Dockets: 1673-CR, 1675-CR, 1678-CR Jacob Worm, Tyrone Worm v. Denny Troy Jimmy, 2014 SKCA 94

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 94 Date: 2014-09-15 Between: Dockets: 1673-CR, 1675-CR, 1678-CR Jacob Worm, Tyrone Worm and Denny Troy Jimmy Appellants - and - Her Majesty the Queen Respondent Coram: Ottenbreit, Caldwell and Herauf JJ.A. Counsel: Morris P. Bodnar, Q.C., and Michael D. Nolin, for Jacob Worm Bobby P. Hrycan, for Tyrone Worm Michael T. Megaw, Q.C. (June 11 and September 30, 2013), E. Scott Hopley (all appearances), and David Zeggelaar (June 20, 2014) for Denny Troy Jimmy Anthony B. Gerein, for the respondent Timothy Brown for Saskatchewan Lawyers Insurance Association Appeal: From: Q.B.C. 20/2008 , J.C. of Regina

Heard: June 11, 2013, September 30, 2013 and June 20, 2014 Disposition: Dismissed Written Reasons: September 15, 2014 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Caldwell J.A. I. INTRODUCTION [1] The appellants were each found guilty by the same jury of criminal offences in relation to the death of Douglas Anderson. JacobWorm was found guilty of second degree murder.

Denny Troy Jimmy and Tyrone Worm were each found guilty of manslaughter as aparty to an offence under s. 21(2) of the Criminal Code. [2] The appellants appeal from their respective convictions on a common basis, namely, the adequacy and completeness of theVetrovec [R. v. Vetrovec, (SCC), [1982] 1 S.C.R. 811] warnings given by the trial judge. In doing so, they impugn thetrial judge’s jury instructions for failure to (

a) caution the jury about an allegedly unsavoury witness, (

b) advise that the suspect evidenceof one unsavoury witness could not confirm the suspect evidence of another, (

c) caution on the frailties of eyewitness evidence ofidentification, and (

d) provide the tools necessary to analyse the evidence of the unsavoury witnesses. Messrs. Worm and Worm alsoseek to set aside their convictions on the basis of inadequate representation by their respective trial counsel. For the reasons below, Iwould dismiss each appeal from conviction. [3] Messrs. Worm and Worm also appeal from their respective sentences. On June 20, 2014, this Court denied Mr. Jimmy leave toextend the time allowed to appeal from his sentence. For the reasons below, I would grant leave, but dismiss each appeal from sentence. II. Jurisdiction [4] The appeals from conviction with respect to the Vetrovec warnings are taken under s. 675(1)(a)(

i) of the Criminal Code as ofright. The two appeals from conviction with respect to the adequacy of trial counsel arise under s. 675(1)(

a) but require leave of the Courtwhere they invoke questions of fact or mixed law and fact or otherwise appear to give rise to a sufficient ground of appeal. In either casethe Court’s power to allow the appeals is set out in s. 686(1), namely, the Court may do so where: (

i) the verdict is unreasonable orcannot be supported by the evidence, (ii) the trial court erred on a question of law, or (iii) there was a miscarriage of justice. The matterof inadequate counsel falls only under the last of these powers. [5] The two appeals against sentence are taken pursuant to s. 675(1)(

b) of the Criminal Code and require leave of the Court. TheCourt’s powers on an appeal taken against sentence are set forth in s. 687, which directs the Court to consider the fitness of the sentenceappealed against. If the sentence is borne of an error in principle, a failure to consider a relevant factor, an overemphasis of anappropriate factor or otherwise is demonstrably unfit (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500), the Court may vary the sentence within the limits prescribed by law for the offence of whichthe accused was convicted; otherwise the Court must dismiss the appeal. III. facts OF THE OFFENCES [6] The basic facts of the offences for which the appellants have been convicted, as they appear in a sentencing decision of the trialjudge (see: R. v. Jimmy, 2009 SKQB 124; and see also: R. v.

Worm, 2009 SKQB 125), are: [4] … On the evening of November 17th and early morning hours of November 18, 2006, Denny Jimmy, along with his cousinsJacob Worm, Tyrone Worm and others were partying at various residences. Jacob Worm had a gun in his possession. Jacob Worm first produced the gun for others to see at Denny Jimmy’s residence. Later, in the early morning hours of November 18th, Jacob Worm tookthe gun out and produced it for a second time for others to see, at Candace Smoke’s residence.

At some point in the early morning hours of November 18th, 2006 this group of people left Candace Smoke’s residence to go to another party. On the walk from CandaceSmoke’s, Jacob Worm took the gun out again and in the presence of Denny Jimmy, shot the gun into the air. Jacob Worm then put the

gun back inside his pants. [5] Shortly after that, as the group walked in an alley, one of the people in the group pointed out a house as a Native Syndicate drug house. [Note: None of the victims had any connections to the Native Syndicate. The assailants had the “wrong house”.] Jacob Worm announced to the group that they were going to “rush” this house. Several of the group of young men lined up at the back door of this house, including Jacob Worm and Denny Jimmy. Almost all of the men covered their faces with bandannas or other articles to disguise their faces.

Jacob Worm took out the gun from his pants, kicked in the back door and Jacob Worm and others, including Denny Jimmy, ran into the house. Once in the house Jacob Worm yelled “NSK”. Jacob Worm had the gun in his hand as he went into the house. Jacob Worm demanded the people in the house turn over their money and drugs. The people in the house were confined within the house by the men in this group. Several of the inhabitants of the house were assaulted. The house was occupied by Douglas Anderson, his wife Arlene and their daughter-in-law Trina Bird and her three children.

Also present that morning were the Anderson’s daughter Charity Kahnapace, her husband and their 14 year old daughter, Toni Kahnapace. Douglas Anderson was assaulted, although it is not clear which of the members of the group assaulted him. The men continued to demand drugs or money from the people in the house. Jacob Worm then shot Douglas Anderson in the abdomen. Immediately after Douglas Anderson was shot all of the men ran out of the house, including Denny Jimmy. Doug Anderson died from the gunshot wound to his abdomen. A similar account of the facts appears in the sentencing decision for Mr.

Jacob Worm (see: R. v. Worm , 2009 SKQB 122 ). [ 7 ] It goes without saying that the jury that convicted the appellants did not identify the foregoing as the facts that grounded their findings of guilt. Rather, the foregoing facts represent the sentencing judge’s determination, as was required of her, of the bare facts necessary to support the jury’s verdicts, which she derived from the issues that had been before the jury on the basis of the principles set forth in R. v. Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96: [17] ...

First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict” ... The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” ... and must not accept as fact any evidence consistent only with a verdict rejected by the jury. ... [18] Second, when the factual implications for the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts ...

In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” ... It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand.

The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [ 8 ] I make this point here because a number of the appellants’ submissions rely upon the evidence that was put before the jury but that evidence may or may not have given rise to a finding of fact used by the jury in reaching its verdicts. Where an appellant’s appeal raises a question that is tied to the evidence adduced at trial, I examine the question and the evidence in the reasons below.

As reference, the following are the individuals who are, or whose evidence is, material to the appellants’ allegations of error in the trial judge’s charge to the jury: (

a) Colby Smoke: Mr. Smoke admitted to participating in the home invasion at Mr. Douglas Anderson’s home. He testified as to events that led up to the home invasion, the events of the home invasion itself, and events occurring subsequent to it. He identified Mr. Jacob Worm as the individual who shot Mr. Douglas Anderson. He identified Mr. Tyrone Worm, Mr. Jimmy, Ryan Raphael and a young offender YO(1) as being present during the home invasion. He is Candace Smoke’s brother. He has a youth criminal record of five convictions.

