Disreputable and Unsavoury Witnesses

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General Principles

A "Vetrovec warning" refers to the special consideration required when considering the reliability of evidence from disreputable or unsavoury witnesses.

A jury must be given a "clear and sharp warning" with respect to the testimony of disreputable or unsavoury witnesses. This is known as a "Vetrovec" warning. [1] This requires that:

  1. the evidence of certain witnesses is identified as requiring special scrutiny;
  2. the characteristics of the witness that bring his or her evidence into serious question are identified;
  3. the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and
  4. the jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given.

Standard of Appellate Review
The question of whether to give the warning and the content of the warning are discretionary decisions of the trial judges and "are accorded substantial deference on appellate review".[2]

  1. R v Vetrovec [1982] SCJ No. 40; R v Sauvé, 2004 CanLII 9054 (ONCA)
  2. R v Van Every, 2016 ONCA 87(*no link) at para 73

Applicable Witnesses

The warning should be applied for the testimony of accomplices and "disreputable witness of demonstrated moral lack" such as "a witness with a record of perjury".[1]

The determination will depend on the circumstances of each witness.There must be an objective basis to suspect the witness's credibility. [2] Factors that can be considered include:

  • involvement of 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

There are three necessary elements for a caution to be required:[3]

  1. when the witness incriminates the accused. Without incrimination, no warning is needed;
  2. sufficient reason to doubt the credibility of the witness; and
  3. sufficient importance of the witnesses testimony.

It not relevant whether the judge finds the witness trustworthy but "whether there are factors which experience teaches that the witness’s story be approached with caution."[4]

The judge must also take into account "the importance of the witness to the Crown's case."[5] A less important witness will not invoke a vetrovec warning, but an essential witness will require the warning.[6]

A drug addiction at the time of the offence does not warrant a witness to be subject to a vetrovec warning.[7]

  1. R v Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 SCR 811, [1982] SCJ no 40 at p.831
  2. R v Khela, 2009 SCC 4 (CanLII), [2009] 1 SCR 104 at para 35
  3. R v Fatunmbi, 2014 MBCA 53 (CanLII) at para 38
  4. R v Khela at para 35
  5. R v Khela at para 35
  6. R v Khela at para 35
  7. Keeping v R., 2011 NLCA 52 (CanLII)

Confirmatory and Corroborative Evidence

A trier-of-fact must look for independent confirmatory evidence before accepting evidence from an unsavoury witness.[1] "Confirmatory evidence" should be independent and reliable. It does not need to confirm every aspect of the case but rather should corroborate significant parts of the evidence. [2] It is not necessary that the confirming evidence always be independent.[3] It need only needs to be "capable of restoring the trial judge's faith in the relevant aspects" of the witnesses account.[4] It cannot be evidence that is equally consistent with truth than with falsity of the witness.[5]

Where the corroborative witness has been "tainted by a "connection" to the Vetrovec witness. Their evidence cannot be used as corroboration.[6]

Evidence of the unsavory witness pleading guilty to the same offence as the accused can be confirmatory evidence.[7]

Discretionary Decision
The extent to which the evidence is properly corroborated is a matter of judicial discretion and judges are afforded considerable latitude in this regard.[8]

  1. R v Khela, 2009 SCC 4 (CanLII), [2009] 1 S.C.R. 104, at para. 39
    R v Roks, 2011 ONCA 526 (CanLII), 274 C.C.C. (3d) 1, at paras. 63 and 64
  2. R v Chenier, 2006 CanLII 3560 (ON CA), [2006] OJ No489 (ont.CA)
    R v Kehler 2003 ABCA 104 (CanLII)
  3. R v Sanderson (R.K.), 2003 MBCA 109 (CanLII) at para 52
  4. Kehler, supra at paras 15 to 16
    Khela, supra at para 40 to 41
    Roks, supra at para 14
    R v MacIsaac, 2017 ONCA 172 (CanLII), at para 38
  5. R v McFarlane, 2012 ONCA 355 (CanLII) at para 14
    MacIsaac, supra at para 38
  6. R v Khela, supra at para 39
  7. See R v Trieu, 2005 CanLII 7884 (ON CA), (2005), 195 CCC (3d) 373 at para 98 (Ont. C.A.)
  8. R v Kler, 2017 ONCA 64 (CanLII) at para 145
    MacIsaac, supra at para 39

Vetrovec Warning

In a jury trial where a Vetrovec witness has testified, the instructions to the jury must include a "Vetrovec warning".

