R. v. Bevan, [1993] 2 SCR 599

R. v. Bevan, [1993] 2 S.C.R. 599

 

Edward Albert Thomas Bevan                                                          Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

and between

 

Barry Gerald Griffith  Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Bevan

 

File Nos.:  22366, 22389.

 

1993:  March 5; 1993:  June 17.

 

Present:  Lamer C.J. and  L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Major JJ.

 

on appeal from the court of appeal for ontario

 

                   Criminal law ‑‑ Charge to jury ‑‑ Questionable evidence ‑‑ Prior inconsistent statements ‑‑ Letter damaging to accused made an exhibit ‑‑ Whether trial judge should have given the jury a clear, sharp (Vetrovec) warning in charge with respect to testimony of persons with prior inconsistent statements ‑‑ Whether trial judge correctly instructed jury on letter and whether correct in permitting it to be received as exhibit ‑‑ Whether trial judge's errors curable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).

 

                   Trial ‑‑ Charge to jury ‑‑ Questionable evidence ‑‑ Prior inconsistent statements ‑‑ Letter damaging to accused made an exhibit ‑‑ Whether trial judge should have given the jury a clear, sharp (Vetrovec) warning in charge with respect to testimony of persons with prior inconsistent statements ‑‑ Whether trial judge correctly instructed jury on letter and whether correct in permitting it to be received as exhibit ‑‑ Whether trial judge's errors curable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).

 

                   Appellants were convicted of the second degree murder of a man who had been beaten to death.  The alleged motive was anger stemming from the victim's assault on a female friend of both appellants.  The investigation was suspended for want of evidence strong enough to support the charge until a witness, Belmont, who had been arrested for other offences committed with the appellants, came forward with details of several incriminating conversations with Bevan.  The investigation was again discontinued when Belmont's use of a body pack to try to record further incriminating evidence proved largely unsuccessful.  The investigation resumed when another witness, Dietrich, who was incarcerated at the time, wrote the police and later informed them of his having helped the appellants clean a car of two tire irons and a blood‑soaked carpet.  He also testified to a number of incriminating statements made by the appellants.  Appellants testified at trial and denied or explained any incriminating statements.  Each offered alibi defences.  Each also admitted to lying in statements to the police.

 

                   At trial, Dietrich read his letter, which contained statements prejudicial to the appellants, during direct examination and was cross‑examined on it in an attack on his testimony and credibility based on his apparent animosity towards the appellants and on his motivations for lying to the police and at trial.  The letter was subsequently marked as an exhibit and was given without objection to the jury.

 

                   The trial judge noted in her charge that credibility was important in this case, discussed generally how credibility should be assessed, and made some references to factors affecting the credibility of Belmont and Dietrich.  She did not, however, give a clear sharp warning to the jury as to its being dangerous to convict the appellants on the basis of Belmont's and Dietrich's evidence unless their evidence was supported by other evidence.  Nor did she instruct the jury on the use that could be made of prior inconsistent statements.

 

                   The appellants unsuccessfully appealed to the Court of Appeal.  At issue here was:  (1) whether the trial judge should have given the jury a clear, sharp (Vetrovec) warning with respect to the evidence of Dietrich and Belmont; (2) whether the trial judge was correct in her instructions to the jury on the Dietrich letter or in permitting it to go as an exhibit to the Jury Room; (3) whether no substantial wrong or miscarriage of justice occurred even though the trial judge failed to instruct the jury with respect to the use that can be made of prior inconsistent statements; and (4) whether the trial judge's errors could be cured by s. 686(1)(b)(iii).

 

                   Held (L'Heureux‑Dubé J. dissenting):  The appeals should be allowed.

 

                   Per Lamer C.J. and Sopinka, Gonthier, Cory, McLachlin and Major JJ.:  The trial judge has a discretion to determine whether the evidence of any witness ‑‑ not just accomplices ‑‑ is for some reason untrustworthy to such an extent that a warning to the jury is necessary.  Vetrovec v. The Queen did not establish that, if a warning is given regarding a particular witness, the trial judge must in all cases go on to point out in detail evidence which is capable of corroborating that witness' testimony.  While an instruction of that nature may be made in tandem with a Vetrovec warning, it is not a requirement in all cases.

 

                   While it is usually a corollary of the Vetrovec warning that the trial judge make some reference to evidence that the jury may consider supportive of the impugned evidence, in some cases part or all of the supporting evidence may be extremely prejudicial to the accused, such that to draw the jury's attention to that evidence in tandem with a Vetrovec warning could, in some circumstances, be unfair to the accused.  The appropriate remedy in those circumstances lies with the discretion of the trial judge to decide whether or not the Vetrovec warning should be given, and if so, whether it should be accompanied by a direction as to what other specific evidence the jury might conclude is supportive of the impugned evidence.  Because the trial judge is in the best position to assess the atmosphere of the trial and the effect that the evidence or instruction may have on a jury hearing the case, the trial judge's decision on these kinds of issues should not be lightly interfered with on appeal.

 

                   While under Vetrovec a caution to the jury is a matter of the trial judge's discretion and is not required in all cases involving testimony of accomplices or accessories after the fact, there are some cases in which the circumstances may be such that a Vetrovec caution must be given.  The trial judge's discretion whether to give a Vetrovec warning should generally be given wide latitude by appellate courts.  But a Vetrovec caution was clearly required here for the testimony of both Dietrich and Belmont.

 

                   Appellants' counsel at trial not only did not object, but also appeared to have wanted Dietrich's letter to go to the jury even though it contained highly prejudicial statements against the appellants.  Defence counsel made a strategic decision that there was a benefit to the appellants in having the letter in the jury's possession during their deliberations in that the letter undermined Dietrich's credibility.  The defence could not then complain about the disadvantages of the letter's going to the jury.  Appellants, nevertheless, were entitled to a proper instruction being given to the jury as to the limited use that could be made of the letter during their deliberations.  The trial judge did not instruct the jury that the letter could not be used as substantive evidence and referred to the letter in terms that could have given the jury the impression that it could be used in that manner.