At the time of his testimony in this case he stood charged with second-degree murder and aggravated assault in a separate incident. He was released on bail from those charges after he gave police a statement in this case. He posted pictures of himself brandishing the murder weapon on the internet. He admitted to membership in the Native Syndicate Killers street gang. He was never charged in connection with his participation in the home invasion or the homicide of Mr. Douglas Anderson. (

b) Ryan Raphael: Mr. Raphael admitted participating in the invasion of the Anderson home. He testified as to events that led up to the home invasion, the events of the home invasion itself, and events occurring subsequent to it. He admits he may have struck Mr. Douglas Anderson, but he identified Mr. Jacob Worm as the individual who shot Mr. Douglas Anderson. He also places Mr. Tyrone Worm in the Anderson home at the time of the homicide. His recollection of events is inconsistent and patchy. He was intoxicated, high on ecstasy and marijuana, and hallucinating/blacking out at material times.

He has an extensive youth criminal record, including a conviction for obstruction of justice. He was charged with first degree murder in connection with his participation in these events, but was released from custody after cooperating with police. He received a sentence of “time served” in relation to other offences, including two common assaults and resisting arrest. The police paid the security deposit on his apartment. He is a cousin to all three of the appellants. (

c) Morley Anderson: Mr. Morley Anderson is Mr. Douglas Anderson’s son, but he was not at the Anderson home at the time of the home invasion. He was later incarcerated in the same facility and at the same time as Mr. Jacob Worm and Mr. Smoke. He confronted Mr. Worm by kicking Mr. Worm’s food tray, whereupon he says Mr. Worm threatened to shoot him like he had shot Mr. Douglas Anderson. He has a criminal record. He was released from jail after making a statement to the police in this matter. He expected to obtain a conditional sentence on charges he faced by way of his cooperation with the police. (

d) Candace Smoke: Ms Smoke was part of the group that made its way from her residence to the Anderson home and back. She did not participate in the home invasion. She puts the gun in Mr. Jacob Worm’s hand on the street prior to the homicide. She testified that all three appellants, Mr. Smoke and Mr. Raphael had entered the Anderson’s yard prior to the homicide. She has confused Mr. Tyrone Worm with Dylan Pelletier in her testimony and statements. She heard Mr. Jacob Worm say he had killed “that guy”. She is Mr. Smoke’s sister.

(

e) YO(1): YO(1) participated in the home invasion at the Anderson home. He was part of the group who committed the crimes in question. His blood was found on the doorway to the Anderson home. He was charged and convicted as a young offender in a separate trial in connection with his participation in this offence. He did not testify at the trial of the appellants. (

f) Desiree Worm: Ms Worm was part of the group that made its way from Ms Smoke’s residence to the Anderson home. She did not participate in the home invasion. She was never charged in connection with these events. She is related to the appellants. She was not called to testify at the appellants’ trial. (

g) Rick Worm: Mr. Rick Worm was part of the group that made its way from Ms Smoke’s residence to the Anderson home. He did not participate in the home invasion. He was never charged in connection with these events. He is related to the appellants. He was not called to testify at the appellants’ trial. [ 9 ] In addition, as groundwork to their appeals under the rubric of inadequate representation at trial, Messrs. Worm and Worm both sought to introduce fresh evidence before the Court to establish a factual basis for their respective allegations of incompetence on the part of their trial counsel.

The Court heard the motions to adduce fresh evidence on June 11, 2013 preliminary to the appeals proper, which the Court heard on September 30, 2013. I address the import of the preliminary motions later in these reasons. IV. conviction appeals [ 10 ] I turn now to summarise the issues raised in the conviction appeals, beginning with the appellants’ concerns with the Vetrovec warnings given by the trial judge. In this respect, the appellants have levelled a number of common criticisms at the content and completeness of those warnings. In particular, the appellants variously assert the trial judge erred by: (

a) failing to give the jury a Vetrovec warning with respect to Ms Smoke; (

b) advising the jury the evidence of one unsavoury witness could confirm the evidence of another unsavoury witness; (

c) failing to caution the jury about the frailties of eyewitness evidence of identification; and (

d) failing generally to provide the jury with the tools necessary for them to analyse the evidence of the unsavoury witnesses. [ 11 ] The last of these assertions is the most involved as the appellants there raise diverse issues with the adequacy of the trial judge’s Vetrovec warnings.

In the main, however, the appellants contend the alleged errors in the trial judge’s charge constitute an error in law which empowers the Court to set aside the jury’s finding of guilt with respect to each appellant under s. 686(1) of the Criminal Code . [ 12 ] After reviewing some background on Vetrovec warnings, I will address each assertion of error in the warnings and charge given by the trial judge. I will then turn to address the two applications to adduce fresh evidence and the associated allegations of incompetency of trial counsel. A. Analysis 1. Vetrovec Warnings [ 13 ] In R. v.

Vetrovec , the Supreme Court of Canada signalled a move away from overly formalistic, categorical cautions about the reliability of evidence, which had been based on the relationship between a witness and an accused. Speaking through Dickson J. (as he then was), the Court said (at pp. 830-832): I would hold that there is no special category for “accomplices”. An accomplice is to be treated like any other witness testifying at a criminal trial and the judge’s conduct, if he chooses to give his opinion, is governed by the general rules.

I would only like to add one or two observations concerning the proper practice to be followed in the trial court where as a matter of common sense something in the nature of confirmatory evidence should be found before the finder of fact relies upon the evidence of a witness whose testimony occupies a central position in the purported demonstration of guilt and yet may be suspect by reason of the witness being an accomplice or complainant or of disreputable character .

There are great advantages to be gained by simplifying the instruction to juries on the question as to when a prudent juror will seek some confirmation of the story of such a witness, before concluding that is true and adopting it in the process of finding guilt in the accused as charged. It does not, however, always follow that the presiding justice may always simply turn the jury loose upon the evidence without any assisting analysis as to whether or not a prudent finder of fact can find confirmation somewhere in the mass of evidence of the evidence of a witness .

Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness. There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support.

The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. This may entail some illustration from the evidence of the particular case of the type of evidence, documentary or testimonial, which might be drawn upon by the juror in confirmation of the witness’ testimony or some important part thereof . I do not wish to be taken as saying that such illustration must be carried to exhaustion. However, there is, in some circumstances, particularly in lengthy trials, the

need for helpful direction on the question of sifting the evidence where guilt or innocence might, and probably will turn on theacceptance or rejection, belief or disbelief, of the evidence of one or more witnesses. All of this applies equally in the case of anaccomplice, or a disreputable witness of demonstrated moral lack, as for example a witness with a record of perjury.

All this takes oneback to the beginning and that is the search for the impossible: a rule which embodies and codifies common sense in the realm of theprocess of determining guilt or innocence of an accused on the basis of a record which includes evidence from potentially unreliablesources such as an accomplice. [Emphasis added] [14] A Vetrovec warning therefore serves a practical purpose: it alerts a jury to the danger of relying on the unsupported evidence ofunsavoury witnesses and explains the reasons for special scrutiny of their testimony.

In appropriate cases, it may also give a jury tools tohelp to identify evidence capable of enhancing the trustworthiness of unsavoury witnesses. The overall goal of a Vetrovec warning is toensure that jurors attain an appropriate level of comfort before convicting an accused on the basis of what has traditionally beenconsidered unreliable evidence. See: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para. 47. [15] The content of a Vetrovec warning must achieve its purposes, but there is no fixed or mandatory language for doing so.

Thisnecessarily leaves a trial judge with latitude when crafting a Vetrovec warning as part of the judge’s charge to a jury. In R. v. Brooks,2000 SCC 11, [2000] 1 S.C.R. 237, Major J. (Iacobucci and Arbour JJ. concurring) said this of the content of a Vetrovec warning (atparas. 94-95): [94] What then is a clear, sharp warning? It is obvious there is no particular language or formula. At a minimum, a proper Vetrovecwarning must focus the jury’s attention specifically on the inherently unreliable evidence.

It should refer to the characteristics of thewitness that bring the credibility of his or her evidence into serious question. It should plainly emphasize the dangers inherent inconvicting an accused on the basis of such evidence unless confirmed by independent evidence. [95] The warning does not come without risk to the accused as it should also be accompanied by a reference to the evidence capableof providing independent confirmation of the unsavoury witness’s testimony. The independent confirmation relates to other evidencethat would support the credibility of the unsavoury witness.

