R. v. Johnson, 2015 NSSC 381

SUPREME COURT OF Nova Scotia Citation: R. v. Johnson , 2015 NSSC 381 Date: 20151127 Docket: CRH No. 430125 Registry: Halifax Between: Her Majesty the Queen v.

Nathan Tremain Johnson Temporary Deferred Publication Ban: It is ordered that no person shall publish or broadcast any information in relation to all evidence tendered during this trial, all submissions of counsel, evidence tendered at the preliminary inquiry, verdict in this trial, sentence imposed if a guilty plea is rendered, the reasons for sentence, as well as all evidence, submissions and ruling on this application for a temporary deferred publication ban order.

This order is in effect until the conclusion of Randy Riley’s trial currently scheduled to be heard in March 2016 and relates to Nathan Tremain Johnson’s two matters currently before the Court, C.R. No. 430125 and C.R. No. 445421.

VETROVEC CAUTION DECISION Judge: The Honourable Justice Joshua Arnold Heard: November 27, 2015, in Halifax, Nova Scotia Oral Decision: November 27, 2015 Final Written: February 29, 2016 Counsel: Michelle James and Melanie Perry, for the Crown Patrick MacEwen, for the Defendant By the Court: [ 1 ] This decision concerns whether certain Vetrovec warnings should be given to the jury in the accused’s murder trial. During the trial I gave short oral reasons and reserved the right to supplement those reasons in writing.

These are my written reasons. [ 2 ] The Crown and the accused, Nathan Johnson, agree that mid-trial and final Vetrovec instructions to the jury are warranted in relation to the evidence of Crown witness Paul Smith. Mr. Johnson also requests mid-trial and final Vetrovec warnings be given to the jury in relation to the evidence of Crown witness Kaitlin Fuller. The Crown opposes such a warning in relation to Kaitlin Fuller. [ 3 ] Nathan Johnson is charged with the first degree murder of Chad Smith.

The Crown alleges that Randy Riley was the principal perpetrator and that Nathan Johnson aided in the commission of the offence. Kaitlin Fuller’s testimony is central to the Crown’s case against Nathan Johnson. The Crown alleges that immediately after the killing of Chad Smith, Nathan Johnson confessed to Ms. Fuller, who was his girlfriend at the time. Ms. Fuller gave a series of statements to the police within a week of the shooting and Mr. Johnson’s alleged confession to her.

Her credibility requires close scrutiny for a variety of reasons, some being the ordinary inconsistencies that we often see in trials, but some being quite different than those regularly encountered. I do not intend to review all of the potential issues arising from Ms. Fuller’s testimony, but some of the more significant issues that suggest close scrutiny of Ms. Fuller’s testimony is required include: • Ms. Fuller was aware that she was coming to court to testify in relation to a first degree murder trial.

However, she advised she did not review her preliminary inquiry transcript in any material way in preparation for the murder trial. The inference being that she was not taking this matter seriously;

• Ms. Fuller testified at trial that her memory might be more clear now, five years after Mr. Johnson confessed to her, than it was in 2010 when she provided statements to the police. She says that when she gave her police statements in 2010 she was under stress and her memory was clouded; • Ms. Fuller said things had popped into her memory since 2010 and those new things form part of her trial testimony; • Ms. Fuller agreed that in her 2010 police statements she said she did not know who made the call to the pizza shop.

She testified that in preparing for the preliminary inquiry in 2014 the information as to who made the call popped into her head while lying in bed, she wasn’t sure when, and she told the Crown in advance of the preliminary inquiry. Ms. Fuller agreed that 2014 was the first time that her allegation that Mr. Johnson made the call to the pizza shop was recorded. In 2010, Ms. Fuller gave four statements to the police, including a sworn KGB statement adopting the earlier statements, without mentioning this critical aspect of the Crown’s case against Mr. Johnson; • Ms.

