R. v. Hurley, 2010 SCC 18, [2010] 1 SCR 637

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

Gordon Dwight Hurley

Respondent

Coram: McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ.

______________________________

R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637

Her Majesty The Queen                                                                                                    Appellant

v.

Gordon Dwight Hurley                                                                                                    Respondent

Indexed as:  R. v. Hurley

2010 SCC 18

File No.:  33301.

2010:  March 23; 2010:  May 14.

Present:  McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for saskatchewan

Criminal law — Charge to jury — Sufficiency of Vetrovec warning — Jailhouse informant testifying for Crown on critical aspect of its murder case against accused — Trial judge warning jury to be extremely cautious in accepting witness’s evidence because of his previous convictions and drug dependency and advising them that it was “unsafe” and “dangerous” to rely on his testimony absent other supporting evidence — Warning not informing jury that witness was jailhouse informant facing charges and aware of reward offered for information about killing — Accused convicted of second degree murder — Whether trial judge’s Vetrovec warning adequate.

Criminal law — Evidence — Fresh evidence — Accused seeking to adduce new evidence before Supreme Court of Canada — New evidence coming from additional police forensic testing and DNA analysis after Court of Appeal set aside accused’s conviction and ordered new trial — Whether new evidence should be admitted — Whether new evidence, when taken with other evidence adduced at trial, could reasonably be expected to have affected the result.

The accused was charged with second degree murder and tried before a jury.  The Crown’s evidence indicated that at least two individuals had been in the hotel room with the victim and there was no dispute that the accused was one of them.  Critical to the Crown’s case was the testimony of a jailhouse informant, N, who testified that the accused had told him that he had cleaned the hotel room in order to remove DNA evidence of his presence.  The accused acknowledged talking with N but denied speaking with him about DNA, fingerprints, or wiping down surfaces.  The trial judge advised the jury to be “extremely cautious” in accepting N’s evidence because he admitted to previous convictions and to having a drug dependence, and advised them that it was “unsafe” and “dangerous” for them to rely on N’s testimony unless they found some support for it in the rest of the evidence.  However, he did not tell the jury that caution was required because N was a jailhouse informant, that he was facing charges himself, or that he was aware a reward was offered for information about the killing.  The accused was convicted, but the Court of Appeal, in a majority decision, quashed the conviction and ordered a new trial on the basis that the trial judge’s Vetrovec warning was inadequate.  The Crown then conducted additional forensic testing and DNA analysis which resulted in  reports that more of the accused’s DNA was found in the hotel room.  The Crown appealed to this Court as of right, and the accused sought to adduce this new evidence.

Held:  The fresh evidence should be admitted and the appeal should be dismissed.

A jury, in order to assess the risk of accepting testimony from an unsavoury witness, must understand the reasons for special scrutiny.  The characteristics of the witness which bring his or her credibility into serious question must therefore be identified for the jury.  Here, the trial judge’s warning did not point out to the jury that they should be cautious with N’s evidence because of his possible motive to lie in order to get some advantage for himself in his own legal troubles or to collect the reward.  While it was debatable whether this omission in the judge’s direction was sufficiently serious in the context of this trial so as to require appellate intervention, the new evidence clearly made a new trial necessary.  The new evidence met all the relevant criteria for its admission; in particular, it may reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.  The Crown effectively conceded in its closing argument to the jury that the accused could not be convicted unless the jury accepted N’s evidence.  The new evidence showing the accused’s DNA on three items in the hotel room could have an impact not only on the jury’s assessment of the credibility of N, whose evidence was bolstered by the evidence of cleaning, but also on the portion of the trial judge’s Vetrovec warning where he specifically instructed the jury that the absence of DNA evidence in the room could be considered as supporting N’s evidence about his jail cell conversation with the accused.

Cases Cited

Referred to:  R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307.

Statutes and Regulations Cited

Rules of the Supreme Court of Canada, SOR/2002‑156, r. 52.

Supreme Court Act, R.S.C. 1985, c. S‑26, s. 62(3) .

APPEAL from a judgment of the Saskatchewan Court of Appeal (Richards, Smith and Hunter JJ.A.), 2009 SKCA 86, 331 Sask. R. 105, 460 W.A.C. 105, 246 C.C.C. (3d) 469, [2009]  10 W.W.R. 217, [2009] S.J. No. 462 (QL), 2009 CarswellSask 500, setting aside the accused’s conviction for second degree murder and ordering a new trial. Appeal dismissed.

