R. v. Khela, 2009 SCC 4, [2009] 1 SCR 104

                                                 SUPREME COURT OF CANADA

Between:

Gurkirpal Singh Khela

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

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

Interveners

and between:

Jodh Singh Sahota

Appellant

and

Her Majesty The Queen

Respondent

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

______________________________

R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104

Gurkirpal Singh Khela                                                                                                       Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

and

Attorney General of Ontario and

Criminal Lawyers’ Association (Ontario)                                                                       Interveners

‑ and ‑

Jodh Singh Sahota                                                                                                              Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

Indexed as:  R. v. Khela

Neutral citation:  2009 SCC 4.

File Nos.:  31933, 32325.

2008:  March 28; 2009:  January 22.

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

on appeal from the court of appeal for british columbia

Criminal law — Charge to jury — Sufficiency of Vetrovec warning — Content of warning — Evidence of unsavoury witnesses introduced by Crown at trial — Accused convicted of first degree murder — Whether charge adequately instructed jury about unreliability of unsavoury witnesses’ testimony and degree of scrutiny to be applied in weighing their testimony — Whether charge adequately instructed jury about type of evidence capable of supporting unsavoury witnesses’ testimony — Whether confirming evidence must be independent and material.

Criminal law — Charge to jury — Inferences of innocence — Circumstantial evidence and proven facts — Whether trial judge erred by instructing jury that inferences of innocence can only be drawn from evidence based on proven facts — If so, whether Court of Appeal erred by applying curative proviso.

The accused, K and S, were charged with first degree murder.  The Crown alleged that K paid two men to murder the victim, while S helped organize and coordinate the shooting.  The Crown’s case rested primarily on the testimony of two unsavoury witnesses who had lengthy criminal records and who were members of a prison‑based gang.  The trial judge directed the jury to look at their testimony with the greatest care and caution and to look for confirmation of their testimony from somebody or something other than what the unsavoury witnesses themselves had to say.  The trial judge also directed the jury that it was for them to decide whether any evidence confirms or supports the unsavoury witnesses’ testimony.  Both accused were convicted.  On appeal, they argued that the trial judge’s Vetrovec warning failed to instruct the jury that to be confirmatory, evidence supporting the testimony of unsavoury witnesses must be independent and material.  The Court of Appeal upheld the convictions.  It found that, in the context of the trial as a whole, the Vetrovec warning sufficiently conveyed the concepts of materiality and independence, and the appropriate degree of caution required by the circumstances.

Held:  The appeals should be dismissed.

Per Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.:  Although no single formula can be expected to produce an appropriate Vetrovec caution for every foreseeable situation, trial judges, who must craft the caution appropriate to the circumstances of their case, are entitled to guidance as to the general characteristics of a caution.  The four main elements of a caution are:  (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.  This summary need not be applied in a rigid and formulaic fashion.  Where a caution has these four elements, an appellate court, in the absence of some other flaw, will generally be expected to find the caution adequate.  However, a failure to include any of these elements may not prove fatal if the charge read as a whole otherwise serves the dual purposes of a Vetrovec warning:  first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses.  In evaluating a caution, appellate courts should focus on the content of a caution and not on its form.  [13‑14] [37‑38] [44] [47]

With respect to the fourth component of the summary, since not all evidence is capable of confirming the testimony of an untrustworthy witness, a Vetrovec caution should draw the jury’s attention to evidence capable of confirming or supporting material parts of the witnesses’ evidence. To be confirmatory, evidence should give comfort that the witness can be trusted.  The attribute of independence defines the kind of evidence that can provide comfort that the witness is telling the truth.  Evidence that is tainted by connection to the witness cannot serve to confirm his or her testimony.  Materiality is a more difficult concept. Evidence does not have to implicate the accused, but in the context of the case as a whole, it should give comfort that the witness was truthful in relevant aspects of his or her account.  [11] [32] [39‑40] [42‑43]

Although the Vetrovec caution in this case is not a model to be followed in other cases, it did convey the degree of special scrutiny to be applied in weighing the testimony of the two unsavoury witnesses.  Where, as here, allegations of corroboration and collusion between the impugned witnesses and others were made, the trial judge should have clearly mentioned to the jury that not all evidence is capable of being confirmatory and better explained that confirmatory evidence has to be independent and relevant.  However, these deficiencies were compensated for in other portions of the charge.  As a whole and in the context of the trial, the charge communicated the substance of a proper Vetrovec caution.  The jury would have understood that it could not convict the accused based on the testimony of the impugned witnesses unless they found that other evidence confirmed their testimony. [15] [51‑52] [56]

The trial judge erred in instructing the jury that it could only draw inferences of innocence from defence evidence based on proven facts.  Nonetheless, in the context of the charge as a whole, the error cannot reasonably be thought to have affected the verdict and this is an appropriate case in which to apply the curative proviso pursuant to s. 686(1)(b)(iii) of the Criminal Code .  [57‑59]

Per Deschamps J.:  The first three elements of the framework proposed by the majority capture the substance of a proper Vetrovec warning. A Vetrovec warning should draw the jury’s attention to testimonial evidence requiring special scrutiny, explain why this evidence is subject to special scrutiny and it should caution the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true.  The fourth element, however, will have detrimental effects on the law and is both unnecessary and unworkable.  It is the content of Vetrovec warnings that matters, not their form and this Court should preserve the functional approach set out in Vetrovec.  [68] [73]

Under the fourth element of the framework, the requirement that jurors be told to look for “material” and “independent” corroboration of an unsavoury witness’s testimony detracts jurors from their proper task of weighing the witness’s credibility in a rational and flexible manner. A trier of fact is entitled to believe the evidence of a disreputable witness, even on disputed facts that are not otherwise confirmed, if the trier is satisfied that the witness is truthful.  Trial judges should refrain from requiring the intractable concepts of independence and materiality for corroborating evidence. Instead, jurors should be told to focus on credibility. Evidence cannot be categorized as either independent or not independent because evidence lies on a continuum between these two poles. Even proponents of an independence requirement are at a loss to explain what kind of evidence it calls for.  Applied mechanically, such a requirement has led to disastrous outcomes. Nor is materiality any easier to pin down.  The once strict, ill‑defined requirement of materiality has been weakened.  Circumstantial evidence can be confirmatory even if it does not directly implicate the accused and evidence need not bear on a disputed part of a witness’s testimony to be corroborative.  [67] [76] [78] [81‑86]

Jury instructions should correspond to well‑defined intellectual exercises and the justice system should strive for simplicity in charges.  Evidence capable of inducing a rational belief that the witness is telling the truth is sufficient and jurors should be asked to look for evidence that reinforces the credibility of the witness.  [91] [96]

The trial judge’s charge was fully compatible with the three required elements of a proper Vetrovec warning.  The charge drew the jury’s attention to problematic witnesses, explained why there was a risk that they were unreliable, and warned the jury that it was dangerous to convict based on their testimonies without confirmation by other evidence.  The charge was complete and there was no further requirement to instruct the jury to look for independence or materiality.  [97]

The subsidiary ground for appeal should be dismissed for the reasons given by the majority.  [98]

Cases Cited

By Fish J.

Explained:  Vetrovec v. The Queen, [1982] 1 S.C.R. 811; applied:  R. v. Sauvé (2004), 182 C.C.C. (3d) 321; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237; referred to:  R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146; R. v. Zebedee (2006), 211 C.C.C. (3d) 199; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328; R. v. Sanderson, 2003 MBCA 109, 180 C.C.C. (3d) 53; R. v. Chenier (2006), 205 C.C.C. (3d) 333; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523.

By Deschamps J.

