R. v. Brooks

R. v. Brooks
Collection
Supreme Court Judgments
Date
2000-02-17
Neutral citation
2000 SCC 11
Report
[2000] 1 SCR 237
Case number
26948
Judges
Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 26948
Decision Content
R. v. Brooks, [2000] 1 S.C.R. 237
Her Majesty The Queen Appellant
v.
Frederick Alexander Brooks Respondent
Indexed as: R. v. Brooks
Neutral citation: 2000 SCC 11.
File No.: 26948.
1999: October 8; 2000: February 17.
Present: Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for ontario
Criminal law -- Charge to jury -- Evidence of jailhouse informants -- Failure to provide Vetrovec warning -- Testimonies of two jailhouse informants introduced by Crown at trial -- Accused convicted of first degree murder -- Whether Court of Appeal erred in concluding that trial judge failed to adequately instruct jury about unreliability with respect to informants’ testimonies.
Criminal law Evidence -- Jailhouse informants -- Testimonies of two jailhouse informants introduced by Crown at trial -- Accused convicted of first degree murder -- Whether evidence supported implied finding at trial that informants were trustworthy.
Criminal law -- Verdicts -- Testimonies of two jailhouse informants introduced by Crown at trial -- Accused convicted of first degree murder -- Omission of caution to jury about unreliability with respect to informants’ testimonies -- Whether verdict would have been the same if caution had been given -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(1) (b)(iii).
A 19‑month‑old child was found murdered in her crib wrapped in a green comforter. Only the accused and the child’s mother had access to her on the night of the murder. The child had blood and vomit on her face, a swollen left eye, bruises on her head, and bruising and redness on her genital area. The cause of death was acute brain injury. Trace amounts of semen were found on vaginal and anal swabs but DNA testing of sperm proved inconclusive, likely due to contamination of the sample. The Crown’s expert could neither include nor exclude the accused as the possible source of the sperm. There had been intense sexual activity in the apartment in the period preceding the murder. Sperm, including sperm from the child’s natural father, was found throughout the apartment including on a toy in the crib, on the child’s pyjama top, on the crib sheets and in two places on the green comforter. However, the child had been bathed just before the night of the murder and this, combined with the bacterial environment of a child in diapers, would quickly degrade sperm. The accused’s grey track pants were found in the apartment stained with semen, blood of the same type as the child’s, and a juice substance similar to that in her bottle. On the way to the hospital the following morning, the accused whispered to the mother three times that he was sorry. The accused made other inculpatory statements.
There was no direct evidence establishing that the accused had struck the fatal blows. There was evidence of previous physical abuse committed against the child. One month prior to the murder, the accused had thrown the child approximately one metre into the wooden frame of a couch. An injury to the child’s right buttock had appeared on a day on which the accused had exclusive care of the child. The mother had also been seen striking the child on several occasions.
The Crown led evidence from two jailhouse informants who testified that the accused, while incarcerated, had admitted that he had killed the child to stop her crying. Their testimony did not include a suggestion that the killing was committed during the commission of a sexual assault. Both informants had lengthy criminal records of dishonesty. One unsuccessfully sought a lighter sentence in return for his testimony and had testified as an informant in a prior trial. The other had a history of substance abuse and a psychiatric history highlighted by suicide attempts, paranoia, deep depression and a belief in clairvoyant ability. Both had histories of offering to testify in criminal trials.
In closing argument, defence counsel ridiculed both informants and invited the jury to reject their testimonies. Crown counsel’s jury address noted their criminal records and that one had previously appeared as a Crown witness and had attempted to make a deal. The trial judge’s jury charge did not provide a Vetrovec warning to the jury about the danger of relying on the informants’ testimonies. Neither counsel requested a warning nor objected to the lack of a warning. The accused was convicted of first degree murder. The Court of Appeal set aside the conviction and ordered a new trial.
Held (Iacobucci, Major and Arbour JJ. dissenting): The appeal should be allowed.
Per Gonthier, McLachlin and Bastarache JJ.: There was no error of law on the part of the trial judge in failing to provide a Vetrovec warning. It was within the discretion of the trial judge whether to give a warning and there was a foundation for his exercise of discretion.