Fuller also testified at trial in some detail as to Mr. Johnson’s discussion with Mr. Riley of a likely location for the murder. At the preliminary inquiry she said that Mr. Johnson did not tell her who chose the location for the murder. Again, Ms. Fuller had given four statements to the police, including a KGB statement, and had not mentioned this information; • Ms.

Fuller testified at trial that she had a tumour on her pituitary gland at some time after she gave those original police statements in 2010, but prior to the trial, and that this tumour had affected her memory in and around the time of the preliminary inquiry; • On November 18, 2015, when she was testifying in this trial, during cross-examination by Mr. Johnson’s counsel, Ms. Fuller said “I am not lying about that ”, the word “ that ” being emphasized; • On November 19, 2015, again during cross-examination, when Ms.

Fuller was pressed about demanding money from the police or the Crown in exchange for her testimony at trial, she started to cry, the first time that I noted such strong emotion from her. I did not see any such strong emotion exhibited during direct examination even when discussing Mr. Johnson’s confessing the murder to her. It was my belief that Ms. Fuller started crying in an attempt to avoid answering difficult questions on cross-examination. She asked for a break.

If I thought that she was truly upset at that point I would have given her a break, but it was my belief, sitting one meter away from her while she was in the witness box, that she started crying to avoid answering a difficult question for which she was having trouble formulating an answer. I refused her request for a break at that time, although I did give her one shortly thereafter, once she answered a particular line of questions; • Ms. Fuller testified that after the shooting Mr. Johnson wanted to get a gun and run away with her.

My understanding from cross-examination is that the first time she said this was at the preliminary inquiry and again she blamed a memory-affecting tumour for this difference between her original statements and her statements at preliminary inquiry and then at trial; • During cross-examination Ms. Fuller initially appeared to be denying that she had demanded money from the Crown or the police before testifying at trial, reiterating on a couple of occasions that she just wanted security. She subsequently agreed that two days before trial she had requested or demanded money.

She initially denied that she wanted any payment guaranteed in writing. She said she merely wanted money for her daughter’s safety. Ms. Fuller then said that she did want something in writing to guarantee money before testifying, again for her daughter’s safety; • Ms. Fuller agreed that she threatened to sue the RCMP if she didn’t get what she wanted, and she agreed that she refused to testify if she did not get paid; • During cross-examination Ms. Fuller said that she told the Crown she felt she was entitled to money and was told by somebody that she would be entitled to a reward after she testified. Ms.

Fuller said that she was aware of the provincial rewards program whereby she would only be paid after she testified and only if the accused was found guilty. Exhibit 24 details that a provincial rewards program notice in relation to this matter was posted in December 2011, which was after Ms. Fuller’s four police statements (provided in October and November 2010), but prior to her testimony at the preliminary inquiry. The provincial rewards program, as she agreed on cross-examination, would potentially allow her payment if the accused was found guilty. Ms.

Fuller would not say or could not remember who told her she was entitled to money in exchange for her testimony; • Ms. Fuller agreed during cross-examination at trial that she lied to her parents in 2010 about being in a relationship with Mr. Johnson; • Ms. Fuller agreed that she had lied to Mr. Johnson about her age; • Ms. Fuller testified that she told Mr.

Johnson that she had given birth to his child and the child had been given up for adoption, however, she confirmed that the pregnancy was actually terminated; • These lies are significant to this analysis in that they were made to individuals who were very close to her yet who she seemed able to deceive; • Ms. Fuller testified that she purposely omitted information in her first statement to the police, such as Paul Smith’s name; • Ms.

Fuller agreed that she did not tell the police about meeting Nathan Johnson while working as a police agent, even when she was told by the police not to do so, and that she kept that information to herself for five years. Therefore, Ms. Fuller testified on the one hand that she was terrified of Nathan Johnson, yet on the other hand agreed that she met with him while alone in private locations without telling the police; [ 4 ] The Crown argues that Ms.