Explained:  Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Chenier (2006), 205 C.C.C. (3d) 333; R. v. Sauvé (2004), 182 C.C.C. (3d) 321; R. v. Zebedee (2006), 211 C.C.C. (3d) 199; referred to: R. v. Baskerville, [1916] 2 K.B. 658; Horsburgh v. The Queen, [1967] S.C.R. 746; Graat v. The Queen, [1982] 2 S.C.R. 819; R. v. N. (P.L.F.) (1999), 138 C.C.C. (3d) 49; R. v. G. (G.) (1997), 115 C.C.C. (3d) 1; R. v. Dhillon (2002), 166 C.C.C. (3d) 262; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237; R. v. Kanester, [1966] 4 C.C.C. 231, rev’d [1967] 1 C.C.C. 97; Warkentin v. The Queen, [1977] 2 S.C.R. 355; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Ethier (1959), 124 C.C.C. 332; R. v. Gagnon (2000), 147 C.C.C. (3d) 193; Murphy v. The Queen, [1977] 2 S.C.R. 603; R. v. Sanderson, 2003 MBCA 109, 180 C.C.C. (3d) 53; Trial of William Davidson and Richard Tidd for High Treason (1820), 33 How. St. Tr. 1337; R. v. Hill, [1986] 1 S.C.R. 313; R. v. Ménard, [1998] 2 S.C.R. 109; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Krugel (1999), 143 C.C.C. (3d) 367; R. v. Smith, 2007 NSCA 19, 216 C.C.C. (3d) 490.

Statutes and Regulations Cited

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

Authors Cited

Arnup, C. Jane.  “Has Caution Been Thrown to the Wind?:  The Aftermath of Vetrovec”, in Special Lectures of the Law Society of Upper Canada 1984 — Law in Transition: Evidence.  Don Mills, Ont.:  Richard De Boo Publishers, 1984, 21.

Boilard, Jean‑Guy m.  Guide to Criminal Evidence, vol. 2.  Cowansville, Que.:  Yvon Blais, 1991 (loose‑leaf updated September 2008, Issue 48).

Canada.  Law Reform Commission.  Law of Evidence Project.  Study Paper No. 11.  Corroboration.  Ottawa:  The Commission, 1975.

Cory, Peter deCarteret.  The Inquiry Regarding Thomas Sophonow:  The Investigation, Prosecution and Consideration of Entitlement to Compensation.  Winnipeg:  Manitoba Justice, 2001.

Dufraimont, Lisa.  “Regulating Unreliable Evidence:  Can Evidence Rules Guide Juries and Prevent Wrongful Convictions?” (2008), 33 Queen’s L.J. 261.

Glasson, E.  Histoire du droit et des institutions de la France, t. 6.  Paris:  F. Pichon, 1895.

Harris, Nikos.  “Vetrovec Cautions and Confirmatory Evidence:  A Necessarily Complex Relationship” (2005), 31 C.R. (6th) 216.

Helmholz, R. H.  “Magna Carta and the ius commune” (1999), 66 U. Chi. L. Rev. 297.

Hill, S. Casey, David M. Tanovich and Louis P. Strezos, eds.  McWilliams’ Canadian Criminal Evidence, 4th ed.  Aurora, Ont.:  Canada Law Book, 2003 (loose‑leaf updated March 2008, release 10).

Lamer, Antonio.  A Tribute to Chief Justice Dickson.  Address to the Annual Convention of the Criminal Lawyers’ Association (December 1989), Ontario Criminal Lawyers’ Association Newsletter, vol. 10, No. 4, p. 13.

Manitoba.  Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell.  Winnipeg:  Department of Justice 2007.

Newfoundland and Labrador.  The Lamer Commission of Inquiry into the Proceedings Pertaining to:  Ronald Dalton, Gregory Parsons and Randy Druken:  Report and Annexes.  St. John’s:  Government of Newfoundland and Labrador, 2006.

Ontario.  Report of the Commission on Proceedings Involving Guy Paul Morin (Kaufman Report).  Toronto:  Ministry of the Attorney General, 1998.

Paciocco, David M., and Lee Stuesser.  The Law of Evidence, 5th ed.  Toronto:  Irwin Law, 2008.

Roberts, Paul, and Adrian Zuckerman.  Criminal Evidence.  Oxford:  University Press, 2004.

Rosenberg, Marc. “Developments in the Law of Evidence:  The 1992‑93 Term — Applying the Rules” (1994), 5 S.C.L.R. (2d) 421.

Seniuk, Gerald T. G.  “Judicial Fact‑Finding and a Theory of Credit” (1992), 56 Sask. L. Rev. 79.

Seniuk, Gerald T. G.  “Liars, Scoundrels and the Search for Truth” (2000), 30 C.R. (5th) 244.

Stuart, D.  Annotation to R. v. Kehler (2004), 19 C.R. (6th) 49.

Wakeling, Audrey A.  Corroboration in Canadian Law.  Toronto:  Carswell Co., 1977.

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 7.  Revised by James H. Chadbourn.  Boston:  Little, Brown & Co., 1978.

Zuckerman, A. A. S.  “Corroboration:  Judicial Reform in Canada” (1984), 4 Oxford J. Legal Stud. 147.

APPEALS from a judgment of the British Columbia Court of Appeal (Donald, Mackenzie and Low JJ.A.), 2007 BCCA 50, 217 C.C.C. (3d) 498, 235 B.C.A.C. 277, 388 W.A.C. 277, 2007 CarswellBC 153, [2007] B.C.J. No. 135 (QL), upholding the convictions of the two accused.  Appeals dismissed.

Richard C. C. Peck, Q.C., Nikos Harris and Kathleen M. Bradley, for the appellant Gurkirpal Singh Khela.

Gil D. McKinnon, Q.C., and Patrick McGowan, for the appellant Jodh Singh Sahota.

Bruce Johnstone and Marian K. Brown, 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]     Legal systems far separated in time and place have long recognized that it is dangerous to rest a criminal conviction on the testimony of a single witness, or on a single piece of evidence.  This concern is at least as old as Deuteronomy.^*  It arises because witnesses can lie deliberately or mislead inadvertently, documents can be forged, and other items of evidence can be tampered with or planted: P. Roberts and A. Zuckerman, Criminal Evidence (2004), at p. 466.

[2]     The evidence of a single witness is nonetheless sufficient in Canada to support a conviction for any offence other than treason, perjury or procuring a feigned marriage.  Many serious crimes might otherwise go unpunished. But where the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is particularly acute.

[3]     It is therefore of the utmost importance, in a trial by judge and jury, for the jury to understand when and why it is unsafe to find an accused guilty on the unsupported evidence of witnesses who are “unsavoury”, “untrustworthy”, “unreliable”, or “tainted”.  For present purposes, I use these terms interchangeably.  And I mean to include all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth — even when they have expressly undertaken by oath or affirmation to do so. 

[4]     I hasten to add that  a specific instruction is sometimes required in this regard not because jurors are thought to be unintelligent, but rather because they might otherwise be uninformed.  It is meant to bring home to lay jurors the accumulated wisdom of the law’s experience with unsavoury witnesses. Judges are alert to the concern that unsavoury witnesses are prone to favour personal advantage over public duty.  And we know from recent experience that unsavoury witnesses, especially but not only “jailhouse informants”, can be convincing liars and can effectively conceal their true motives for testifying as they have: see R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 76.

[5]     Without a cautionary instruction, however, jurors may appreciate neither the need nor the reasons for skepticism and particular scrutiny in dealing with witnesses of this sort.  Essentially for that reason, trial judges may — and in some cases must —  include in their charges “a clear and sharp warning to attract the attention of the juror[s] to the risks of adopting, without more, the evidence of the witness” (Vetrovec v. The Queen,  [1982] 1 S.C.R. 811, at p. 831).

[6]     In Vetrovec, the Court held that no particular category of witness requires this warning.  And the Court held as well that the caution, where it is found to be necessary or appropriate, need not be framed in technical or formulaic language.  Nor must the judge include in the caution any legal definition of “corroboration” in explaining to the jury the type of evidence that is capable of supporting the testimony of the tainted witness.