Trial judges must not pigeon-hole witnesses into categories and should examine all factors that might impair the worth of a witness. No Vetrovec warning is necessary if the trial judge believes the witness can be trusted even if the witness is a jailhouse informant. The facts raised preliminary doubts as to the credibility of the informants but not cogent reasons to overrule the trial judge’s implicit finding that they were sufficiently trustworthy not to mandate a caution. An informant’s prior psychiatric history has no relevance and does not make the informant of unsavoury character. The informants’ testimonies were supported by other evidence and no evidence was adduced that either had lied or acquired their information elsewhere. The verdict did not turn on their testimonies because other evidence sustained the conviction. Defence counsel neither requested a warning nor objected to the absence of a warning. Counsel’s opinion is relevant where there may be tactical reasons for not requesting a warning. The trial judge directed the jury on credibility. The Court of Appeal had insufficient reason to interfere. A Vetrovec warning was not required.
Per Binnie J.: The trial judge erred in law in failing to give a Vetrovec warning but the appeal should nevertheless be allowed because there is no reasonable possibility on the particular facts of this case that the verdict would have been different if the warning had been given.
The trigger for a Vetrovec warning is the extent to which underlying sources of potential unreliability are present. The testimony of the informants here exhibited some of the worst characteristics of purveyors of jailhouse confessions. It is not sufficient for the trial judge to conclude that in his view these particular informants were reasonably capable of belief. The trial judge must provide the proper framework within which the jury can determine for itself the issue of credibility. The testimony of these jailhouse informants was important to the Crown’s case and justified an inference of untrustworthiness. This was sufficient to require a Vetrovec warning. The trial judge erred in law in the exercise of his discretion in deciding otherwise.
The accused was not entitled to a trial that excluded the evidence of the informants, only to having the testimony accompanied by a warning. Other direct evidence untainted by the error of law implicated the accused, including his other inculpatory statements, evidence of sexual assault and evidence of a prior pattern of violence. The jury accepted circumstantial evidence of sexual assault by the accused contemporaneously with the murder that was in no way dependent upon the informants’ testimony. A Vetrovec warning would have been accompanied by a review of corroborative evidence unhelpful to the accused. In the circumstances, the verdict should be upheld under s. 686(1) (b)(iii) of the Criminal Code .
Per Iacobucci, Major and Arbour JJ. (dissenting): The trial judge ought to have given a Vetrovec warning. The charge was not adequate and it cannot be said that the verdict would necessarily have been the same.
A Vetrovec warning is a matter of a trial judge’s discretion and is not required in all cases of unsavoury witnesses. Trial judges should consider all factors but should focus on a witness’s credibility and the importance of his or her testimony to the Crown’s case. A failure to give a required caution is an error of law and the prejudice occasioned by the error can be assessed under s. 686 (l)(b)(iii) of the Criminal Code . The credibility of the informants was inherently suspect and their testimonies of sufficient importance to require a Vetrovec warning. The jury charge, however, did not contain the essential values of a Vetrovec warning. It did not focus the jury’s attention specifically on the inherent unreliability of these informants. Defence counsel’s summation to the jury was not a substitute. The absence of a request from defence counsel for a caution is not determinative. There is a serious question of whether a sexual assault occurred. The conviction for first degree murder cannot be sustained if there was no sexual assault. Other evidence had the potential to raise a reasonable doubt. It is difficult to preclude a different result.
Cases Cited
By Bastarache J.
Followed: Vetrovec v. The Queen, [1982] 1 S.C.R. 811; referred to: R. v. Potvin, [1989] 1 S.C.R. 525; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Cain (1996), 90 O.A.C. 156; R. v. Glasgow (1996), 110 C.C.C. (3d) 57; R. v. Gravino, [1995] O.J. No. 3109 (QL).
By Binnie J.
Followed: Vetrovec v. The Queen, [1982] 1 S.C.R. 811; referred to: R. v. Frumusa (1996), 112 C.C.C. (3d) 211; R. v. Simmons (1998), 105 O.A.C. 360; R. v. Bevan (1991), 63 C.C.C. (3d) 333, rev’d [1993] 2 S.C.R. 599; Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Haughton, [1994] 3 S.C.R. 516; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Sanderson (1999), 134 Man. R. (2d) 191; R. v. Siu (1998), 124 C.C.C. (3d) 301.
