R. v. Smith, 2009 SCC 5, [2009] 1 SCR 146

                                                 SUPREME COURT OF CANADA

Between:

Neil William Smith

Appellant

and

Her Majesty The Queen

Respondent

and between:

Wayne Alexander James

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario and Criminal Lawyers’ Association (Ontario)

Interveners

Coram: Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

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

Neil William Smith                                                                                                             Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

‑ and ‑

Wayne Alexander James                                                                  Appellant

v.

Her Majesty The Queen                                                                   Respondent

and

Attorney General of Ontario and

Criminal Lawyers’ Association (Ontario)                                         Interveners

Indexed as:  R. v. Smith

Neutral citation:  2009 SCC 5.

File Nos.: 32323, 31980.

2008:  March 28; 2009:  January 22.

Present:  Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for nova scotia

Criminal law — Charge to jury — Sufficiency of Vetrovec warning — Content of warning — Evidence of accomplices introduced by Crown at trial — Accused convicted of first degree murder — Whether trial judge erred in warning given to jury regarding accomplices.

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]

Per Deschamps J.: The instructions were fully consistent with a functional approach to Vetrovec warnings.  Jurors do not need to be told to look for corroborating evidence that is independent and material.  The real issue is credibility.  In this case, the trial judge specifically drew the testimony of the accomplices to the jury’s attention and he gave extensive explanations on why special scrutiny of their testimony was necessary.  He clearly warned the jury that it was dangerous to convict the accused on the basis of the accomplices’ testimony if they found no support for that testimony in the rest of the evidence.  Any reasonable jury receiving these instructions would have exercised great care in examining the testimony and determining whether it was credible.  [18] [21‑23]

Cases Cited

By Fish J.

Referred to:  R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Sauv_ (2004), 182 C.C.C. (3d) 321.

By Deschamps J.

Referred to:  R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Sauv_ (2004), 182 C.C.C. (3d) 321; R. v. Zebedee (2006), 211 C.C.C. (3d) 199.

APPEALS from a judgment of the Nova Scotia Court of Appeal (Cromwell, Hamilton and Fichaud JJ.A.), 2007 NSCA 19, 251 N.S.R. (2d) 236 (sub nom. R. v. James), 802 A.P.R. 236, 216 C.C.C. (3d) 490, [2007] N.S.J. No. 56 (QL), 2007 CarswellNS 61, upholding the convictions of the two accused.  Appeals dismissed.

Timothy E. Breen, for the appellant Neil William Smith.

Donald C. Murray, Q.C., for the appellant Wayne Alexander James.

James A. Gumpert, Q.C., Peter J. Craig and Jennifer A. MacLellan, for the respondent.

Jennifer M. Woollcombe, for the intervener Attorney General of Ontario.

Donald B. Bayne and Norman D. Boxall, for the intervener Criminal Lawyers’ Association (Ontario).

The judgment of Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ. was delivered by

Fish J. —

I

[1]     The only issue before the Court on these appeals is the sufficiency of  the caution given by the trial judge to the jury in respect of two unsavoury witnesses.

[2]     In the companion cases of R. v. Khela and R. v. Sahota, 2009 SCC 4, [2009] 1 S.C.R. 104.  I outlined the proper approach for appellate review of the adequacy of Vetrovec warnings (Vetrovec v. The Queen,  [1982] 1 S.C.R. 811, at p. 831).  I emphasized that appellate courts must not measure the sufficiency of a caution against the ruler of perfection. Instead, the inquiry should focus on whether the instruction achieved its purpose: To warn the jury of the danger of relying on the impugned 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 caution should also direct the jury to the type of evidence capable of providing such comfort.

[3]     The trial judge in this case provided a thorough and complete warning in relation to two very unsavoury characters. On any reasonable view of the record, it is clear that the jury would have been left with the impression that the impugned witnesses were highly suspect and their evidence should be accepted only with great caution.

[4]     I am not persuaded that the trial judge made any error in the caution he gave to the jury regarding the two unsavoury witnesses.  I would therefore dismiss the appeal.

II

[5]     Sean Simmons was shot to death on October 3, 2000 in Dartmouth, Nova Scotia. The appellants, Wayne James and Neil Smith, were charged with conspiring with Steven Gareau and Dean Kelsie to murder him and with his first degree murder.  The Crown’s theory of the case was that Smith, a high-level drug dealer associated with the Halifax Hells Angels, ordered the killing of Simmons, that James and Paul Derry arranged it, and that Gareau and/or Kelsie carried it out.