It does not mean reference to any other evidence supporting the Crown'scase. … [16] In R. v. Brass, 2007 SKCA 94, 226 C.C.C. (3d) 216, Jackson J.A., speaking for this Court, wrote: [23] Since Vetrovec, there have been many appellate decisions considering the fundamental basis for the unsavoury witness warning.In R. v. Proudfoot [(1995), 1995 ABCA 409 , 102 C.C.C. (3d) 260 at 267, (1995), 34 Alta. L.R. (3d) 426 (C.A.), leave to appealto S.C.C. refused, [1995] S.C.C.A.

No. 524 (QL)] the Alberta Court of Appeal wrote that “[t]he important question is whether the judgehas said enough to the jury to bring home to them that the witness might have some motive other than the pursuit of truth for what hesays.” In R. v.

Campbell 2002 NSCA 35, (2002), 163 C.C.C. (3d) 485] Bateman J.A., speaking for the Court, said a witness isconsidered unsavoury "where it is suspected that his or her evidence is proffered for an ulterior motive - for example, to divert suspicionor blame from himself or herself, or to gain advantage such as immunity from prosecution for the current offence or concessions inrelation to another offence, or for monetary reward." [Ibid. para. 13] 24 Based on Vetrovec and the subsequent jurisprudence, I conclude that to determine whether an accomplice's testimony may beinherently untrustworthy, a court looks at factors such as these: (

i) whether the witness is facing charges; (ii) whether the witness openlyacknowledges participation in the crime; (iii) whether the witness has anything to gain or lose by testifying; (iv) whether the witness istestifying to deflect blame on another; (

v) whether the witness is protecting another; (vi) whether there is some other reason why thewitness would seek to blame another or minimize his or her own participation. [17] In R. v.

Bevan, (SCC), [1993] 2 S.C.R. 599, Major J., for the majority of the Court, recognised the deferenceowed to a trial judge who has crafted an impugned Vetrovec warning (at p. 613): While it is usually a corollary of the Vetrovec warning that the trial judge make some reference to evidence that the jury mayconsider supportive of the impugned evidence, in some cases part or all of the supporting evidence may be extremely prejudicial to theaccused, such that to draw the jury's attention to that evidence in tandem with a Vetrovec warning could in some circumstances be unfairto the accused.

I do not agree that the only remedy for this problem lies in not giving a Vetrovec warning. Instead, the appropriate remedy inthose circumstances lies with the discretion of the trial judge to decide in the particular case (perhaps following argument) if a Vetrovecwarning is to be given, and, if so, whether it should or should not be accompanied by a direction as to what other specific evidence thejury might conclude is supportive of the impugned evidence.

The trial judge’s decision on this type of question is similar in principle to the decisions often made by trial judges as to whetherto admit cogent but prejudicial evidence. Where that kind of issue arises, the trial judge decides whether the probative value of theevidence outweighs its prejudicial effect.

Because the trial judge is in the best position to assess the atmosphere of the trial and the effectthat the evidence or instruction may have on a jury hearing the case, the trial judge’s decision on these kinds of issues should not belightly interfered with on appeal. [18] The latitude afforded a trial judge is similarly evident in R. v. Khela, where Fish J. explained when appellate intervention based onthe language of a Vetrovec warning may be warranted: [13] The crafting of a caution appropriate to the circumstances of the case is best left to the judge who has conducted the trial.

Noparticular set of words is mandatory. In evaluating its adequacy, appellate courts will focus on the content of the instruction and not on itsform. Intervention on appeal will not be warranted unless a cautionary instruction should have been given but was not, or the cautionaryinstruction that was given failed to serve its intended purpose.

[19] At a general level, the appellate role in reviewing a jury charge was set forth in R. v. Jacguard, (SCC), [1997] 1S.C.R. 314, where the Court urged appellate courts to use a functional approach to avoid the danger of setting an impossible standard fortrial judges. As such, appellate review calls for an assessment to determine whether the accused, based on a review of the whole chargeto the jury, has had a fair trial, that it is not an examination to find minute error. As Jackson J.A. said in R. v.

Brass, the purpose ofappellate review is to ensure that juries are properly instructed, not perfectly instructed (para. 3). [20] With that, I would turn to consider whether appellate intervention is warranted with respect to the Vetrovec warnings given by thetrial judge in this case or with respect to her decision not to issue a warning about the evidence of Ms Smoke. 2. The Vetrovec Warnings in this Case [21] In this case, with the agreement of the Crown and defence counsel at trial, the trial judge issued a Vetrovec warning in respect ofthe evidence of each of Mr. Smoke, Mr. Raphael and Mr. Morley Anderson.

This was so due to the circumstances of these individuals,which I reviewed in general terms earlier in these reasons. In each case the circumstances led the trial judge to state in her charge to thejury, in more or less the same language with respect to each of them, that the witness “might have an interest in testifying favourably forthe Crown in this case”. In particular, she began the Vetrovec portion of her charge to the jury in this manner, referring first toMr. Morley Anderson’s evidence (at pp.

T1298-1301): I’m now going to give you a special caution about the testimony of Morley Anderson, Ryan Raphael and Colby Smoke. MorleyAnderson testified for the Crown. You will recall what I told you earlier about the credibility of witnesses. You should consider thethings I told you when you decide whether or not to believe Morley Anderson’s evidence.

However, there is a special instruction that has to do with his evidence and it is an instruction that you must keep foremost in yourmind when you are considering how much or little you will believe of and rely upon his evidence in making your decision in this case.You have heard that Morley Anderson has admitted to a series of criminal convictions and his criminal record which dates back to 1997was put in evidence. Mr. Anderson was in jail at the time he said that Jacob Worm made the threat to him.

After Morley Anderson gave the statement to the police about what Morley said Jacob Worm said, Morley was released from jail.Morley testified that the police told him to give the statement first and then we’ll let you out. Morley testified that he was told that if hepled guilty to his outstanding charges of assault causing bodily harm – assault and three charges of breach of undertaking, he wouldreceive a conditional sentence.

He testified that he has pled guilty to the charges, but has not yet received his sentence, although he saidthe sentence – sentencing was adjourned because he was in a coma for a period of time. It may be that Morley Anderson might have an interest in testifying favourably for the Crown in this case. The testimony heremay help this witness out with his case later or the witness might believe that it will do so. Common sense tells you that in light of thesecircumstances, there is good reason to look at Morley Anderson’s evidence with the greatest of care and caution.

You are entitled to relyon Morley Anderson’s evidence, even if it is not confirmed by any other witness or evidence, but it is dangerous for you to do so. Accordingly, you should look for some confirmation of Morley Anderson’s evidence from somebody or something other thanMorley Anderson before you rely upon his evidence in deciding whether Crown counsel has proven the case against Jacob Wormbeyond a reasonable doubt. To be confirmatory, the testimony of another witness or witnesses or other evidence should help restore yourfaith in relevant parts of Morley Anderson’s evidence.

Counsel, in submissions to you, said that I would tell you that this witness is not credible. That is not what I am telling you. I amcautioning you; I am not telling you that he is credible nor am I telling you that he is not credible. This is the very issue that you mustdecide. Counsel also suggested that because no independent evidence confirms what Morley Anderson said to Jacob Worm, you shouldnot accept his evidence. This is not the law.

You should look for other evidence which confirms Morley Anderson’s evidence, but to beconfirmatory the testimony of another witness or witnesses or other evidence should help restore your faith in relevant parts of MorleyAnderson’s evidence. You may believe Morley Anderson’s testimony if you find it to be trustworthy even if no one or nothing else confirms it. Whenyou consider it, however, keep in mind who gave the evidence and the circumstances under which Morley Anderson testified.

I will referyou to the evidence of Morley Anderson later and when I do you should recall this caution in considering his evidence. [22] The trial judge’s Vetrovec warning with respect to Mr. Morley Anderson follows closely on the model jury charge set forth by Mr.Justice David Watt in Watt’s Manual of Criminal Jury Instructions (Toronto: Thompson Carswell, 2005) at pp. 218-219. [23] The trial judge then turned to the evidence of Mr. Raphael and gave this warning to the jury, which again follows very closely onthe model charge set forth in Watt’s Manual of Criminal Jury Instructions (at pp.

