R. v. Khela (G.S.) (2009), 265 B.C.A.C. 31 (SCC);
446 W.A.C. 31
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2009] B.C.A.C. TBEd. JA.061
Gurkirpal Singh Khela (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario and Criminal Lawyers’ Association (Ontario) (intervenors)
Jodh Singh Sahota (appellant) v. Her Majesty The Queen (respondent)
(31933; 32325; 2009 SCC 4; 2009 CSC 4)
Indexed As: R. v. Khela (G.S.)
Supreme Court of Canada
Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
January 22, 2009.
Summary:
A jury convicted three accused of first degree murder. Two of the accused appealed, asserting that the trial judge’s Vetrovec warning respecting two unsavoury witnesses was insufficient because it failed to instruct the jury that to be confirmatory, the evidence supporting the witnesses’ testimony had to be independent and material. Given the central place of that evidence in the Crown’s case, the accused asserted that the error caused them serious prejudice.
The British Columbia Court of Appeal, in a decision reported at 235 B.C.A.C. 277; 388 W.A.C. 277, dismissed the appeals. The accused appealed.
The Supreme Court of Canada dismissed the appeals.
Criminal Law – Topic 4351
Procedure – Charge or directions – Jury or judge alone – Directions regarding burden of proof and reasonable doubt – The accused appealed their murder convictions, asserting that the trial judge erred in instructing the jury that it could only draw inferences from defence evidence based on proven facts – The Supreme Court of Canada held that the trial judge’s instructions were wrong to the extent that they required the defence to “prove” certain facts in order for the jury to draw an inference of innocence from them – However, in the context of the charge as a whole, the trial judge’s comments in regard to circumstantial evidence and proven facts could not reasonably be thought to have affected the verdict – This was an appropriate case in which to apply the curative proviso pursuant to s. 686(1)(b)(iii) of the Criminal Code – See paragraphs 57 to 63.
Criminal Law – Topic 4353
Procedure – Charge or directions – Jury or judge alone – Directions regarding corroboration – The accused appealed their murder convictions, asserting that the trial judge’s Vetrovec warning respecting two unsavoury witnesses did not warn the jury that for evidence to be confirmatory, it had to be independent and material – The Supreme Court of Canada affirmed the dismissal of the appeals – Given the allegations of corroboration and collusion between the unsavoury witnesses and others, the trial judge’s warning should have better explained the need for confirmatory evidence to be independent and relate to an important and relevant aspect of the impugned testimony – The warning failed to clearly convey to the jury the message that not all evidence was capable of providing a level of comfort or confidence required for conviction – The trial judge simply directed the jury to look for “some confirmation of their evidence from somebody or something other than what they have to say” – However, any deficiencies in the warning were compensated for in other portions of the charge – Read as a whole, and in the context of the trial, the jury charge was adequate – See paragraphs 51 to 56.
Criminal Law – Topic 4353
Procedure – Charge or directions – Jury or judge alone – Directions regarding corroboration – The Supreme Court of Canada adopted the following principled framework to assist trial judges in constructing Vetrovec warnings: “(1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused …” – The framework was not to be applied in a rigid and formulaic fashion – A warning should address, in terms appropriate to the circumstances of each case, the four elements – Where the caution had these characteristics, an appellate court, absent some other flaw in the instructions, would generally be expected to find the caution adequate – However, the failure to include any of the components in the above terms might not prove fatal where the jury charge, read as a whole, otherwise served the purposes of a Vetrovec warning – See paragraphs 37, 38 and 44.
Criminal Law – Topic 4353
Procedure – Charge or directions – Jury or judge alone – Directions regarding corroboration – The Supreme Court of Canada adopted a principled framework to assist trial judges in constructing Vetrovec warnings – The fourth component of the framework provided that “the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused” – The court stated that “… the absence or presence of confirmatory evidence plays a key role in determining whether it is safe to rely on the testimony of an impugned witness … Accordingly, the instruction to the jury must make clear the type of evidence capable of offering support. It is not sufficient to simply tell the jury to look for whatever if feels confirms the truth of a witness’ testimony …” – See paragraph 46.
Criminal Law – Topic 4353
Procedure – Charge or directions – Jury or judge alone – Directions regarding corroboration – The Supreme Court of Canada adopted a principled framework to assist trial judges in constructing Vetrovec warnings – The fourth component of the framework provided that “the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused” – The court confirmed that evidence, to be considered confirmatory, did not have to implicate the accused – However, when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the jury that the witness could be trusted in his or her assertion that the accused was the person who committed the offence – See paragraphs 40 to 43.
Criminal Law – Topic 4354
Procedure – Charge or directions – Jury or judge alone – Directions regarding pleas or evidence of witnesses, co-accused and accomplices – [See all
Criminal Law – Topic 4353
].
Criminal Law – Topic 4377
Procedure – Charge or directions – Jury or judge alone – Directions regarding credibility of witnesses – [See all
Criminal Law – Topic 4353
].