[7]     Vetrovec thus stripped the traditional cautionary instruction of its archaic and technical content and packaging.  But it was not intended to deprive an accused of the protection that the warning has historically been meant to provide.  As Major J. (dissenting on other grounds) explained in R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 69, once a Vetrovec caution had been given, “the jury could view that evidence with more ease but not less scepticism than previously required”. 

[8]     Again in Brooks, Justice Binnie explained:

The jurors will not likely have the benefit of this “experience” unless it is imparted to them by the trial judge in the “clear and sharp warning” contemplated by Vetrovec.  While some passages in Dickson J.’s reasons can be argued to focus on the assessment of the credibility of a particular witness made by the trial judge, he also emphasized that the credibility of a particular witness is for the jury not the trial judge to assess.  The trial judge’s role is to provide the proper framework within which that credibility can be evaluated, and in that regard problems historically associated with particular types of evidence should not be overlooked. [para. 130] 

[9]     I shall have more to say later about a “proper framework” for a Vetrovec caution, but I turn first to the factual foundation, judicial history and specific issues on this appeal.

[10] At issue on these appeals, and in the companion cases of R. v. Smith and R. v. James, 2009 SCC 5, [2009] 1 S.C.R. 146, is the adequacy of the Vetrovec warnings given at trial.  In addressing that issue, attention must be paid to the rationale upon which this type of instruction is based.

[11] The central purpose of a Vetrovec warning is to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony.  In appropriate cases, the trial judge should also draw the attention of the jurors to evidence capable of confirming or supporting the material parts of the otherwise untrustworthy evidence.

[12] Since the decision of this Court in Vetrovec, the very real dangers of relying in criminal prosecutions on the unsupported evidence of unsavoury witnesses, particularly  “jailhouse informers”, has been highlighted more than once by commissions of inquiry into wrongful convictions (see, for example, The Commission on Proceedings Involving Guy Paul Morin: Report (1998) and The Inquiry Regarding Thomas Sophonow (200l)). The danger of a miscarriage of justice is to be borne in mind in crafting and in evaluating the adequacy of a caution.

[13] The crafting of a caution appropriate to the circumstances of the case is best left to the judge who has conducted the trial.  No particular set of words is mandatory. In evaluating its adequacy, appellate courts will focus on the content of the instruction and not on its form.  Intervention on appeal will not be warranted unless a cautionary instruction should have been given but was not, or the cautionary instruction that was  given failed to serve its intended purpose.

[14] No single formula can be expected to produce an appropriate instruction for every foreseeable — let alone unforeseeable — situation at trial.  That is why we vest in trial judges the discretion they must have in fashioning cautionary instructions responsive to the circumstances of the case.  Trial judges nonetheless seek, and are entitled to expect, guidance from this Court as to the general characteristics of a sufficient warning.  I shall later outline in broad brushstrokes a proposed template which, while not at all mandatory, will in my view be of assistance to trial judges without unduly fettering their discretion, and will reduce the number of appeals attributable to the present uncertainty regarding the governing principles.

[15] Read as a whole, and in the context of the trial, the charge to the jury in this case was adequate. Any shortcomings in the Vetrovec caution itself were compensated for in the remainder of the charge.  I am satisfied that the jury would have understood that it could not convict the appellants on the basis of the evidence of the impugned witnesses unless they found elsewhere in the dance sufficient comfort that those witnesses were telling the truth.

[16] Accordingly, I would dismiss the appeals.

II

[17] The appellants were convicted by a jury of first degree murder in the shooting death of Gurjinder Singh Sidhu (Gary Sidhu) outside his home shortly after midnight on April 1, 2002.  They were tried jointly with Trevor Meir, who was also convicted of first degree murder.  John Bride was tried separately and convicted of the same offence.

[18] The Crown alleged that Meir and Bride were the shooters and that the appellant, Khela, had paid them to murder Sidhu. Sahota, the other appellant, was alleged to have assisted Khela in organizing and coordinating Sidhu’s demise.  The motive for the killing was unclear but there was some evidence that suggested a blood feud was in progress.  The victim was wearing a bulletproof vest when he was killed.

[19] The case against Khela rested primarily on the testimony of two unsavoury witnesses, Tomas Sandoval and Steven Stein.  Sandoval and Stein had lengthy criminal records and, along with Bride, were members of a prison-based gang.  They testified that Khela hired Bride and then Meir to kill someone. Several women associated with Sandoval and Stein gave evidence that in late March 2002, Khela brought a duffle bag containing two-way radios, firearms, ammunition, silencers, bulletproof vests and balaclavas to one of their residences.

[20] Paula Wojciechowski, Sahota’s girlfriend at the time of the shooting, also testified against Khela.  She said that Sahota retrieved a bulletproof vest and shoulder holster from her home that he had hidden there the day before.  She also testified that Khela phoned her in December 2002 and offered her $10,000 for a place to live if she gave a statement to his lawyer.  Other evidence, including cell phone and car rental records, bolstered the Crown’s case against Khela.

[21] The case against Sahota rested mainly on the evidence of Wojciechowski. She testified that on March 31, 2002, Sahota and Bride took her to a motel in Surrey where Sahota asked her to carry a heavy bag containing metal objects into the room.  She identified a bag found at the murder scene as resembling the bag she saw that day. Wojciechowski also testified that Sahota, Meir and Bride came to her home early on the morning of April 1.  She saw Sahota trying to hide a bulletproof vest, shoulder holster and ammunition under her bed.  When Meir and Bride left, Sahota said he had paid them for the job.  Later that evening he burned the clothes Meir and Bride had been wearing. The witness testified that several days after the murder, Sahota went to India.  When she asked him if he was involved in the murder, he told her that he was only the driver and became involved because he needed the money.

[22] Both appellants testified at the trial.  Khela said he was not involved in the murder.  His position was that Sandoval and his gang committed the crime and fabricated the story to blame him. Sahota testified that he thought Meir and Bride were robbing a marijuana grow operation, not committing a contract killing.  He admitted to giving Meir a cell phone and helping them in other ways, more or less as described by Wojciechowski.

[23] Sandoval and Stein were the subject of a Vetrovec warning.  Their female associates and Sahota’s then girlfriend, Wojciechowski, were not.  In relation to Sandoval’s and Stein’s evidence, the trial judge instructed the jury as follows:

To this point in my summary of the evidence I have been dealing with witnesses whose credibility generally was not challenged.  Some defence counsel took issue with the ability of some of these witnesses to accurately recall events and suggested that some of their trial recollections were inaccurate or unreliable.  I believe I have noted those areas and leave it to you to decide the weight you wish to give that evidence.  However, now I am moving to a series of witnesses whose entire testimony is in issue.

Defence says that these witness[es] are liars whose testimony cannot be believed, either because they themselves are likely suspects in the murder, or they are so closely associated with the “likely suspects” so as to render their testimony completely unreliable.

Unsavoury Witness

In respect to two of the Crown’s witnesses I am going to give you a special instruction.

This instruction relates only to Mr. Sandoval and Mr. Stein.  Given their admitted lifestyles and criminal background, common sense tells you that there is good reason to look at their evidence with the greatest care and caution.  You should look for some confirmation of their evidence from somebody or something other than what they have to say before relying upon it in deciding whether Crown has proved its case against any accused beyond a reasonable doubt.  To put it another way, it is dangerous to convict on the evidence of Sandoval or Stein unless it is confirmed or supported by other evidence.