 

                   In determining whether there has been no substantial wrong or miscarriage of justice as a result of a trial judge's error an appellate court must determine if there is any reasonable possibility that the verdict would have been different had the error at issue not been made.  While each of the errors made by the trial judge was serious, it was not necessary to reflect upon whether any one of them would have been a sufficient basis for directing a new trial.  When the cumulative effect of the errors in question is considered, the curative provision should not be applied.  There is a reasonable possibility that, but for the trial judge's errors, the verdict here would have been different.

 

                   The jury may have treated the evidence of Belmont and Dietrich less cautiously during their deliberations than they would have had the trial judge given a proper Vetrovec warning.  It could not be said with any degree of certainty that, in the absence of a direction from the trial judge, the jury did not use Dietrich's letter inappropriately.  Although the trial judge failed to instruct the jury as to the use to be made of prior inconsistent statements, such instruction would only have repeated the obvious fact, given defence counsels' cross‑examinations and closing statements, that they concerned the credibility of witnesses.  The real danger was that the jury may not have understood that such statements could not be used as evidence to prove the truth of their contents.  This danger was exacerbated by the trial judge's making a number of comments that may have caused the jury to conclude that all prior statements (consistent or inconsistent) could be used as substantive evidence.  Even though the prior inconsistent statements were not used by counsel for the purpose of proving the truth of their contents, the non‑direction by the trial judge on this issue did not necessarily cause no prejudice to the appellants.  The law requires an instruction of this nature because there is otherwise a risk that jurors may not be aware that they cannot use such statements as substantive evidence, irrespective of the use made of the statements by counsel.

 

                   Per L'Heureux‑Dubé J. (dissenting):  If, taken as a whole, the charge is fair, whatever error it may contain, it cannot amount to a miscarriage of justice and s. 686(1)(b)(iii) of the Criminal Code  will apply.  Jury trials should not be presided over by courts of appeal who are removed from the atmosphere of a particular trial and have no opportunity to assess the traits of the particular jury or to hear counsels' addresses.  A trial judge's discretion to deal with a trial as best fits the case over which he or she must preside is an essential element of a trial.  Otherwise, a mechanical application of the rules would suffice.

 

                   A trial judge has a wide and flexible discretion as to how to instruct juries on the need for careful scrutiny of a witness' testimony.  Even where there are legitimate concerns about the credibility of a witness, a clear and sharp warning may not be appropriate in every case.  Appellants suffered no detriment because of the absence of a Vetrovec warning and, indeed, their position may well have been strengthened by the course followed by the trial judge because the evidence against them would have been emphasized when such a warning was given.  The trial judge considered the propriety and need for a Vetrovec caution.  While declining to make such a caution, she nonetheless indicated that Dietrich's evidence required careful scrutiny and directed the jury to consider whether it was consistent with other credible evidence.

 

                   Neither counsel objected to the alleged failure of the judge's charge to deal with the use to be made of prior inconsistent statements.  Those statements were put to the witnesses for the sole purpose of casting doubt on their credibility, never with the intention that they be adopted by the witnesses as evidence of the truth of their contents, and everyone assumed as much.

 

                   Although it is generally recognized that the failure to warn a jury about the use it can make of a witness' prior statement, unless adopted at trial, can be fatal in cases where a jury might accept such a statement as evidence of its truth rather than going only to credibility, this was not such a case.  The judge tailored her charge to the case before her and the case did not mandate the warning in question.  The statements were inconsequential and an instruction that prior inconsistent statements could undermine the credibility of witnesses would have applied to appellants as well as to the Crown witnesses.  The instruction could have done the appellants more harm than good.

 

                   No miscarriage of justice occurred in the circumstances and, if necessary, s. 686(1)(b)(iii) should be applied to cure this type of defect.

 

Cases Cited

 

By Major J.

 

                   Considered:  Vetrovec v. The Queen, [1982] 1 S.C.R. 811; referred to:  R. v. Babinski (1991), 67 C.C.C. (3d) 187, aff'd [1992] 3 S.C.R. 467; Sellars v. The Queen, [1980] 1 S.C.R. 527; Colpitts v. The Queen, [1965] S.C.R. 739; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. B. (K.G.), [1993] 1 S.C.R. 740.

 

By L'Heureux‑Dubé J. (dissenting)

 

                   Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Yanover (1985), 20 C.C.C. (3d) 300; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Hobart (1982), 65 C.C.C. (2d) 518.

 

Statutes and Regulations Cited

 

Criminal Code , R.S.C., 1985, c. C‑46 , s. 686(1) (b)(iii).

 

                   APPEALS from judgments of the Ontario Court of Appeal (1991), 2 O.R. (3d) 381, 44 O.A.C. 53, 63 C.C.C. (3d) 333, 4 C.R. (4th) 245, dismissing appeals from convictions by Boland J. sitting with jury.  Appeals allowed, L'Heureux‑Dubé J. dissenting.

 

                   Michelle Fuerst, for the appellant Edward Albert Thomas Bevan.

 

                   Clayton C. Ruby and Shaun Nakatsuru, for the appellant Barry Gerald Griffith.

 

                   The judgment of Lamer C.J. and Sopinka, Gonthier, Cory, McLachlin and Major was delivered by

 

//Major J.//

 

                   Major J. -- The appellants were convicted by a judge and jury of second degree murder in the death of Peter Hodgin.  Each was sentenced to life imprisonment without eligibility for parole for 10 years.  An appeal to the Ontario Court of Appeal was dismissed, Osborne J.A. dissenting.

 

                   The appellants have appealed as of right to this Court on the points of law raised by Osborne J.A.'s dissent, that is whether the clear, sharp warning established in Vetrovec v. The Queen, [1982] 1 S.C.R. 811, should have been given in the trial judge's charge to the jury regarding the evidence of certain Crown witnesses, and whether any substantial wrong or miscarriage of justice occurred as a result of the trial judge's failing to instruct the jury on the use to be made of prior inconsistent statements.  The appellants were granted leave to argue the additional issue of the use made at trial of a letter that had been written to the police by one of the Crown witnesses.