One view suggests that a caution must be given even when the "testimonial blemishes" are apparent to the triers.[1]

The purpose of confirmatory evidence is to "restore in the trier's mind confidence in the reliability of the witness's evidence after recognizing the problem".[2]

Factors the court should consider when counsel requests a Vetrovec warning:[3]

  1. The Vetrovec warning is designed to alert the trier of fact to the need for special attention when assessing the credibility of certain unsavoury witnesses.
  2. It is a clear and sharp warning to alert the trier of fact to the risk of adopting, without more, the evidence of an unsavoury witness
  3. The warning assigns unsavoury witnesses a special status, namely, it sets them apart from other witnesses and encourages an assessment of their credibility bearing in mind the unique reliability concerns they bring to a trial.
  4. The purpose of the Vetrovec warning is to alert the trier of fact that there is a special need for caution in approaching the evidence of certain witnesses whose evidence plays an important role in the proof of the accused’s guilt.
  5. There are four stages that ought to be considered when approaching the testimony of a potentially unsavoury witness, namely:
    1. the evidence of certain witnesses is identified as requiring special scrutiny;
    2. the characteristics of the witness that bring his or her evidence into serious question are identified;
    3. the trier of fact is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so;
    4. the trier of fact is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given.
  6. There are no hard and fast rules in determining whether a witness is deserving of a Vetrovec warning. However, as the importance of the witness to central issues at trial increases, and the credibility concerns rise, so does the need for a caution.

See also: Tymiak, 2009 BCCA 98 (CanLII) at paras 30 to 32

Discretion to Give Warning
The judge had wide discretion on whether to give a Vetrovec warning.[4]

Where the witness provides "mixed" evidence that gives a significant amount of evidence that is helpful for the defence as well as the crown, the judge has the discretion whether the still invoke the warning.[5]

Failure of defence counsel to request a Vetrovec warning or object to the lack of jury instruction may remove any ground of appeal on its absence.[6] In fact it may be a tactical decision to avoid instructions that may involve listing all corroborative evidence.[7]

  1. R v Fatunmbi, 2014 MBCA 53 (CanLII) at para 38
  2. R v Woodhouse and Katcheconias, 2013 MBQB 63 (CanLII) at para 21
    See The Honourable Mr. Justice S. Casey Hill, Professor David M. Tanovich & Louis P. Strezos, eds., McWilliams’ Evidence, 4th ed. (Toronto: Thomson Reuters Canada Limited, 2012) vol. 2 at 31-38 and 31-39
  3. See R v Dunbar, [2010] O.J. No. 5971(*no link), Ferguson J.
  4. R v Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525, at p. 557
    R v Bevan, 1993 CanLII 101 (SCC), [1993] 2 SCR 599, at p. 612, 613
    R v Brooks, 2000 SCC 11 (CanLII), [2000] 1 SCR 237, at para 3
  5. see R v Tran, 2010 ONCA 471 (CanLII), 103 O.R. (3d) 131, at para 27
  6. R v Ballantyne, 2017 MBCA 4 (CanLII) at paras 1 to 2
  7. Ballantyne, ibid. at para 2
    R v Brooks, 2000 SCC 11 (CanLII), [2000] 1 SCR 237 at para 19 (“the defence had a clear tactical advantage in not requesting a Vetrovec warning in this case”)

Form of Caution

Given the wide discretion of the judge in giving a Vetrovec caution, the judge also has wide discretion on the form of the warning.[1] A judge can give:[2]

  1. no opinion or caution to jurors about a witness’s testimony,
  2. a full Vetrovec warning, a clear and sharp caution against acting on the suspect witness’s evidence without more,
  3. an “equivalent warning” to that required by Vetrovec, or
  4. a “lesser instruction” alerting jurors to features of the witness’s evidence or background to take into account in assessing the worth of the witness’s evidence.

It is suggested that a vetrvec warning will include the following advisories to the triers of fact:[3]

  1. the evidence of the witness is identified as requiring special scrutiny;
  2. the characteristics of the witness that bring his or her evidence into serious question are identified;
  3. the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it would be dangerous to do so; and
  4. the jury is instructed to look for other independent evidence which tends to confirm material parts of the evidence of the witness for whom the warning is being given.
  1. R v Fatunmbi, 2014 MBCA 53 (CanLII) at para 41
  2. Fatunmbi at para 41
  3. Fatunmbi at para 40
    see also R v Khela, 2009 SCC 4 (CanLII), at para 37
    and R v Korski (C.T.), 2009 MBCA 37 (CanLII) at para 144