By Major J. (dissenting)
Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Bevan, [1993] 2 S.C.R. 599; Brown v. Crashaw (1613), 2 Bulstr. 154, 80 E.R. 1028; R. v. Rudd (1775), 1 Cowp. 331, 98 E.R. 1114; R. v. Jones (1809), 2 Camp. 131, 170 E.R. 1105; R. v. Barnard (1823), 1 Car. & P. 87, 171 E.R. 1113; R. v. Wilkes (1836), 7 Car. & P. 272, 173 E.R. 120; R. v. Tate, [1908] 2 K.B. 680; R. v. Baskerville, [1916] 2 K.B. 658; Veuillette v. The King (1919), 58 S.C.R. 414; Manchuk v. The King, [1938] S.C.R. 341; Hebert v. The Queen, [1955] S.C.R. 120; Brown v. The Queen, [1962] S.C.R. 371; Colpitts v. The Queen, [1965] S.C.R. 739; Vézeau v. The Queen, [1977] 2 S.C.R. 277; McFall v. The Queen, [1980] 1 S.C.R. 321; Olbey v. The Queen, [1980] 1 S.C.R. 1008; Young v. The Queen, [1981] 2 S.C.R. 39; R. v. Simpson, [1988] 1 S.C.R. 3; R. v. Romeo, [1991] 1 S.C.R. 86; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Livermore, [1995] 4 S.C.R. 123; R. v. G. (R.M.), [1996] 3 S.C.R. 362; R. v. Hinchey, [1996] 3 S.C.R. 1128; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Marquard, [1993] 4 S.C.R. 223; R. v. Hayes, [1989] 1 S.C.R. 44; R. v. Pittman, [1994] 1 S.C.R. 148.
Statutes and Regulations Cited
Act for improving the Law of Evidence (U.K.), 6 & 7 Vict., c. 85.
Canada Evidence Act , 1893, S.C. 1893, c. 31.
Criminal Code, R.S.C., 1985, c. C-46, s. 686 (l)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].
Authors Cited
Bentham, Jeremy. Rationale of Judicial Evidence, vol. 5. London: Hunt & Clarke,1827.
Ontario. Commission on Proceedings Involving Guy Paul Morin. The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report). Toronto: Ontario Ministry of the Attorney General, 1998.
Report of the 1989-1990 Los Angeles Grand Jury: Investigation of the Involvement of Jail House Informants in the Criminal Justice System in Los Angeles County, June 26, 1990.
Rosenberg Marc. “Developments in the Law of Evidence: The 1992-93 Term” (1994), 5 S.C.L.R. (2d) 421.
Sherrin, Christopher. “Jailhouse Informants, Part I: Problems with their Use” (1998), 40 C.L.Q. 106.
Sherrin, Christopher. “Jailhouse Informants in the Canadian Criminal Justice System, Part II: Options for Reform” (1998), 40 C.L.Q. 157.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. I, 2nd ed. Boston: Little, Brown & Co., 1923.
APPEAL from a judgment of the Ontario Court of Appeal (1998), 41 O.R. (3d) 661, 113 O.A.C. 201, 129 C.C.C. (3d) 227, 20 C.R. (5th) 116, [1998] O.J. No. 3913 (QL), allowing an appeal from conviction and ordering a new trial. Appeal allowed, Iacobucci, Major and Arbour JJ. dissenting.
Lucy Cecchetto, for the appellant.
Irwin Koziebrocki, for the respondent.
The reasons of Gonthier, McLachlin and Bastarache JJ. were delivered by
1 Bastarache J. – I have read the reasons of my colleague Justice Major. I agree with him that failure to give a Vetrovec warning when required amounts to an error of law (Vetrovec v. The Queen, [1982] 1 S.C.R. 811). I am, however, of the view that this appeal should be allowed and the conviction restored, there being no error of law on the part of the trial judge in failing to provide a “clear and sharp” Vetrovec warning in the circumstances of this case. Rather, it is my opinion that the decision not to give a Vetrovec warning was within the discretion of the trial judge and that the exercise of this discretion should not have been interfered with on appeal. I have reached this conclusion for the reasons I set out below.