T1301-T1304): Ryan Raphael testified for the Crown and you will recall what I told you earlier about the credibility of witnesses. You should considerthese things I told you when you decide whether or not to believe Ryan Raphael’s evidence. There is, however, a special instruction thathas to do with Ryan Raphael’s – Ryan Raphael’s evidence and it is an instruction that you must keep foremost in your mind when youare considering how much or how little you will believe of or rely upon his evidence in making your decision.

You have heard that Ryan Raphael admitted that he participated in the break and enter for the purposes of robbing that ended in DougAnderson’s death. He testified he may have gone into the house and that he may have struck Doug Anderson. He was an accomplice.Secondly, Mr. Raphael admitted that when he was arrested by police he could remember nothing of the incident. Third, Ryan Raphaeladmitted to approximately 17 Youth Court criminal convictions including a conviction for obstructing justice. His Youth Court criminalrecord dating back to 2001, was put in evidence.

Ryan Raphael tested [ sic ] that he has been charged with first-degree murder in relation to this offence and the preliminary inquiry for his date is at the end of February, 2009. Ryan Raphael tested [ sic ] that he gave a statement to police respecting this incident on June 28, 2008, and that he was released from jail on bail shortly thereafter giving his statement.

Ryan Raphael admitted that since the time he was released on bail, he has pled guilty or been found guilty, in April, 2008, of two common assaults, resisting arrest and two failures to comply and was sentenced on those offences to time served after having been in jail for four or five months prior to being convicted. He admitted that in September, 2008, he was convicted of two failures to comply with recognizance and that he is not in jail on those offences. Ryan Raphael admitted that the police paid for his security deposit on his apartment.

It may be [that] Ryan Raphael has an interest in testifying favourably for the Crown in this case. Favourable testimony may help this witness out with his own case later or the witness might believe that it will do so. So common sense tells you that in light of these circumstances there is good reason to look at Ryan Raphael’s evidence with the greatest of care and caution. You are entitled to rely on Ryan Raphael’s evidence even if it is not confirmed by any other witness or evidence, but it is dangerous for you to do so.

Accordingly, you should look for some confirmation of Ryan Raphael’s evidence from somebody or something other than Ryan Raphael before you rely on his evidence in deciding whether the Crown has proven the case against Jacob Worm and/or Tyrone Worm and/or Denny Troy Jimmy beyond a reasonable doubt. Counsel in submissions to you stated that I would tell you that Ryan Raphael is not a credible witness. That is not what I am telling you. I am not telling you that he is not credible and I am not telling you that he is credible. That is for you to decide.

Counsel also said that you cannot rely upon Ryan Raphael’s evidence about identification because there is no independent evidence confirming his identification of the three accused. That is not the law. The confirmatory evidence does not have to confirm the particular piece of evidence that you are considering. Rather, to be confirmatory the testimony of another witness or witnesses or other evidence should help restore your faith in relevant parts of Ryan Raphael’s evidence. You decide what is relevant and what is confirmatory. [ 24 ] Continuing with Mr.

Raphael, the trial judge dealt with the general nature of confirmatory evidence and provided the jury with examples of evidence they might find to be confirmatory of his evidence, saying (at pp. T1304-1307): In this trial, we heard the evidence of Ryan Raphael and Colby Smoke. I warn you that you should be extremely cautious about accepting the testimony of either of them and that you should look for evidence that supports or confirms their evidence. Crown counsel has invited you to find that the evidence of Colby Smoke confirms the evidence of Ryan Raphael and vice-versa.

I instruct you that you are permitted to conclude that the evidence of one of these witnesses confirms the evidence of other – the other. Supporting evidence of one witness I caution you about can come from another witness I have cautioned you about if you believe it, bearing in mind the reason I warned you to be cautious about the evidence of the second person. You may find here that there is some evidence in this case that confirms or supports some part of Ryan Raphael’s testimony.

It is for you to say whether this or any evidence confirms or supports his testimony and how much it affects whether or how much you will believe of and rely upon his testimony in deciding this case. The evidence to which I am about to refer, refers – illustrates the kind of evidence that you may find confirms or supports Ryan Raphael’s testimony. It may help you or it may not. It is for you to decide. Here are some examples of the independent evidence coming from other sources that, in my opinion, is capable of supporting or confirming the evidence of – of Ryan Raphael.

This is not an exhaustive list, but only some examples. One, Constable Fenwick said to Ryan Raphael when he spoke to him on May 20 th the following: Somebody has – somebody was getting beat up in the house, but he did not mention a name. Ryan Raphael testified that he thought Denny Jimmy and [YO(1)] were hitting Doug Anderson. Mr. Raphael testified he thought he hit Doug Anderson once as well. Dr. Grammatico testified that Doug Anderson had injuries which consisted of bruises, injuries to his arms and cuts to his forehead.

Two, Ryan Raphael testified that Jacob Worm shot the gun in the air on the walk between Candace’s house and Doug Anderson’s house. Candace Smoke and Colby Smoke testified that Jac Worm shot the gun up into the air on the walk between Candace Smoke’s house and Doug Anderson’s house at the corner of King and 7 th Avenue. Three, Ryan Raphael and Colby Smoke both testified that Jac Worm was in Doug Anderson’s house with the gun in his hand. Four, Ryan Raphael testified that Jac, Tyrone and Denny were in the house. Colby testified Jac, Tyrone and Denny were in the hosue.

Five, Ryan Raphael testified that [YO(1)] went into the yard at 1200 McTavish Street on the night in question and that [YO(1)] was in the living room of the house of 1200 McTavish Street between the two couches. Arlene Anderson testified that she did not know [YO(1)] and he had never been at her home. She testified her family had been unable to use the back door for weeks because it was stuck. The DNA extracted from the blood on the back door at 1200 McTavish matched the DNA of [YO(1)]. You may find that there is some evidence in this case that confirms or supports some parts of Ryan Raphael’s testimony.

It is for you to decide whether or not any of that evidence and evidence of a similar nature in fact does support or confirm his evidence. In the absence of supporting or confirming evidence, it is dangerous for you to rely on his evidence alone. I will rely on the evidence – I will refer to the evidence of Ryan Raphael later and when I do you should recall this caution in considering his evidence. [ 25 ] Lastly, the trial judge turned to address the dangers of relying on Mr. Smoke’s evidence in much the same terms as she had addressed the dangers of relying on Mr.

Raphael’s evidence, but with different examples of possibly confirmatory evidence. She again appears to have relied heavily on the charge in Watt’s Manual of Criminal Jury Instructions when she said (at pp. T1307-T1314): Colby Smoke testified for the Crown and you will recall what I told you earlier about the credibility of witnesses. You should consider the things I told you when I – when you decide whether or not to believe Colby Smoke’s evidence.

There is a special instruction that has to do with his evidence and it is an instruction that you must keep foremost in your mind when you are considering how much or little you will believe of or rely upon his evidence in making your decision in this case.

You have heard that, one, Colby Smoke admitted that he participated in the attempted robbery that ended in Doug Anderson’s death. He admitted he went in the house and stood watch over a woman in the kitchen. He was an accomplice. Two, Colby Smoke has not been charged with any offence as a result of his participation in the attempted robbery that resulted in Doug Anderson’s death. Three, Colby Smoke has a Youth Court record – criminal record dating back to October, 2003.

He admitted he has five convictions, two for break and enter and theft, one for failing to attend court and two for failing to comply with conditions. Four, Colby Smoke is charged with second-degree murder and two aggravated assaults out of a separate incident which allegedly occurred in March, 2007. Five, Colby Smoke gave a statement to the police respecting this offence and was released on bail on the other murder charge after he gave police a statement in this case. Six, Colby Smoke posted a picture of himself with the gun he says was used to kill Doug Anderson on an internet website.