 

                   It is my opinion that the appeals should be allowed, and a new trial ordered.  In light of this result, it is not advisable to review the evidence except to the extent necessary for this decision.

 

I.  Facts

 

                   Hodgin's body was found on the morning of May 14, 1981, in a water-filled ditch near Stoney Creek, Ontario.  Medical evidence was that he died as a result of heavy blows to the head.  The time of death was estimated to be between 6:30 p.m. on May 13, 1981 and 6:30 a.m. on May 14, 1981.  Greater precision was not possible as the body had been almost completely submerged in water.

 

                   Hodgin had been seen leaving the Tap Room, a Hamilton bar, with the appellant Bevan at about 10:30 p.m. on May 13, 1981.  There was no evidence of the appellant Griffith's having been at that bar on that evening, or of his being seen that night with Hodgin.  The Crown's theory was that Griffith had been waiting in the area in a white car, and that after Bevan and Hodgin left the Tap Room the three drove to an unknown location, where the appellants beat Hodgin to death with tire irons.

 

                   On May 2, 1981, about 11 days prior to the murder, Emily Ribble, a friend of the appellants, was assaulted by Hodgin.  This was the alleged motive for the murder.  It was conceded by both appellants that they were upset about the beating of Ribble by Hodgin.  However, it was evident that a number of people had similar reasons to be upset with Hodgin.  The evidence was that he had a history of spontaneous violence towards women, including a previous conviction for manslaughter arising out of the stabbing death of a girlfriend.

 

                   In the weeks following the murder the police received information from several witnesses inculpating the appellants.  But they considered the evidence too weak to support a charge.  The investigation was suspended in early June 1981.

 

                   In late February 1982, Patrick Belmont, who had been arrested for property offences committed with the appellants, approached the police saying he had information about the murder.  He told the police about several incriminating conversations he had with Bevan.  He agreed to wear a bodypack and attempt to elicit further incriminating statements from the appellants.  The bodypack was suggested by the police because they viewed Belmont as unreliable.

 

                   According to Belmont, he had further conversations with Bevan, and with Griffith, in which each of the appellants implicated themselves in the murder.  However, due to malfunctions of the bodypack equipment, only about 20 percent of the conversations were audible to the police, none of which was incriminating.

 

                   In the spring of 1982, there was insufficient evidence to lay charges against the appellants, and the investigation was again discontinued.

 

                   In August 1986, Stefan Dietrich, who was serving a three-year sentence at Warkworth Penitentiary, wrote to Sgt. Ryan of the Hamilton-Wentworth Regional Police Force that he had information concerning Hodgin's murder.  The investigation was reactivated.

 

                     At the time of the murder, Dietrich was a 16-year-old chronic drug and alcohol abuser living with the appellant Griffith.  Dietrich testified that one evening in May 1981, the appellants left together in a car.  The next day, Dietrich was asked to help the appellants clean out the car, whose trunk contained two tire irons and a blood-soaked carpet.  Dietrich put all of the contents from the trunk into green garbage bags, and placed the bags at the front of Griffith's driveway for municipal garbage pickup.  Dietrich also testified to a number of incriminating statements made by the appellants, particularly Griffith.

 

                   The appellants were arrested in September 1986.  At their trial they testified in their own defence, denying or explaining the inculpatory statements allegedly made in the presence of Dietrich, Belmont, and/or other witnesses.  As well each of them offered alibi defences.

 

                   The appellants admitted in their testimony at trial that each had lied in statements to the police.  After his September 1986 arrest, the appellant Griffith gave a statement exculpating himself but inculpating Bevan.  At his trial, Griffith denied the truth of the parts of his statement inculpating Bevan, stating that he was confused when he gave the statement and told the police what he thought they wanted to hear because he was scared.

 

                   The appellant Bevan did not give the police a statement in 1986, but in a statement made to them shortly after the murder, he falsely stated he and Ribble had gone to Ribble's mother's on May 13, 1981.  Bevan admitted that he lied to the police about how he had injured his hand about the time of the murder.  There was evidence, some admitted and some denied by Bevan, that he had asked other witnesses to lie to the police about various matters related to his conduct around the date of the murder.

 

                   Crucial evidence against the appellants was the testimony of Dietrich, and, to a lesser extent, Belmont.  In her charge to the jury, the trial judge noted credibility was important in this case, discussed generally how credibility should be assessed, and made some references to factors affecting the credibility of Belmont and Dietrich.  She did not, however, in the language of Vetrovec give a clear sharp warning to the jury as to its being dangerous to convict the appellants on the basis of the evidence of Belmont and Dietrich unless their evidence was supported by other evidence.  Nor did she instruct the jury on the use that could be made of prior inconsistent statements.

 

                   Dietrich's letter of August 1986 was read aloud by him during his direct examination.  It contained a number of statements prejudicial to the appellants.  Defence counsel then used the letter in cross-examination to attack Dietrich's testimony and credibility, on the basis of Dietrich's apparent animosity towards the appellants and his motivations for lying to the police and at trial.  It was subsequently marked as an exhibit and without objection was given to the jury.

 

 

II.  Judgments in the Court of Appeal for Ontario

 

                   The Court of Appeal was unanimous in rejecting the appellants' arguments on Dietrich's letter to the police. 

 

                   The majority, Galligan and Tarnopolsky JJ.A., was of the view that the trial judge properly exercised her discretion against giving a Vetrovec caution.

 

                   They also held that the failure of the trial judge to instruct the jury on the use to be made of prior inconsistent statements, while in error, was of no consequence as it would have been clear to the jury that the prior inconsistent statements were relevant only to assessing the credibility of the witnesses.

 

                   The curative provision of s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 , was applied and the appeal dismissed.