You may find that there is some other evidence in this case that confirms or supports some parts of either Sandoval or Stein’s evidence.  It is for you to say whether this, or any evidence, confirms or supports their testimony and how that affects whether or how much of it you believe or rely upon in deciding this case.  In this respect you should look at the evidence of the girlfriends and female associates, remembering of course the defence have labelled them as liars.  Of course, you must look at all the other evidence as well that might bear upon this aspect, including the admissions, the intercepts, the expert Mr. Hall [firearms], the testimony of the Sidhu [victim’s] family, and the exhibits. [Appellant’s Record, No. 31933, at pp. 1760-61]

[24] The appellants argue that the trial judge’s warning about the evidence of Stein and Sandoval was insufficient because it failed to instruct the jury that to be confirmatory, evidence supporting Stein and Sandoval’s testimony must be independent and material.  Given the central place of this evidence in the case against them, the appellants submitted that the alleged error caused them serious prejudice.

[25] The British Columbia Court of Appeal dismissed their appeals (2007 BCCA 50, 217 C.C.C. (3d) 498).  It found that in the context of the trial as a whole, the warning “conveyed the appropriate degree of caution required by the circumstances” (para. 28).  Following the approach of the Ontario Court of Appeal in R. v. Zebedee (2006), 211 C.C.C. (3d) 199, Donald J.A. held that where the issue on appeal is the adequacy of the caution, an appellate court should determine whether the warning served the purpose for which is was intended — it should not test the caution against “some pre-formulated format or prescribed terminology” (Zebedee, at para. 83).

[26] The Court of Appeal found that the charge in this case sufficiently explained to the jury the concepts of materiality and independence, without  using those terms.  By pointing the jury to areas of evidence that could potentially support the testimony of Sandoval and Stein, the trial judge made it unlikely that the jury would look for confirmation in immaterial or irrelevant evidence.  The Court of Appeal noted the trial judge’s reference in the Vetrovec warning to the defence theory that the female associates were liars.  It found that this reference adequately alerted the jury to the risk of collusion and the need for independence.

III

[27] At issue before this Court is the amount of deference that trial judges must be shown in crafting the form and content of Vetrovec warnings.  Counsel for the appellant Khela submits that trial judges are entitled to little discretion and urges the Court to instead adopt a mandatory formula.  He contends that once a trial judge has exercised his or her discretion to give the caution, its content must necessarily include certain elements.  Counsel for Sahota does not advocate the creation of a model charge but argues that in the context of this case, the trial judge’s failure to instruct the jury on the issue of collusion and on the materiality requirement of confirmatory evidence was fatal.

[28] The Crown, on the other hand, submits that a jury’s ability to evaluate the credibility of witnesses need not be “micro-managed” by complex, mandated instructions.  Appellate courts, says the Crown, should adopt a “functional approach” whereby they only intervene when reviewing Vetrovec cautions if the warning has failed to serve its intended purpose to alert the jury to the danger of accepting, without more, the evidence of unsavoury witnesses.

[29] In my view, the appropriate approach to evaluating a Vetrovec caution lies somewhere between these opposing positions and requires us to “entrust trial judges with the flexibility of tailoring their directions to the facts of particular cases within a principled framework of appellate guidance” (Roberts and Zuckerman, at pp. 486-87).

[30] The four cases heard together on the sufficiency of Vetrovec warnings demonstrate the desirability of articulating a “principled framework” of this sort.  But they demonstrate as well the danger and ultimate futility of attempting to impose a uniform and preordained instruction for all cases, without regard to the varying circumstances of the trial.  This should not prevent us, however, from reaffirming the foundational principles that should inform the content of a Vetrovec warning.

IV

[31] This Court, in Vetrovec, changed the law in relation to unsavoury witness warnings in two important ways.  First, the Court held that trial judges, rather than attempting to “pigeonhole” witnesses as an “accomplices”, ought instead to consider all of the factors that might impair their credibility and decide on that basis whether a special instruction is necessary.  Second, the Court relieved triers of fact from applying the technical definition of corroboration and directed them instead simply to determine whether the “evidence properly weighed overcame its suspicious roots” (Brooks, at para. 69). Dickson J. held that there was no magic in the word corroboration, “or indeed in any other comparable expression such as confirmation and support” (Vetrovec, at p. 831).

[32] Dickson J. adopted this “common sense” approach having found the law of corroboration “unduly and unnecessarily complex and technical” (p. 830).  This approach, while unburdening judges and juries of the technical requirements of corroboration, was not meant to imply that any and all evidence is capable of confirming the testimony of a potentially untrustworthy witness. As Major J. noted in Brooks,

[t]his new approach, while a change, was not intended to prejudice the accused.  It would not lessen the protection afforded the accused when faced with unsavoury witnesses.  Equally, it was intended that the jury could view that evidence with more ease but not less scepticism than previously required. [para. 69]

[33] The relaxation of the corroboration rules in Vetrovec was not a signal that juries should be set “loose upon the evidence without any assisting analysis as to whether or not a prudent finder of fact can find confirmation somewhere in the mass of evidence” (Vetrovec, at p. 831).  The trial judge retains the role of providing the jury with “the proper framework within which that credibility can be evaluated” (Brooks, at para. 130, per Binnie J.).

[34] Since Vetrovec, this Court and several appellate courts have provided guidance on the appropriate form and content of the “clear, sharp warning”.  In Brooks, Justice Major wrote (at para. 94) that while no particular language is required, “[a]t a minimum”, the caution must

focus the jury’s attention specifically on the inherently unreliable evidence.  It should refer to the characteristics of the witness that bring the credibility of his or her evidence into serious question.  It should plainly emphasize the dangers inherent in convicting an accused on the basis of such evidence unless confirmed by independent evidence.

[35] Speaking for himself and Justices Iacobucci and Arbour, Major J. also cited with approval (at para. 79) this passage from a commentary by Marc Rosenberg (now Rosenberg J.A.) on Vetrovec and its progeny:

The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness according to the traditional means by which such determinations are made. This would include a review of the evidence to determine whether there are factors which have properly led the courts to be wary of accepting a witness’s evidence. Factors might include involvement in criminal activities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trial judge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness’s story be approached with caution. Second, the trial judge must assess the importance of the witness to the Crown’s case. If the witness plays a relatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point, as where the witness plays a central role in the proof of guilt, the warning is mandatory. This, in my view, flows from the duty imposed on the trial judge in criminal cases to review the evidence and relate the evidence to the issues.

(“Developments in the Law of Evidence: The 1992‑93 Term — Applying the Rules” (1994), 5 S.C.L.R. (2d) 421, at p. 463)

[36] Though he arrived at a different result, Binnie J. agreed in Brooks (at para. 130) that what matters, in determining the need for a clear and sharp warning, is not the judge’s personal opinion as to the trustworthiness of the witness, but whether there are factors which experience shows us as requiring “that the witness’s story be approached with caution”.

[37] In Sauv_, at para. 82, the Ontario Court of Appeal set out a principled framework that will assist trial judges in constructing Vetrovec warnings appropriate to the circumstances of each case.  That proposed framework, which I adopt and amplify here, is composed of four main foundation elements: (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused (R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19).

[38] While this summary should not be applied in a rigid and formulaic fashion, it accurately captures the elements that should guide trial judges in crafting their instructions on potentially untrustworthy witnesses.  The fourth component, of particular interest on this appeal, provides guidance on the kind of evidence that is capable of confirming the suspect testimony of an impugned witness.

[39] Common sense dictates that not all evidence presented at trial is capable of confirming the testimony of an impugned witness.  The attribute of independence defines the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth.  Where evidence is “tainted” by connection to the Vetrovec witness it can not serve to confirm his or her testimony (N. Harris, “Vetrovec Cautions and Confirmatory Evidence: A Necessarily Complex Relationship” (2005), 31 C.R. (6th) 216, at p. 225; R. v. Sanderson, 2003 MBCA 109, 180 C.C.C. (3d) 53, at para. 61).

[40] Materiality is a more difficult concept.  In Vetrovec, the Court did away with the requirement that corroborating evidence implicate the accused.  As Dickson J. noted, such evidence is not the only type capable of convincing a jury that a witness is telling the truth. In Kehler, the Court confirmed that evidence, to be considered confirmatory, does not have to implicate the accused.  We maintain that position here.