2 In Vetrovec, Dickson J. (as he then was) held that a trial judge has the discretion, and not the duty, to give a clear and sharp warning to the jury with respect to the testimony of certain “unsavoury” witnesses. Dickson J. followed what he referred to as the “common sense” approach, moving away from “blind and empty formalism” and “ritualistic incantations” (at p. 823):
Rather than attempting to pigeon‑hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an “accomplice” no warning is necessary. [Emphasis added.]
3 Therefore, this Court in Vetrovec deliberately chose not to formulate a fixed and invariable rule where “clear and sharp” warnings would be required as a matter of course regarding the testimony of certain categories of witnesses. Rather, where a witness occupies a central position in the determination of guilt and, yet, may be suspect because of a disreputable or untrustworthy character, a clear and sharp warning may be appropriate to alert the jury to the risks of adopting the evidence “without more”. It is therefore within the trial judge’s discretion to give a Vetrovec caution. This discretionary approach was confirmed by this Court in R. v. Potvin, [1989] 1 S.C.R. 525, at p. 557, wherein Wilson J. states:
Vetrovec, in my view, represents a rejection of formalistic and a priori categories concerning the trustworthiness of evidence both with regard to warnings and corroboration. In every case it is for the trial judge on the basis of his or her appreciation of all the circumstances and, may I add, on the basis of the application of sound common sense, to decide whether a warning is required. [Emphasis added.]
4 In exercising his or her discretion to warn the jury regarding certain evidence, the trial judge may consider, inter alia, the credibility of the witness and the importance of the evidence to the Crown’s case. These factors affect whether the Vetrovec warning is required. In other words, the greater the concern over the credibility of the witness and the more important the evidence, the more likely the Vetrovec caution will be mandatory. Where the evidence of so called “unsavoury witnesses” represents the whole of the evidence against the accused, a “clear and sharp” Vetrovec warning may be warranted. Where, however, there is strong evidence to support the conviction in the absence of the potentially “unsavoury” evidence, and less reason to doubt the witness’s credibility, the Vetrovec warning would not be required, and a lesser instruction would be justified. The trial judge’s instruction with respect to the evidence of jailhouse informants must therefore be commensurate with the particular circumstances of the case. For example, the trial judge is not required to give a “clear and sharp” warning on the dangers of convicting on the impugned evidence where, in the circumstances, the trial judge believes that there is no such danger. Similarly, the trial judge may properly decline to give a warning if the warning may prejudice the accused’s case rather than assist it. Provided there is a foundation for the trial judge’s exercise of discretion, appellate courts should not interfere. Here that foundation is established having regard to the credibility of the witnesses, the importance of their evidence and the failure to request a warning.
Credibility of the Witnesses
5 In assessing the credibility of a witness to determine whether to give a Vetrovec warning, trial judges must avoid pigeon-holing witnesses into particular categories such as “jailhouse informants”. Rather, the trial judge should “direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness” (Vetrovec, at p. 823). If the trial judge believes the witness can be trusted, then, regardless of whether he or she is an accomplice or a jailhouse informant, no Vetrovec warning is necessary.
6 Appellate courts should show great deference to the findings of credibility made at trial and the importance of taking into consideration the special position of the trier of fact in judging credibility and of having the advantage, denied to the appellate court, of directly observing the testimonies of the witnesses (R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 131).
7 Clearly each of King and Balogh falls within the definition of a “jailhouse informant” as an “inmate, usually awaiting trial or sentencing, who claims to have heard another prisoner make an admission about his case”; see C. Sherrin, “Jailhouse Informants, Part I: Problems with their Use” (1998), 40 C.L.Q. 106, at p. 107. There is no doubt that the criminal records of King and Balogh, and King’s admissions that he sought to avoid incarceration in exchange for his testimony and that he had previously testified in exchange for a deal to avoid incarceration, raise preliminary doubts as to their credibility. I believe, however, that such doubts alone do not mandate a “clear and sharp” Vetrovec warning in this case.