And last, Colby Smoke admitted he was a member of the Native Syndicate Killers gang. Common sense tells you that in light of these circumstances there is good reason to look at Colby Smoke’s evidence with the greatest care and caution. You are entitled to rely on Colby Smoke’s evidence even if it is not confirmed by another witness or other evidence, but it is dangerous for you to do so.

Accordingly, you should look for some confirmation of Colby Smoke’s evidence from somebody or something other than Colby Smoke before you rely upon Colby Smoke’s evidence in deciding whether Crown counsel has proven the case against Jacob Worm and/or Tyrone Worm and/or Denny Troy Jimmy beyond a reasonable doubt. To be confirmatory, the testimony of another witness or witnesses or other evidence should help restore your faith in relevant parts of Colby Smoke’s evidence. Again, counsel in submissions to you stated that I would tell you that Colby Smoke is not a credible witness. That is not what I am telling you.

I am not telling you that he is not a credible witness; I am not telling you he is a credible witness, that is for you to decide. Counsel also said that you cannot rely on Colby Smoke’s evidence about identification because there is no independent evidence confirming his evidence of identification of the three accused. That is not the law. The confirmatory evidence does not have to confirm the particular piece of evidence you are considering.

In this trial we heard the evidence of Colby Smoke and Ryan Raphael and I have warned you that you should be cautious about accepting the testimony of either of them and that you should look for evidence that supports or confirms their evidence. Crown counsel has invited you to find that the evidence of Colby Smoke confirms the evidence of Ryan Raphael and vice-versa. I instruct you that you are permitted to conclude that the evidence of one of these witnesses confirms the evidence of the other.

Supporting evidence of one witness, I caution you about, can come from another witness I caution you about, if you believe it, bearing in mind the reason I warned you to be cautious about the evidence of that second witness. You may find that there is some evidence in this case which confirms or supports some parts of Colby Smoke’s testimony. It is for you to say whether this or any evidence confirms or supports his testimony and how that affects whether or how much you will believe of or rely upon his testimony in deciding this case.

The evidence to which I am about to refer illustrates the kind of evidence which you may find confirms or supports Colby Smoke’s testimony. It may help you; it may not; it is for you to say. Here are some examples of the independent evidence coming from other sources that in my opinion is capable of supporting or confirming the evidence of Colby Smoke. This is not an exhaustive list, only some examples. Colby Smoke testified that Jacob Worm had a gun at Candace Smoke’s house prior to the incident. Candace Smoke testified that Jacob Worm had a gun at her home prior to the incident.

Two, Colby Smoke testified that Jacob Worm shot the gun in the air on the walk between Candace Smoke’s house and Doug Anderson’s house. Candace Smoke and Ryan Raphael testified that Jacob Worm shot the gun off into the air on the walk between her house and Doug Anderson’s house. Colby Smoke testified that shortly after the incident that he, Jacob Worm, Desiree Worm and Ryan Raphael came back to Candace’s house. He testified that Jacob Worm had the gun with him. Candace Smoke testified that she, Jacob Worm, Desiree Worm and Colby came back to her house after the incident.

She testified Jacob Worm had the gun at her house after the incident. Colby Smoke testified that he went into Doug Anderson’s house and stayed in the kitchen near a woman he described as in hysterics, and that he told her to shut up. He said she was laying on the floor under the kitchen window. Trina Bird testified that after she saw the men come into the house, she moved back towards the fridge, that a man pushed her towards the fridge – that a man pushed her down and she fell on the floor. She testified that she was in the kitchen by the window.

She said that the man just stood over her and she said she was crying. Colby Smoke testified that all of the men except he and Ryan Raphael had bandannas over their faces. He said he held his sleeve up over his face and Ryan had his sweater up over his nose. Trina Bird testified that at least the first three men came in and had bandannas over their faces. She testified that the man beside her and the one by the kitchen table did not have their faces covered with bandannas. She testified that the man that stood beside her in the kitchen was tall and skinny and fair.

Colby Smoke testified Jacob Worm had the gun in his hand before he went into Doug Anderson’s house and that Jacob Worm was the first person to enter Doug Anderson’s home through the back door. Colby Smoke testified Jac yelled, what’s up? NSK. Trina Bird testified the men came in the back door yelling, NSK, you all, NSK. Arlene Anderson testified the first man coming through in through the back door had a gun in his hand and was yelling, NSK. Colby Smoke testified that [YO(1)] was one of the men who entered Doug Anderson’s home through the back door after the door was kicked in.

Arlene Anderson testified that [YO(1)] had never been to her home prior to that date and that the back door was jammed and could not be opened. The DNA extracted from the blood on the outside of the back door at Doug Anderson’s house matched the DNA of [YO(1)]. Colby Smoke testified that the gun that Jacob Worm had and took into the Anderson house on November 18, 2006, was a .22 calibre Smith and Wesson. Constable Marks testified that a .22 calibre bullet fragment was retrieved from Doug Anderson’s abdomen at the time of his autopsy and he referred to that bullet in the photographs in evidence.

You may find that there is some evidence in this case that confirms or supports some parts of Colby Smoke’s testimony. It is for you to

decide whether or not any of that evidence and evidence of a similar nature does, in fact, support or confirm his evidence. In the absenceof supporting or confirming evidence, it is dangerous for you to rely on his evidence alone.

I will refer to the evidence of Colby Smokelater and when I do you should recall this caution in considering his evidence. [26] With that background on the Vetrovec warnings given in this case, I now turn to consider whether the trial judge erred by failing togive a Vetrovec warning with respect to Ms Smoke’s evidence and then whether the warnings that were given served their intendedpurpose. 3.

Did the trial judge err by failing to give the jury a Vetrovec warning with respect to Ms Smoke? [27] I start with the premise that a trial judge has the discretion to decide whether to issue a Vetrovec warning with respect to theevidence of a witness. This was made clear in R. v. Bevan, where Major J. wrote (at pp. 610-611): In the course of giving judgment for this Court [in R. v.

Vetrovec], Dickson J. (as he then was) considered the traditional, “fixedand invariable” rule of law that a warning to the jury was automatically required on the evidence of an accomplice, and ultimatelyrejected that traditional rule in favour of a flexible, discretionary rule. Under the new rule, the trial judge has a discretion to determinewhether the evidence of any witness – not just accomplices – is for some reason untrustworthy to such an extent that a warning to thejury is necessary. He stated at p. 823: All that can be established is that the testimony of some accomplices may be untrustworthy.

But this can be said of many othercategories of witness. There is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy. Toconstruct a universal rule singling out accomplices, then, is to fasten upon this branch of the law of evidence a blind and emptyformalism. Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge mightbetter direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particularwitness.

If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, onthe other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an ‘accomplice’ nowarning is necessary. [28] As to the nature of the trial judge’s discretion, Bastarache J. (Gonthier and McLachlin JJ. concurring), in R. v.

Brooks, said: 3 Therefore, this Court in Vetrovec deliberately chose not to formulate a fixed and invariable rule where "clear and sharp" warningswould be required as a matter of course regarding the testimony of certain categories of witnesses. Rather, where a witness occupies acentral position in the determination of guilt and, yet, may be suspect because of a disreputable or untrustworthy character, a clear andsharp warning may be appropriate to alert the jury to the risks of adopting the evidence "without more". It is therefore within the trialjudge's discretion to give a Vetrovec caution.

This discretionary approach was confirmed by this Court in R. v. Potvin, (SCC), [1989] 1 S.C.R. 525, at p. 557, wherein Wilson J. states: Vetrovec, in my view, represents a rejection of formalistic and a priori categories concerning the trustworthiness of evidence both withregard to warnings and corroboration.

In every case it is for the trial judge on the basis of his or her appreciation of all the circumstancesand, may I add, on the basis of the application of sound common sense, to decide whether a warning is required. [Emphasis added.] 4 In exercising his or her discretion to warn the jury regarding certain evidence, the trial judge may consider, inter alia, thecredibility of the witness and the importance of the evidence to the Crown’s case. These factors affect whether the Vetrovec warning isrequired.