Fuller initially came forward in 2010, a week or so after the shooting, and gave a series of four statements to the police without any apparent motive or features relevant to this issue and therefore there is no need for a Vetrovec warning;

[5] Mr. Johnson points out that Ms. Fuller’s trial testimony is inconsistent with those 2010 police statements and also has aspectsthat are inconsistent with her testimony at the preliminary inquiry. Mr. Johnson also points out that: Ms. Fuller had worked as a paidpolice agent in this matter; she demanded money in exchange for her trial testimony; she believed at trial that payment was conditionalupon conviction; that disclosure of certain critical evidence was delayed by her; and that her evidence in certain important aspects hasevolved over time. [6] I have reviewed S. Casey Hill, David M. Tanovich, Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence(WestlawNext Canada), s. 34.70 relating to “suspect witness testimony”. I have referred to R. v. Vetrovec, (SCC), [1982]1 S.C.R. 811; R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. Bevan, (SCC), [1993] 2 S.C.R. 599, 1993CarswellOnt 100; R. v. Campbell (2002), 163 C.C.C. (3d) 485, 2002 NSCA 35; R. v. Khela, [2009] 1 S.C.R. 104, 2009 SCC 4; R. v. Illes(2007), 217 C.C.C. (3d) 529, 2007 BCCA 125, reversed on other grounds [2008] 3 S.C.R. 134, 2008 SCC 57; R. v.

Illes (2013), 269C.C.C. (3d) 437, 2013 BCCA 169, leave to appeal refused 2013 CarswellBC 3145 (S.C.C.); R. v. Ali Dikah, 1994 CarswellOnt 85 (Ont.CA), affirmed (SCC), [1994] 3 S.C.R. 1020; R. v. Langlet, 2013 BCSC 2274; and R. v. Carroll, 2014 ONCA 2. InCarroll, Watt J. states, beginning at para. 59: 59. To test the validity of this claim of error, it is necessary to recall the principles at play when a trial judge is asked to include aVetrovec caution in the charge to the jury. 60.

First, at least as a general rule, whether the testimony of a Crown witness should be subject to a Vetrovec caution lies within thediscretion of the trial judge. After all, the trial judge is an eyewitness to the testimony of the witness and the temperature of the trialproceedings. 61. Second, as the parties acknowledge, two factors occupy a position of prominence in a trial judge’s decision about whether to includea Vetrovec caution about the testimony of a Crown witness and final instructions: the credibility of the witness and the importance of thewitness’ evidence to the case for the Crown. 62.

Where a witness’ evidence occupies the central position in the demonstration of guilt, yet may be suspect because of a disreputableand untrustworthy character, a clear and sharp warning – a Vetrovec caution -- may be appropriate to alert the jury to the risks ofadopting the evidence without more. 63. But where the evidence is important, but not dispositive of guilt, and where the evidence of the witness merely furnishes additionalsupport for the prosecution’s case, a Vetrovec warning may not be required and its absence confirmed on appellate review. 64.

Third, in assessing the credibility of a Crown witness to determine whether to include a Vetrovec warning, a trial judge must not slotthe witness into a particularized category. Like jailhouse informants. Or drug addicts. Or particeps criminis. Such an approach would beat odds with the flexible approach that Vetrovec mandates and a return to the categorical approach it rejects. 65. Rather, what a trial judge should do is direct his or her mind to the circumstances of the case and thoroughly examine the myriadfactors that might impair the worth of the witness’ testimony.

Where the judge concludes that the witness can be trusted, no Vetroveccaution is necessary, regardless of whether the witness is an accomplice or jailhouse informant. 66. In addition, consistent with the flexibility that is the badge of Vetrovec, the fact that a witness seeks to avoid incarceration -- and Iwould add, prosecution -- by testifying is a factor which may undermine credibility but, on its own, is not enough to require a Vetroveccaution. 67.