 

                   Osborne J.A. dissented.  In his view, a Vetrovec caution was required with respect to the evidence of Dietrich and Belmont, and in the circumstances of this case the trial judge's warning was insufficient.

 

                   He found that the prior inconsistent statements were important in assessing credibility of the witnesses, and that the prior inconsistent statements of Dietrich and Belmont could have seriously prejudiced the appellants if those statements were used as evidence of the truth of their contents.  He concluded that the trial judge's failure to instruct the jury on the use that could be made of prior inconsistent statements could not be cured by application of s. 686(1)(b)(iii).

 

III.  Points in Issue

 

                   This appeal raises these issues:

 

1.Did the majority of the Court of Appeal for Ontario err in holding that the trial judge was correct in not giving the jury a clear sharp warning with respect to the evidence of Dietrich and Belmont?

 

2.Did the Court of Appeal for Ontario err in holding there was no error by the trial judge in either her instructions to the jury on the Dietrich letter or in permitting it to go as an exhibit to the Jury Room?

 

3. Did the majority of the Court of Appeal for Ontario err by holding that although the trial judge was wrong in failing to instruct the jury with respect to the use that can be made of prior inconsistent statements no substantial wrong or miscarriage of justice occurred?

 

4.Can the errors made by the trial judge be cured by s. 686(1)(b)(iii)?

 

IV.  Analysis

 

                   1.The Vetrovec Issue

 

                   The first ground of appeal requires a determination of what Vetrovec established.  In Vetrovec, the appellants had been convicted at trial on a charge of conspiracy to traffic in heroin.  An accomplice had testified for the Crown, and the trial judge warned the jury of the danger of convicting on the basis of uncorroborated evidence of an accomplice.  On appeal, the appellants did not object to this part of the trial judge's charge, but argued that the part of the charge dealing with the evidence that was capable of corroborative effect was improper.

 

                   In the course of giving judgment for this Court, Dickson J. (as he then was) considered the traditional, "fixed and invariable" rule of law that a warning to the jury was automatically required on the evidence of an accomplice, and ultimately rejected that traditional rule in favour of a flexible, discretionary rule.  Under the new rule, the trial judge has a discretion to determine whether the evidence of any witness -- not just accomplices -- is for some reason untrustworthy to such an extent that a warning to the jury is necessary.  He stated at p. 823:

 

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.

 

Dickson J. later commented upon the practice that should be followed by trial judges in charging juries regarding untrustworthy witnesses (at pp. 831-832):

 

Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness.  What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness.  There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support.  The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact.  This may entail some illustration from the evidence of the particular case of the type of evidence, documentary or testimonial, which might be drawn upon by the juror in confirmation of the witness' testimony or some important part thereof.  I do not wish to be taken as saying that such illustration must be carried to exhaustion.  However, there is, in some circumstances, particularly in lengthy trials, the need for helpful direction on the question of sifting the evidence where guilt or innocence might, and probably will turn on the acceptance or rejection, belief or disbelief, of the evidence of one or more witnesses.

 

                   I do not interpret Dickson J.'s reasons for judgment in Vetrovec to have established a rule that if a warning is given regarding a particular witness, the trial judge must in all cases go on to point out in detail evidence which is capable of corroborating that witness' testimony.  While an instruction of that nature may be made in tandem with a Vetrovec warning, Dickson J. did not intend this to be a requirement in all cases.  This conclusion is supported by the manner in which Dickson J. dealt with the issue of corroborative evidence in relation to the facts at issue in Vetrovec.  The trial in that case lasted more than 100 days, and the charge to the jury took six days.  Obviously it was more complicated than this trial.  The trial judge in Vetrovec warned the jury about the danger of convicting the appellants on the evidence of the accomplice unless that evidence was corroborated in some material particular by other evidence.  Despite the complexity of the evidence in that case, Dickson J. expressed the opinion, at p. 832, that it was not necessary for the trial judge to then go on to outline the evidence capable of corroborating the accomplice's testimony:

 

                   I return to the facts of the present case.  In light of my earlier comments, it would have been sufficient for the trial judge simply to have instructed the jury that they should view the testimony of Langvand with great caution, and that it would be wise to look for other supporting evidence before convicting the appellants.

 

                   The principles discussed in Vetrovec were slightly refined in R. v. Babinski (1991), 67 C.C.C. (3d) 187 (Ont. C.A.), aff'd [1992] 3 S.C.R. 467.  In that case, it was held that if a trial judge decides to give a Vetrovec warning and there is evidence capable of corroborating the testimony of the witness in question, "the trial judge should make some reference to that supporting evidence" (Ont. C.A., at p. 190).  The extent to which the trial judge should refer to potentially corroborative evidence depends upon the circumstances of the case, although it is obviously not required, nor would it be appropriate, that the potentially corroborative evidence be reviewed exhaustively.

 

                   While it is usually a corollary of the Vetrovec warning that the trial judge make some reference to evidence that the jury may consider supportive of the impugned evidence, in some cases part or all of the supporting evidence may be extremely prejudicial to the accused, such that to draw the jury's attention to that evidence in tandem with a Vetrovec warning could in some circumstances be unfair to the accused.

 

                   I do not agree that the only remedy for this problem lies in not giving a Vetrovec warning.   Instead, the appropriate remedy in those circumstances lies with the discretion of the trial judge to decide in the particular case (perhaps following argument) if a Vetrovec warning is to be given, and, if so, whether it should or should not be accompanied by a direction as to what other specific evidence the jury might conclude is supportive of the impugned evidence.

 

                   The trial judge's decision on this type of question is similar in principle to the decisions often made by trial judges as to whether to admit cogent but prejudicial evidence.  Where that kind of issue arises, the trial judge decides whether the probative value of the evidence outweighs its prejudicial effect.  Because the trial judge is in the best position to assess the atmosphere of the trial and the effect that the evidence or instruction may have on a jury hearing the case, the trial judge's decision on these kinds of issues should not be lightly interfered with on appeal.