[41] Individual items of confirmatory evidence need not implicate the accused.  As Dickson J. explained in Vetrovec:

The reason for requiring corroboration is that we believe the witness has good reason to lie.  We therefore want some other piece of evidence which tends to convince us that he is telling the truth.  Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. [p. 826]

[42] However, when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence. Again in Vetrovec, Dickson J. thus noted, with respect to evidence capable of being confirmatory:

All of this incriminating evidence, when considered together, strongly strengthens the belief that Langvand was telling the truth regarding the participation of Vetrovec and Gaja. It rebuts any suggestion that he is falsely implicating innocent individuals. [Emphasis added; p. 833.]

[43] This passage was cited with approval in this Court’s unanimous judgment in Kehler, where the Court concluded that confirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness’ account (para. 15). As a matter of logic, where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that the impugned witness is telling the truth in that regard before convicting on the strength of that witness’s testimony.

V

[44] I agree with the Ontario Court of Appeal in Sauv_ that a Vetrovec warning should address, in terms appropriate to the circumstances of each case, the four elements outlined above.  Where the caution has these characteristics, an appellate court, in the absence of some other flaw in the instructions, will generally be expected to find the caution adequate.  I emphasize, however, that failure to include any of the components in the terms outlined above may not prove fatal where, as in this case,  the  judge’s charge read as a whole otherwise serves the purposes of a Vetrovec warning.

[45] As the Ontario Court of Appeal found in Zebedee, “Vetrovec was like a breath of fresh air.  It put a premium on common sense and it recognized that juries were intelligent and they could be trusted to do the right thing. . . . Elaborate instruction, the Court said, was not needed” (para. 81).  No benefit comes from a return to the overly rigid pre-Vetrovec era.

[46] That said, the absence or presence of confirmatory evidence plays a key role in determining whether it is safe to rely on the testimony of an impugned witness (Harris, at p. 222).  Accordingly, the instruction to the jury must make clear the type of evidence capable of offering support. It is not sufficient to simply tell the jury to look for whatever it feels confirms the truth of a witness’ testimony (see R. v. Chenier (2006), 205 C.C.C. (3d) 333 (Ont. C.A.), at para. 34).

[47] It is not “overly formalistic” to ensure that triers of fact attain the appropriate level of comfort before convicting an accused on the basis of what has for centuries been considered unreliable evidence.  A truly functional approach must take into account the dual purpose of the Vetrovec warning: first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the  trustworthiness of those  witnesses.

[48] Acknowledging this second function of the caution does not represent a departure from the Court’s judgment in Vetrovec. Dickson J. recognized that in some circumstances, particularly in lengthy trials, there is a “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” (pp. 831-32).

VI

[49] While the obligation to ensure that juries are properly instructed clearly falls to the trial judge, counsel should not abdicate their duty of assisting the court. As Bastarache J. recently explained in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523:

. . . it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’s instructions to the jury.  While not decisive, failure of counsel to object is a factor in appellate review.  The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. [para. 58]

In this light, I note without more that counsel did not object to the judge’s charge in this case.

[50] Before leaving this subject, I  think it important to reiterate that counsel have a responsibility  in  summing up for the jury to address the issue of unsavoury witnesses and the presence or absence of confirmatory evidence.  The Crown should direct the jury’s attention to  evidence that tends to reinforce the credibility of the tainted witness; defence counsel, to avoid any apprehended misunderstanding in this regard, should identify for the jury’s benefit evidence that cannot be considered confirmatory at all.  In addition, it may be helpful to assist the trial judge in crafting an appropriate Vetrovec warning by way of a pre-charge conference.

VII

[51] With respect,  I would not characterize the trial judge’s Vetrovec caution as a model to be followed in other cases.  In my view, however, it adequately conveyed to the jury the degree of special scrutiny to be applied in weighing the testimony of Sandoval and Stein.

[52] In the context of this case, where allegations of corroboration and collusion between the impugned witnesses and others were made, the trial judge’s warning should have better explained the need for confirmatory evidence to be independent and relate to an important and relevant aspect of the impugned testimony. However, any deficiencies in the Vetrovec caution itself were compensated for in other portions of the charge.  Read as a whole, and in the context of the trial, I am satisfied that the charge to the jury was adequate.

[53] The difficulty with the warning was not the absence of the words “independent” and “material”, but rather its failure to clearly convey to the jury the message that not all evidence is capable of providing a level of comfort or confidence required for conviction.  The trial judge simply directed the jury to look for “some confirmation of their evidence from somebody or something other than what they have to say”.

[54] An instruction on independence was particularly important in this case because of the allegations by the defence of collusion between Stein, Sandoval and their female  companions.  The judge did remind the jury of the defence position that the girlfriends were “liars”.  He ought to have explicitly told the jurors as well that if they doubted the credibility of the women, they should be wary about relying on their evidence as support for the testimony of Stein and Sandoval.

[55] As mentioned earlier, however, I am  satisfied that the shortcomings in the Vetrovec warning itself were compensated for in other parts of the charge.  The trial judge repeatedly alerted the jury to the possibility of collusion and the motive that Stein and Sandoval had to lie.  For example, the trial judge, in reviewing the evidence of the impugned female witnesses, reminded the jury of the defence position that they had collaborated with Stein and Sandoval in concocting their stories.  The trial judge also reminded the jury of Sandoval’s admission that the police had, early in the investigation, “leaned on him” and accused him of “‘masterminding’ the murder”. Accordingly, the judge told the jury that it had been suggested that Sandoval lied “to take the heat off himself and accuse Khela and company”.

[56] In reading the charge as a whole, I am persuaded the substance of a proper Vetrovec caution was communicated adequately, albeit imperfectly, to the jurors.  They were told the danger of relying on the unsupported evidence of Stein and Sandoval and directed to the types of evidence in which they might find confirmation of that evidence. Accordingly, I would dismiss the appeal on this ground.

                                                                           VIII

[57] The appellants raise a second and subsidiary ground of appeal.  They argue that the trial judge erred in instructing the jury that it could only draw inferences from defence evidence based on proven facts, pointing to the following passage from the judge’s charge:

So as you can see you must be careful when dealing with circumstantial evidence because of the possibilities of error.  Before basing a verdict of guilty on circumstantial evidence, you must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.

I go on at page 19 [of the written charge] and say I caution you that an inference is a much stronger kind of belief than conjecture or speculation.

If there are no proven facts from which an inference can be logically drawn, it is impossible to draw an inference.  At best you would be speculating or guessing and that is not good enough.  An accused must not be convicted on a guess, no matter how shrewd that guess may be.  Now, that applies equally to the Crown and the defence in terms of the evidence that I will be referring to later.  So remember that instruction particularly.  [Appellant’s Record, No. 31933, at pp. 1728-29]

In relation to the Crown’s position on Meir’s defence (that he went to the Sidhu residence thinking he was on a “grow rip” and did not know about the murder until the last moment), the judge told the jury: 

The Crown suggests that you can easily discard that argument by looking at all of the evidence implicating Meir, and in this respect the Crown probably relies on my instruction about drawing an inference.  You have to draw an inference on proven facts.  You cannot draw it on speculation. [Appellant’s Record, No. 31933, at p. 1735]

[58] In my view, the trial judge’s instructions were incorrect to the extent they required the defence to “prove” certain facts in order for the jury to draw an inference of innocence from them.

[59] Nonetheless, in the context of the charge as a whole, the trial judge’s comments in regard to circumstantial evidence and proven facts cannot reasonably be thought to have affected the verdict.  Accordingly, I agree with the Court of Appeal that this is an appropriate case in which to apply the curative proviso pursuant to s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46 .

[60] The error was contained in two passages of the charge, neither of which was given to the jury in written form.  The repetition of the inference instruction was made in the context of discussing Meir, not the appellants, and there was no objection made at trial by any of the three defence counsel.