Finally as a general rule, a trial judge’s discretion whether to include a Vetrovec caution in final instructions is to be accorded widelatitude and substantial deference on appellate review. [7] At para. 78 Watt J. goes on to state: 78. The rational that underpins a Vetrovec caution originates in the concern that, for certain types of witnesses, lay members of the jurysimply lack the critical experience to adequately gauge the credibility of these types of witness and the reliability of their evidence. [8] The issue of mutual confirmation by two unsavoury witnesses should also be addressed.

In Illes (2007) the court stated: 3. The Vetrovec Warning – no mutual confirmation [30] The appellant further submits that mutual confirmation is prohibited. I do not agree with that unqualified proposition. Aslong as the judge tells the jury that the value of confirmation is lost if the witnesses collaborated, the jury is entitled to use the evidenceof one unsavoury witness to support the evidence of another. [31] I need only refer to R. v. Pollock (2004), (ON CA), 187 C.C.C. (3d) 213 (Ont.

C.A.) where RosenbergJ.A., for the court, said: [161] Pollock also submits that the trial judge erred in failing to caution the jury that the evidence of one suspect witness could notconfirm the evidence of another suspect witness. He correctly recognizes that this court has held to the contrary in R. v.Winmill (1999), (ON CA), 131 C.C.C. (3d) 380. I can see no reason for reconsidering that decision. Alternatively,Pollock submits that there must be an exception to the rule that one unsavoury witness can confirm another where there is a danger ofcollusion.

I am prepared to assume that where there is evidence of collusion, unsavoury witnesses cannot confirm each other. [32] In my respectful view, the judge satisfactorily dealt with the collaboration issue when she said this to the jury:

[140] I must give you a further instruction. There are numerous examples in the evidence of Mr. Favell and Mr. Madinsky which mightbe seen by you to confirm the evidence of the other. The Crown referred to examples in its address to you yesterday. You may use thatevidence only if you are satisfied that there has been no collaboration between Mr. Madinsky and Mr. Favell as to what they said to youin evidence. If you are satisfied that there has been no collaboration between Mr. Madinsky and Mr.

Favell in relation to evidence thatyou might use to confirm their testimony, you may, if you accept the confirmatory evidence, use it to support the testimony of theother. If, however, you are satisfied that they have collaborated in respect of that evidence, you must not use that evidence to confirmtheir testimony. [141] However, it's a bit different with Ms. Ovalle. There is no evidence that Mr. Madinsky and Mr. Favell collaborated withMs. Ovalle in any way. Therefore, you may use the evidence of Ms. Ovalle, which you accept, to support the evidence of Mr. Madinskyand Mr.

Favell. [142] Please understand that any evidence that tends to strengthen your belief that the witness is telling the truth can be used by you toconfirm their evidence so long as you accept that testimony and are satisfied that it is not the result of collaboration. [Emphasis added.] [33] I would not accede to this ground of appeal. [9] In Illes (2013) the court stated: [29] The appellant contends that once it is shown that an unsavory witness has been tainted on a matter material to the case byconnection to another unsavory witness, there is an absolute bar to using the evidence of the first witness to corroborate the evidence ofthe second witness.

He relies on the decision of this Court in R. v. Illes, 2007 BCCA 125 , and that of the Supreme Court ofCanada in R. v. Khela, 2009 SCC 4 , [2009] 1 S.C.R. 104 at 123 for this contention. [30] Even before Khela, this proposition was rejected in R. v. Winmill (1999), (ON CA), 42 O.R. (3d) 582, 131C.C.C. (3d) 380 (C.A.)at 608 and R. v. Soomel, 2006 BCCA 17 , 205 C.C.C. (3d) 45 at para. 229. [31] Illes was also decided prior to Khela. In Illes, Mr. Justice Donald, for the majority, wrote at para. 30: The appellant further submits that mutual confirmation is prohibited.

I do not agree with that unqualified proposition. As long as thejudge tells the jury that the value of confirmation is lost if the witnesses collaborated, the jury is entitled to use the evidence of oneunsavoury witness to support the evidence of another. [32] This statement must, however, be considered in the context in which it was made. Two paragraphs later Donald J.A. wrote: In my respectful view, the judge satisfactorily dealt with the collaboration issue when she said this to the jury: [140] I must give you a further instruction. There are numerous examples in the evidence of Mr. Favell and Mr.