[6]     The Crown’s case against the appellants rested, in large part, on the  evidence of Derry and his wife, Tina Potts.  Derry and Potts had been involved in the killing and attempts to cover it up.  They were granted immunity in exchange for their assistance and were both enrolled in the witness protection program. Derry’s drug debt was paid off.  He became a police agent and was paid $500 a week.  His phone was tapped and he wore a wire to intercept conversations with the appellants.

[7]     Derry testified that he was present during a meeting where Smith told James he wanted Simmons “whacked”.  The motivation apparently was that the deceased had years earlier had an affair with the girlfriend of the leader of the Hells Angels’ Halifax chapter.

[8]     On the day of the murder, Gareau, acting on Derry’s instructions, located Simmons at his apartment.  He telephoned Derry and James and told them where Simmons could be found.  James and Derry, along with Potts and Kelsie, drove there together. James was armed with a handgun obtained from Derry and Potts.  Derry told James that he should not be the shooter because, as a tall black man, he would be too visible in the middle of the afternoon.  James passed the gun to Kelsie and told him how to do the killing.  The group met up with Gareau at a muffler shop near the apartment.  James gave him $20 and told him to go to a bar later.  Gareau and Kelsie went to the apartment while the others waited.  Within minutes, Kelsie returned to the car saying that he had shot Simmons. Derry and Potts took steps to get rid of the gun and the clothing Kelsie had been wearing at the time of the shooting.

[9]     The defence position at the appellants’ trial was that Derry and Potts were not credible witnesses.  Counsel told the jury that they fabricated their evidence about the appellants’ involvement in order to save themselves from prosecution — offering up Smith and James, who were admittedly high level drug dealers, to enhance their own bargaining power.

[10] The trial judge instructed the jury generally on the credibility of witnesses and singled out Paul Derry and Tina Potts for special consideration:

. . . I warn you that you should be extremely cautious in accepting their testimony. It is unsafe for you to rely on their evidence alone. This is because both Tina Potts and Paul Derry are looked upon by the law as accomplices in the killing of Mr. Simmons and as well, Mr. Derry was a police agent. Both have admitted to a series of criminal convictions, many of which involved offences of dishonest[y]. Both have also admitted that they have lived by committing fraud and dealing drugs. In addition, these two witnesses were very involved in the offences before the Court. They, according to their own evidence, provided the weapon used, drove others to the scene of the offence, and disposed of the evidence afterwards. Mr. Derry also, by his own admission, actively participated in the search for Sean Simmons before he was killed.

When arrested for the murder of Sean Simmons both admitted they lied to the police. They were given immunity from prosecution in return for cooperating with the police and testifying in Court. Paul Derry was paid $500 per week while working as a police agent and he and Ms. Potts were provided with an apartment. Mr. Derry’s drug debt was paid off and both he and Ms. Potts were relocated and entered the witness protection program.

Mr. Derry acknowledged in approaching the police he was looking to see if he could work an operation for them. In other words, he was looking to make money and obtain immunity for himself and Ms. Potts. You should examine all the other evidence in this case and look for evidence that confirms or supports that of Tina Potts and Paul Derry. What you should look for is evidence that agrees with the important parts of their testimony and makes you more confident that their evidence at trial is true.  [Appellant’s Record, No. 31980, at pp. 50-51]

[11] The trial judge then reviewed particular evidence the jury might consider in determining whether the testimony of Potts and Derry was confirmed by other evidence. He concluded the Vetrovec warning by stating:

In this trial we heard evidence about Mr. Derry and Ms. Potts. As a matter of law I can tell you that both of them are looked upon as accomplices and it is a rule of law that the evidence of one accomplice cannot confirm or support the evidence of another. You should not consider their evidence to see if they do, in fact, support one another. I have not pointed out all the evidence that might be capable of supporting the evidence of these two witnesses. In the end you should ask yourselves whether enough of the important parts of their testimony have been confirmed to persuade you that their story is true and that it is safe for you to rely on it. I must tell you that you are not legally required to find such support before you can rely on their evidence.  You may rely on it without finding support if you are convinced beyond a reasonable doubt that it is true. However, it is dangerous for you to accept the evidence of Ms. Potts and Mr. Derry unless you find some support for it in the other evidence. [Appellant’s Record, No. 31980, at pp. 53-54]

Earlier in the charge, the trial judge reminded the jury that both Derry and Potts had criminal records and told that jury that prior convictions “may indicate a lack of moral responsibility to tell the truth” (Appellant’s Record, No. 31980, at p. 49).

III

[12] The appellants submit that the trial judge’s warning was insufficient because it failed to explain to the jury why a paid agent, who was an accomplice to the offence, is in a particularly good position — and has a particularly strong motive — to fabricate the involvement of the accused.  Counsel for the appellants took the position that a more thorough explanation of the risk associated with these witnesses was necessary. Specifically, the jury should have been told that Derry and Potts had a good opportunity and motive to mislead the court and fabricate a compelling version of events that falsely implicated James and Smith.

