E.J. GUNN Court of Appeal for Saskatchewan Docket: CACR2783 Citation: Smith, 2018 SKCA 42 Date: 2018-06-01 Between: Daniel Smith And Her Majesty the Queen Before: Jackson, Caldwell and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On Appeal From: CR 80 of 2014, Prince Albert Appeal Heard: February 7, 2018 Counsel: Gordon Kirkby for the Appellant Beverly Klatt for the Respondent Schwann J.A. I. Introduction [1] Daniel Smith was found guilty of the second degree murder of Roger Byer following a trial before a judge and jury. Mr. Smith was sentenced to life imprisonment with no eligibility for parole for 12 years. [2] The pivotal evidence implicating Mr. Smith in the murder of Mr. Byer came from the testimony of Mr. Smith’s former common law spouse, Susan Saxon, and his friend, Dwight Windrum. [3] In the course of pre-charge conference with Crown and defence counsel, the trial judge sought input from counsel as to whether Vetrovec warning (R Vetrovec, 1982 CanLII 20 (SCC), [1982] SCR 811 [Vetrovec]) should be given to the jury in relation to the testimony of Ms. Saxon and Mr. Windrum. Defence counsel initially, and quite strongly, argued in favour of its inclusion. However, after lengthy exchange between the trial judge and both counsel, defence counsel not only abruptly withdrew his request for Vetrovec warning, but insisted that it not be given. [4] In the end, the trial judge did not give a Vetrovec warning in relation to either witness. In his appeal to this Court, Mr. Smith argues that Vetrovec warning was mandatory, regardless of the position taken by his counsel at the time of trial. [5] For the reasons that follow, I would dismiss Mr. Smith’s appeal. A. The facts relating to the death of Mr. Byer [6] Mr. Byer died on or about January 20, 2010. His body was discovered several months later on April 1, 2010, in an isolated, abandoned farmyard in rural Saskatchewan. [7] At the time of his death, Mr. Byer had been employed as an automated teller machine (ATM) technician, whose responsibilities included refilling ATMs. His duties required him to carry and transport large amounts of cash. Although the police found $12,400 in the glove compartment of Mr. Byer’s truck, it was believed that approximately $23,000 was missing and unaccounted for. [8] Mr. Byer’s body was found face down behind his truck. The police observed red staining, consistent with blood, on the passenger door frame. They also found one bullet and three shell casings. Two of the shell casings were located beside the passenger-side door, with the third found next to Mr. Byer’s body. The bullet was discovered under the brim of Mr. Byer’s ball cap. [9] subsequent forensic analysis determined that Mr. Byer had sustained three gunshot wounds, of which only one was fatal. According to the forensic pathologist, the fatal bullet had entered the back of Mr. Byer’s head, striking the bottom of his right occipital bone and exiting above his right eye. This bullet wound would have caused almost instantaneous death. B. Testimony of Ms. Saxon [10] Ms. Saxon was Mr. Smith’s common law spouse at the time of Mr. Byer’s death. She testified that on the morning of January 20, 2010, Mr. Smith met Mr. Windrum for coffee in Swift Current. Mr. Smith returned to their home in Dinsmore, Saskatchewan later that morning, picked up Ms. Saxon and they proceeded together to Saskatoon in Mr. Smith’s truck. On their return trip, Ms. Saxon fell asleep but awoke to discover that they were travelling in northerly direction to meet up with Mr. Byer. Mr. Byer and Mr. Smith were close friends. short while later, Mr. Smith and Mr. Byer, who were driving their respective trucks in opposite directions along the same highway, eventually encountered each other. They pulled over and briefly conversed. Ms. Saxon overheard Mr. Byer say something like “did you bring them” to Mr. Smith. In response to Mr. Byer’s question, Mr. Smith pulled out two handguns. Ms. Saxon testified that she had never previously seen the two handguns that were produced by Mr. Smith. Mr. Smith and Mr. Byer then drove to nearby abandoned farmyard. [11] When they arrived at the farmyard, all three individuals exited their vehicles. Ms. Saxon testified that she saw Mr. Smith place the two handguns on the hood of Mr. Byer’s truck. At this point, as she put it, things seemed “friendly” between the two men. [12] Ms. Saxon walked towards some outbuildings and beehives to stretch her legs. As she returned to Mr. Smith’s truck, she heard two gunshots, followed by yelling coming from Mr. Byer. She testified that she saw Mr. Smith and Mr. Byer point guns at each other, with Mr. Byer on his knees by the driver’s side of his truck. She noticed blood on Mr. Byer’s face and hand. She heard Mr. Byer plead with Mr. Smith and offer to give him money in exchange for his life. [13] Ms. Saxon says Mr. Smith then ordered Mr. Byer to get the money from his truck, which he did. Mr. Smith instructed Ms. Saxon to retrieve Mr. Byer’s cellphone, collect the money, and place those items in Mr. Smith’s truck. In the course of doing as she was instructed, Ms. Saxon heard another gunshot. The next thing she observed was Mr. Byer lying face down on the ground behind his truck making “gaspy” sounds with Mr. Smith standing over him holding black gun. Ms. Saxon heard one final gunshot as she re-entered Mr. Smith’s truck. When Mr. Smith returned to his truck, he handed her what she described as Mr. Byer’s “bloody” gun. [14] Ms. Saxon and Mr. Smith proceeded to farm site owned by one of Mr. Smith’s friends where she believes Mr. Smith hid the guns and money. She later witnessed Mr. Smith dump ammunition and Mr. Byer’s cellphone in farm field along their way home. Apart from one of the handguns, none of these items were ever recovered by the police. When they returned home, Mr. Smith took the clothing he had worn that day together with Ms. Saxon’s clothing and placed them in bag. Ms. Saxon never saw that clothing again. [15] Ms. Saxon and Mr. Smith remained together in an on and off spousal relationship for four more years following Mr. Byer’s murder. They eventually separated in November 2013. [16] Ms. Saxon was contacted by the police twice about Mr. Byer’s death. The first contact came in February 2013. Ms. Saxon denied any knowledge of the incident. At trial, Ms. Saxon conceded that she had lied to the police because she was fearful of Mr. Smith. She said he was controlling and that he had warned her that she was an accomplice and if he went down, so would she. [17] Ms. Saxon was contacted by the RCMP second time on May 20, 2014. At the commencement of this police interview, Ms. Saxon once again denied any knowledge of Mr. Byer’s death. However, as the interview progressed, Ms. Saxon began to tell the officer what she knew about it. Ms. Saxon testified that by May 2014 she was more self-assured and was confident she would have protection from Mr. Smith. She did not elaborate on what she meant by “protection”. C. Testimony of Mr. Windrum [18] Mr. Windrum also testified for the Crown. He was an avid gun collector and Mr. Smith’s friend. Mr. Windrum testified that, at some point shortly before Mr. Byer’s murder, Mr. Smith had inquired about his willingness to sell gun to one of Mr. Smith’s “friends”. Mr. Smith proposed to serve as an intermediary in the transaction. [19] Mr. Windrum was initially reluctant to transact business in this fashion without direct contact with the proposed purchaser. He eventually relented and, at some point in January 2010 (he was unable to recall the exact date), he gave Mr. Smith .40 calibre “Glock” handgun and .22 calibre semi-automatic handgun, as well as some ammunition. These items were given to Mr. Smith on the understanding that he would show the guns to his friend, who was interested in purchasing one of them. [20] Several days after their gun exchange, Mr. Smith returned both handguns to Mr. Windrum. Mr. Smith informed Mr. Windrum that when he showed the guns to his friend, his friend began to shoot at him with the .22 calibre handgun. Mr. Smith told Mr. Windrum that he had returned fire, and then said “I think he’s dead” and “I shot at him three times” (Trial Transcript at T226). [21] On Mr. Smith’s insistence, Mr. Windrum changed the barrel of the Glock handgun several months later. He was initially reluctant to do so but, once again, he relented. Mr. Windrum said he was afraid of Mr. Smith because Mr. Smith had told him that he was just as guilty as he was. [22] The RCMP contacted Mr. Windrum on May 14, 2014. He did not co-operate with them because he “was afraid of [his] position and what had happened” (at