In other words, the greater the concern over the credibility of the witness and the more important the evidence, the more likelythe Vetrovec caution will be mandatory. Where the evidence of so called “unsavoury witnesses” represents the whole of the evidenceagainst the accused, a “clear and sharp” Vetrovec warning may be warranted. Where, however, there is strong evidence to support theconviction in the absence of the potentially “unsavoury” evidence, and less reason to doubt the witness’s credibility, the Vetrovecwarning would not be required, and a lesser instruction would be justified.

The trial judge’s instruction with respect to the evidence ofjailhouse informants must therefore be commensurate with the particular circumstances of the case. For example, the trial judge is notrequired to give a “clear and sharp” warning on the dangers of convicting on the impugned evidence where, in the circumstances, thetrial judge believes that there is no such danger. Similarly, the trial judge may properly decline to give a warning if the warning mayprejudice the accused’s case rather than assist it.

Provided there is a foundation for the trial judge’s exercise of discretion, appellatecourts should not interfere.

Here that foundation is established having regard to the credibility of the witnesses, the importance of theirevidence and the failure to request a warning. [29] A reviewing court must therefore pay a good measure of deference to a trial judge’s particular advantage in evaluating theatmosphere of the trial and in assessing whether or not, in all of the circumstances of the case and the trial, a Vetrovec warning wouldredound to the benefit or detriment of the accused. [30] On the question of whether Ms Smoke’s evidence merited a Vetrovec warning, I conclude from the trial judge’s charge to the juryand the transcript that she properly identified the applicable law with respect to “unsavoury witnesses” and understood the criteria whichbounded the exercise of her discretion with respect to the issuing of a Vetrovec warning.

When it came to assessing Ms Smoke’scircumstances, the transcript reveals the trial judge embarked on an open exchange with defence counsel and the Crown about whether aVetrovec warning was necessary with respect to Ms Smoke’s evidence. During this discourse defence counsel did not articulate a clearreason for such a warning. In fact, Mr. Jimmy’s trial counsel was not at all certain a Vetrovec warning was necessary with respect toMs Smoke’s evidence (at p. T1015). [31] Trial counsel for Mr. Tyrone Worm pointed out Ms Smoke had a criminal record, but he conceded this fact was not in evidence.

Healso noted Ms Smoke knew her brother was in jail, but he conceded Ms Smoke did not know why Mr. Smoke was in jail. There wassome discussion as to the fact Ms Smoke had repeatedly misidentified Mr. Pelletier as Mr. Tyrone Worm and vice versa, and that shehad implicated other individuals in the crimes in question, whom the police had initially charged but with respect to whom they had laterwithdrawn charges. The same defence counsel attempted to make much of the fact Ms Smoke had never faced charges herself in respect

of this matter, but he did not articulate any reason why this might merit a Vetrovec warning, except to suggest Ms Smoke had not been charged because she had given a statement to the police (at p. T1024).

This kind of argument presupposes her involvement in the crime; whereas, there was no evidence before the jury indicating she had, in fact, in any way participated in the home invasion or the homicide or had otherwise committed a criminal offence. [ 32 ] Putting the circumstances at their best, at trial the appellants said Ms Smoke’s evidence ought to be suspect because, although she did not participate in the offences in question, she had been part of a group and some members of that group had committed the offences, she was related to Mr.

Smoke and, by cooperating with the police, she expected to benefit him, even though she had not actually given evidence which exonerated him. None of this persuaded the trial judge to exercise her discretion to issue a Vetrovec warning in respect of Ms Smoke’s evidence. Although the discussion continued after this point, in stating her decision on this issue the trial judge said (at pp. T1016-1017): … I will not give a Vetrovec charge on Candace Smoke. I do not see that she is an accomplice or that she has the characteristics set out in The Queen v. Sauvé or The Queen and Smith .

The fact that she is Colby Smoke’s sister may be something the jury takes into account and there are issues of her credibility throughout, but – so while I would instruct the jury generally as to how they need to – to assess credibility and the fact that someone may have an interest other than, you know, they’re related to someone, is relevant to her, but I don’t think that the Vetrovec warning applies to her. So I won’t – I won’t be charging Vetrovec on her.

I will on Morley Anderson, Ryan Raphael and Colby Smoke. … [ 33 ] On appeal, the appellants suggested Ms Smoke should have been considered an accomplice or an “accessory after the fact”. They note she was in close proximity to the Anderson home and heard a gunshot. They reason from this that she may have been acting as a lookout and they conclude she ought to be considered a full party to the homicide, thus meriting a Vetrovec warning as an accomplice.

If not a full accomplice, the appellants say she is properly considered an accessory after the fact because she was aware of the home invasion and gunshot and thereafter provided “refuge from discovery” to the alleged perpetrators of the crimes. To draw her into the group of alleged perpetrators, the appellants also note she did not report the crimes even though she had overheard Mr. Jacob Worm admit to killing someone. They then suggestively question why Ms Smoke would make a statement to the police long after the homicide occurred.

The appellants otherwise say Ms Smoke’s evidence was generally self-interested and not credible. Lastly, they say it is hard to believe Ms Smoke did not discuss her testimony with Mr. Smoke and collusion is therefore a possibility. [ 34 ] Notwithstanding the appellants’ speculation and conjecture and the obvious issues with Ms Smoke’s credibility, as the trial judge observed, few of the usual Vetrovec considerations would seem to actually apply to Ms Smoke. She was never charged with any offence or taken into custody in connection with this matter.

She voluntarily gave a statement to the police when called upon to do so. There is no evidence she acted as a witness for the Crown in exchange for any immunity or benefit, or hope thereof, for herself or her brother. While her evidence may have minimised her brother’s association with the murder weapon, it did not exculpate him; in fact, she placed him squarely in the group who participated in the home invasion. There is no suggestion she is an inveterate liar, a perjurer or an otherwise untrustworthy individual.

She was candid about her involvement with the individuals who allegedly committed the home invasion and homicide, but there is simply no evidence to suggest she had any greater involvement than that to which she admitted or that she had actually participated in the crimes. The allegations that she is an accomplice or an accessory are wholly speculative or based on longbow inferences drawn from scant circumstantial evidence. There is no evidence of collusion on the part of Ms Smoke and Mr. Smoke. In fact, there is direct and uncontradicted evidence to the contrary.

The inconsistencies in Ms Smoke’s evidence, although perhaps meriting a caution to the jury about prior inconsistent statements, do not of themselves give rise to the broad-based issues of credibility that call for a Vetrovec -style warning about the dangers of believing her evidence as a whole.

In sum, it is not apparent the obvious issues with respect to Ms Smoke’s credibility rendered her evidence inherently untrustworthy such that the jury should have been clearly and sharply warned to have it corroborated before they used it to convict. [ 35 ] Furthermore, the trial judge did not simply “turn the jury loose upon the evidence” without any assisting analysis. As can be seen, a chief concern of the appellants derives from the fact Mr. Smoke and Ms Smoke are brother and sister. But, the fact of this familial relationship was very clearly transmitted to the jury.

It was drawn out by the Crown in the testimony in chief of Ms Smoke (at p. T682). It was confirmed in cross-examination by two of the three defence counsel (at pp. T718 and T739). When referring to Mr. Smoke in his cross-examination of Ms Smoke (at pp. T721-739), one defence counsel repeatedly referred to him as “your brother, Colby”. In his testimony in chief Mr. Smoke acknowledged the relationship (at p. T828). He confirmed the relationship under cross-examination by defence counsel at trial (at pp. T882, T894-T899, T906, and T926-T927).

Defence counsel reiterated the fact, often with a caution to the jury, in their closing submissions (at pp. T1197, T1198, T1203-T1206, T1210, and T1234-T1236). Finally, the trial judge referred to the relationship at least four times in her charge (at pp. T1338, T1341, T1342, and T1343). Moreover, the trial judge gave the following thorough general instruction to the jury about witness credibility (at pp.