8 In assessing the credibility of King and Balogh, the majority of the Court of Appeal took into consideration their lengthy criminal records, their motivation to lie and Balogh’s psychiatric history. On that basis alone, the Court of Appeal concluded that there were cogent reasons to suspect their credibility and hence overruled the trial judge’s implicit finding that the witnesses were sufficiently trustworthy not to mandate the giving of a Vetrovec caution.
9 The Court of Appeal held that Balogh’s credibility was suspect based on his long psychiatric history and his motivation to lie. With respect, a witness’s prior psychiatric history has no relevance to the giving of a Vetrovec warning. While a witness’s psychiatric profile may be a factor to consider in assessing the credibility of the witness, it does not make the witness a person of “unsavoury character”. The trial judge highlighted Balogh’s psychiatric history in his charge to the jury and it was for the jury to judge Balogh’s credibility in this respect. No special Vetrovec warning is required each time a witness who has attempted suicide in the past, spent time in a psychiatric institution, or consumed drugs testifies. If there were contradictions in Balogh’s testimony or between his testimony and other facts in evidence, perhaps there would be a basis to doubt his credibility. The record demonstrates, to the contrary, that Balogh’s testimony was consistent, accurate and supported by other evidence.
10 Moreover, no facts were adduced by defence counsel to demonstrate that Balogh had been motivated to lie or that he had sought some benefit for his testimony and no contradictions were brought out by defence counsel on cross-examination. In fact, no evidence was adduced by defence counsel that either King or Balogh had lied or that they had acquired this information elsewhere. On the contrary, ample evidence was adduced which confirmed the accounts of King and Balogh, as described by the appellant, at p. 36 of its factum:
There was a richness of detail concerning the circumstances of the event as opposed to a simple allegation or a bald admission by the accused. King and Balogh’s evidence contained details as to the location of the injuries, the prior hitting of Samantha by the Respondent, the detail that the mother had also hit the child on occasion to discipline her, that Samantha was always crying and that she was crying on the night she died and that she choked.
Many of the facts in the accused’s admissions to King and Balogh were confirmed by independent evidence. The fact that the baby’s mother’s name was Norma, that she was the Respondent’s girlfriend, that they lived in the apartment building near the Centre, and that the mother was going to testify against the Respondent were all accurate. The evidence that the Respondent told King and Balogh that he had struck . . . Samantha repeatedly in the head was consistent with the medical and forensic evidence as to the location of the injuries. The fact that Samantha choked was confirmed by the vomit on . . . her face. The fact that the [Respondent] would hit Samantha when she cried was confirmed by the evidence of witnesses at the trial. The fact that Samantha was crying on the night she was killed was confirmed by the mother. [Emphasis added.]
The fact that King had sought to avoid incarceration by testifying, while certainly a factor which may undermine credibility, is not in itself sufficient to mandate a “clear and sharp” Vetrovec caution. An appellate court should show greater deference to the trial judge rather than to impose its view after the fact based on an abstract category of witness without having heard the testimonies directly.
The Importance of the Impugned Evidence
11 In R. v. Bevan, [1993] 2 S.C.R. 599, Major J. described the untrustworthy evidence as “crucial to the Crown’s case” (p. 615). In Vetrovec, Dickson J. spoke of the need for helpful direction of the jury 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). The trial judge must therefore examine the importance of the impugned evidence. Indeed, as M. Rosenberg (now Rosenberg J.A.) states in “Developments in the Law of Evidence: The 1992-93 Term” (1994), 5 S.C.L.R. (2d) 421, at p. 463:
. . . 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.
12 In the circumstances of this case, guilt or innocence did not turn on the acceptance of the evidence of King and Balogh. Rather, upon reviewing the record, it is my opinion that there was sufficient evidence which would sustain the conviction even if the jury had completely rejected the evidence of King and Balogh.
13 The jury was properly instructed by the trial judge on the elements that had to be proved to find the respondent guilty of first degree murder. A competent jury convicted the respondent, concluding that he had caused the death of Samantha Johnings while committing a sexual assault against her. The evidence of King and Balogh made no reference to sexual assault. The jury had sufficient evidence to convict based solely on the forensic evidence, the mother’s testimony and the inconsistency in the respondent’s statements. The physical and forensic evidence in this case, namely the track pants, the genital injuries and the semen in Samantha’s anus and vagina coupled with the fact that the respondent was the sole male present and that he had earlier bathed Samantha, is conclusive.