T238). At trial, Mr. Windrum acknowledged that he had been arrested and charged with unspecified offences arising from these events and that his charges were pending at the time of Mr. Smith’s trial. D. Testimony of Mr. Smith [23] Mr. Smith took the stand in his own defence. His version of events leading up to his interaction with Mr. Byer at the abandoned farmyard largely conformed to the testimony of Ms. Saxon. However, his account of what transpired after they arrived differed materially from her version of events. [24] According to Mr. Smith, Mr. Byer produced two boxes from his truck. One box contained four guns and the other contained white powder. Mr. Smith assumed that Mr. Byer had somehow acquired the handguns directly from Mr. Windrum. [25] Mr. Smith testified that he and Mr. Byer began to test fire the guns. In the course of doing so, Mr. Smith said Mr. Byer came up with the idea to stage fake robbery. According to Mr. Smith, the robbery idea was contrived by Mr. Byer as ruse to obtain money to repay his employer for funds he had stolen. Mr. Byer’s plan involved having Mr. Smith strike him on the nose and rough him up. According to Mr. Smith, things got out of hand after Mr. Smith struck him with more force than was expected. Mr. Smith testified that Mr. Byer became quite aggressive and began to pursue him with one of his guns. On seeing this happen, Ms. Saxon, who was standing near the passenger door of Mr. Byer’s truck, shot at Mr. Byer three times in rapid succession. [26] Mr. Smith testified that, when he and Ms. Saxon returned to his truck, she told him that she had overheard Mr. Byer say he was going to shoot Mr. Smith, so she picked up gun to defend him. [27] Mr. Smith also testified that it was Ms. Saxon who had taken the money from Mr. Byer’s truck, not him. He denied dumping ammunition in ditch or hiding the money at his friend’s farm. [28] Mr. Smith conceded that he subsequently received $500 of the stolen money from Ms. Saxon, but maintained that Ms. Saxon had kept the balance of the money and that she had financial problems. Mr. Smith conceded that he had returned two handguns to Mr. Windrum roughly one week after the incident, and conceded that he had asked Mr. Windrum to change the barrel of the Glock handgun. But, as Mr. Smith explained at trial, his reason for doing so was to protect Mr. Windrum and Ms. Saxon. E. The Glock handgun [29] Glock handgun was subsequently seized by the police from Mr. Windrum. forensic expert called by the Crown gave opinion evidence about this gun, the shell casings and the single bullet that had been found at the murder scene. The Crown’s expert confirmed that, even though the barrel on the Glock handgun was not the original factory barrel, other indicia from that gun enabled him to conclude that the three expended shell casings had been fired from the Glock handgun. The expert also confirmed Mr. Windrum’s evidence about the changed barrel on the Glock. When asked what conclusion could be drawn from the changed barrel, the expert was of the opinion that the bullet was not fired from the changed barrel, and the most he could say was that it may have been fired from the original factory barrel that came with this type of handgun. III. issues 30] Mr. Smith filed a self-crafted notice of appeal, in which the following grounds of appeal were raised:a. The judge fell into error in failing to warn the jury as to the dangers of relying upon the evidence of Susan Saxon and Dwight Windrum following the decision in Vetrovec. He should not have acceded to the request of my counsel to give legal directions to the jury which excluded warning as to the potential dangers of relying upon the evidence of Saxon and Windrum without seeking corroboration independent of their testimony. b. My counsel Morris Bodnar Q.C. fell into error in failing to pursue an application to the trial judge to give such direction. His decision to withdraw his application could only have been based upon fundamental misunderstanding of the strength of the ballistic and scientific evidence. The scientific evidence did not, contrary to the submissions of Mr. Healey [the Crown prosecutor] support the version of events given by Susan Saxon. c. Mr. Healey was wrong to assert (during argument as to “Vetrovec”) there was ballistic/forensic pathology evidence which could support the account of Susan Saxon. Mr. Bodnar Q.C. should have raised opposition to these submissions rather than conceding them. d. Without material which touched upon the likely position of the shooter and the angle of the firearm the prosecution had no evidential authority to assert that the testimony of Susan Saxon was corroborated by the evidence at the scene. Further neither of the two experts called by the prosecution were able to assist in terms of the likely position of the shooter or the manner in which the gun would have been held when the shots were fired. The prosecution and my own counsel failed to appreciate the limitations on the inferences which could properly be drawn from the expert evidence. e. The failure to give such fundamental direction permitted the jury to place reliance upon the evidence of Saxon and Windrum without guidance from the judge as to dangers inherent in their testimony. The judge also failed to give guidance to the jury as to the acknowledged wisdom of looking for independent supporting evidence when the witness in question had potential motive to lie under oath. [31] Mr. Smith subsequently retained different legal counsel for his appeal. In his factum, Mr. Smith’s appellate counsel abandoned the ineffective counsel ground and proceeded solely with the argument that the trial judge had erred in law by failing to give Vetrovec warning in relation to the testimony of Ms. Saxon and Mr. Windrum. Failure to give Vetrovec warning when the circumstances require one to be given is an error of law (R Bevan, 1993 CanLII 101 (SCC), [1993] SCR 599 [Bevan]; Brooks, 2000 SCC 11 (CanLII), [2000] SCR 237 [Brooks]). [32] secondary issue arising from this appeal is whether the verdict can be salvaged under the curative provision set forth in s. 686(1)(b)(iii) of the Criminal Code if conclude that Vetrovec warning should have been given. IV. analysis A. Did the trial judge err in failing to give Vetrovec warning? [33] Evidence given by witness whose credibility is inherently suspect, or who is for some reason unsavoury or disreputable, may give rise to high level of concern and warrant “caution”. In these circumstances, trial judges should give strong consideration to instructing jury about the dangers of relying on witness’s unconfirmed evidence and explain to the jury why it is dangerous to do so without some corroborating evidence. [34] The need to take special care with certain types of witnesses emanates from concern that lay jurors lack the necessary experience to adequately assess witness’s credibility. This purpose was explained in Worm, 2014 SKCA 94 (CanLII) at para 14, 442 Sask 228 [Worm]: [14] Vetrovec warning therefore serves practical purpose: it alerts jury to the danger of relying on the unsupported evidence of unsavoury witnesses and explains the reasons for special scrutiny of their testimony. In appropriate cases, it may also give jury tools to help to identify evidence capable of enhancing the trustworthiness of unsavoury witnesses. The overall goal of Vetrovec warning is to ensure that jurors attain an appropriate level of comfort before convicting an accused on the basis of what has traditionally been considered unreliable evidence. See: R. v. Khela, 2009 SCC (CanLII), [2009] S.C.R. 104 at para. 47. (Emphasis in original) [35] In assessing when to give warning, the Supreme Court of Canada in Vetrovec moved away from rigid, categorical approach in relation to Crown witnesses in favour of more holistic approach based on the trial judge’s appreciation of the circumstances and factors at play in the trial that might otherwise impair the credibility or trustworthiness of particular witness. [36] To that end, trial judges must examine the circumstances of each case and the factors that might impair the worth of witness’s testimony (Brooks at para 5; Carroll, 2014 ONCA (CanLII) at para 65, 304 CCC (3d) 252 [Carroll]). Where witness’s evidence is centrally important to the Crown’s case, yet may be suspect because of the disreputable and untrustworthy character of the witness, “clear and sharp” warning may be appropriate to alert the jury to the risks of adopting the evidence without more (Brooks at para 3; Carroll at para 62). [37] Broadly speaking, in assessing whether Vetrovec warning should