Madinsky which mightbe seen by you to confirm the evidence of the other. The Crown referred to examples in its address to you yesterday. You may use thatevidence only if you are satisfied that there has been no collaboration between Mr. Madinsky and Mr. Favell as to what they said to youin evidence. If you are satisfied that there has been no collaboration between Mr. Madinsky and Mr. Favell in relation to evidence thatyou might use to confirm their testimony, you may, if you accept the confirmatory evidence, use it to support the testimony of theother.

If, however, you are satisfied that they have collaborated in respect of that evidence, you must not use that evidence to confirmtheir testimony. [141] However, it’s a bit different with Ms. Ovalle. There is no evidence that Mr. Madinsky and Mr. Favell collaborated withMs. Ovalle in any way. Therefore, you may use the evidence of Ms. Ovalle, which you accept, to support the evidence of Mr. Madinskyand Mr.

Favell. [142] Please understand that any evidence that tends to strengthen your belief that the witness is telling the truth can be used by you toconfirm their evidence so long as you accept that testimony and are satisfied that it is not the result of collaboration. [Emphasis in original.] [33] Thus, Donald J.A. did not foreclose the use of part of the evidence of one unsavory witness to corroborate the evidence of awitness of similar ilk, where it was not the result of collusion. [34] This view of Illes is consonant with the view expressed by Mr. Justice Freedman, in R. v.

Sanderson, 2003 MBCA109 , at para. 54: But Vetrovec did not go so far as to make it mandatory that there be some supportive evidence before a witness of unsavoury charactercan be believed. A jury may choose to believe such a witness even with no supportive evidence, although they must be properly warnedof the dangers in doing so. [35] In Khela, at p. 122, Mr. Justice Fish referred to the earlier decision of the Supreme Court of Canada in R. v. Brooks, 2000 SCC11 , [2000] 1 S.C.R. 237 at 287, where, in reasons concurring with the majority, Mr.

Justice Binnie commented that: ...Jailhouse informants presenting a profile such as Balogh and King, generally do, it seems to me, justify an inference ofuntrustworthiness, and as a general rule in such cases a Vetrovec warning should be given. [36] At the same page, Fish J. adopted the principled framework to assist trial judges in constructing Vetrovec warnings appropriateto the circumstances of each case articulated by the Ontario Court of Appeal in R. v. Sauvé (2004), (ON CA), 182C.C.C. (3d) 321, leave to appeal ref’d [2004] S.C.C.A. No. 246, [2005] 1 S.C.R. xv. The framework is:

... composed of four main foundation elements: (1) drawing the attention of the jury to the testimonial evidence requiring specialscrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict onunconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, indetermining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthywitness is telling the truth as to the guilt of the accused (R. v.

Kehler, 2004 SCC 11 , [2004] 1 S.C.R. 328, at paras. 17-19). [Emphasis in original.] [37] That framework was subsequently applied by the Ontario Court of Appeal in R. v. Roks, 2011 ONCA 526 , where atparas. 65 – 66 Mr. Justice Watt held that: [65] To satisfy the materiality requirement, confirmatory evidence need not implicate the accused: Khela, at paras. 40-41; Kehler, atpara. 16.

The materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to thetrier of fact that the Vetrovec witness can be trusted in his or her assertion that the accused is the person who committed theoffence: Khela, at para. 42; Vetrovec, at p. 833.

Where the only issue in dispute is whether the accused committed the offence, to beconfirmatory, evidence must comfort the trier of fact that the Vetrovec witness is telling the truth in that regard before convicting on thebasis of the Vetrovec witness’ evidence: Khela, at para. 43. [66] It is worth reminder [sic] that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence ofconfirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling thetruth: Khela, at para. 37; Kehler, at para. 22; Sauvé, at para. 82. [Emphasis in original.] [38] In R. v.