Criminal Law – Topic 4393
Procedure – Charge or directions – Jury or judge alone – Failure by counsel to object – Effect of – The Supreme Court of Canada stated that while the obligation to ensure that juries were properly instructed clearly fell to the trial judge, counsel should not abdicate their duty of assisting the court – As previously stated by the court, the failure of counsel to object, while not decisive, was a factor in appellate review – The failure to register a complaint about an aspect of the charge that later becomes the ground of appeal might be indicative of the seriousness of the alleged violation – See paragraph 49.
Criminal Law – Topic 4409
Procedure – Opening and closing addresses – Summing up – Obligation to refer to evidence – The Supreme Court of Canada reiterated that “… counsel have a responsibility in summing up for the jury to address the issue of unsavoury witnesses and the presence or absence of confirmatory evidence. The Crown should direct the jury’s attention to evidence that tends to reinforce the credibility of the tainted witness; defence counsel, to avoid any apprehended misunderstanding in this regard, should identify for the jury’s benefit evidence that cannot be considered confirmatory at all. In addition, it may be helpful to assist the trial judge in crafting an appropriate Vetrovec warning by way of a pre-charge conference.” – See paragraph 50.
Criminal Law – Topic 4415
Procedure – Opening and closing addresses – Summing up – Counsel – Closing address – Respecting evidence of witnesses – [See
Criminal Law – Topic 4409
].
Criminal Law – Topic 5041
Appeals – Indictable offences – Dismissal of appeal if no prejudice, substantial wrong or miscarriage results – Where jury charge incomplete or in error – [See
Criminal Law – Topic 4351
].
Criminal Law – Topic 5510
Evidence and witnesses – Evidence of accomplices, co-defendants, informants, etc. – Warning to jury of danger of reliance on – [See all
Criminal Law – Topic 4353
].
Cases Noticed:
R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), appld. [paras. 4, 66].
R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, consd. [paras. 5, 67].
R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [paras. 7, 80].
R. v. James (W.A.) et al. (2009), 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388; 2009 SCC 5, refd to. [para. 10].
R. v. Smith (N.W.) – see R. v. James (W.A.) et al.
R. v. Zebedee (J.) et al. (2006), 212 O.A.C. 23; 211 C.C.C.(3d) 199 (C.A.), refd to. [paras. 25, 67].
R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [paras. 37, 75].
R. v. Sanderson (R.K.) (2003), 177 Man.R.(2d) 260; 304 W.A.C. 260; 180 C.C.C.(3d) 53; 2003 MBCA 109, refd to. [paras. 39, 84].
R. v. Chenier (P.) et al. (2006), 207 O.A.C. 104; 205 C.C.C.(3d) 333 (C.A.), refd to. [paras. 46, 66].
R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 49].
R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 61].
R. v. Baskerville, [1916] 2 K.B. 658 (C.A.), refd to. [para. 66].
R. v. Horsburgh, [1967] S.C.R. 746, refd to. [para. 69].
R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 71].
R. v. P.L.F.N. (1999), 138 Man.R.(2d) 205; 202 W.A.C. 205; 138 C.C.C.(3d) 49 (C.A.), refd to. [para. 76].
R. v. G.G. (1997), 99 O.A.C. 44; 115 C.C.C.(3d) 1 (C.A.), refd to. [para. 76].
R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 77].
R. v. Dhillon (S.) (2002), 161 O.A.C. 231; 166 C.C.C.(3d) 262 (C.A.), refd to. [para. 77].
R. v. Kanester, [1966] 4 C.C.C. 231 (B.C.C.A.), refd to. [para. 81].
R. v. Warkentin et al., [1977] 2 S.C.R. 355; 9 N.R. 301, refd to. [para. 81].
R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 81].
R. v. Ethier (1959), 124 C.C.C. 332 (Ont. C.A.), refd to. [para. 82].
R. v. Gagnon (Y.R.J.) et al. (2000), 136 O.A.C. 116; 147 C.C.C.(3d) 193 (C.A.), refd to. [para. 83].
R. v. Murphy et al., [1977] 2 S.C.R. 603; 9 N.R. 329, refd to. [para. 83].
Trial of William Davidson and Richard Tidd for High Treason, Re (1820), 33 How. St. Tr. 1337, refd to. [para. 92].
R. v. Hill, [1986] 1 S.C.R. 313; 68 N.R. 161; 17 O.A.C. 33, refd to. [para. 93].
R. v. Ménard (S.), [1998] 2 S.C.R. 109; 228 N.R. 100; 111 O.A.C. 1, refd to. [para. 93].
R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 94].
R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 94].
R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 96].
R. v. James (W.A.) et al. (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255; 216 C.C.C.(3d) 490; 2007 NSCA 19, refd to. [para. 99].
Authors and Works Noticed:
Arnup, C. Jane, Has Caution Been Thrown to the Wind?: The Aftermath of Vetrovec, in Special Lectures of the Law Society of Upper Canada: Law in Transition-Evidence (1984), p. 21 [para. 69].