 

                   Had this trial occurred prior to Vetrovec, a caution would have been required on the testimony of Dietrich.  Although Dietrich was not an accomplice, he was an accessory after the fact.  In Sellars v. The Queen, [1980] 1 S.C.R. 527, it was held that the same rule of caution applied to the testimony of an accessory after the fact as to the testimony of an accomplice.

 

                   In submissions made to the trial judge prior to the charge to the jury, defence counsel urged the trial judge to include an "unsavoury witness" warning in her charge, as did Crown counsel who stated:

 

Perhaps starting with the easy ones.  The unsavory witness.  It is a matter of discretion.  However, based on all the evidence your ladyship has before you I would urge your ladyship to give instructions to the jury on that basis.

 

                   While under Vetrovec a caution to the jury is a matter of the trial judge's discretion and is not required in all cases involving testimony of accomplices or accessories after the fact, there are some cases in which the circumstances may be such that a Vetrovec caution must be given.  The trial judge's discretion whether to give a Vetrovec warning should generally be given wide latitude by appellate courts.  But in my respectful view a Vetrovec caution was clearly required in this case with respect to the testimony of both Dietrich and Belmont.

 

                   Both of them had lengthy criminal records, had strong motivations to lie, and approached the police only when each perceived that some benefit -- such as release from prison, a discontinuation of charges against them, or cash payments -- could be obtained in exchange for their testimony.  Both of them explicitly told the police at the time they came forward that they were seeking a "deal" in exchange for their evidence against the appellants.  Moreover, the evidence of Belmont and Dietrich was incriminating to the appellants, and crucial to the Crown's case.

 

                   The trial judge was aware of the issue of credibility and made reference to factors that could specifically affect the credibility of Dietrich and Belmont, but she did not convey to the jury a clear sharp warning.  The references made by the trial judge to the evidence of Dietrich and Belmont were made in the course of a seriatim review of the evidence given by all of the witnesses who testified at trial.  The trial judge used much the same language in addressing the evidence of Dietrich and Belmont as she did in addressing the evidence of other witnesses, both individually and in a general sense.

 

                   After the trial judge's charge to the jury, defence counsel argued that the charge was insufficient with respect to the "unsavoury witness" warning, but the trial judge declined to recharge the jury.  It is not clear from the trial judge's comments in the discussions following her charge to the jury whether she was of the view that she had given an adequate Vetrovec warning, or whether she had decided not to give such a warning.  In either event, the trial judge's charge to the jury lacked the clear and sharp warning required by Vetrovec to attract the attention of the jury to the risk of adopting, without more, the evidence of Dietrich and Belmont.

 

                   2.The Dietrich Letter

 

                   The key point in dealing with the question of whether the trial judge erred in permitting the Dietrich letter to go to the jury is that the appellants' counsel at trial not only did not object, but appeared to have wanted the letter to go to them.  Defence counsel made a strategic decision that there was benefit to the appellants in having the letter in the jury's possession during their deliberations, in that the letter undermined Dietrich's credibility.  It is not now open to the appellants, having made that decision, to complain about the disadvantages of Dietrich's letter's going to the jury. 

 

                   However, the appellants were still entitled to a proper instruction being given to the jury as to the limited use that could be made of the letter during their deliberations.  The letter contained highly prejudicial statements against the appellants, including a suggestion that the appellants wanted Dietrich dead because of his knowledge about the murder (Dietrich did not adopt this in his testimony).

 

                   The trial judge did not instruct the jury that the letter could not be used as substantive evidence, and referred to the letter in terms that may have given the jury the impression that it could be used in that manner.  In her charge to the jury, the trial judge noted the importance of Dietrich's testimony, and referred to his letter as a "very interesting piece of evidence".  She had also instructed the jury that the "filed exhibits" were "evidence".

 

                   3.Can the Trial Judge's Error in Failing to Instruct the Jury with respect to the Use that can be made of Prior Inconsistent Statements be cured by s. 686(1)(b)(iii)?

 

                   Since this issue requires a consideration of the approach to be taken to s. 686(1)(b)(iii), I will address it in the course of assessing whether all of the trial judge's errors can be cured by that provision.

 

                   4.Should the Curative Provision be Applied in this Case?

 

                   The question to be asked in determining whether there has been no substantial wrong or miscarriage of justice as a result of a trial judge's error is whether "the verdict would necessarily have been the same if such error had not occurred":  see Colpitts v. The Queen, [1965] S.C.R. 739, per Cartwright J. (as he then was), at p. 744; Wildman v. The Queen, [1984] 2 S.C.R. 311, at pp. 328-29.  This test has also been expressed in terms of whether there is any possibility that if the error had not been committed, a judge or properly instructed jury would have acquitted the accused:  see Colpitts, per Spence J., at p. 756; R. v. S. (P.L.), [1991] 1 S.C.R. 909, per Sopinka J., at p. 919; R. v. Broyles, [1991] 3 S.C.R. 595, at p. 620; R. v. B. (F.F.), [1993] 1 S.C.R. 697, per Iacobucci J. at pp. 736-37.  I do not interpret these two approaches as being intended to convey different meanings.  Under either approach, the task of an appellate court is to determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.

 

                   While each of the errors made by the trial judge in this case was serious in nature, it is not necessary to reflect upon whether any one of those errors, if it were the sole error by the trial judge, would have been a sufficient basis for directing a new trial.  When the cumulative effect of the errors in question is considered, in my view this is clearly not a case in which it would be appropriate to apply the curative provision.  In all the circumstances of this case there is a reasonable possibility that, but for the trial judge's errors, the verdict would have been different.

 

                   The jury may have treated the evidence of Belmont and Dietrich less cautiously during their deliberations than they would have had the trial judge given a proper Vetrovec warning.  As for Dietrich's letter, it is noteworthy that the jury asked the trial judge if there was a signed statement of Dietrich.  There was no such statement available, but the jury had Dietrich's letter with them.  It is difficult to say with any degree of certainty in the absence of a direction from the trial judge that the jury did not use Dietrich's letter inappropriately.

