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.
Reasons
for Judgment:
(paras. 1 to 17)
Partially
Concurring Reasons:
(paras. 18 to 23)
|
Fish J. (Binnie, LeBel, Abella, Charron
and Rothstein JJ. concurring)
Deschamps J.
|
______________________________
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.