Lane Wiegers, for the appellant.

Morris P. Bodnar, Q.C., for the respondent.

The judgment of the Court was delivered by

[1]                              Rothstein and Cromwell JJ. — The Crown appeals as of right on the question of whether the Vetrovec warning given by the trial judge was adequate.  The respondent seeks leave to adduce new evidence, pursuant to s. 62(3)  of the Supreme Court Act, R.S.C. 1985, c. S-26 , and Rule 52 of the Rules of the Supreme Court of Canada, SOR/2002-156.  The motion was heard  with the appeal and judgment was reserved.  For the reasons that follow, we would admit the fresh evidence and dismiss the appeal.

[2]                              Following a jury trial, Gordon Dwight Hurley was convicted of the second degree murder of a young woman, Jarita Naistus.  Ms. Naistus’ body was found in a hotel room in Lloydminster, Saskatchewan, on October 2, 2005.  The cause of her death was asphyxiation due to strangulation and swelling of the brain caused by blunt force trauma.  The Crown’s evidence indicated at least two individuals had been in the hotel room with Ms. Naistus the previous day.  One of these individuals was Mr. Hurley; a torn receipt belonging to him was found in the toilet, his DNA matched a sample found under one of Ms. Naistus’ fingernails, and he was a match for biological matter on a facecloth found near Ms. Naistus’ body.  

[3]                              Mr. Hurley testified that he met Ms. Naistus at the hotel bar, struck up a conversation and bought her a drink.  He wanted to buy some cocaine, and according to his testimony, Ms. Naistus indicated they should go back to her room and she would call a friend who would deliver it. Mr. Hurley testified that after they got to the room Ms. Naistus made a phone call to locate the cocaine.  At this point, he was not feeling well and vomited in the toilet in the hotel room.  He testified that he used towels to wipe his hands and the top of the toilet.  Afterward, when Ms. Naistus advised him her friend would not sell the cocaine, he left the hotel room. According to Mr. Hurley, Ms. Naistus was drunk but alive when he left.  

[4]                              There was no dispute that Mr. Hurley had been in the hotel room.  The only question was whether he was Ms. Naistus’ killer.  Critical to that aspect of the Crown’s case was the testimony of Darrel Niemi, a jailhouse informant.  The Crown did not attempt to minimize the importance of his evidence to its circumstantial case against Mr. Hurley.  Crown counsel’s position before the jury was that they needed to combine both the evidence of opportunity (either from the DNA evidence or Mr. Hurley’s testimony) and Mr. Niemi’s evidence, in order to secure a conviction.  According to the Crown, the evidence of opportunity alone only supported a mere suspicion (A.R., vol. 3, at pp. 418-20). 

[5]                              Mr. Niemi’s testimony concerned conversations he claimed to have had with Mr. Hurley about what Mr. Niemi came to believe was the Naistus murder and, in particular, Mr. Hurley’s alleged comments that he cleaned the hotel room in order to remove DNA evidence of his presence.  Mr. Hurley testified at trial and, while he acknowledged that he had spoken with Mr. Niemi in the cells and that some elements of his account of the conversation were correct, he denied having any conversation with Mr. Niemi about DNA, fingerprints, or wiping down surfaces.

[6]                              While Mr. Niemi’s evidence was self-evidently important to the Crown’s case, it was also dangerous. There were important reasons to be concerned about Mr. Niemi’s credibility: he was facing charges himself, he was approached by the police, he was aware there was a reward offered for information about the killing and he made no mention of what he had allegedly heard when first approached by the police.

[7]                              The evidence about the attempts to clean the room was unquestionably  significant to the Crown’s case.  In his closing address, Crown counsel submitted to the jury that, on the evidence before the court, it was “clear that there was an attempt to clean the room” (A.R., vol. 3, at p. 417). The evidence of attempts to clean the room could be taken as independent evidence tending to support Mr. Niemi’s evidence about his conversation with Mr. Hurley.  In turn, Mr. Niemi’s evidence supported the Crown’s case that Mr. Hurley had not only been there, but also that he was the killer. Thus anything that tended to rebut the room cleaning theory tended to weaken the independent evidence that could be seen as supporting Mr. Niemi’s version of the conversation with Mr. Hurley and, consequently, weakened the Crown’s circumstantial case.