[61] Moreover, the charge to the jury made clear that the accused were under no obligation to prove anything and that if the jury was left with  a reasonable doubt as to their  guilt  by any of the evidence, it must acquit.  In his instructions on reasonable doubt and the presumption of innocence, the trial judge instructed the jury that “[a]n accused does not have to prove that he is innocent. . . . An accused does not have to prove anything” (Appellant’s Record, No. 31933, at p. 1721). The trial judge also gave an appropriate “W. (D.)” warning and told the jury that even if they did not believe the testimony of the accused they still must acquit if they were left with a reasonable doubt by it, or by  the evidence as a whole.

[62] In the same vein, when the trial judge reminded the jury that defence counsel suggested it was Sandoval and his gang who were responsible for the murder, he specifically instructed the jury that the defence was not obliged to prove this assertion (Appellant’s Record, No. 31933, at p. 1761).  Moreover, both Khela and Sahota testified and gave direct evidence that they were not involved in the murder.  Accordingly, their defences did not rely primarily on the jury drawing exculpatory inferences  from other facts, “proven” or not.

[63] In short, I am satisfied that there is no reasonable possibility that it would have made any difference to the ultimate verdict if the impugned comments had not been made.

                                                                            IX

[64] For all of these reasons, I would dismiss both appeals.  This result is alone sufficient to refute Justice Deschamps’s assertion that the framework I have proposed for the assistance of trial judges amounts to the imposition of mandatory, technical requirements.  With respect, my reasons simply do not bear the interpretation imputed to them by my colleague.

The following are the reasons delivered by

[65] Deschamps J. — The law of evidence needs more common sense, not a new technical rule. My colleague Fish J., writing for the majority, believes that there is a middle position between micromanagement and functional analysis by courts of appeals of warnings given to jurors as to the reliability of unsavoury witnesses’ testimony (para. 29). I disagree.

[66] The majority’s opinion is part of an incremental return to the formalism of R. v. Baskerville, [1916] 2 K.B. 658 (C.C.A.). In the judgment appealed from in the instant case, Donald J.A. correctly pointed out (at para. 20) that R. v. Chenier (2006), 205 C.C.C. (3d) 333 (Ont. C.A.), is symptomatic of this phenomenon. I would add that R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), a case heavily relied on by the majority, is part of the same trend.

[67] The Ontario Court of Appeal, correctly in my view, rejected the straitjacket of Chenier, and more particularly of Sauvé, in R. v. Zebedee (2006), 211 C.C.C. (3d) 199. In that case, Moldaver and LaForme JJ.A. noted the legacy of flexibility of Vetrovec v. The Queen, [1982] 1 S.C.R. 811:

For trial judges of that era who faced the daunting task of crafting instructions that did not run afoul of the inflexible rules then in force, Vetrovec was like a breath of fresh air. It put a premium on common sense and it recognized that juries were intelligent and they could be trusted to do the right thing. [para. 81]

The majority is taking the wind out of Vetrovec’s sails by imposing requirements regarding the content of warnings given to jurors. I take specific issue with the requirement that jurors be told to look for “material” and “independent” corroboration of an unsavoury witness’s testimony. While superficially attractive, such criteria detract from what jurors should really be doing: assessing the witness’s credibility in a rational and flexible manner.

[68] While I agree with the majority’s disposition of this appeal, for the reasons that follow I believe that a functional approach to Vetrovec warnings is preferable and that this Court should preserve the legacy of that case and of Zebedee.

1.       Rule in Vetrovec

1.1     Background to Vetrovec

[69] Historically, the common law of criminal evidence was full of complex technical rules. At one time, a rule of practice required judges to instruct juries that it was safe to rely on accomplices’ testimonial evidence only insofar as it was corroborated. Lord Reading C.J. held in Baskerville that the “accomplice corroboration rule” had become a rule of law. This rule was formally adopted by this Court in Horsburgh v. The Queen, [1967] S.C.R. 746 (see Vetrovec, at pp. 819 et seq. and C. J. Arnup, “Has Caution Been Thrown to the Wind?: The Aftermath of Vetrovec”, in Special Lectures of the Law Society of Upper Canada 1984 — Law in Transition: Evidence (1984), 21, for a historical perspective).

[70] In 1975, the Law Reform Commission of Canada concluded that in this area of the law, the courts had “moved from a wise practice of viewing the evidence of some witnesses with circumspection to a complex technical rule filled with pitfalls for the unwary” and that this rule needed to be substantially simplified (Law of Evidence Project, Study Paper No. 11, Corroboration (1975), at p. 7). This position was wholeheartedly endorsed by Dickson J. (as he then was) in Vetrovec:

After Baskerville courts began to frame the issue in terms of whether the corroborative evidence conformed to Lord Reading’s definition, and ignored the real issue, whether there was evidence that bolstered the credibility of the accomplice. The result was, in effect, that in due course ‘corroboration’ became virtually divorced from the issue of the credibility of the accomplice. Evidence which strengthened credibility was at the same time characterized as not corroborative ‘in law’. Corroboration became a legal term of art, wholly unconnected with the original reason for the accomplice warning. [p. 824]

[71] Dickson J.’s objective was to simplify the rules of evidence and the instructions given to juries (A. Lamer, A Tribute to Chief Justice Dickson, Address to the Annual Convention of the Criminal Lawyers’ Association (December 1989), Ontario Criminal Lawyers’ Association Newsletter, vol. 10, No. 4, at p. 13) and to rid the law of evidence of the pointless “cumbersome rules” he described so well in Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 835.

[72] Vetrovec simplified the law in that it eliminated the obligation to give a warning for witnesses falling within the “accomplice” category. It ushered in an era of flexibility in the law of criminal evidence. Dickson J. purposely refrained from imposing a formulaic instruction and emphasized that for unreliable witnesses, jurors should be given a clear and sharp warning, which has since been known as a Vetrovec warning (see inter alia at p. 831). The issue before this Court in the present case is what more should be said, if anything.

1.2     Content of the Vetrovec Warning

[73] The majority (at para. 37) endorses the following framework for the content of Vetrovec warnings, which is drawn directly from Sauvé, at para. 82:

(1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused. [Emphasis in original.]

I agree with the first three elements, although I would like to stress that they should not be used as a checklist for appellate review. Content matters, not form. The first three elements capture the essence of the instructions Dickson J. suggested in Vetrovec. I disagree with the majority on the fourth element of this framework, however, as I believe that it will have detrimental effects in this area of the law and that it is both unnecessary and unworkable.

2.       Independence and Materiality Requirements Are Unnecessary

2.1     Case Law Is Equivocal

[74] After Vetrovec, jurists attempted to develop the content of modern warnings. As I mentioned above, that case had eliminated the pigeonholing of witnesses required in the past; and the Court did not specify what types of evidence a trial judge could suggest as being corroborative. One author from that period pointed out that the traditional legal definition of corroboration was “bulging with unwieldy distinctions” (A. A. S. Zuckerman, “Corroboration: Judicial Reform in Canada” (1984), 4 Oxford J. Legal Stud. 147, at p. 148).

[75] The majority relies heavily on this Court’s decision in R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328. I acknowledge that certain passages in that case can be interpreted as a first step toward the adoption of inflexible corroboration requirements. Indeed, the commentators have diverged on the proper interpretation of this Court’s position in Kehler (D. M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at pp. 523-24; D. Stuart, Annotation to R. v. Kehler (2004), 19 C.R. (6th) 49; N. Harris, “Vetrovec Cautions and Confirmatory Evidence: A Necessarily Complex Relationship” (2005), 31 C.R. (6th) 216; J.-G. Boilard, Guide to Criminal Evidence, vol. 2 (loose-leaf), at para. 10.016). 

