Court File and Parties
Court File No.: Crim J(P) 1156/15 Date: 20160629 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Sheldon Ranglin, Defendant
Counsel: B. McGuire and E. Taylor for the Crown M. Moon and A. Pyper for the Defendant
Heard: June 24, 2016
Ruling on Vetrovec Caution
Ricchetti J.:
[1] The pre-charge conference commenced on June 23, 2016.
[2] A draft copy of the Jury Charge was provided to counsel on the evening of June 23, 2016.
[3] Submissions on the draft jury charge were heard on June 24, 2016.
The Vetrovec Witnesses
[4] On June 23, 2016, prior to providing its draft jury charge, this court advised counsel that it was considering giving the jury a Vetrovec caution to be included in its Jury Charge for:
a) Mr. Borden;
b) Mr. Moy-Lingomba; and
c) Mr. Watts.
The Position of the Parties
[5] On June 23, 2016, the Defence submitted that no Vetrovec caution be given for Mr. Watts. The Crown conceded that no Vetrovec caution was needed or should be given for Mr. Watts given that, while his credibility is at issue, the importance of his evidence was not central to the issues the jury needed to decide.
[6] Throughout this trial, during various evidentiary applications, it was always considered that Mr. Borden would be a Vetrovec witnesses. The topic of Mr. Borden being a Vetrovec witness, expressly came up during several applications and rulings and, in particular, as to the relevancy of certain evidence as confirmatory evidence of Mr. Borden.
[7] After receiving this court's draft Jury Charge late on Jun 23, 2016, on June 24, 2016 the Defence submitted that no Vetrovec caution be given for Mr. Borden or Mr. Moy-Lingomba.
[8] The Defence suggested that Vetrovec cautions are for the benefit of the Defence and, if the Defence does not want the court to provide a Vetrovec caution, the court should accede to the Defence request.
[9] With respect to Mr. Borden and Mr. Moy-Lingomba, the Crown submitted it was necessary or mandatory to provide the jury with the Vetrovec caution because:
a) With respect to Mr. Borden’s evidence, it has been admitted during the trial on various other rulings, that Mr. Borden would be a Vetrovec witness. It would be inconsistent to not continue to treat Mr. Borden as a Vetrovec witness in this court’s Jury Charge;
b) A Vetrovec caution would assist the jury to assess Mr. Borden and Mr. Moy-Lingomba’s evidence; and
c) With respect to Mr. Moy-Lingomba, in addition to a being typical Vetrovec witness, both parties rely on different aspects of Mr. Moy-Lingomba’s evidence. He is a “mixed Vetrovec ” witness. A “mixed Vetrovec ” caution would explain to the jury the distinction between inculpatory evidence and exculpatory evidence and how the jury should approach each of those portions of Mr. Moy-Lingomba’s evidence.
Analysis
[10] This case presents a unique situation. The Defence objects to this court giving a Vetrovec caution. Many appellate cases deal with the situation where the Defence did not request a Vetrovec caution and none was given by the trial judge.
[11] No authority was provided to this court where the Defence objected to a Vetrovec caution and the trial judge ruled otherwise.
[12] In R. v. Rafferty 2012 ONSC 2745, counsel submitted that the Vetrovec caution should be deleted from the Jury Charge. Justice Heeney, the trial judge, stated:
12 Applying those principles to the case before me, it is clear that a Vetrovec warning is not required in this case, because there is simply no risk that the jury would convict the accused on the testimony of McClintic "without more". While her testimony certainly occupies an important place in the Crown's case, it represents more of a framework for the Crown's case, as opposed to constituting the entirety of the Crown's case itself. Fact after important fact in her testimony is corroborated or supported by independent evidence, including: surveillance video from no fewer than 8 sources; banking records; sales records from the Home Depot; cell phone records and other business documents; DNA evidence; pathology evidence; fabric analysis evidence; objects, such as her running shoes, which were found in a ditch as she had described, and clothing and other items seized from the house of the accused; oral testimony from many witnesses; and physical evidence found at the body recovery scene, as well as the layout of the scene itself. 13 Unsavoury though she may be, there is simply no reason to doubt her testimony as to the events of April 8. It follows that there is no need for a Vetrovec warning. The jury may well conclude that the only real question they need to grapple with is whether the accused is the killer, as she said in her May 24, 2009 statement, or whether she killed the child, but the accused aided or abetted in the killing, as she testified at trial. Almost everything else she said about the events of April 8 can be independently corroborated, other than the private conversations she had with the accused. 14 The wealth of compelling, independent corroborative evidence that is available, much of which, to present a fair picture to the jury, would have to be reviewed in my charge, has undoubtedly prompted Mr. Derstine's request that the Vetrovec warning be omitted. This is precisely the situation contemplated by Bastarache J. at para. 16 of Brooks, where the Vetrovec warning would be counter-productive to the defence, and would actually strengthen the case for the prosecution. 15 Mr. Derstine has shown himself to be a very experienced, highly skilled defence counsel. I am loath to interfere with his tactical decision, and impose upon his client an instruction that, while intended to help the defence, would, in his considered opinion, be harmful to his case.