[8]                              The trial judge gave a Vetrovec warning; he advised the jury to be “extremely cautious” in accepting Mr. Niemi’s evidence because he admitted to two criminal convictions for assault and to having a drug addiction or dependence. The trial judge further advised the jury that it was “unsafe” and “dangerous” for them to rely on Mr. Niemi’s testimony unless they found some support for it in the rest of the evidence. These instructions clearly communicated to the jury that it was dangerous to rely on Mr. Niemi’s evidence absent other evidence supporting it.  However, the trial judge’s explanation of the reasons for the caution was incomplete.  He did not tell the jury that caution was required because Mr. Niemi was a jailhouse informant, that he was facing charges himself, or that he was aware a reward was offered for information about the killing. Although these facts were included in the trial judge’s summary of Mr. Niemi’s evidence, at no point in the jury charge were they linked to the need for extreme caution in relying on his evidence. 

[9]                              With respect to the independent evidence, the trial judge referred to two matters.  First, he highlighted the evidence tending to place Mr. Hurley in the room, although as the trial judge noted, Mr. Hurley admitted this.  Second, the lack of fingerprint or DNA evidence was referred to by the trial judge as evidence that “may bolster the evidence of Mr. Niemi when he says the accused told him he wiped down the room”. Thus, the evidence about cleaning the room was critical to the circumstantial evidence against Mr. Hurley, as the Crown accepted that Mr. Niemi’s evidence was   critical to its case.

[10]                          Mr. Hurley appealed his conviction and argued, among other things, that the Vetrovec warning provided by the trial judge was inadequate.  The Court of Appeal (Hunter J.A. dissenting) allowed the appeal, quashed the conviction, and ordered a new trial: 2009 SKCA 86, 246 C.C.C. (3d) 469.  In short, the Court of Appeal concluded that the trial judge’s explanation of why Mr. Niemi’s evidence had to be regarded with care was insufficient, as it failed to flag some important reasons for doing so, namely his knowledge of a reward and the fact he was in custody and facing charges at the time. 

[11]                          The law about Vetrovec warnings was most recently set out by this Court in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, and R. v. Smith, 2009 SCC 5,  [2009] 1 S.C.R. 146.  As Fish J. put it in Khela, at para. 47:

A truly functional approach [to appellate review of the adequacy of a Vetrovec warning] must take into account the dual purpose of the Vetrovec warning: 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.

[12]                          As noted, the trial judge’s warning did caution the jury to be very careful in assessing Mr. Niemi’s evidence and did refer to some reasons for that caution.  However, the judge’s warning did not point out to the jury that they should be cautious with Mr. Niemi’s evidence because of his possible motive to lie in order to get some advantage for himself in his own legal troubles or to collect the reward.  As Fish J. observed in Smith, at para. 14:

In order to assess the risk of accepting testimony from an unsavoury witness, a jury must understand the reasons for special scrutiny (R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 85).  This requires identifying for the jury the characteristics of the witness that bring his or her credibility into serious question.

[13]                          As the disagreement between the majority and the dissent in the Court of Appeal demonstrates, it is debatable whether this omission in the judge’s direction was sufficiently serious in the context of this trial so as to require appellate intervention.  However, the new evidence, in our view, makes it clear that a new trial is necessary.

[14]                          Mr. Hurley seeks to adduce new evidence that comes from additional RCMP forensic testing and DNA analysis, submitted for testing by the Crown after the Court of Appeal ordered a new trial.  The well‑known criteria applicable to this issue were stated in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775, and reaffirmed in R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 74:

(1)   The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . . .

(2)   The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3)   The evidence must be credible in the sense that it is reasonably capable of belief, and

(4)   It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[15]                          There is no contest that the first three requirements are met. The parties disagree about the application of the fourth Palmer factor.  The issue is whether the new evidence could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. For the reasons that follow, we would answer this question in the affirmative.

[16]                          The reports put before this Court on the respondent’s motion include new evidence that Mr. Hurley’s DNA was found in the hotel room on an ashtray, a cigarette filter found in the toilet, and a Bacardi Breezer bottle cap. The respondent submitted in argument that the new evidence, coupled with the evidence of someone else’s DNA on a cigarette butt inside the Bacardi Breezer bottle, may have had an impact on the outcome of the trial in the following three ways: it could have led to the conclusion that Mr. Hurley was not the last person in the room with Ms. Naistus;  it could have cast doubt on the Crown’s theory that the room was cleaned or an attempt was made to clean DNA and fingerprints out of the room, which in turn could have cast doubt on the credibility of Mr. Niemi; and it could have bolstered the credibility of one of the civilian witnesses who testified she saw Ms. Naistus with persons other than Mr. Hurley on the evening Ms. Naistus was killed.

