning also should direct the jury to the type of evidence capable of providing such comfort.  In order to assess the risk of accepting an unsavoury witness’s testimony, the jury must understand the reasons for special scrutiny and the characteristics of the witness that bring his or her credibility into question.  There is no particular formula for a proper warning and trial judges have significant discretion to craft the instruction according to the circumstances of the trial.  In this case, the Vetrovec warning was thorough and complete.  It clearly alerted the jury to the dangers of accepting the accomplices’ testimony, without more, to convict the accused.  [2-3] [14] [16-17]


Jim O'Neil, LL.B.

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