) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 5806

CITATION: R. v. Hunt, 2013 ONSC 5806 COURT FILE NO.: 12-1842 DATE: 2013/09/15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – BRIAN PATRICK HUNT ) ) ) ) ) ) ) ) ) Lia Bramwell, for the CrownMichael A. Johnston, for the Accused ) ) ) HEARD: September 13, 2013 RULING JAMES J. [1] At the pre-charge meeting, Mr. Johnston for the defence requested that I include a Vetrovec warning in the charge to thejury. The request relates to both the complainant, Alan Pattison and another Crown witness, Trevor Bourque. Mr. Johnston points totheir lengthy criminal records (approximately 22 for Mr.

Bourque and 9 for Mr. Pattison plus an old conviction from the UnitedKingdom) and serious credibility concerns respecting both witnesses. [2] He relies upon R. v. C.P., (ON CA), [2005] O.J.

No. 4486 (C.A.) for the proposition that a warning tothe jury in the circumstances of this case is virtually mandatory. [3] Crown counsel says that these witnesses are not the sort of unsavory characters that engage the need for a Vetrovec warningand that the characteristics that might prompt a jury to take a hard look at their testimony were well canvassed at trial and are out in theopen, including their criminal records. [4] I will deal with Mr. Pattison first.

I begin by noting it would be unusual to give a warning in relation to the complainant butthe C.P. case tells us that complainants are not exempt. [5] Mr. Pattison is 53 years old, lives primarily on the proceeds of a disability pension. He supplements his income collectingbeverage containers for their refund value. [6] At the time of the incident he lived in a single room in a rooming house. He consumes alcohol regularly. On the day inquestion he was at the beer store when it opened at 9:30 a.m. and began drinking almost immediately.

He has had substance abuse issuesin the past. [7] His criminal record discloses a history of anti-social behaviour rather than a pattern of dishonesty and there is a substantialgap from 2002 to 2012. [8] The defence demonstrated a discrepancy in his evidence at trial about how much alcohol he consumed on the day in questionwhen compared to his evidence at the preliminary hearing.

He initially misled the police after the incident by saying he did not knowthe person who caused his injuries when his alleged assailant was well known to him. [9] He was examined at some length respecting the particulars of the events that led to his convictions. [10] While the category of types of witnesses who may be the subject of a Vetrovec warning is not closed, we are not dealing herewith a jailhouse informant, an accomplice or a witness who seeks to gain lenient treatment or other advantage in testifying for theprosecution. [11] Crown counsel acknowledges that Mr.

Pattison’s evidence is critically important to the case; without it there is no case toadvance.

[12] In my view, taking all of the circumstances together, there is no basis to require a special warning to the jury that it would bedangerous to accept his unconfirmed testimony. I agree with Crown counsel that Mr. Pattison does not belong to a special category ofuntrustworthy witnesses. He is the sort of witness who commonly comes before the court like many of his peers who live on themargins of society. Paraphrasing J.E. Ferguson J. in R. v. Dunbar, [2010] O.J.

No. 5971, at para. 5, any defects in his evidence or issuesaffecting his reliability to give an accurate account of what transpired are plainly visible for the jury to consider. Also, Mr. Pattison willbe included in the instruction respecting prior convictions. [13] As for Trevor Bourque, I agree with the defence submission there is an adequate basis to exercise my discretion so as torequire that the warning be given in his case. The factors I take into account include the following:

(1) He has over 20 criminal convictions including crimes of dishonesty such as (

i) possession of property obtained by crime; (ii) break and enter; (iii) fraud under $5,000; (iv) possession of break in instruments; and (

v) numerous fail to comply with recognizance offences. [14] His evidence at trial respecting the timing of his clean up of Mr. Pattison’s room is clearly at odds with the evidence ofConstable Hall. [15] When one considers the factors set out in R. v. Brooks, 2000 SCC 11 , [2000] S.C.J. No. 12, I acknowledge that thesituation with Mr.

Bourque is not a clear cut example of the type of witness who warrants the warning but I am exercising my discretionin favour of doing so because of the following factors: (1) his extensive criminal record including crimes of dishonesty; (2) he has given evidence under oath that is at odds with a police witness and which operates to lessen his exposure to criticismfor tidying up Mr.

Pattison’s room; and (3) the fact that his evidence, while not central to the prosecution’s case, is important because it places the accused in Mr.Pattison’s room the day of the incident. [16] In deciding to give the warning, the caution to the jury includes listing evidence that tends to confirm his evidence. In generalterms, I agree with Crown counsel’s submission that there is evidence that may amount to confirming evidence from Mr. Pattison andConstable Hall that ought to be part of the Vetrovec instruction. James J. Released: September 15, 2013 CITATION: R. v. Hunt, 2013 ONSC 5806

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – BRIAN PATRICK HUNT ruling James J. Released: September 15, 2013