be given, the trial judge must give prominence to two factors: the credibility of the witness and the importance of the witness’s evidence to the Crown’s case. This point was summarized in Brooks: [80] In summary, two main factors are relevant when deciding whether Vetrovec warning is necessary: the witness’s credibility, and the importance of the witness’s testimony to the Crown’s case. No specific threshold need be met on either factor before warning becomes necessary. Instead, where the witness is absolutely essential to the Crown’s case, more moderate credibility problems will warrant warning. Where the witness has overwhelming credibility problems, warning may be necessary even if the Crown’s case is strong one without the witness’s evidence. In short, the factors should not be looked to independently of one another but in combination. [38] Trial judges must carefully assess the trustworthiness of Crown witnesses who seek to avoid prosecution or incarceration by testifying for the Crown. That said, and as courts have clarified, this factor on its own does not mandate Vetrovec warning (Brooks at para 12; Carroll at para 66). Instead, trial judges must assess the credibility of the Crown witness including the testimony of accomplices in light of the circumstances of the case to determine whether the trustworthiness of that witness is impaired. [39] While warning for accomplices had been automatic prior to Vetrovec, the notion that all accomplices are, by their nature, unsavoury, was decidedly rejected by the Supreme Court: ... [i]t has been suggested that an accomplice is not to be believed since he is self-confessed criminal and is ‘morally guilty’. This argument is easily rejected. First, we accept the testimony of other criminals without automatically requiring warning as to their credit. Second, the ‘moral guilt’ of an accomplice must vary with the nature of the crime involved. One who is guilty of an assault may be thought to be more trustworthy than an incorrigible counterfeiter. Yet the present law makes no distinction between them. Once witness is classified as an accomplice, his testimony is automatically regarded as suspect. (Vetrovec at 823) [40] This Court in Brass, 2007 SKCA 94 (CanLII), 226 CCC (3d) 216, established more nuanced approach to the testimony of accomplices with the articulation of several factors the trial judge ought to consider in assessing the relative trustworthiness of this type of witness. The factors identified are these: [24] Based on Vetrovec and the subsequent jurisprudence, conclude that to determine whether an accomplice’s testimony may be inherently untrustworthy, court looks at factors such as these: (i) whether the witness is facing charges; (ii) whether the witness openly acknowledges participation in the crime; (iii) whether the witness has anything to gain or lose by testifying; (iv) whether the witness is testifying to deflect blame on another; (v) whether the witness is protecting another; (vi) whether there is some other reason why the witness would seek to blame another or minimize his or her own participation. [41] While the credibility of an impugned witness and the importance of that witness’s testimony to the Crown’s case are the main or prominent considerations, there may be other considerations that inform the trial judge’s assessment on this issue. Two such considerations of particular relevance to this appeal are the position taken by trial counsel with regard to the need for Vetrovec warning and the possibility of prejudice to the accused if warning is given in tandem with confirmatory evidence. Discussion of the first issue is dealt with below. With regard to the latter consideration, the Supreme Court of Canada highlighted this concern in Bevan: ... 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 Vetrovec warning could in some circumstances be unfair to the accused. (613; see also Worm at para 29) [42] Whether Vetrovec warning should be given is matter of discretion. The trial judge is, after all, “an eyewitness to the testimony of the witness and the temperature of the trial proceedings” (Carroll at para 60) and therefore best positioned in the ebb and flow of the trial to assess and consider the “myriad factors that might impair the worth of witness’ testimony” (Carroll at para 65; Vetrovec at 823; Brooks at para 5). This dynamic was aptly captured in Bevan: ... Because the trial judge is in the best position to assess the atmosphere of the trial and the effect that the evidence or instruction may have on jury hearing the case, the trial judge’s decision on these kinds of issues should not be lightly interfered with on appeal.Finally, the exercise of trial judge’s discretion with regard to Vetrovec caution is subject to considerable appellate deference having particular regard to the unique and dynamic circumstances of the trial setting (Brooks at para 24; Bevan at 614; Carroll at para 67). An appellate court should not interfere with the trial judge’s decision if there is foundation for the trial judge’s exercise of discretion, and must refrain from imposing its view after-the-fact based on an “abstract category of witness without having heard the testimonies directly” (Brooks at para 4, 10). [43] discretionary decision warrants appellate intervention only “if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice” (R Regan, 2002 SCC 12 (CanLII) at para 117, [2002] SCR 297; see also C.C.Y., 2001 SKCA 107 (CanLII), 213 Sask 120; Brooks at para 24; Richard (D.R.), 2013 MBCA 105 (CanLII) at para 85, 299 Man (2d) 1; Peekeekoot, 2014 SKCA 97 (CanLII) at para 93, 446 Sask 22). [44] Finally, as noted in Bevan, the exercise of trial judge’s discretion is subject to considerable appellate deference with particular regard to the unique and dynamic circumstances of the trial setting (Brooks at para 24; Bevan at 614; Carroll at para 67). An appellate court should not interfere with trial judge’s decision on the Vetrovec warning if there is foundation for the trial judge’s exercise of discretion and must refrain from imposing its after-the-fact view based on an “abstract category of witness without having heard the testimonies directly” (Brooks at paras and 10). 2. Was Vetrovec warning “mandatory” in spite of the position taken by defence counsel at trial? [45] Mr. Smith argues the trial judge erred in law in failing to caution the jurors about the trustworthiness of both Ms. Saxon and Mr. Windrum in spite of strong opposition to Vetrovec warning voiced by Mr. Smith’s trial counsel at the time of the pre-charge conference. On appeal, his appellate counsel takes the position that Vetrovec warning was mandatory and that the trial judge was obliged to caution the jury about the untrustworthiness of Ms. Saxon and Mr. Windrum, regardless of the position taken by Mr. Smith’s counsel at the time of trial. [46] The trial judge gave no reasons for his decision not to give Vetrovec warning, however, based on the exchange that took place at the pre-charge conference, his decision appears to have been largely premised on defence counsel’s insistence that the warning not be given. The narrow question posed by Mr. Smith on this appeal, therefore, is whether it was an error of law on the part of the trial judge not to give warning regardless of the stance of trial counsel. [47] Discussion of this issue is necessarily framed by the exchange that took place between the trial judge and counsel for the Crown and defence at the time of the pre-charge conference. As mentioned, the trial judge had convened pre-charge conference on the record and in the absence of the jury towards the end of the trial to solicit input from counsel about the content of the jury charge. In the course of their discussion, Mr. Smith’s trial counsel identified the need for Vetrovec warning for both Ms. Saxon and Mr. Windrum. In relation to Mr. Windrum, he said it was needed because he had “an interest in [the outcome] because there are outstanding charges and it’s dangerous to convict on his evidence alone”. With respect to Ms. Saxon, he said “there’s potential of her being charged and therefore she has an interest in this case as well” (at T294). [48] The record demonstrates that the trial judge was alive to the jurisprudence in relation to when Vetrovec warning is called for. He knew the law had evolved from rigid, categorical approach toward more organic examination of the evidence and search for indicia that might suggest witness to be untrustworthy. [49] After identifying the analytical framework, the trial judge initially appeared resolved to warning the jurors about the trustworthiness