[76] In concurring in that case, I did not view it as a departure from the flexibility of Vetrovec. This passage from Kehler represents my view of that case and of this area of the law in general:

[H]aving considered the totality of the evidence, the trier of fact is entitled to believe the evidence of the disreputable witness — even on disputed facts that are not otherwise confirmed — if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful. [para. 22]

Furthermore, since the Court cited no Canadian cases, Kehler did not clarify the incipient new technical rules of corroboration or the extent to which the findings in cases such as R. v. N. (P.L.F.) (1999), 138 C.C.C. (3d) 49 (Man. C.A.) (see paras. 32 and 34),  and R. v. G. (G.) (1997), 115 C.C.C. (3d) 1 (Ont. C.A.) (see para. 32), still stand.

[77] The courts have also wavered on the question whether the trial judge should enumerate potentially corroborative evidence in the charge to the jury. Major J.’s observations in R. v. Bevan, [1993] 2 S.C.R. 599, should not be seen as having expanded the rule in Vetrovec (at p. 831) on this point:

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. [p. 613]

References to the evidence do not come without risks. They open the door to mistakes and to appeals (see, for example, R. v. Dhillon (2002), 166 C.C.C. (3d) 262 (Ont. C.A.)).

2.2     Independence and Materiality Are Intractable Concepts

[78] The fourth step of the Sauvé framework endorsed by the majority involves the use of the intractable concepts of “independence” and “materiality”. For the reasons that follow, my conclusion is that the only logical solution is to refrain from requiring independence and materiality, and instead to tell jurors to focus on credibility.

[79] Dickson J. rightly concluded his reasons in Vetrovec as follows:

All this takes one back to the beginning and that is the search for the impossible: a rule which embodies and codifies common sense in the realm of the process of determining guilt or innocence of an accused on the basis of a record which includes evidence from potentially unreliable sources such as an accomplice. [p. 832]

(See also G. T. G. Seniuk, “Liars, Scoundrels and the Search for Truth” (2000), 30 C.R. (5th) 244.)

[80] To paraphrase Seniuk, in assessing truthfulness, one does not enumerate the pros and cons, add a sprinkling of independence and materiality, and calculate the balance (“Judicial Fact‑Finding and a Theory of Credit” (1992), 56 Sask. L. Rev. 79, p. 105). Binnie J. correctly explained Vetrovec as follows in R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 129: “The Court was unanimous in affirming that in this area as in others a label is no substitute for analysis.”

2.2.1   Independence

[81] Even strong proponents of the independence requirement are at a loss to explain what kind of evidence it calls for (Harris, at pp. 224-25). Whatever its exact content may be, it has not been dealt with consistently: see Maclean J.A.’s dissent in R. v. Kanester, [1966] 4 C.C.C. 231 (B.C.C.A.), at pp. 241-42 (endorsed by this Court, [1967] 1 C.C.C. 97); Warkentin v. The Queen,  [1977] 2 S.C.R. 355, at pp. 378-82; McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at par. 31:60.40, fn. 151. At best, a few examples can be found of what is not independent evidence (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 83).

[82] When enforced mechanically, the requirement of independence has led to disastrous outcomes. One example is the decision of the Ontario Court of Appeal in R. v. Ethier (1959), 124 C.C.C. 332, which is best described by D. M. Paciocco and L. Stuesser, at pp. 521-22:

[T]he Crown offered evidence as corroboration during a rape prosecution that 1) human blood of a type matching the blood type of the complainant was found on the accused’s shorts, 2) hair similar to the complainant’s was found in his car, 3) the handle on his car was broken, 4) the accused’s clothing matched the description provided by the complainant, as did the licence number, 5) she had a bruise on her left cheek, 6) she was distraught immediately after the incident, and 7) marks were found in the car consistent with the claim by the complainant that there would be foot marks on the ceiling which were made by her while she was being assaulted.

The Ontario Court of Appeal held that none of this corroborated the rape allegation. Items 5) and 6) would be some evidence to confirm that a rape had occurred if the injuries and emotional condition were pronounced enough, but it did not confirm the identity of the accused as the rapist. Items 3), 4), and 7) were not corroborative because their relevance depended on the testimony of the complainant. In other words, as items of evidence they were not “independent” enough to be corroborative. As for items 1) and 2), these were equally consistent with the truth as with the falsity of her allegation because her hair and blood type could get where they were without her having been raped. While all of this evidence was admissible and might well support a conviction, the trial judge erred in law by failing to tell the jury that the evidence of the complainant remained uncorroborated. [Emphasis added.]

I cannot in good conscience endorse a rule which has led to such a result.

[83] There are not two discrete categories of evidence, that which is independent and that which is not. Rather, various types of evidence will sit on a continuum between these two poles, which explains why attempts at definition lead nowhere (R. v. Gagnon (2000), 147 C.C.C. (3d) 193 (Ont. C.A.), at paras. 14 and 48; Murphy v. The Queen, [1977] 2 S.C.R. 603, approved in Vetrovec, at p. 827). Evidence which is more independent will of course be more likely to confirm an unsavoury witness’s testimony, but verifying the reliability of testimonial evidence on this basis is no different from what diligent jurors would do regarding any other testimony or disputable evidence.

[84] Both the Ontario Court of Appeal, in Gagnon at p. 206, and the Manitoba Court of Appeal, in R. v. Sanderson, 2003 MBCA 109, 180 C.C.C. (3d) 53, at paras. 51-52, have held that Vetrovec’s legacy of flexibility eliminated the requirement that corroborating evidence be independent of the witness. I agree that this is what the law should be.

2.2.2   Materiality

[85] While the requirement of materiality may at first glance seem easier to pin down than that of independence, a more thorough review shows that it is not. In her comprehensive study of corroboration, A. A. Wakeling, Corroboration in Canadian Law (1977), at pp. 19-22, does not suggest a compact definition of materiality (p. 26).  As in the case of the independence requirement, defining materiality is a futile line-drawing exercise.

[86] The once strict, if ill-defined, requirement of materiality has been getting weaker and weaker. In Vetrovec, at p. 833, Dickson J. held that circumstantial evidence can be confirmatory even if it does not directly implicate the accused. In Kehler, at para. 15, Fish J. stated that corroborative evidence must be relevant to the unsavoury witness’s testimony but need not bear on a disputed part of that testimony. One author aptly described what I deem to be the logical outcome of this line of reasoning:

The findings from the Court in both Vetrovec and Kehler could lead to a conclusion that the issue of confirmatory evidence can be left on a very general level with the trier‑of‑fact. Given that the confirmatory evidence does not have to directly implicate the accused, it could be argued that essentially all other evidence supporting the Crown case is potentially capable of serving as confirmatory evidence. The rules concerning confirmatory evidence might accordingly be summarized as merely requiring that the trier‑of‑fact carefully examine the testimony of the Vetrovec witness in the context of the evidence as a whole and determine whether or not they believe the witness’ evidence. Such a formulation of the rules for confirmatory evidence in Vetrovec cautions would create relative simplicity in this area of the law and would provide a trier‑of‑fact with a broad discretion to determine whether or not it is safe for them to rely upon the evidence of a Vetrovec witness.

(Harris, at p. 223)

[87] Some may suggest that “workarounds” have been used. In Kehler, Fish J. endorsed one party’s submission that corroborating evidence had  to “be capable of restoring the trier’s faith in the relevant aspects of the witness’ account” (para. 12 (emphasis deleted)). This should not be interpreted as an incremental departure from what Dickson J. intended in Vetrovec when he said (at p. 833) that the evidence had to be “capable of inducing a rational belief” that the testimony was true.

2.2.3   Alternatives to the Majority’s Approach

[88] The majority suggests what is at best a formula for what jurors are already asked to do in any event: study the evidence in a structured and sensitive fashion to determine whether a witness should be believed and, more generally, whether the accused is guilty beyond a reasonable doubt.