[17]                          As in our view there must be a new trial, we will not comment on the evidence more than necessary to explain our conclusions.  We agree that the new evidence, in the eyes of a properly instructed jury, could reasonably be expected to have affected the result. The presence of Mr. Hurley’s DNA on additional items in the room — the ashtray, the cigarette filter, and the bottle cap — could have been interpreted by the jury as casting doubt on the Crown’s theory that Mr. Hurley cleaned the room to avoid detection. Moreover, the fourth Palmer factor requires an assessment of the new evidence in the context of the other evidence adduced at trial.  The Crown’s position at trial was that the absence of DNA evidence tended to support the theory that Mr. Hurley cleaned the room to avoid detection.  However, it must be remembered that it was clear at trial that some of Mr. Hurley’s DNA was found in the room, for example, on a facecloth.  It was open to the jury to think that the finding of this DNA evidence was inconsistent with the Crown’s wiping down theory.  It follows that some of the proposed new evidence, which if accepted would reveal that more of Mr. Hurley’s DNA was found in the room, could reasonably be seen to further undermine the Crown’s theory.  Of course, these are all factual questions for a jury to determine and the only issue before this Court is whether the new evidence, viewed in the context of the record, could reasonably be expected to have affected the result.   

[18]                          The important point is that any impact on the Crown’s theory that there had been an attempt to wipe down the room may in turn have had an impact on the jury’s assessment of the credibility of both Mr. Niemi, whose evidence was bolstered by the evidence of cleaning, and of Mr. Hurley, who denied both the conversation with Mr. Niemi about DNA and doing any cleaning of the room apart from cleaning up after himself after vomiting. As noted earlier, the Crown effectively conceded in its closing argument to the jury that Mr. Hurley could not be convicted unless the jury accepted Mr. Niemi’s evidence.

[19]                          The new evidence relates directly to what the trial judge told the jury they could consider as evidence tending to confirm Mr. Niemi’s testimony as part of the Vetrovec warning. As set out in Khela, “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” (para. 37). As noted earlier, the trial judge drew the jury’s attention to both the presence and absence of DNA evidence connecting Mr. Hurley to the room and specifically instructed the jury that the absence of such evidence could be considered as supporting Mr. Niemi’s evidence about his jail cell conversation with Mr. Hurley:

You might consider the DNA found at the scene on the towel [sic] and under the victim’s fingernails tend to identify that the accused was in the room, but he has admitted this. However, this evidence may help convince you that what Mr. Niemi said that the accused told him was evidence of the actions of the accused in room 114. Secondly; the lack of other fingerprints or DNA evidence found at the scene may bolster the evidence of Mr. Niemi when he says the accused told him he wiped down the room. However, you have also heard other explanations as to why there might be no DNA on objects like bottles. And the defence asserts that other human material, like hair, was found and should have been tested and might have provided DNA profiles.

(A.R., vol. 3, at pp. 445-46 (emphasis added))

[20]                          Just as the evidence about the lack of DNA evidence found at the scene may have bolstered the testimony of Mr. Niemi, the new evidence showing Mr. Hurley’s DNA on three items in the room could reasonably be seen as undermining Mr. Niemi’s testimony in the mind of the jury and as having an impact on this portion of the Vetrovec warning.  We conclude that the new evidence (specifically, the presence of Mr. Hurley’s DNA on three items in the room) may reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[21]                          Whether or not one concludes, on the record before the Court of Appeal, that appellate intervention was required because the caution omitted mention of some important reasons for being careful with Mr. Niemi’s testimony, the judge’s charge also encouraged the jury to seek comfort from the cleaning evidence.  In light of the new evidence, it now seems that this cleaning evidence may not have been as strong as it may have appeared to be at trial. This, as noted, relates directly and significantly to the jury’s assessment of a critical Crown witness.

[22]                          We would admit the new evidence, dismiss the appeal, and affirm the Court of Appeal’s order of a new trial.

Appeal dismissed.

Solicitor for the appellant:  Attorney General for Saskatchewan, Regina.

Solicitors for the respondent:  Bodnar & Campbell, Saskatoon.