T1272-1274): When deciding upon the credibility of a witness or the weight that you’re going to give the evidence of a witness, you should consider the chance and the capacity of the witness to observe the facts about which he or she testified. You should also decide how capable the witness is of giving an accurate account of what he or she saw or heard. And you must also decide whether a witness is biased or prejudiced or whether the witness has an interest in the outcome of the case. There is always a possibility that a witness is biased or prejudiced or giving a slanted account of what he or she saw or heard.

However, an honest witness may make a mistake and conversely much of the evidence of a dishonest witness may be true. But here are a few questions that you should keep in mind during your discussions. Did the witness seem honest? Is there any reason why the witness would not be telling the truth? Did the witness have an interest in the outcome of the case or any reason to give evidence that is more favourable to one side or the other? Did the witness seem to be able to make accurate and complete observations about the event? Did he or she have a good opportunity to do so?

What were the circumstances in which the observation was made? What was the condition of the witness? Was the witness affected by alcohol or drugs? Was the event itself unusual or routine? Did the witness seem to have a good memory? Does the witness have any reason to remember things about which he or she testified? Did any inability or difficulty that the witness had in remembering the events seem genuine or did – did it seem to be made up as an excuse to avoid answering questions?

Did the witness seem to be reporting to you what he or she saw or heard or simply putting together an account based on information obtained from other

sources rather than personal observation? Did the witness’ testimony seem reasonable and consistent as she or he gave it? Is it similar toor different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion? Did any inconsistencies in the witness’ evidence make the main points of their testimony more or less believable and reliable? And is theinconsistency about something important or a more minor detail? Does it seem like an honest mistake or is it a deliberate lie?

Is theinconsistency because the witness said something different or because he or she failed to mention something? Is there any explanationfor it and does the explanation make sense? What was the witnesses’ manner when he or she testified? How did he or she appear to you? However, do not jump to conclusions basedentirely on how a witness has testified because looks can be deceiving. Giving evidence in a trial is not a common experience for manywitnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values and lifeexperiences.

There are too – are simply too many variables to make the manner in which a witness has testifies [sic] the only or the mostimportant factor in your decision. These are only some of the factors that you might keep in mind when you go to your jury room to make your decision. These factorsmight help you decide how much or how little you will believe of and rely upon a witness’ evidence. You may consider other factors aswell. [36] From the case law, it is clear that the purpose of a Vetrovec warning is to instruct the jury of dangers or weaknesses in a witness’sevidence that the jury might not otherwise appreciate.

The effect of R. v. Vetrovec is to give trial judges a wide and flexible discretion asto whether and how to instruct juries of the need to carefully scrutinize a witness’s testimony. Here, factors which might have given riseto dangers or weaknesses in Ms Smoke’s evidence were largely absent or wholly speculative or were readily apparent and easilyquantifiable with the application of common sense.

While the trial judge decided not to give a Vetrovec warning, the jurors were madewell aware of the characteristics of Ms Smoke and the frailties of her evidence that brought its credibility into question and, with theapplication of no more than common sense, a juror would easily discern reasons to carefully scrutinise her testimony. Given all of this, Iam not prepared to conclude the jury did not take into account in its deliberations as to the credibility of Ms Smoke’s evidence thefrailties that flow from her sibling relationship to Mr.

Smoke or her other characteristics. [37] Albeit there were obvious issues with respect to Ms Smoke’s credibility, she was not inherently unsavoury and her evidence wasnot inherently unreliable. In other words, as the issues with Ms Smoke’s evidence were not such that they elevated the concern withrespect to its reliability to a level which required a Vetrovec warning, I find no error in the trial judge’s decision not to issue a Vetrovecwarning in respect of the evidence of Ms Smoke. 4.

Did the trial judge err by advising the jury that the evidence of one unsavoury witness could confirm the evidence of anotherunsavoury witness? [38] The appellants here seek to impugn the following reference to the evidence of Mr. Smoke and the potentially confirmatory natureof the evidence of Mr. Raphael in the trial judge’s charge to the jury (at p. T1310): … Crown counsel has invited you to find that the evidence of Colby Smoke confirms the evidence of Ryan Raphael and vice-versa. Iinstruct you that you are permitted to conclude that the evidence of one of these witnesses confirms the evidence of the other.

Supportingevidence of one witness, I caution you about, can come from another witness I caution you about, if you believe it, bearing in mind thereason I warned you to be cautious about the evidence of that second witness. As quoted above, the trial judge made a nearly identical comment when addressing Mr. Raphael’s evidence and the potentiallyconfirming nature of some of Mr. Smoke’s evidence (at pp. T1304-T1305). [39] The analysis of this issue begins with the observation that a jury may convict an accused in reliance on the unsupported oruncorroborated evidence of an unsavoury witness (see: R. v.

Khela, at para. 37; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328 at para.22; R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1 at para. 66; R. v. Sauvé (2004), (ON CA), 182 C.C.C. (3d) 321(Ont. C.A.), at para. 82, leave to appeal ref’d [2004] S.C.C.A. No. 246, [2005] 1 S.C.R. xv.; United States of America v. Shephard, (SCC), [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424 at p. 431 and R. v. Sanderson, 2003 MBCA 109, 180 C.C.C. (3d) 53 at para.54). [40] To be clear, a Vetrovec warning does not render admissible that which is otherwise inadmissible nor does it lend materiality to thatwhich is otherwise immaterial.

Rather, because the evidence of an unsavoury witness is inherently unreliable, a Vetrovec warninginstructs jurors to look for evidence that corroborates or supports the unreliable evidence and it warns jurors to be cautious aboutconvicting an accused in the absence of such corroboration or support.

Nonetheless, a jury may still convict an accused in reliance onlyon the unsupported, uncorroborated, inherently unreliable evidence of an unsavoury witness provided the jury is convinced of the truthof the evidence and, thereby, the accused’s guilt beyond a reasonable doubt. [41] Recognising the basis for a Vetrovec warning, in R. v. Illes, 2013 BCCA 169, 269 C.C.C. (3d) 437, Hinkson J.A. allowed thatwhile evidence two unsavoury witnesses had colluded might prohibit the jury from using the testimony of one to corroborate that of theother, the jury was not barred from doing so as a general rule.

On this point Hinkson J.A. wrote: [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 of Canada 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. … [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. [42] See also R. v. Drabinsky, 2011 ONCA 582, 274 C.C.C. (3d) 289, where the Court said: 139 The trial judge recognized that evidence could be confirmatory only if it was independent of the evidence to be confirmed (para.338).

Evidence that itself depends on the credibility of the Vetrovec witness cannot confirm the credibility of that Vetrovec witness. Thepotential confirmatory evidence cannot be "tainted" by connection to the Vetrovec witness whose evidence it is said to confirm: R. v.Khela, 2009 SCC 4 , [2009] 1 S.C.R. 104, at para. 39. 140 There is, however, no prohibition against the evidence of one Vetrovec witness confirming the evidence of another Vetrovecwitness. The rule against so-called mutual corroboration has long passed from the evidentiary scene: see R. v.

Linklater (2009), 2009ONCA 172 , 246 O.A.C. 303 (C.A.), at para. 11; R. v. Naicker (2007), 2007 BCCA 608 , 229 C.C.C. (3d) 187 (B.C.C.A.), at para. 34, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 45. The question is not whether the witness is him or herself aVetrovec witness, but whether the evidence of each witness is sufficiently independent of the evidence of the other to provideconfirmation. 141 The risk of collusion between witnesses goes to the independence of their testimony when considering whether the evidence ofone can confirm the evidence of the other: R. v.

Linklater, [(2009), 2009 ONCA 172 , 246 O.A.C. 303 (C.A.)] at para. 12.Collusion was a major plank in the defence platform. They argued that all of the Livent employees had colluded together to savethemselves by falsely implicating Drabinsky and Gottlieb. There was significant evidentiary support for this position and the trial judgefound collusion between Messina and Craib. 142 The trial judge, however, rejected any claim of collusion between Messina and Eckstein. As she put it in the course of her reviewof Eckstein's evidence, at para. 358: There is no evidence of collusion with Maria Messina.