of Ms. Saxon’s evidence, but found warning unnecessary for Mr. Windrum. On this point, he said to counsel: In doing that, also know that the present stated law, as understand it, is it’s kind of combination of two things working like two pistons or maybe container of two fluids in it. It seems to me that when there is these elements of untrustworthiness and maybe they’re not so pronounced in this case, or maybe they are, but it all becomes more necessary for Vetrovec caution when her evidence, or that witness’ evidence, is very significant in regards to the Crown’s proof of guilt. And so if you get that, one piston goes up and one down, so it kind of combines, as understand it, in some sort of loose fashion that tells the trial judge after thinking of it all, well, maybe the jury, that we give these standard almost boilerplate instructions to jurors about credibility and one person saying this and the other, don’t know whether this needs the as sharp review, or whatever the word would be, regarding her evidence and would be prepared to say something along the lines to the jury that, here’s Ms. Saxon, this is what we heard about her, it will be for you to decide these things, but have to caution you that it may be unsafe to accept her evidence. And then have to find the some if there’s some confirming evidence, come up through the bottom of the confirming evidence. That sometimes puts spotlight on her evidence. It certainly sometimes puts spotlight on the confirming evidence because it comes out of my mouth, but that’s what we have to do. And the confirming evidence for Ms. Saxon would be Dwight Windrum. That’s done. And I’ve figured that out and think would want to do that. think the jury has to be told about that. I’ll take that the other way, and then I’ll hear from counsel, if I’m going to say the same thing about Mr. Windrum, would have to say that the confirming evidence of Mr. Windrum would be Ms. Saxon. And wonder if that isn’t starting to be sort of circular counterproductive argument. (T296–297, emphasis added) [50] Following discussion with counsel about what the content of such warning would contain for Ms. Saxon, the trial judge raised the spectre of confirmatory evidence. The Crown eagerly responded with detailed inventory of the evidence it perceived to be confirmatory in nature and supportive of Ms. Saxon’s and Mr. Windrum’s testimony. The Crown summed up its position in this fashion: So there there’s significant amount of corroborating evidence if you if you’re going to do Vetrovec warning, then would argue that, you know, it needs to be on the lighter end, if can put it that way. Very much lighter, in fact almost not there lighter. And I’m trying to be but but it also needs to be balanced off heavily with the supporting evidence, because there is mountain of supporting evidence here that supports what Susan Saxon said. (T300, emphasis added) [51] The following discussion then ensued between the trial judge and both counsel, which culminated in defence counsel withdrawing his request for Vetrovec caution: THE COURT: And some of the cases actually suggest that sometimes defence counsel doesn’t want the Vetrovec warning given for that very reason. Is that it comes out of my mouth, here is this evidence, da-da-da-da, and sort of showcase it. MR. HEALEY: Well, and think but it’s only right if if we’re going to have Vetrovec THE COURT: Well, know MR. HEALEY: it then we need to at least have have the truth about sorry, the other corroborating evidence come out and all of it, not just hit and miss because because there is significant level of corroborating evidence supporting Susan Saxon. And and frankly, Dwight Windrum. THE COURT: Okay. MR. HEALEY: Those are my MR. BODNAR: I’ll solve the problem for the Crown. I’ll withdraw my application on Vetrovec, but W.D. has to go to the jury. THE COURT: Well, know W.D., but what did you just say, that MR. BODNAR: I’ll withdraw my application to put Vetrovec to the jury. THE COURT: Well, you know, was reading and appreciate your heads-up, Mr. Bodnar, you were kind enough and professional enough as you always are, to tell me of the (INDISCERNIBLE) that Vetrovec made, so don’t want to sound like smarty-pants ‘cause have spent number of hours reading the whole area. And did run across some talk that, boy, you know MR. BODNAR: Mmhmm. Including Hurley. THE COURT: I’m sorry? MR. BODNAR: Including Hurley. THE COURT: You know, at the end of the day, it there is some talk out there that Vetrovec is two-edged sword; isn’t it? But don’t know if you can withdraw. The cases the appellant courts are not that clear as to whether cannot put it [to] them if thought that there MR. BODNAR: Well, if withdraw it, then the if there was unfortunately conviction, then we can’t argue it on appeal. THE COURT: All right. Well MR. BODNAR: So it goes that way. think if you look at Hurley, and I’m sure you have, that’s the decision that came out of Court of Appeal, H-U-R-L-E-Y, and on Vetrovec and can tell you know it because argued it and the decision came down against the Crown, which the Crown appealed to the Supreme Court. And the appeal was and the Crown appeal was dismissed on other grounds. They didn’t they didn’t deal with Vetrovec at that point, but it was on fresh evidence that they would not reinstate the conviction. It went back to re-trial in which Mr. Hurley was acquitted. Now, the Court of Appeal and that was Chief Justice Richards, wrote the decision. believe it was the Chief Justice. And suggest he has dealt with it and that’s the most recent decision in Saskatchewan on Vetrovec. And you don’t have to put it. And in that case Vetrovec, in fact, was overlooked by counsel, believe, at the trial. It’s not that they agreed that it shouldn’t be put, they just kind of overlooked it. THE COURT: So just so the record is clear on this, the defence has said to the Court that you would not want Vetrovec to be given charge to be given to the jury? MR. BODNAR: shouldn’t have raised it. No, don’t put it to the jury. THE COURT: All right. Well MR. BODNAR: But have another matter to raise yet after this. THE COURT: Yes, we’ll just finish this. Is the Crown satisfied that if the defence says don’t do that, then that’s something that an appellant [sic] court would not be concerned about? ‘Cause as said, it’s double edged sword here, it’s my understanding is. MR. HEALEY: It is. To be honest, I’d never turned my mind to the fact that Mr. Bodnar might not ask for it. am prepared leave that with the Court, haven’t actually thought about that issue. And my suspicion here, my my expectation is that if Mr. Bodnar is not asking for it, don’t see how it can be raised on appeal. THE COURT: Well, we don’t need to worry too much about the Court of Appeal, we need to worry about here and now. That’s the concern have, particularly in this case when we have two diametric points of view as to what happened. And here am you know, I’m saying, well, you’ve got to be careful about this witness. and then say, but bang, bang, bang, bang. And quite frankly think that just puts the spotlight sometimes on MR. BODNAR: It does sometimes. (T300–303, emphasis added) [52] As is apparent from this exchange, the trial judge was left with the unmistakable and unambiguous position of defence counsel in relation to Vetrovec warning: he no longer wanted it in relation to either Crown witness. Although defence counsel did not explain why he had changed his mind (and he was not required to do so), it can be reasonably inferred from the evolving nature of their discussion that he had hoped the warning would not be accompanied by summary of the Crown’s confirmatory evidence. The inescapable inference to be drawn here is that Mr. Smith’s trial counsel, who was both an experienced and competent criminal defence lawyer, made strategic and tactical decision designed to further his client’s defence. [53] Counsel’s position with respect to the Vetrovec warning is relevant and merits significant consideration where it appears to have been based on tactical decision. As the Supreme Court said in Brooks: [19] In my view, the defence had clear tactical advantage in not requesting 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 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 Vetrovec caution. (Emphasis added) [54] While trial counsel’s position is not determinative of whether Vetrovec warning should be given, “it is nevertheless relevant and worthy of greater consideration where circumstances point to the fact that there may be tactical reasons for not requesting warning” (Brooks at para 18). [55] The trial judge quite