[89] In the past decade, several high-profile wrongful conviction cases have exposed limitations of the criminal justice system and the limited reliability of some types of witnesses, particularly “jailhouse informants” (The Commission on Proceedings Involving Guy Paul Morin: Report (1998); The Inquiry Regarding Thomas Sophonow (2001); The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken (2006); Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (2007)). Although the empirical evidence on the efficacy of Vetrovec warnings is mixed (see the numerous references cited in L. Dufraimont, “Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions?” (2008), 33 Queen’s L.J. 261), I believe they serve an important purpose, and I want to emphasize that my disagreement with the majority relates solely to the proper content of a Vetrovec warning. My colleague would limit the jury’s adjudicative freedom with a strong technical rule, but I believe that enlightening the jury is both sufficient and preferable.

[90] In any case, Vetrovec warnings will always be only one of the mechanisms used to minimize the risk of wrongful conviction. I need not expand on the other mechanisms that currently exist, the most important of which is the criminal standard of proof, and which also include prohibitions on most forms of hearsay and character evidence. However, several additional mechanisms could be crafted to prevent miscarriages of justice. For example, one option would be for judges to carefully use their common law power of exclusionary discretion (Paciocco and Stuesser, at pp. 40-45) to exclude testimonial evidence which is extremely prejudicial and has little probative value. Instead of looking for innovative solutions, Fish J. turns back the clock and returns to the old law, which is just as unsatisfactory now as it was before Vetrovec.

3.3      Jury Instructions: Simpler Is Better

[91] Jurors are sufficiently sophisticated to understand lengthy and complex instructions, but only insofar as those instructions consist in a well-defined intellectual exercise, which is not the case where the fourth element of the Sauvé framework is concerned. The justice system should strive for simplicity. In long trials, which have become common where serious charges are laid, every added level of complexity increases the risk of error for both the trial judge and the jury.

[92] English judges of the early nineteenth century understood this. In Trial of William Davidson and Richard Tidd for High Treason (1820), 33 How. St. Tr. 1337, Garrow B. instructed the jury as follows, at p. 1483:

. . . you are to look to the circumstances, to see whether there are such a number of important facts confirmed as to give you reason to be persuaded that the main body of the story is correct; . . . you are, each of you, to ask yourselves this question . . . . Do I, upon the whole, feel convinced in my conscience, that his evidence is true, and such as I may safely act upon?

In Vetrovec, at pp. 823-24, Dickson J. rightly called this the “common sense” approach.

[93] In R. v. Hill, [1986] 1 S.C.R. 313, Dickson C.J. wrote: “Whenever possible, we should retain simplicity in charges . . .” (p. 333). Similarly, in R. v. Ménard, [1998] 2 S.C.R. 109, Major J. wrote that “long and detailed instructions at the end of a trial may be more confusing than helpful” (para. 27). The principles of judicial economy point in the same direction: simplicity reduces the number of technical appeals and makes the system more efficient.

[94] An analogy can be made between instructions on reasonable doubt and the appropriate content of a Vetrovec warning. In R. v. Lifchus, [1997] 3 S.C.R. 320, this Court said: “A reasonable doubt is not an imaginary or frivolous doubt.  It must not be based upon sympathy or prejudice.  Rather, it is based on reason and common sense.  It is logically derived from the evidence or absence of evidence” (para. 39). A nearly identical instruction could be given in a Vetrovec warning:

If you choose to believe the witness, the reasons should be neither imaginary nor frivolous.  Belief must not be based upon sympathy or prejudice.  Rather, it is based on reason and common sense.  It is logically derived from the evidence or absence of evidence.

When told to decide whether they have a reasonable doubt that an accused is guilty, jurors are never asked to evaluate evidence piecemeal. This Court made this clear in R. v. Morin, [1988] 2 S.C.R. 345, and the principle from that case stands and has been applied repeatedly. If this holistic philosophy is sound for the most central principle of our criminal justice system, it must be sound for the content of a Vetrovec warning (Seniuk, “Judicial Fact-Finding and a Theory of Credit”, at pp. 87-96).

[95] The following passage from Vetrovec, at p. 826, including the quotation from Wigmore it contains, is instructive:

The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. This is because, as Wigmore said, the matter of credibility is an entire thing, not a separable one:

. . . whatever restores our trust in him personally restores it as a whole; if we find that he is desiring and intending to tell a true story, we shall believe one part of his story as well as another; whenever, then, by any means, that trust is restored, our object is accomplished, and it cannot matter whether the efficient circumstance related to the accused's identity or to any other matter. The important thing is, not how our trust is restored, but whether it is restored at all [Wigmore on Evidence, vol. 7 (Chadbourn rev. 1978), § 2059, at p. 424].

I also adopt the following remark by Zuckerman:

What is needed is, of course, a practice inhibiting the jury from placing undue faith in the testimony of tainted witnesses . . . . However, no rule of law can improve in this respect on the ordinary canons of rational reasoning, which are designed and commonly used for precisely this purpose: for drawing correct conclusions and averting false ones. [p. 149]

[96] It suffices that there be evidence capable of causing the jurors to entertain a rational belief that the witness is telling the truth (Vetrovec, at p. 833), and it is not for a court of appeal to inquire beyond that point. I believe that jurors should be instructed to look for elements which reinforce the witness’s credibility, as Moldaver J.A. suggested in R. v. Krugel (1999), 143 C.C.C. (3d) 367 (Ont. C.A.), at para. 98: “In light of Vetrovec, there is only one question that must be asked in deciding whether evidence is capable of being confirmatory — does the evidence strengthen our belief that the suspect witness is telling the truth?”

4.       Application to the Facts

[97] The trial judge’s charge was fully consistent with the first three steps of the Sauvé framework, which I believe should constitute the complete rule for the content of a Vetrovec warning. First, he drew the jury’s attention to the problematic testimony. Second, he explained why there was a greater risk that the witnesses’ testimony was unreliable given their lifestyles and criminal backgrounds. Third, he said that it would be dangerous to convict the accused on the basis of the testimony in question in the absence of confirmation by other evidence. The charge was complete. The trial judge gave no instructions regarding independence or materiality, and that was the correct approach.

[98] Therefore, I concur with the majority in the result: both appeals should be dismissed and the convictions of Khela and Sahota upheld. I also agree with the solution the majority proposes for the subsidiary ground of appeal (paras. 57-63).

5.       Conclusion

[99] There has been a general trend in the law of evidence towards more flexible rules, as trial judges and juries are shown the trust they need to perform their fact‑finding duties properly. The majority’s decision in this case is a step back from that trend. I share the concern of Moldaver J.A. in Zebedee, which Cromwell J.A. of the Nova Scotia Court of Appeal expressed as follows in the companion case of R. v. Smith, 2007 NSCA 19, 216 C.C.C. (3d) 490: “I would not wish to see the useful guidance given in Sauvé and similar cases converted into a vehicle for return to ‘blind and empty formalism’ which was renounced by the Supreme Court in Vetrovec” (para. 121).

[100]      Despite statements by the majority that it does not wish to depart from Vetrovec, the proposed framework does exactly that. Although the majority says that its intention is to provide guidance to trial judges (para. 14), the framework and the requirements thereof can only be seen as mandatory. It is foreseeable that courts of appeal will from now on use the four elements of the Sauvé framework as review checklists. Technical appeals are likely to flourish.

[101]      Finally, I am troubled by the reference my colleague makes, in his opening paragraph, to Deuteronomy 19:15. Many centuries ago, religion, myths and the criminal law coalesced to produce rules and penalties that would not be tolerated today. Courts are now neutral and the criminal law does not need support from religion.

Appeals dismissed.

Solicitors for the appellant Gurkirpal Singh Khela:  Peck and Company, Vancouver.

Solicitor for the appellant Jodh Singh Sahota:  Gil D. McKinnon, Vancouver.

Solicitor for the respondent:  Attorney General of British Columbia, Vancouver.

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.