14 It cannot be ignored that the whole of the evidence implicating the respondent in this case, absent the evidence of King and Balogh, is far more compelling than the evidence against the accused in Vetrovec and Bevan absent the impugned evidence in those cases. The evidence of King and Balogh may have been important but it was not determinative, and, where the evidence of a witness merely provides further support for a jury’s finding, appellate courts should more likely find that the decision to give a “clear and sharp” Vetrovec warning is within the trial judge’s discretion.
Failure to Request a Warning
15 A further problem with making the “clear and sharp” Vetrovec warning mandatory is that it may have the unintended effect of causing greater prejudice to the accused either by calling attention to the impugned evidence or to evidence corroborating the impugned evidence.
16 While this Court has established in Bevan that the trial judge need not necessarily point to corroborating evidence each time a Vetrovec warning is given, it is usually a corollary of the Vetrovec warning that the trial judge refer to evidence supporting the impugned evidence of the “unsavoury” witness. Therefore, if the trial judge had given a “clear and sharp” Vetrovec warning in this case, it would have been open to him to highlight for the jury the ample evidence which confirmed the evidence of King and Balogh. In requesting a Vetrovec warning, defence counsel therefore risks bolstering the credibility of the “unsavoury” witness by highlighting the inculpatory evidence against the accused. In this regard, Vetrovec warnings may, in certain circumstances, be counter-productive by actually strengthening the case against the accused.
17 Defence counsel in this case neither requested a Vetrovec warning nor objected when one was not provided. This may well have been the result of a tactical decision on the part of defence counsel to avoid the risk of causing greater prejudice to the accused. Defence counsel chose to concentrate on attacking the Crown’s circumstantial and physical evidence in this case rather than to draw attention to the evidence of King and Balogh. Indeed, defence counsel, in his address at trial, referred to the evidence of King as “comic relief”, stating that King and Balogh had concocted stories that “didn’t make sense” and that nothing further needed to be said about them. It is at least implicit from the defence’s references to the evidence of King and Balogh that the defence felt that there was no striking need for a “clear and sharp” Vetrovec caution, that the evidence of King and Balogh was insignificant, and that the jury was fully capable of assessing the credibility of these witnesses on its own. Had defence counsel requested a Vetrovec warning, however, the evidence of King and Balogh would have been singled out for the jury’s attention and possibly emphasized by the trial judge.
18 The cases of R. v. Cain (1996), 90 O.A.C. 156 (C.A.), and R. v. Glasgow (1996), 110 C.C.C. (3d) 57 (Ont. C.A.), support the position that, absent a request for a “clear and sharp” Vetrovec warning, the trial judge should only be required to give a warning where the circumstances of the case clearly demand one. While it is true that counsel’s opinion with respect to the Vetrovec warning is not determinative, it is nevertheless relevant and worthy of greater consideration where circumstances point to the fact that there may be tactical reasons for not requesting a warning. In Glasgow, at pp. 60-61, Doherty J.A. addressed the effect of a failure on the part of counsel to request a Vetrovec warning as follows:
The trial judge alerted the jury to the importance of the assessment of the credibility of these two witnesses and spent some time detailing the manner in which that assessment should be made. He was not asked to give, and did not give a “Vetrovec” warning. It is well established that a trial judge has a discretion as to whether to give a “Vetrovec” warning. An appellate court must show deference when reviewing the exercise of that discretion. If a trial judge was not asked to give the warning, it is difficult to understand how the trial judge can be said to have erred in the exercise of her or his discretion.
A full “Vetrovec” instruction, even as modified in R. v. Bevan . . ., can benefit both the Crown and the defence. Where counsel for the accused is satisfied that issues pertaining to a witness’s credibility have been fully and fairly put to the jury without resort to a “Vetrovec” instruction, I would hold that the failure to give the “Vetrovec” warning resulted in reversible error only if satisfied that the instruction was essential to a fair trial. In other words, I would place the onus on the appellant to show that the circumstances at trial so compelled a “Vetrovec” warning that the trial judge effectively had no discretion and was compelled to give the “Vetrovec” warning. As I am not satisfied that this was such a case, I would not give effect to this ground of appeal. [Emphasis added.]