Boilard, Jean-Guy, Guide to Criminal Evidence (1991) (2008 Looseleaf Update – Issue 48), vol. 2, para. 10.016 [para. 75].
Canada, Law Reform Commission, Law of Evidence Project, Corroboration, Study Paper No. 22, (1975), p. 7 [para. 70].
Driskell Inquiry – see Manitoba, Commission of Inquiry Into Certain Aspects of the Trial and Conviction of James Driskell.
Dufraimont, Lisa, Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions? (2008), 33 Queen’s L.J. 261, generally [para. 89].
Glasson, E.D., Histoire du droit et des institutions de la France (1895), vol. 6, p. 543 [para. 1, footnote 1].
Harris, N., Vetrovec Cautions and Confirmatory Evidence: A Necessarily Complex Relationship (2005), 31 C.R.(6th) 216, pp. 222 [para. 46]; 223 [para. 86]; 224 [para. 81]; 225 [paras. 39, 81].
Helmholz, R.H., Magna Carta and the ius commune (1999), 66 U. Chi. L. Rev. 297, p. 337 [para. 1, footnote 1].
Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., McWilliams’ Canadian Criminal Evidence – see McWilliams, Peter K., Canadian Criminal Evidence.
Kaufman Report – see Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin.
Lamer, Antonio, A Tribute to Chief Justice Dickson, Address to the Annual Convention of the Criminal Lawyers’ Association (December 1989), generally [para. 71].
Lamer Commission of Inquiry Report – see Newfoundland and Labrador, The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes.
Law Society of Upper Canada Special Lectures, Law in Transition-Evidence (1984), p. 21 [para. 69].
LeSage Commission Report – see Manitoba, Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell.
Manitoba, Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (LeSage Report) (2007), generally [para. 89].
Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Sophonow Report) (2001), generally [paras. 12, 89].
McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2008 Looseleaf Update, Release 10), para. 31:60.40, fn. 151 [para. 81].
Newfoundland and Labrador, The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes (2006), generally [para. 89].
Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), generally [paras. 12, 89].
Ontario Criminal Lawyers’ Association Newsletter, vol. 10, No. 4, p. 13 [para. 71].
Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), pp. 40 to 45 [para. 90]; 520, 521 [para. 82]; 523, 524 [para. 75].
Roberts, Paul, and Zuckerman, Adrian, Criminal Evidence (2004), pp. 466 [para. 1]; 486, 487 [para. 29].
Rosenberg, Marc, Developments in the Law of Evidence: The 1992-93 Term – Applying the Rules (1994), 5 S.C.L.R.(2d) 421, p. 463 [para. 35].
Seniuk, G.T.G., Judicial Fact-Finding and a Theory of Credit (1992), 56 Sask. L. Rev. 79, pp. 87 to 96 [para. 94]; 105 [para. 80].
Seniuk, G.T.G., Liars, Scoundrels and the Search for the Truth (2000), 30 C.R.(5th) 244, generally [para. 79].
Sophonow Report – see Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation.
Stuart, Don, Annotation to R. v. Kehler (2004), 19 C.R.(6th) 49, generally [para. 75].
Wakeling, Audrey A., Corroboration in Canadian Law (1977), pp. 19 to 22, 26 [para. 85].
Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1978), vol. 7, § 2032, subs. 1 [para. 1, footnote 1].
Wigmore on Evidence, vol. 7, p. 424, para. 2059 [para. 95].
Zuckerman, A.A.S., Corroboration: Judicial Reform in Canada (1984), 4 Oxford J. Legal Stud. 147, pp. 148 [para. 74]; 149 [para. 95].
Counsel:
Richard C.C. Peck, Q.C., Nikos Harris and Kathleen M. Bradley, for the appellant, Khela;
Gil D. McKinnon, Q.C., and Patrick McGowan, for the appellant, Sahota;
Bruce Johnstone and Marian K. Brown, for the respondent;
Jennifer M. Woollcombe, for the intervenor, Attorney General of Ontario;
Donald B. Bayne and Norman D. Boxall, for the intervenor, Criminal Lawyers’ Association (Ontario).
Solicitors of Record:
Peck and Company, Vancouver, B.C., for the appellant, Khela;
G.D. McKinnon, Vancouver, B.C., for the appellant, Sahota;
Attorney General of British Columbia, Vancouver, B.C., for the respondent;
Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;
Bayne, Sellar, Boxall, Ottawa, Ontario, for the intervenor, Criminal Lawyers’ Association (Ontario).
These appeals were heard on March 28, 2008, by Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The decision of the Supreme Court of Canada was delivered in both official languages on January 22, 2009, when the following opinions were filed:
Fish, J. (Binnie, LeBel, Abella, Charron and Rothstein, JJ., concurring) – see paragraphs 1 to 64;
Deschamps, J., partially concurring – see paragraphs 65 to 101.