[13] I am not persuaded the trial judge erred in this regard.  In my view, the Nova Scotia Court of Appeal correctly concluded:

On a review of this charge in its entirety, there is simply no substance to these complaints. The judge’s charge, read as a whole in the context of this record, amply satisfies the requirement for a suitable warning as delineated in Sauvé. The judge’s warnings not only do not disclose error, but they were commendably thorough.

(2007 NSCA 19, 216 C.C.C. (3d) 490, at para. 110)

[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. Sauv_ (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.  It does not necessitate an exhaustive explanation of how a particular characteristic might enable a witness to upset the fact-finding process.

[15] The approach advocated by the appellants may be helpful in some circumstances, particularly where the risks posed by accepting the testimony of an unsavoury witness would be unfamiliar or unapparent to the jury.  In cases where the unsavoury witness is an accomplice, it may be useful for the trial judge to explain why that witness would be able to concoct a particularly compelling story that falsely implicates the accused.  All that an accomplice must add to an otherwise truthful, and potentially confirmable story, is the participation of the accused.

[16] As I explained in Khela, however, there is no particular formula for a proper Vetrovec warning.  Trial judges have significant discretion to craft the instruction in accordance with the circumstances of the trial. In this case, the trial judge provided more to the jury that a mere “shopping list” of unfavourable characteristics. He highlighted Derry and Potts’ status as accomplices, criminals, fraudsters and, in Derry’s case, a paid agent.  The judge detailed their involvement in the crime and referred to their immunity agreements and the benefits the witnesses had received for their cooperation.  In addition to the Vetrovec caution given in the charge, the trial judge warned the jurors before Derry and Potts testified to consider their evidence with “care and caution”.  He noted that because of certain benefits or promises from the police, the witnesses may have “an interest in testifying favourably”.

[17] The Court of Appeal found that Derry and Potts are the kind of witnesses for whom Vetrovec warnings were made.  I agree.  For that reason, the trial judge gave a thorough caution that clearly alerted the jury to the dangers of accepting the testimony of Derry and Potts, without more, to convict the appellants.  He made no error in doing so, and I would accordingly dismiss the appeals.

The following are the reasons delivered by

[18] Deschamps J. — In the companion cases of R. v. Khela and R. v. Sahota, 2009 SCC 4, [2009] 1 S.C.R. 104, I explain what I find to be the  proper content of the warning given to jurors pursuant to Vetrovec v. The Queen, [1982] 1 S.C.R. 811, concerning the credibility of unsavoury witnesses. Simply put, while the framework drawn from R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), may be helpful, I disagree that the jurors must be told to seek “independent” and “material” evidence corroborating the testimony. The real issue is credibility.

[19] As Fish J. notes (at para. 1) for the majority, the only issue in the present cases is whether the content of the Vetrovec warning given by the trial judge with respect to the testimony of  Paul Derry and Tina Potts is acceptable. I adopt my colleague’s presentation of the facts and, for the reasons that follow, I would also dismiss the appeals.

[20] As in Khela, I will ground my review of the charge on the credibility-based approach developed in accordance with Vetrovec and R. v. Zebedee (2006), 211 C.C.C. (3d) 199 (Ont. C.A.).

[21] First, the trial judge specifically drew the testimony of Derry and Potts to the jury’s attention. Second, he gave extensive explanations, quoted by the majority, on why special scrutiny was necessary, focussing on the facts that the witnesses had extensive criminal records, had taken part in the charged offences and had been granted immunity and other favours in exchange for their testimony. Third, he clearly warned the jurors that it would be dangerous to convict the accused on the basis of Derry’s and Potts’ testimony if they found no support for that testimony in the rest of the evidence.

[22] Any reasonable jury receiving these instructions would have exercised great care in examining the testimony in question and determining whether it was credible.

[23] The instructions were fully consistent with a functional approach to Vetrovec warnings, and the verdict cannot be challenged on the basis that they were not sufficient. Therefore, I agree with the majority that the judgment below should stand and that the appeals should be dismissed and the convictions upheld.

Appeals dismissed.

Solicitors for the appellant Neil William Smith:  Fleming, Breen, Toronto.

Solicitor for the appellant Wayne Alexander James:  Donald C. Murray, Dartmouth.

Solicitor for the respondent:  Attorney General of Nova Scotia, Halifax.

Solicitor for the intervener Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitors for the intervener Criminal Lawyers’ Association (Ontario):  Bayne, Sellar, Boxall, Ottawa.