 

                   This leaves the matter of the trial judge's failure to instruct the jury as to the use to be made of prior inconsistent statements.  In light of the manner in which the prior inconsistent statements were utilized in cross-examination of various witnesses and in the closing submissions of defence counsel, the jury surely understood that the credibility of witnesses was affected by prior inconsistent statements made by those witnesses.  An instruction by the trial judge in this regard would have only repeated what was already patently obvious to the jury in the context of the trial proceedings in this case.

 

                   The real danger flowing from the failure of the trial judge to instruct the jury on the use that may be made of prior inconsistent statements is that the jury may not have understood that such statements could not be used as evidence to prove the truth of their contents.  This danger was exacerbated by the trial judge's making a number of comments that may have caused the jury to conclude that all prior statements (consistent or inconsistent) could be used as substantive evidence.  During the course of her charge to the jury, the trial judge stated:

 

                   A fact may be established by direct or circumstantial evidence or by a combination of both.  Direct evidence consists of concrete objects, written statements, the testimony of witnesses of things he saw, he perceived through his senses.  Something the witness has seen, heard, felt.  Example - the photographs and signed statements given to the police by each of the accused which have been filed as exhibits, that is direct evidence.

 

While the trial judge explained to the jury that statements by the accused could be used as substantive evidence, she did not instruct the jury that they could not also utilize prior statements by a witness as evidence of the truth of their contents.  She instructed the jury that newspaper articles that had been filed as exhibits were not filed as evidence of the truth of their contents.  This instruction, combined with the absence of instruction as to the use that could be made of witness statements generally, may have suggested in the minds of the jurors that they could use witness statements as evidence of the truth of their contents.  Credence is given to this possibility by the jury's question to the judge, during their deliberations, as to whether there was a signed statement of Dietrich.  The jury may have had the impression that such a statement -- or any other witness statement -- could be used as substantive evidence.

 

                   The majority of the Court of Appeal was of the view that because the prior inconsistent statements were not used by counsel for the purpose of proving the truth of their contents, the non-direction by the trial judge on this issue caused no prejudice to the appellants.  With respect, I do not agree.  The reason why the law requires an instruction of this nature is that there is otherwise a risk that jurors may not be aware that they cannot use such statements as substantive evidence, irrespective of the use made of the statements by counsel.  While the trial judge and counsel undoubtedly appreciated the limited purpose of reference to the prior inconsistent statements, it cannot be safely assumed that the jury had a similar understanding.

 

                   At a new trial of the charges against the appellants, the question of the substantive admissibility of the prior inconsistent statements might have to be considered, in light of this Court's reasons in R. v. B. (K.G.), [1993] 1 S.C.R. 740. But I should not be taken in noting this to be suggesting that the statements in issue should (or should not) be ruled substantively admissible at a new trial.

 

VI.Conclusion

 

                   I would allow the appeals and order a new trial.

 

 

                   The following are the reasons delivered by

 

//L'Heureux-Dubé J.//

 

                   L'Heureux-Dubé J. (dissenting) -- I respectfully dissent from the majority and would dispose of this appeal as did the majority of the Ontario Court of Appeal (1991), 2 O.R. (3d) 381, (Tarnopolsky and Galligan JJ.A., Osborne J.A. dissenting).

 

                    After a trial which lasted four days before a jury presided over by a judge, the appellants were convicted of the second degree murder of one Peter Hodgin.  Both accused relied on a defence of alibi which, if believed, would have brought about their acquittal.  The whole case, then, turned upon credibility.

 

                   The three grounds of appeal raised by the accused relate to the trial judge's charge to the jury, namely her failure to give a sharp and clear warning as set out in Vetrovec v. The Queen, [1982] 1 S.C.R. 811, concerning the testimony of the witnesses Dietrich and Belmont, her failure to instruct the jury with respect to prior inconsistent statements and the filing as an exhibit, by consent, of a letter written by the witness Dietrich.

 

                   I disagree with the conclusions of the majority as to the application of s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 , in this case and must state my agreement with the reasons of Galligan J.A., writing for the majority of the Court of Appeal, and in particular with his remarks, at pp. 403-4, regarding the trial judge's charge to the jury:

 

Read as a whole it struck me as a model of fairness and even-handedness.  Even though the trial was long and difficult, there were no complicated legal issues to be resolved.  The issue ultimately was whether the Crown had proved beyond reasonable doubt that the appellants were the murderers of the victim.  They said they had nothing to do with the killing and provided alibi defences.  If they had been believed, or even if their evidence had raised a reasonable doubt on the issue, they were entitled to be acquitted.  On the other hand, if the evidence of certain Crown witnesses, including Dietrich and Belmont, had been believed, then there could be no doubt of the appellants' guilt.  The jury  had that most difficult of tasks entrusted to the trier of fact, the weighing of the credibility of witnesses who contradict one another.

 

                   The trial judge repeatedly told the jury that the burden of proof rested upon the Crown and that the appellants were entitled to the benefit of any reasonable doubt which arose on the evidence.  She also told the jury that the appellants were entitled to the benefit of any reasonable doubt about the accuracy or weight of any of the evidence.  She stressed that the credibility of witnesses was very important in the case and carefully outlined the factors that should be taken into account in weighing credibility.

 

                   The trial judge gave short and even-handed summaries of the controversial testimony and fairly presented the theory of the defence.  In short, from my reading of her charge as a whole, it is my opinion that the trial judge laid out for the jury accurately and objectively the issues it had to decide.  It is my view that the charge to the jury in this case was admirable. [Emphasis added.]

 

                   This is, in my view, the proper light in which a court of appeal, and for that matter our Court, should address a trial judge's charge to a jury as regards the grounds of appeal raised in relation to that charge.  If, taken as a whole, the charge is fair, whatever error it may contain, it cannot amount to a miscarriage of justice and s. 686(1)(b)(iii) will apply.