properly alerted counsel to the fact that Vetrovec warning would be accompanied by items of confirmatory evidence. As pointed out in Bevan and Worm, Vetrovec warning may, on balance, be more prejudicial to an accused because it draws the jury’s attention to the Crown’s confirmatory evidence. The trial judge was alive to the possibility of indirect prejudice to Mr. Smith and was concerned that instructions containing confirmatory evidence could be perceived by the jurors as “showcasing” critical Crown evidence. [56] Mr. Smith’s argument must also be assessed from the perspective of recent jurisprudence as to whether Vetrovec warning is mandatory irrespective of the position of defence counsel at trial. [57] For the purposes of assessing this argument, must assume that the trial judge had been persuaded that Vetrovec warning with respect to both witnesses was advisable in this case, based on the submissions made to him. [58] similar argument to the one advanced by Mr. Smith in this appeal was raised in Rafferty, 2016 ONCA 816 (CanLII), 33 CR (7th) 39 [Rafferty]. The trial judge had acceded to the defence counsel’s (described as “experienced and highly skilled”) request to refrain from giving Vetrovec warning. The trial judge initially intended to include warning, but ultimately decided against the caution based on the specific request of the appellant’s trial counsel. On appeal, it was argued that the warning was mandatory regardless of the position taken by the parties. Justice Huscroft dismissed this argument, stating: [29] Plainly, counsel’s request was made in order to avoid the recitation of any of the substantial body of confirmatory evidence that would have had to accompany the Vetrovec warning. The trial judge understood that the request was made for tactical reasons, and having reviewed the law he decided that he should accede to counsel’s request and omit the Vetrovec warning. His decision to do so cannot now be impugned. [30] The appellant submits that responsibility to give Vetrovec warning lies with the trial judge regardless of the position of the parties, and so it does. However, the decision to give the warning is discretionary in nature, as is the content of the warning itself, and a trial judge’s exercise of this discretion is entitled to deference: R. v. Brooks, 2000 SCC 11 (CanLII), [2000] S.C.R. 237, at paras. and 18; R. v. A.W.B., 2015 ONCA 185 (CanLII), [2015] O.J. No. 1407, at para. 40. [59] The deferential approach taken in Rafferty was subsequently adopted in Moore, 2017 ONCA 947 (CanLII) [Moore]. In Moore, the accused was convicted of second degree murder committed in the course of robbery. The accused’s accomplice pled guilty to manslaughter before Moore’s trial and then testified against him. The accomplice was described as “an unsavoury witness by any definition” (at para 16). He had criminal record and had lied to the police during the course of their investigation. In addition to the testimony of the accomplice, there was substantial amount of confirmatory evidence led at trial. [60] During the course of pre-charge conference, the trial judge provided trial counsel with draft charge that included Vetrovec warning. The warning was subsequently removed on the insistence of defence counsel when it became apparent to her that it would be accompanied by some confirmatory evidence. One of the grounds of appeal advanced by Moore’s appellate counsel (who was different from his trial counsel) was that Vetrovec warning should have been given with respect to the accomplice’s evidence. In dismissing this ground, Trotter J.A. placed considerable significance on the position taken by defence counsel at trial: [21] In considering whether Vetrovec caution is required, the absence of an objection to the charge that does not contain one leads to an inference that the approach employed by the trial judge was appropriate from the perspective of the accused. In R. v. Boone, 2016 ONCA 227 (CanLII), 347 O.A.C. 250, leave to appeal refused, [2016] S.C.C.A. 238, Sharpe J.A. said the following, at para. 53: In his charge, the trial judge canvassed with the jury the basis for the attack on the credibility of the complainants. The trial judge held pre-charge conference to afford counsel the opportunity to comment on his proposed charge. The appellant’s trial counsel did not object to the manner in which the trial judge proposed to deal with the evidence of the complainants nor did he request Vetrovec warning. Although not fatal on its own, the absence of any objection leads to an inference that the language employed by the trial judge was appropriate from the perspective of the accused. [Citations omitted; emphasis added.] [22] This principle must apply with at least equal vigour when defence counsel requests, ahead of time, that Vetrovec caution not be given for tactical reasons namely, to prevent the recitation of evidence that confirms the evidence of the Vetrovec witness: see R. v. Moffit, 2015 ONCA 412 (CanLII), 338 O.A.C. 144, leave to appeal refused, [2015] S.C.C.A. No. 465, at para. 78; and R. v. Brooks, 2000 SCC 11 (CanLII), [2000] S.C.R. 237, at para. 17. [26] Clearly, Vetrovec warning could have been given in this case. However, the decision whether to give one is discretionary. Although there will be cases in which this discretion can only be properly exercised in favour of giving such an instruction, those cases do not turn the issue into question of law. Hence, it cannot be said that defence counsel at trial was “wrong”, as appellate counsel asserts. [27] The jury was repeatedly alerted to the many problems with the credibility of Thomas and Burdett. The defence position that these witnesses could not be believed was emphatically stated in counsel’s closing address. The trial judge thoroughly outlined the shortcomings in their evidence in his final instructions. And while there was no “clear and explicit” caution (see R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321(Ont. C.A.), at para. 210) about the dangers inherent in relying on this evidence, nor was there any formal review of the confirmatory evidence. (Emphasis in original) [61] The issue raised by Mr. Smith strongly mirrors the situation in both Rafferty and Moore. As mentioned above, although Mr. Smith’s trial counsel did not explain why he had changed his mind with regard to his desire for Vetrovec warning, it can be reasonably inferred from the exchange that took place between the trial judge and both counsel that Mr. Smith’s counsel wanted to avoid having the trial judge repeat the Crown’s confirmatory (no doubt inculpatory) evidence and, as the trial judge put it, “showcase” it to the jury. Viewed in this light, it is hard to see this as anything other than tactical decision made by Mr. Smith’s defence counsel, which warranted degree of deference by the trial judge. [62] While it is correct to say that the position taken by defence counsel is not determinative and that the decision to give Vetrovec warning rests with the trial judge, that decision is discretionary in nature and ought not be interfered with unless the trial judge misdirected himself or if his or her decision is so clearly wrong as to amount to an injustice. am satisfied from the record that the trial judge understood the law, understood the position of defence counsel, and had clear foundational basis for not giving warning in this case. [63] My conclusion on this point is not undermined by the fact appellate counsel is not the same counsel as Mr. Smith’s trial counsel. Where appellate counsel seeks to challenge decision made by trial judge, which in large measure was predicated on position taken by trial counsel, considerable deference is warranted (Moore at para 15; Kimberley (2001), 2001 CanLII 24120 (ON CA), 157 CCC (3d) 129 (Ont CA)). 