19 In my view, the defence had a clear tactical advantage in not requesting a Vetrovec warning in this case. To hold that the Vetrovec warning is mandatory in such circumstances would deny future counsel this tactical decision. As professed by the Ontario Court of Appeal in R. v. Gravino, [1995] O.J. No. 3109 (QL), at para. 10:
The fact that very experienced and competent counsel at trial . . . neither asked for a Vetrovec caution nor objected when one was not given must be taken to reflect the atmosphere at the trial that Ireland’s evidence had been subjected to very careful scrutiny. In these circumstances we are unable to conclude that it was an error on the part of the trial judge to decline to give a Vetrovec caution.
20 In the present case, the trial judge exercised his discretion not to give a “clear and sharp” Vetrovec warning. Rather, in instructing the jury, the trial judge focussed on the credibility of King and Balogh, their criminal records, and King’s motivation to lie. In essence, the trial judge directed the jury on credibility, at the very beginning of his instruction, specifically focussing on the criminal records of King and Balogh:
We have also had in this trial witnesses who have a criminal record. You will recall the testimony of Mr. Balogh and Mr. King. Both of these witnesses admitted that they had a record and once again you may take their record into account when considering the credibility and weight of their evidence. It is for you to decide what significance, if any, you will attach to their records when you size them up as witnesses.
Credibility and weight of the evidence are entirely for you. If you have a reasonable doubt as to the accuracy of the evidence or the weight to be given to such evidence, you must give the benefit of that doubt to the accused and not to the Crown. This is an important part of a criminal trial and I repeat this for you. Credibility and weight of evidence are entirely for you, the Jury.
21 Later, in his charge to the jury, while reviewing the individual evidence of each of the witnesses, the trial judge once again referred to King and Balogh’s criminal records. He then proceeded to highlight Balogh’s psychiatric troubles. The trial judge also referred to King’s motivation to lie, emphasizing the fact that King “tried to get a lighter sentence”, and that King had admitted that “he was a rat”. In the circumstances of this case, the exercise of the discretion not to give a “clear and sharp” Vetrovec warning but to direct the jury on credibility as was done was in conformity with the spirit of Vetrovec.
22 For the above reasons, I am of the opinion that the majority of the Court of Appeal had insufficient reason to interfere with the trial judge’s exercise of his discretion to instruct the jury as he did. Although there may have been some reason to doubt the credibility of King and Balogh at the outset, based on their criminal records as well as King’s motivation to lie, these factors were highlighted by the trial judge in instructing the jury and, in isolation, do not automatically require a “clear and sharp” Vetrovec warning. It is my view that the role of the evidence of King and Balogh in relation to the totality of evidence adduced by the Crown in this case justified the trial judge’s discretion not to provide a Vetrovec caution.
23 Considering that the impugned evidence was not essential to the determination of guilt or innocence, and that there were insufficient reasons to doubt the credibility of King and Balogh, a Vetrovec warning was not required in the circumstances. The Court of Appeal, therefore, erred in reversing the decision of the trial judge to instruct the jury as he did.
Conclusion
24 To find that the trial judge’s failure to provide a “clear and sharp” Vetrovec warning in the circumstances of this case amounts to an error of law runs counter to the spirit of Vetrovec, which affirmed a judicial discretion to provide warnings only in appropriate circumstances. Provided there is a foundation for the judge’s exercise of discretion, appellate courts should not interfere. Here that foundation existed.
25 For these reasons, I am unable to conclude that the failure of the trial judge to give a “clear and sharp” Vetrovec warning amounted to an error of law. I would allow the appeal accordingly and restore the conviction entered by the trial judge.
The reasons of Iacobucci, Major and Arbour JJ. were delivered by
26 Major J. (dissenting) -- Stephen David Balogh and Albert Edward King were jailhouse informants and men of unsavoury character. The trial judge permitted their evidence to go to the jury without the caution of a Vetrovec warning.