 

                   Jury trials should not be presided over by courts of appeal who are removed from the atmosphere of a particular trial, who have no possibility of appreciating the personality, level of sophistication and understanding, or other traits of a particular jury and who do not have the benefit of hearing counsels' addresses to the jury but only of reading them.

 

                   A trial judge's discretion to deal with a trial as best fits the case over which he or she must preside is an essential element of a trial.  Otherwise, a mechanical application of the rules would suffice.  Courts should be wary of usurping this function and overruling that discretion.  Almost every accused in an appeal challenges the judge's charge to the jury in the hope of winning a new trial or an acquittal.  Judges' charges to the jury are easy targets and if courts give in too easily to those alleged errors, the courts of appeal will take over a trial judge's function.  The rationale underlying s. 686(1)(b)(iii) of the Criminal Code  is precisely to insure that only in cases where a miscarriage of justice has occurred will courts intervene in a trial judge's handling of a trial.  This is the test and the only test.  An error by a trial judge does not by itself warrant intervention by a court of appeal.  Only if that error is sufficiently serious to constitute a miscarriage of justice will it justify intervention.  This is what this case is all about.

 

                   Dealing first with the Vetrovec issue, I would emphasize that this Court has rejected the notion that "ritualistic incantations" must be given regarding the danger of convicting on the uncorroborated testimony of certain categories of witnesses such as accomplices.  This is no more than a recognition that the testimony of a witness who is an accomplice may not be inherently any more untrustworthy than that of many other witnesses.  In the words of Dickson J. (as he then was) in Vetrovec at p. 823, "[t]o 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, a trial judge now has the discretion to determine, after considering factors which might impair the worth of a witness, whether "the credit of the witness is such that the jury should be cautioned" (Vetrovec, at p. 823).

 

                   Respect for the discretion of the trial judge in such matters is necessary because, even where there are legitimate concerns about the credibility of a witness, a clear and sharp warning may not be appropriate in every case.  Furthermore, the accused may him- or herself benefit from the retention of the trial judge's discretion regarding the wisdom of a warning in a particular trial.  As Galligan J.A. pointed out, citing the following words of Martin J.A. in R. v. Yanover (1985), 20 C.C.C. (3d) 300, at p. 324:

 

                   3.    Where the judge decides that such a warning is called for he should assist the jury by drawing to their attention by way of illustration an item or items of evidence which they may draw upon as confirmation of the witness's evidence, but he is not under the same mandatory obligation that existed prior to Vetrovec to detail exhaustively "the evidence" capable of supporting the evidence of the accomplice. [Emphasis added.]

 

                   In the process of giving a Vetrovec warning, the trial judge is required to review evidence which corroborates the statements of the accomplice.  The necessary effect of such a warning in some cases will be to emphasize evidence which is prejudicial to the accused which otherwise would not be directly referred to by the trial judge.  The result is, as Dickson J. observed in Vetrovec at p. 818, that:

 

                   The accused is in the unhappy position of hearing the judge draw particular attention to the evidence which tends to confirm the testimony the accomplice has given.  Cogent prejudicial testimony is thus repeated and high-lighted.

 

                   This is precisely what would have occurred in the present case had a Vetrovec warning been given.  Galligan J.A. observed, at pp. 406-7, that:

 

                   If the trial judge had decided to give a Vetrovec caution respecting Dietrich's testimony, I think she would have been required not only to remind the jury of Griffith's statement to the police confirming the presence of the car at his home the day after the murder but also of Griffith's later denial of the truth of his own statement.  The effect of doing so would have been devastating to Griffith and would have outweighed by far any benefit he could have obtained from a Vetrovec caution.  It is my opinion that in these circumstances the trial judge correctly exercised her discretion in declining to give the Vetrovec caution respecting the witness Dietrich. [Emphasis added.]

 

                   Therefore, not only have the appellants suffered no detriment because of the absence of a Vetrovec warning, their position may well have been strengthened by the decision of the trial judge to proceed as she did.

 

                   In my view, no error was committed by the trial judge in the exercise of her discretion.  I agree with Galligan J.A. that the effect of Vetrovec is to give trial judges a wide and flexible discretion as to how they instruct juries of the need for careful scrutiny of a witness' testimony.  It is evident from the discussion that the judge had with counsel before the charge to the jury that she considered the propriety and need for a Vetrovec caution.  While declining to do so, she nonetheless indicated that Dietrich's evidence required careful scrutiny and directed the jury to consider whether it was consistent with other credible evidence. In the circumstances, I would only restate the words of Galligan J.A., at p. 405, that:

 

. . . the reviewing court must pay great deference to the trial judge's peculiar advantage in evaluating the atmosphere of a trial and in assessing whether or not, in all of the circumstances of a particular case, a Vetrovec warning would redound to the benefit or detriment of an accused.

 

                   Turning now to the alleged failure of the trial judge to instruct the jury regarding the use to be made of the prior inconsistent statements of Dietrich and Belmont, one must immediately point out that neither counsel objected to the judge's charge on that point, although objections were made on other points.  The reason is quite obvious when one considers that those statements were put to the witnesses for the sole purpose of casting doubt on their credibility, never with the intention that they be adopted by the witnesses as evidence of the truth of their contents.  Those witnesses were vigorously cross-examined and, in defence counsel's address to the jury, their statements were referred to on many occasions for the sole purpose of credibility.  While failure to object would not of itself be fatal, the tactics of defence counsel cannot be overlooked.  As I stated in R. v. B. (F.F.), [1993] 1 S.C.R. 697, at pp. 713-14: 

 

                   I am not suggesting that failure to object at trial will preclude counsel from alleging on appeal that an error was made.  Mere silence of counsel cannot displace the right of an accused to a fair trial.  However, it is important to consider the reasons for counsel's failure to raise any objection to . . . evidence.

 

In this case, the failure of counsel to object indicates, in my view, that everybody took for granted that the purpose of introducing those prior statements was only to test the credibility of those witnesses.  No one ever suggested otherwise.  In the circumstances, it cannot be a matter of reproach to the trial judge that she took the case as it was presented and argued before the jury.