3. The credibility and importance of the impugned witnesses [64] Mr. Smith seeks to bolster his primary ground of appeal with the argument that, had the trial judge properly applied the twin considerations of importance to the Crown’s case and credibility, the need for Vetrovec warning would have been obvious. Mr. Smith contends Ms. Saxon was an “unsavoury witness” because her evidence was proffered for an ulterior motive, that is, to divert suspicion or blame from her, gain advantage such as immunity from prosecution for the current offence, or gain advantage or concessions for other offences. With regard to Mr. Windrum, he argues that, because he was charged with offences arising from his role in this matter, he may have given favourable testimony for the Crown in exchange for beneficial treatment on his charges. [65] am satisfied that, had the trial judge filtered the need for Vetrovec warning through considerations of credibility and importance, it cannot be said that the circumstances required Vetrovec warning for either witness. a. Importance of the testimony to the Crown’s case [66] Both parties agree that the testimony of Ms. Saxon and Mr. Windrum was pivotal to the Crown’s case. The trial transcript amply supports their position on this point. [67] Ms. Saxon’s testimony was the Crown’s only direct evidence connecting Mr. Smith to the murder and, apart from Mr. Smith’s confession to Mr. Windrum, the balance of the Crown’s case consisted of circumstantial evidence. Although the circumstantial evidence supported the Crown’s theory and Ms. Saxon’s version of events, without her testimony the Crown had, at best, weak case. [68] Unquestionably, Mr. Windrum’s testimony is also key component of the Crown’s case. Furthermore, the importance of his testimony lies in its corroborative value in relation to Ms. Saxon’s evidence. Although Mr. Windrum could not recall the exact date when he gave Mr. Smith the guns, his evidence about the timing of events and number of guns generally aligned with Ms. Saxon’s evidence. His evidence about the confession and the Glock handgun also lined up with her version of events. b. The credibility of the witnesses [69] Ms. Saxon never independently went to the police and she lied to them on two separate occasions. According to Mr. Smith, Ms. Saxon’s credibility and motive to lie was on full display in her second police interview. She began the interview by once again denying any knowledge of Mr. Byer’s death or her involvement in it. As the interview proceeded, Ms. Saxon admitted that she harbored concern over the prospect of being charged with criminal offence and going to jail for many years if convicted. She bluntly asked the police if she was going to be charged and candidly told them that she did not want to go to jail. Ultimately, Ms. Saxon admitted that she assisted Mr. Smith in taking the money, obstructed and had lied to the police after the fact, and to being an accessory after the fact. [70] An assessment of Ms. Saxon’s credibility must begin with the observation that she was not “classic” Vetrovec witness. She had no prior criminal record. There was no evidence she was person of bad repute or had reputation for being untruthful, apart from the fact she had twice lied to the police about whether she knew anything about Mr. Byer’s death. She was not jail house informant. [71] That said, given the possibility of criminal prosecution for her admitted role in Mr. Byer’s murder (i.e., she “assisted” Mr. Smith with Mr. Byer’s murder and its cover up), the trial judge ought to have been concerned about whether Ms. Saxon had motive to lie and, more particularly, the possibility that she may have sought to minimize her role in Mr. Byer’s murder or to point the finger of blame away from herself and directly at Mr. Smith. [72] Ms. Saxon’s possible motive to lie and her initial deception with the police was the likely reason why the trial judge raised the prospect of Vetrovec warning at the start of the pre-charge conference. Ms. Saxon faced potential jeopardy for her part in Mr. Byer’s murder, therefore it was possible her testimony could have been quid pro quo, i.e., favourable testimony in exchange for no charges being laid against her. [73] Ms. Saxon was aggressively cross-examined by defence counsel about why she had lied to the police. It was put to her that she had given favourable Crown testimony in Mr. Smith’s trial in exchange for immunity from prosecution or that she conjured up story implicating Mr. Smith because she felt somehow threatened by the police. The following exchange in cross-examination canvassed these possibilities: And you again denied that you knew anything about this incident? At the beginning of the interview, yes. But then the police were assuring you that you’re going to be just fine, you’re going to be secure because Dan will go to jail for many years; correct? No, they didn’t say that. They just instilled confidence in me that would be protected. Well, that’s what mean, they instilled confidence in you that you would be protected? Yes. And they also let you know that that instilled confidence would exist because Dan would be put away for good; correct? Well, if he was found if they arrested him and found yeah, they would arrest him, yeah. And also they let it be known because believe me, I’ve read that statement, that if you didn’t talk to them that you would be charged? didn’t get that feeling from that interview at all, no. You didn’t get that feeling at all? No. You didn’t let me just fish it out. You indicate just at the beginning of the first interview on the May 20th, that you didn’t know what happened to Roger Byer? Right. And the police officer says to you: Perhaps you have some sort of involvement in Roger Byer’s murder. We’ve done our homework. Do you remember him telling you that? Yeah. There’s an implied little bit of threat there that you better talk to us and tell us, otherwise we’re charging you with murder? No, didn’t feel threatened by the police at all. You never took it that way? No. And you immediately said, “I’m terrified”? was terrified, was terrified for four years to come forward with this information. Yeah, but you were terrified because you were terrified of being charged with the murder No. of Roger Byers (sic), an accessory? Yes, was always terrified of that, but didn’t tell them the truth at that point because was scared that if didn’t was going to be arrested. But you knew that if you were charged as an accessory and convicted, that you’d be gone to jail for many years and away from your family? Yes, guess did know that, but I’m also under the belief that they would have to have some kind of proof that was involved in order to charge me. And wasn’t involved and didn’t do anything. So logically Well shouldn’t have been ever worried about that at all. That’s your version of the facts and that’s what you’ve told us today. Yes. We’ll get into more of those facts. Okay. Do you remember at and I’ll look at this, for the Crown’s information, it’s page 38. Do you remember telling the police: And you guys are assuming was there. Am going to be charged too? Do you remember telling the police? remember asking that question, yeah. These were fears that I’d had for years that were coming out then. And at page 39 the police officer says: Well, don’t mean to scare you. And then two pages later you said: don’t want to go to jail. Do you remember that? Sure. In other words, those 75 pages that you of transcript that you spent in that first interview on May 20th, 2014, you were being softened up to give the second statement that day; weren’t you? wouldn’t say was being softened up. was at point that was ready to tell about it. had always wanted to tell about it. would have liked to have told about it the day after, but was terrified of Dan, was terrified of consequences, was terrified of something happening to my kids, to myself, of being assumed because was there that was involved and that was going to be implicated and was going to go to jail. Yes, was terrified for long time. And always wanted to tell. [74] Ms. Saxon did not waver from her testimony given in examination-in-chief in spite of the probing and, at times, suggestive cross-examination by defence counsel. In the end, there was no evidence Ms. Saxon was ever charged with an offence relating to Mr. Byer’s murder or its cover up. She was never taken into custody. There was no evidence she acted as Crown witness in exchange for immunity from prosecution. Moreover, she did not minimize her presence at the murder scene or her role in anyway. If anything, Ms. Saxon’s frank acknowledgment of her role in the murder (retrieving the money and handling the bloody gun) and in its cover up arguably placed her in greater jeopardy than had she not testified. [75] Equally important to this analysis is the fact Ms. Saxon testified in the presence of the jury. Her credibility was on full display before the jury. The jurors were positioned to assess whether she was credible witness having regard to the dynamic in the courtroom at the time and the way she handled herself as witness, with particular regard to her candor and demeanor under cross-examination. More importantly, through her testimony, both in chief and under cross-examination, the jurors were alerted to the fact that she: (i) had twice lied to the police; (ii) had some involvement in Mr. Byer’s murder and in its cover up; and (iii) had harboured