[13] I note that Justice Heeney did not simply defer his duty as the trial judge to the Defence counsel's wishes that a Vetrovec caution not be included. Justice Heeney reviewed and considered the reduced importance of the witness' evidence to the Crown's case and that much of the witness' evidence was corroborated by independent evidence. He concluded that a Vetrovec caution was not necessary in the circumstances of that case.
[14] Rafferty proceeded to appeal. In R. v. Rafferty, 2013 ONCA 741, a single judge of the Court of Appeal dealt with the issue as to whether the appointment of counsel was necessary to argue the appeal:
[7] The second ground of appeal concerns the failure of the trial judge to give a Vetrovec warning in relation to Ms. McClintic. There is no question that the trial judge refused to give this warning because of the position taken by the defence. Mr. Calarco points out that in making this decision the trial judge was influenced by the concurring reasons of Bastarache J. in R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237. It is arguable that the reasons of Bastarche J. were not the reasons of the majority on this issue and this is one of the rare cases where a Vetrovec warning was not a matter of discretion, as discussed in R. v. Bevan, [1993] 2 S.C.R. 599, at 614-15, and in the dissenting reasons of Major J. in Brooks at para. 80. Arguably Major J. is speaking for a majority of the court on this issue in light of the concurring reasons of Binnie J. at para. 127. The circumstances surrounding the decision whether or not to give the warning are complex. The argument that this was one of the cases where the trial judge should have overridden the tactical decision of experienced trial counsel is a difficult one and would again require a full familiarity with the trial record. Similarly, this may be one of the cases where the proviso can be applied as Binnie J. did in Brooks, given the strength of the prosecution’s case and the warning that was given by the trial judge in relation to Ms. McClintic’s testimony. But, that again would be a matter of some complexity requiring the assistance of counsel.
[15] No further word has been forthcoming from the Court of Appeal in Rafferty or the Supreme Court on this issue.
[16] Proceeding on the basis that there is no binding authority on the issue, the questions to be dealt with are:
a) Is a Vetrovec caution “mandatory” in this case?
b) Without a Vetrovec caution, will the jury have the necessary tools to properly assess the evidence of these witnesses?
Is a Vetrovec Caution Necessary or Mandatory?
[17] The Court of Appeal has stated in R. v. Armstrong, (2003), 179 C.C.C. (3d) 37 (Ont. C.A.) leave ref’d [2003] S.C.C.A. No. 554:
A Vetrovec warning is not required for all witnesses who technically fall within the category of accomplices and for many witnesses falling within that category a trial judge has a discretion whether or not to give a warning. In some cases, however, the circumstances are such that the judge has no discretion, the warning must be given and failure to do so is an error of law: R. v. Bevan (1993) and R. v. Brooks (2000), 2000 SCC 11. (emphasis added)
[18] In R. v. Moffit, 2015 ONCA 412, leave ref’d, [2015] S.C.C.A. No. 465, the Court of Appeal stated:
[75] … Whether a Vetrovec warning is mandatory depends on two factors: “the witness's credibility, and the importance of the witness's testimony to the Crown's case”: R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 4 and 80. If the witness’s evidence “is absolutely essential to the Crown's case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown's case is a strong one without the witness's evidence” : Brooks, at para. 80. (emphasis added)
[19] In R. v. A.W.B., 2015 ONCA 185 the Court of Appeal had the following to say about the situations where a Vetrovec caution is “mandatory”:
[40] I do not agree. A trial judge’s decision to give a Vetrovec caution is a matter of discretion, rather than a duty: R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 2. This exercise of discretion “should generally be given wide latitude by appellate courts”: R. v. Bevan, [1993] 2 S.C.R. 599, at p. 614. While a Vetrovec warning may be mandatory if the concern over the credibility of the witness and the importance of the evidence are great, there was no such requirement in this case. Furthermore, while there may be inconsistencies in a witness’s evidence and concerns with the witness’s credibility, provided the trial judge acted judicially in exercising his or her discretion, an appellate court should accord a high degree of deference to the exercise of discretion. (emphasis added)
[20] There is no authority to support the proposition that the trial judge's responsibility to trial fairness and to assist the jury is superseded by a decision, even a tactical decision, of the Defence. The Defence objection to a Vetrovec caution is a factor to be considered in the exercise of the court’s discretion whether to provide a Vetrovec caution to the jury. Defence counsel’s submission as to why a Vetrovec caution is not necessary or mandatory would no doubt be helpful. However, as stated by the Court of Appeal on numerous occasions, where a Vetrovec caution was mandatory or necessary, it was an error of law for the trial judge not to include the Vetrovec caution in its jury charge. I am not persuaded that the Defence has a “veto” on whether a Vetrovec caution is given where it is necessary or mandatory in the circumstances of the case.