27 The respondent, Frederick Alexander Brooks, was convicted of first degree murder in the death of Samantha Johnings. He was sentenced to life imprisonment without eligibility for parole for 25 years. The Ontario Court of Appeal, by a majority, ordered a new trial.
28 This appeal as of right was on a point of law raised in the dissent; that is, whether a clear, sharp warning in accordance with Vetrovec v. The Queen, [1982] 1 S.C.R. 811, ought to have been included in the trial judge’s charge to the jury on the evidence of the two disreputable Crown witnesses.
29 In the absence of a Vetrovec warning, was the charge to the jury sufficient to overcome that failure?
30 If the answer is no, then in the circumstances should the curative provision of s. 686(1) (b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 , be engaged and if so, would the verdict have necessarily been the same.
31 In my opinion, the trial judge ought to have given a Vetrovec warning. In its absence the charge was not the equivalent nor was it adequate. In the result it cannot be said that the verdict would necessarily have been the same and accordingly the appeal should be dismissed.
I. Facts
32 Around 10:30 p.m. on December 13, 1992, 19‑month‑old Samantha Johnings stirred in her sleep when her aunt checked on her before leaving the apartment. The next day at 11:00 a.m., Samantha’s mother Norma Jean Johnings found her dead in her crib. She had been murdered. Rigor mortis was setting in. There was blood and vomit on her face. Her left eye was swollen shut and she had three bruises on her head caused by blunt force trauma. The body was wrapped in a green comforter. Her mother attempted in vain to revive her. She then called 911.
33 Only two persons had access to Samantha on the night of her murder -‑ her mother and the respondent. The respondent had been living in the apartment with Norma Jean since the previous October. He was not the father of Samantha, nor of her newborn brother, Anthony.
34 At autopsy, it was noted that Samantha’s genital area had a well-demarcated area of bruising and redness, which was inconsistent with a diaper rash but consistent with a rubbing action, or the use of a blunt object. Trace amounts of semen were found on vaginal and anal swabs taken from her body. The cause of death was acute brain injury. The head injuries could have but did not necessarily precede the injuries to the vagina and anus. A healing lesion of one centimetre in diameter was also noted on the right buttock.
35 DNA testing of the sperm proved inconclusive, likely due to contamination of the sample. No one could be included or excluded as the source.
36 The respondent’s grey track pants were found in the apartment and seized on January 27, 1993. Those pants contained blood stains of the same blood type as Samantha’s. An expert witness for the Crown testified that the blood’s DNA signature matched Samantha’s and that the frequency of that profile in Caucasians is one in 80 million. The track pants had semen on them, as well as a juice substance, similar to what was found in Samantha’s bottle. The respondent was charged with murder.
37 At the respondent’s trial, Norma Jean testified that in the early morning of December 14, her newborn, Anthony, had developed gas and began to cry continuously. She repeatedly walked up and down the apartment’s hallway with Anthony in an unsuccessful effort to soothe him. At 2:00 a.m. she saw the respondent in Samantha’s room, wrapping her in a green comforter. She did not check on Samantha at that time. She testified that by the time she went to bed at 4:00 a.m. the respondent had changed from his grey sweat pants into black sweat pants. On the way to the hospital the next morning, the respondent whispered to her three times that he was sorry.
38 The respondent testified at the trial and denied the charge. He denied checking on Samantha at 2:00 a.m. or wrapping her in the comforter. On cross-examination he stated that although he had told the police that he had wrapped Samantha in a comforter at around 2:00 a.m., this had been a “slip up”. Instead, he testified that that comforter had been on Norma Jean’s bed and he believed that she had put it on Samantha.
39 The respondent also testified that on December 14, the morning that Samantha’s death was discovered, he had been wearing the grey track pants, and that the blood must have gotten onto them while he was attempting to revive her. He said the police had permitted him to change into a pair of black sweat pants before being taken to the police station. Constable Bennett contradicted this evidence and said the respondent never asked to change his sweat pants and that he was taken to the police station in the same sweat pants he was wearing when the police arrived.
40 Other witnesses testified that the respondent’s relationship with Samantha had been characterized by violence. Testimony from Samantha’s grandfather, Robert Johnings, and 10-year-old Hayley Arkell, indicated that about one month prior to the murder, the respondent had thrown Sam