concern that she could be charged with criminal offence for her role in his death. [76] In light of all of this, it is clear the trial judge did not lose sight of the rationale underpinning the need for Vetrovec warning. Its purpose is to alert lay jurors to the danger of relying on the unsupported evidence of an unsavoury witness “that the jury might not otherwise appreciate” (Worm at para 36) and to explain the reasons for the need for special scrutiny. This point was also explained in Carroll: [78] The rationale that underpins Vetrovec caution originates in the concern that, for certain types of witnesses, lay members of the jury simply lack the critical experience to adequately gauge the credibility of these types of witnesses and the reliability of their evidence: R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 81; R. v. Welsh, 2013 ONCA 190 (CanLII), 115 O.R. (3d) 81, leave to appeal to S.C.C. refused, (#35533, December 12, 2013), at para. 207. No such concerns emerged in connection with the testimony of Kim Moncion. To conclude in the circumstances of this case that Vetrovec caution was mandatory for the evidence of Kim Moncion would be to countenance resurrection of the ossified rule interred over three decades ago by Vetrovec. [77] In any event, the mere fact Ms. Saxon may have been motivated to lie to avoid prosecution in relation to her involvement in this offence does not mandate Vetrovec warning on its own. This point was emphasized by Watt J.A. in Carroll: [66] In addition, consistent with the flexibility that is the badge of Vetrovec, the fact that witness seeks to avoid incarceration and would add, prosecution by testifying is factor which may undermine credibility but, on its own, is not enough to require Vetrovec caution: Brooks, at para. 10. [78] Mr. Smith contends the truthfulness of Ms. Saxon’s testimony was questionable because she had continued to live with him for four years after the murder, but only opened up to the police after they had separated. Ms. Saxon was extensively cross-examined by defence counsel on these matters. Mr. Smith’s argument does not enhance the notion that Ms. Saxon was an unsavoury witness. Instead, as it should, the need for Vetrovec caution boiled down to the larger question of her credibility, which, as discussed, factored significantly into the jury instruction. Moreover, the jury had every opportunity to observe Ms. Saxon on the witness stand and were equipped to assess whether her failed relationship with Mr. Smith was reason for her to be untruthful. [79] Furthermore, even if warning had been given, am satisfied that Ms. Saxon’s testimony was corroborated by the testimony of Mr. Windrum and some of the other circumstantial evidence. Mr. Windrum testified that he had given Mr. Smith two handguns, one of which was the .40 calibre Glock. He also testified that Mr. Smith returned the handguns to him several days later and had told him that after Mr. Byer “racked” the .22 calibre gun at him, he returned fire. According to Mr. Windrum, Mr. Smith then said to him “I think he’s dead, yes, shot at him three times” (at T226). Much of Mr. Windrum’s evidence aligns with Ms. Saxon’s testimony, notably the timelines and the two guns that had been produced by Mr. Smith when they first arrived at the abandoned farmyard. Significantly, there was no evidence of any collusion between Ms. Saxon and Mr. Windrum. [80] Ms. Saxon’s credibility is further enhanced by the other circumstantial evidence, notably the location of the shell casings in relation to the body of the deceased, the fact the shell casings came from the .40 calibre Glock handgun seized from Mr. Windrum, and that the trajectory of the fatal shot corresponded more closely with Ms. Saxon’s evidence as opposed to Mr. Smith’s, who said that she had shot at Mr. Byer from the front of the truck. [81] Viewed as whole, the relevant factors concerning Ms. Saxon in this case did not make her an inherently untrustworthy witness, nor was her testimony of the sort that cried out for special caution to the jury, but more importantly, nor was it the case that the jury would have been unable to assess whether they believed her version of events on the day in question. [82] Concern about Mr. Windrum’s trustworthiness was even less pronounced than was the case for Ms. Saxon. Nonetheless, Mr. Smith argues that caution was warranted for the simple reason that Mr. Windrum was charged with being an accessory after the fact to the murder and to obstruction. (The exact nature of his charges was not disclosed to the jury and has only come to light through Mr. Smith’s factum.) Because of these charges, Mr. Smith argues Mr. Windrum had an interest in the outcome of Mr. Smith’s trial or, as Mr. Smith’s trial counsel put it, he was akin to “jail house” informant. [83] There are at least three reasons why Mr. Smith’s argument cannot succeed. First, Mr. Smith’s categorical approach to Mr. Windrum is inconsistent with contemporary jurisprudence insofar as Vetrovec warning is no longer automatic simply because the witness fits the mold of certain category or type of witness or because of his or her relationship to the accused. Second, Mr. Windrum did not deny his part in Mr. Byer’s murder. Indeed, he candidly admitted under oath that he had changed the barrel of the .40 calibre Glock handgun at Mr. Smith’s insistence. Thus, Mr. Windrum’s culpability in helping to destroy evidence was, practically speaking, the same regardless of whether Mr. Smith was convicted or not. In this important respect, the outcome of Mr. Smith’s trial made no difference to the jeopardy faced by Mr. Windrum. Third, while Mr. Windrum was charged with several offences arising from this incident, there was no evidence that he had acted as witness for the Crown in exchange for favourable treatment on those charges. [84] In the absence of any other compelling factor, there was no obvious basis for the trial judge to have cautioned the jury about the trustworthiness of Mr. Windrum’s evidence. 4. Instructions to the jury [85] In his oral argument, Mr. Smith painstakingly went through what he characterized as inconsistencies between Ms. Saxon’s evidence and the balance of the trial evidence. He argued that, viewed in light of the various evidentiary inconsistencies, Ms. Saxon had “severe credibility problems” that the trial judge was obliged to point out to the jury by way of Vetrovec warning. [86] With respect, Mr. Smith appears to have confused credibility in Vetrovec sense (i.e., is the witness for some reason unsavoury) with broader notions about the credibility and reliability of witness (i.e., the weight and importance to attach to witness’s testimony). [87] It is readily apparent from the record that the trial judge understood that credibility was the central issue for the jury to resolve. To that end, the trial judge began his remarks with generalized instruction about credibility and provided the jury with guidance on how to assess the truthfulness and reliability of witness’s testimony. He then fairly summarized the evidence of each witness for the benefit of the jury. [88] With regard to Ms. Saxon’s evidence, the trial judge drew particular attention to several pieces of evidence that could have undermined her believability, namely: (a) she never initiated contact with the police; (b) when she was contacted by the police, she lied; (c) the reasons she gave for lying to the police, leaving it open to the jury to determine if they believed her; and (d) minor discrepancies in her evidence. [89] The trial judge put Ms. Saxon’s credibility squarely to the jury and left it with them to decide if the weaknesses in her testimony that he had drawn to their attention impaired their assessment of her credibility. He summarized this point for the jurors: In short, her evidence is that Mr. Smith caused the death of Roger Byer. It is for you to evaluate her evidence, including her involvement with the police and her explanation for not telling the police the truth initially and what effect, if any, that has on your assessment of her credibility. [90] With respect to Mr. Windrum, the trial judge carefully recounted his evidence and identified for the jury’s benefit his lack of co-operation with the police and subsequent arrest. [91] The trial judge then turned to Mr. Smith’s evidence and, in similar fashion, fairly outlined Mr. Smith’s version of events for the jurors. [92] Finally, in his charge to the jury, the trial judge underscored the “reasonable doubt” standard of proof and reinforced the bedrock principle that the Crown bore the onus of meeting that standard. He instructed the jury on the W.