Drabinsky, 2011 ONCA 582 , leave to appeal ref’d [2011] S.C.C.A. No. 491, a submission similar to that ofthe appellant here was rejected by the Ontario Court of Appeal, at para. 136: Nor do we see any support in logic or law for the proposition that a finding that Messina lied about one part of the evidence demandedthe rejection of the rest of her evidence. Certainly her collusion with Craib to give false testimony was yet another reason to view herevidence with great caution. It was not, however, a reason to reject the entirety of her evidence without careful scrutiny.

The trial judgeultimately determined that her evidence about other meetings, particularly in October 1997 and February 1998, was credible not onlybecause it was consistent with other testimony and documents but, perhaps most importantly, because it was “confirmed by the reality ofLivent”. [39] In my opinion, Khela did not establish an absolute bar to the use of the evidence of one unsavory witness, even if tainted bycollusion on some matters, to corroborate the evidence of a second unsavory witness on other matters.

To the contrary, the case remindsus that a trier of fact must keep in mind that, while it is dangerous to convict on unconfirmed evidence of this sort, a jury or a judge isentitled to do so if satisfied that the evidence is true. This view accords with the reasoning of this Court in R. v. Tse, 2013 BCCA 121, delivered after the reasons for judgment of the trial judge. [40] In my opinion, having reminded himself of the cautions set out in Vetrovec, the trial judge committed no error in accepting, tothe extent that he did, that despite their collusion on some of their evidence, Mr.

Favell’s evidence could corroborate the evidence ofMr. Madinsky on other matters related to the murder. I would not accede to this ground of appeal. [10] The Crown agrees that a Vetrovec caution is necessary in relation to the testimony of Paul Smith. It is significant that PaulSmith confirmed on cross-examination that he was advised about the police investigation prior to giving his statement. However, nodetails of what he was told by the police were elicited by counsel: Defence: Ok, um, and Det. Cst. Fairburn says he wants to talk to you in relation to Mr. Smith’s murder, correct? Smith: Yep.

Defence: And, uh, you invite him into your home? Smith: Yep. Defence: And he sits down with you and tells you that the police are aware of your involvement in this murder, correct? Smith: Yep. Defence: And Det. Cst. Fairburn spends some time at your place, about an hour maybe a little more? Smith: Yeah, about an hour. Defence: Ok, and during the course of that hour, Det. Cst. Fairburn tells you that he is aware that you’re involved in this murderand he lays out various aspects of the evidence for you, correct? Smith: Yeah, if you want to, yeah. Defence: He tells you what the police know. Smith: Yeah.

Defence: And he tells you that he wants your co-operation, correct?

Smith: Yes. Defence: And, I’m going to suggest to you, at one point in time Det. Cst. Fairburn suggests to you that you can either be a witness with respect to this particular murder charge or you can be an accused with respect to this particular murder charge, correct? Smith: Yes. [ 11 ] Paul Smith initially refused to give the police a statement. It was only after the police arrested Paul Smith that he cooperated in the prosecution of Nathan Johnson.

It is for the jury to determine the facts of this case and it is for the jury to determine what, if any, significance to attach to this testimony. [ 12 ] There is no rule prohibiting mutual confirmation by two witnesses whose evidence is subject to a Vetrovec caution.

There is no absolute bar to the use of the evidence of one unsavoury witness, even if that witness’ testimony is possibly tainted by the evidence of another unsavoury witness, if the jury is satisfied that the evidence is true. [ 13 ] As to the evidence of Kaitlin Fuller, the circumstances of this case require a strong Vetrovec caution be provided to the jury. Such a caution must emphasize the danger of relying on Ms. Fuller’s evidence unless it is confirmed by other evidence. The caution must clarify the need for such confirmatory evidence to be independent of Ms.

Fuller, not being tainted by a connection to her. A similarly strong Vetrovec caution will be required when instructing the jury on the use of the evidence of Paul Smith. Arnold, J.