She intensely disliked him. By the end of 1997 they were barely speaking. 143 The appellants have not pointed to any evidence from which one could infer collusion between Messina and Eckstein. The trialjudge's finding on this issue is unassailable.

In the context of that case, the Ontario Court of Appeal also remarked (at para. 146) that the possibility of tainting, while clearly relevant,was not in and of itself enough to say that the evidence of one unsavoury witness could not be independent of the other. (See also: R. v.Roks and the cases cited therein at para. 67.) [43] The reasoning behind this is sound because a Vetrovec warning is used simply to warn jurors of the dangers of relying on theunsupported or uncorroborated evidence of an unsavoury witness, but it does not prohibit them from doing so.

So, absent evidence ofcollusion, if an unsavoury witness’s testimony tends to corroborate that of another unsavoury witness, the jury may, if it so chooses, usethat tendency to achieve some greater level of comfort that one or both of the two witnesses are being truthful. But, it is for the jury, asthe trier of fact, to decide what, if any, assistance corroboration of that nature lends to the credibility of the evidence of either unsavourywitness. [44] Here, where there was no evidence of any collusion on the parts of Mr. Raphael and Mr.

Smoke, I find no error in this aspect of thetrial judge’s charge to the jury. 5. Did the trial judge err by failing to caution the jury about the frailties of eyewitness evidence of identification? [45] Under this ground of appeal, the evidence against each appellant differs and the commonality of their appeals diverges somewhat.As such, I have addressed separately each appellant’s argument. a. Denny Troy Jimmy [46] Mr.

Jimmy says the trial judge’s charge ought to have provided the jury with analytical tools to assist the jurors in assessing thecredibility of unsavoury witnesses with respect to the issue of his identification as one of the assailants. He submits the Vetrovecwarnings should have focused on the interplay between his identification as a participant in the crimes and other evidence.

He says thisis particularly so with respect to him, as opposed to the other appellants, because the only evidence identifying him as a participant in thecrime came from unsavoury witnesses (and Ms Smoke) and his defence strategy was one of identification, i.e., that the evidence failed toestablish his presence in the Anderson home at the time of the offences. [47] More particularly, Mr. Jimmy’s defence strategy was largely predicated on the fact he has highly visible facial scarring from burnsand none of the victims described any of the assailants as being scarred in this way.

For this reason, he submits the Vetrovec warningsshould have incorporated reference to the absence of any evidence pertaining to his facial scarring.

[48] In his factum, Mr. Jimmy relies on R. v. T.S. (1995), (SK CA), 98 C.C.C. (3d) 529 (Sask. C.A.), for theproposition that a failure to consider the absence of evidence as to prominent scarring on an alleged assailant (which should have beenevident given the nature of the crimes alleged in that case) amounted to a misdirection in law. With respect, Mr. Jimmy misreads thereasons of this Court in that case. Sherstobitoff J.A., who spoke for the Court in R. v.

T.S., was addressing an extraordinary circumstancewhere the only evidence that the crimes alleged had even occurred was the testimony of two minors whose evidence had been veryseverely tainted by, among other things, the nature of the investigation. His reasons, when referring to the absence of confirmatoryevidence, must be read with that context in mind (at pp. 561-562): Finally, there is the complete absence of any independent evidence confirming the evidence of the children which in any wayimplicates the appellant in any of the alleged crimes, if they occurred.

No independent witnesses suggested that she had done anythingwrong. None of the exhibits were shown to belong to her or were found in her room or were in any way connected to her. This is not to suggest that there is any requirement in law that there be confirmatory evidence.

For our purposes, it is sufficient tosay that in a case such as this where the convictions rest almost entirely on the credibility of the complainants, and their credibility hasbeen called into question by evidence, it is appropriate to take into account the absence of any confirmatory evidence implicating theappellant as one of the many factors to be considered in determining whether any reasonable doubt existed as to the guilt of the appellant.The failure of the judge to so direct himself was error. [49] In the end, the appeal in R. v.

T.S. turned on the trial judge’s failure to properly direct himself as to the law as stated in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, which was only partly based on the foregoing error. However, as can be seen, that error layin the fact the trial judge in R. v. T.S. had failed to consider the complete absence of any confirmatory evidence with respect to the crimesalleged, not just an absence of evidence as to visible scarring, which would have implicated the accused. Such circumstances aredistinguishable from the circumstances now before the Court. [50] Regardless, whether or not R. v.

T.S. stands for the proposition asserted by Mr. Jimmy, in this Court the question is whether theVetrovec warnings given were adequate in Mr. Jimmy’s circumstances. To be clear, this is not properly a question of the adequacy of theidentification evidence with respect to Mr. Jimmy or of the general frailties of eyewitness evidence of identification. Rather, it is a legalquestion that asks whether the trial judge’s charge adequately brought home to the jury the dangers of relying on the identificationevidence of two unsavoury witnesses.

It requires an examination of the suspect evidence in the context of the intended purpose of aVetrovec warning. [51] Due to the nature of his scarring, there is no doubt the jury would have taken note of it upon seeing Mr. Jimmy in the courtroom.However, neither the Crown nor Mr. Jimmy formally adduced any evidence as to his scarring. Nonetheless, while perhaps nottechnically entered into evidence, I accept the jury would have known Mr. Jimmy’s face was visibly scarred. [52] On the other hand, there was no evidence from the victims of the home invasion of facial scarring among the assailants.

TheCrown says this is because most of the assailants wore masks or otherwise obscured their faces, as the victims consistently testified.Nevertheless, Mr. Jimmy says the fact of his facial scarring presented a ready example for the trial judge to use when providing the jurywith the tools it needed to assess the credibility of the unsavoury witnesses’ evidence of his identity.

He suggests the trial judge ought tohave instructed the jury that if a victim had identified an assailant as having facial scarring, then that victim’s evidence would bepotentially confirmatory of the identification evidence with respect to Mr. Jimmy proffered through the unsavoury witnesses. There areat least two problems with this. [53] First, R. v.

Vetrovec and the case law that has followed it calls upon a trial judge to instruct a jury to look for evidence which tendsto corroborate the evidence of an unsavoury witness when the jurors are assessing the veracity of the suspect evidence, i.e., evidencetending to show the untrustworthy witness is telling the truth. Which is to say that Mr.

Jimmy’s suggestion fails first because theabsence of evidence as to a certain circumstance, especially a circumstance that is itself not actually in evidence, can be neitherconfirmatory nor evidence per se. [54] The second problem is that a judicial direction of the nature sought by Mr. Jimmy would have had the effect of telling the jury todisregard suspect evidence on the basis of an absence of evidence as to a certain circumstance.

It would have left the jury with no optionbut to conclude the absence of evidence from the victims as to a scarred assailant confirmed the unreliability of the evidence ofunsavoury witnesses as to Mr. Jimmy’s involvement in the crimes. This would be tantamount to a judicial direction to the jury todisbelieve the suspect evidence because it is not corroborated in a specific way and would thereby usurp and narrow the jury’s functionas trier of fact (see: United States of American v. Shephard at p. 433).

The suggested approach is all the more problematic in this casegiven the body of evidence to the effect that most of the assailants had masked their faces, which diminishes the meaningfulness of thefact the witnesses did not testify as to any scarring on an assailant’s face. [55] A judicial caution to the jury to the effect that they should have less comfort with the unsavoury witnesses’ evidence with respectto Mr.

Jimmy because no one in the house had testified as to having seen facial scarring on any of the assailants would have sowed moreconfusion than understanding in the minds of the jurors as to how to assess the suspect evidence. I conclude the trial judge did not err bynot referring to Mr. Jimmy’s facial scarring or the absence of any evidence of facial scarring among the assailants in her Vetrovecwarnings. b.

Tyrone Worm [56] This appellant approached the issue of identification by reference to inconsistencies among the evidence of two of the unsavourywitnesses and inaccuracies in the trial judge’s recitation of the evidence. [57] As to the appellant’s trial strategy, he says his position was that the Crown had not proven his identification beyond a reasonabledoubt. His trial lawyer said (at p. T1227): “An identity in my submission particularly in

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