(D.), 1991 CanLII 93 (SCC), [1991] SCR 742 [W.(D.)], framework and how to approach Mr. Smith’s evidence, and gave them ample instruction on what reasonable doubt means and how it should be applied. With regard to the conflicting evidence, the trial judge cautioned the jury not to simply choose one witness over the other, but to consider the evidence as whole. He concluded his charge with summary of the defence position: “The defence submits that Ms. Saxon and Mr. Windrum should not be believed. Defence counsel asserts Mr. Smith is credible and did not do it” (at T377). [93] Mr. Smith’s trial counsel was given an opportunity to comment on the jury charge after it had been delivered. He offered no objection. [94] In my view, the jurors would have had little difficulty assessing the weight and importance to attach to the testimony of either Ms. Saxon or Mr. Windrum. The trial judge pointed out that both Mr. Windrum and Ms. Saxon had lied to the police and then carefully explained to the jurors the witnesses’ explanation for doing so. considerable amount of generalized instruction was devoted to the issue of credibility and to the principles of W.(D.). He told the jury that it was for them to decide if they believed the witnesses. He instructed them to consider all of the evidence presented at trial with an open mind and to decide how much or how little of the testimony of each witness they believed. Finally, they were reminded that it was open to them to believe some, none, or all of witness’s testimony. Furthermore, the trial judge fairly and accurately set out Mr. Smith’s evidence and his theory of defence, which pinned the shooting on Ms. Saxon. [95] In light of all of this, the trial judge had, in my view, adequately instructed the jury that the case was about credibility based on the two different versions of what happened on January 20, 2010. Given all this, the jurors were adequately positioned to fairly analyze the evidence and assess the testimony of the Crown’s witnesses in light of the evidence as whole and, as such, any concern about the conflicting testimony was sufficiently brought to light in the jury charge. B. Should the curative proviso in s. 686(1)(b)(iii) be applied? [96] find it unnecessary to address this issue since have concluded that the trial judge did not err in refraining from including Vetrovec warning in his jury charge. In any event, had found otherwise, am persuaded by the Crown’s argument that the trial judge adequately brought the witnesses’ credibility concerns to the attention of the jury such that the verdict would have been the same had the Vetrovec warning been given. V. CONCLUSION [97] In conclusion, am satisfied the trial judge was operating under correct understanding of the law. He took a measured approach with regard to the need for a Vetrovec warning in the circumstances and he carefully solicited input from both Crown and defence counsel. I am also satisfied that, in exercising his discretion not to give a Vetrovec warning, he was particularly alert to the position advanced by defence counsel, which he clearly understood to be a tactical choice. He was cognizant that highlighting corroborative evidence in the jury charge could be potentially prejudicial to the accused. [98] The trial judge’s decision as to the Vectrovec warning is discretionary in nature and entitled to appellate deference. It only warrants appellate intervention if the trial judge misdirected himself, or if his decision was so clearly wrong so as to amount to an injustice. Taken as whole, am satisfied that the trial judge properly instructed himself and that there was clear foundation for how he exercised his discretion. [99] The appeal must, therefore, be dismissed. “Schwann J.A.” Schwann J.A. concur. “Caldwell J.A.” for Jackson J.A., per authorisation concur. “Caldwell J.A.” Caldwell J.A.
Criminal Law – Murder – Second Degree Murder – Conviction – AppealEvidence – Unsavoury Witnesses – Vetrovec Warning – Charge to Jury The appellant had been found guilty of second degree murder following a trial before a judge and jury. He appealed on the ground that the trial judge had failed to give the jury a Vetrovec warning regarding the testimony of his former common law spouse (S.S.) and a witness who had been his friend (W.D.) who was the source of the gun used in the shooting of the victim. The appellant’s trial counsel had initially identified the need for the judge to issue the warning because W.D. had an interest in the outcome because there were outstanding charges against him and because there was the potential that S.S.would be charged too, she would also have an interest in the case as well. During the pre-charge conference with defence counsel and the Crown, the trial judge noted that in giving the warning to the jury he would also have to convey a summary of the Crown’s confirmatory evidence. The defence counsel then withdrew his application. The victim had been a friend of the appellant. According to S.S.’s testimony, the appellant and the victim had pre-arranged a meeting in an abandoned farmyard. The victim worked as an automated teller machine (ATM) technician and as part of his job, he travelled between ATMs carrying cash. S.S. did not see what happened between the two men but heard two gunshots and then saw the appellant and the victim point guns at each other. She saw the victim on his knees pleading with the appellant and offering money in exchange for his life. The appellant instructed her to collect the money and the victim’s cellphone and place them in his truck and while she was doing so, she heard another gunshot and saw the victim lying face down and the appellant standing over him holding a gun. As she and the appellant left the scene, the appellant gave her the victim’s gun. The appellant hid the other guns and the money at another farm site and then dumped the victim’s cellphone and ammunition in a farm field. Apart from the handguns, none of the other items were ever recovered. The witness remained in a relationship with the appellant for another four years following the crime until November 2013. She was contacted by the police in February 2013 and denied any knowledge of the incident. At trial, S.S. testified that she was afraid of the appellant and he had warned her that as an accomplice, she was as involved as he was. When the RCMP contacted her again in May 2014, she again denied any knowledge but then told the officer what she knew because she felt safer and would receive protection from the appellant. S.S. did not have a criminal record, nor was she charged with any offence arising from this incident. The appellant testified that during the meeting in the farmyard, the victim produced two handguns and they began to test fire the weapons. The victim suggested that they stage a fake robbery. The appellant would rough up his friend and then take the cash from his truck. The victim became quite aggressive after the appellant hit him too hard and began chasing him with one of his guns. S.S. then took one of the guns and shot the victim three times. She took $23,000 in cash from his truck because she had financial problems. The testimony of W.D. was that the appellant had acquired two handguns, a Glock and a .22 calibre handgun, from him, ostensibly on behalf of another friend. Several days later, the appellant returned both handguns and reported that after his friend began to shoot at him with the .22 calibre, he had returned fired and shot him three times. On the appellant’s insistence, the witness changed the barrel of the Glock handgun several months later. The police arrested W.D. and charged him with unspecified offences arising from the incident. In the appellant’s version, he testified that the victim brought the guns to the meeting and assumed that he acquired them from W.D. He therefore returned them to W.D. after the incident and requested that he change the barrel on the Glock to protect W.D. HELD: The appeal was dismissed. The court found that the trial judge had not erred by not giving the Vetrovec warning. It was not mandatory for him to do so regardless of the position of the defence counsel. The judge was aware of the need for such a warning in the circumstances and after consulting with the Crown and the defence, he exercised his discretion to decide that he would not instruct the jury. The judge was aware that the defence counsel withdrew his application as a tactical decision to avoid having the judge repeat the Crown’s confirmatory evidence to the jury. The judge’s exercise of his discretion was entitled to deference.