 

                   Prior to the charge by the judge, the jury had the benefit of hearing numerous statements from defence counsel on the unreliable nature of the testimony of Dietrich and Belmont.  Counsel for Griffith stated:

 

                   The evidence against Mr. Griffith, I submit, comes down to Mr. Curtis, Mr. Dietrich, and Mr. Belmont.  I suggest to you that all their evidence, all three of them, as I have gone through for the last period of time is riddled with lies and inconsistencies.  And if you come to that conclusion too, you have to ask yourself why would they lie about certain things but tell the truth about other things?

 

Further on counsel suggested:

 

                   And, again, not only are [sic] their evidence riddled with inconsistencies, but all three of these men, as I have indicated, had ulterior motives to implicate Mr. Griffith.  I submit their evidence can't be relied upon to give Mr. Griffith spitting on a sidewalk, let alone to a charge of murder.  And there has been no evidence presented at all by the Crown attorney involving Mr. Griffith from any witnesses unbiased that implicates Mr. Griffith.

 

                   The trial judge, on a number of occasions, stressed that credibility was at the core of the case.  She also stressed that the statements in question should be scrutinized in that light.  In her charge to the jury with respect to the evidence of Dietrich, the trial judge reminded the jury that he had a lengthy criminal record.  She noted the fact that he had approached the police shortly into his three year sentence and his denial that he had received anything for his assistance.  Later in the charge she remarked:

 

                   When assessing Dietrich's evidence you will have to scrutinize it very carefully.  Does it dovetail with the other evidence that you believe?  Bear in mind that he approached the police and that letter... will be with you in the juryroom.

 

Finally, she reminded the jury:

 

                   Members of the jury, the law is easy.  He was badly beaten whoever did it - murder.  The real question is did both or either of these accused kill Hodgins?  The evidence of the two accused and the evidence of Dietrich is extremely important when deciding this question.  Scrutinize all the evidence carefully.  Decide what you believe and what you do not believe.  Find your facts, reach your verdicts, but as I have told you, this is basically a matter of credibility.  Who do you believe and who do you not believe, and that is where you are going to have to start.  Whose evidence do we believe, and then you can build on that, and does the next evidence dovetail with that?  Does it agree with the evidence that you have accepted?

 

The trial judge began her review of the evidence of Belmont and Mathers with the observation that they were "partners in crime".  After reviewing their testimony, she noted:

 

                   You will recall that Helen Mathers and Patrick Belmont were both, it would appear from the evidence, cooperating with the police in order to either get him, Belmont, out of jail and, hopefully, have his charges dropped.  And I am sure you will recall their evidence, how confusing it was at times.  And there was the evidence he wore the bodypacks and what happened when he was wearing those.  And, again, counsel have covered that with you.  And I think you remember the evidence of the police officer that only 20 percent of those tapes were audible.

 

                   So, again, you are going to have to think of all these things very carefully and the circumstances in which that evidence was given when you are determining what weight to give to it.  [Emphasis added.]

 

                   Although it is generally recognized that the failure to warn a jury about the use it can make of a witness' prior statement, unless adopted at trial, can be fatal in cases where a jury might accept such a statement as evidence of its truth rather than going only to credibility, this is not such a case.

 

                   The same conclusion was reached in R. v. Hobart (1982), 65 C.C.C. (2d) 518 (Ont. C.A.), where Martin J.A, after stating, at p. 539, that "a clear direction is required that the prior inconsistent statement is not evidence of the truth of the facts contained therein . . .", went on to say, at pp. 539-40:

 

                   In the present case the out-of-court statements of the witness that were more incriminating of the appellants than her sworn testimony at the trial, were introduced by the defence.  No doubt the purpose of defence counsel in eliciting the evidence of Glover's prior statements to the police was to show that she was careless of the truth or that she could not distinguish between fact and fantasy.  No one suggested that these statements could be used to prove the truth of the facts contained in them.  I do not wish to be taken as holding, however, that even in this situation it was unnecessary to warn the jury that the prior out-of-court statements of the witness not adopted by her, were not evidence of the truth of the facts contained in them.  The absence of such a warning in the present case does not, however, import the same prejudice to the accused, as it might in other circumstances.

 

                                                                   . . .

 

                   Although it would have been preferable if the trial Judge had expressly instructed the jury that Sandra Glover's unadopted out-of-court statements made to the police were not evidence of the truth of the facts contained in them, I am satisfied that his failure to do so did not in all the circumstances result in a miscarriage of justice.  I also observe that no objection was taken at the trial to his failure to give the instruction which it is now contended should have been given.  I would, if necessary, apply the curative provisions of s. 613(1)(b)(iii) of the Code.  [Emphasis added.]

 

                   This is precisely the case here.  The judge tailored her charge to the case before her and the case, in her view, did not mandate the warning in question.  Upon reviewing the whole case and examining the address to the jury in that light, I could not agree more.

 

                   Besides, I agree with the Crown that such statements were inconsequential and, as Galligan J.A. said at p. 411:

 

An instruction that prior inconsistent statements could undermine the credibility of witnesses would have applied to them as well as to the Crown witnesses.  Thus, the instruction could have done the appellants more harm than good.

 

                   For all these reasons, I am convinced that no miscarriage of justice has occurred in the circumstances and, should it be necessary, I would apply the proviso in s. 686(1)(b)(iii) of the Criminal Code  which is specifically designed to cure the type of defect in question.

 

                   In the result, I would dismiss these appeals.

 

                   Appeals allowed, L'Heureux‑Dubé J. dissenting.

 

                   Solicitors for the appellant Edward Albert Thomas Bevan:  Gold & Fuerst, Toronto.

 

                   Solicitors for the appellant Barry Gerald Griffith:  Ruby & Edwardh, Toronto.

 

                   Solicitor for the respondent:  The Attorney General for Ontario, Toronto.