[21] I conclude that the Defence objection to giving a Vetrovec caution is a factor to be considered whether the court should exercise its discretion to give a Vetrovec caution. However, where the circumstances of the case are such that a Vetrovec caution is necessary or mandatory, the Defence does not have a “veto”.
[22] This issue is whether the Vetrovec caution is necessary or mandatory for Mr. Borden and/or Mr. Moy-Lingomba in the circumstances of this case.
Will a Vetrovec Caution Assist the Jury?
[23] In addition to the credibility of the witness and the importance to the Crown’s case, a Vetrovec caution is an important tool for the jury to properly assess the witness’ evidence.
[24] In A.W.B. the Ontario Court of Appeal explained part of the rationale behind giving a Vetrovec caution:
[43] Trial judges must consider not only the degree to which credibility is a concern; they must consider as well the nature of the particular credibility problems, and whether lay members of the jury are adequately equipped to assess the witness’s credibility. According to Carroll, at para 78, “[t]he rationale that underpins a Vetrovec caution originates in the concern that, for certain types of witnesses, lay members of the jury simply lack the critical experience to adequately gauge the credibility of these types of witnesses and the reliability of their evidence”. The concerns raised by the appellant regarding the complainant’s credibility relate to lies that she had told or misstatements she made in the past. There is no reason to think that a contemporary Canadian jury would not be capable of taking this into account given the trial judge’s instructions on her credibility and the position of the defence in that respect. (emphasis added)
[25] This statement by the Court of Appeal is consistent with many authorities of the role and duty of the trial judge to assist the jury by equipping them with the tools to properly carry out their responsibilities. One fundamental part of a jury’s responsibilities is to assess the testimony of witnesses.
Application to Mr. Watts' Testimony
[26] This court agrees that Mr. Watts’ evidence is not central to the issues to be decided.
[27] Mr. Watts’ direct evidence does not add much, if any, evidence regarding who the shooter was on June 7, 2011 – the central issue in this case.
[28] Further, much of Mr. Watts’ evidence can only be used to assess the credibility of Mr. Moy-Lingomba.
[29] The Vetrovec caution for Mr. Watts would essentially arise from his plea deal and decision to become a police agent. The possible motive for Mr. Watts to lie was a significant part of the Defence’s cross examination of Mr. Watts. It has been highlighted in the evidence and will no doubt again be touched on in counsels’ closings and this court’s summary of the evidence.
[30] I am satisfied that a Vetrovec caution is not necessary or mandatory for Mr. Watts.
[31] Given the position of counsel and this court’s assessment of the need for a Vetrovec caution, a Vetrovec caution for Mr. Watts will not be given in the Jury Charge.
Application to Mr. Borden's Testimony
[32] Much has been made by the Defence that Mr. Borden was involved in the shooting. It was even suggested at one point by the Defence that Mr. Borden or “his crew” committed the shooting.
[33] Further, the Defence pursued cross-examination of Mr. Borden on the basis that he was involved in the shooting and was motivated to point to Mr. Ranglin as the shooter to avoid the charges against him with respect to this shooting. In many ways, this is much like an “accomplice Vetrovec analysis” since the same motivation is being suggested for Mr. Borden’s role in the shooting and the reasons for the unreliability of his evidence in this case.
[34] The Defence cross-examined Mr. Borden at great length on his "gangster" lifestyle, his self-interest, his prior criminal conduct, his role in the shooting, his post offence conduct and other facts which would, without question, make Mr. Borden a Vetrovec witness.
[35] There is no doubt that Mr. Borden's evidence is central to the Crown's case. Mr. Borden is the only eye-witness and direct evidence that Mr. Ranglin was the shooter. The Defence does not dispute this. The Defence suggested that this court instruct the jury that, if they do not accept Mr. Borden’s evidence beyond a reasonable doubt, then the jury must have a reasonable doubt that Mr. Ranglin was the shooter and must acquit Mr. Ranglin. This suggestion was rejected by this court given the rest of the circumstantial evidence in this case. However, this suggestion by Defence underlines the importance and the significance of the credibility of Mr. Borden in this case.
[36] There is no doubt that on any analysis, Mr. Borden has overwhelming credibility problems and is essential to the Crown's case.
[37] Will a Vetrovec caution assist the jury? There is no doubt that the Defence, in its closing, will point (as it already has done in cross examination) at considerable length to the credibility and reliability issues relating to Mr. Borden’s evidence. There is no doubt, the Crown will, in its closing, urge the jury to accept Mr. Borden's evidence and point to confirmatory evidence. However, what the jury will not have is the essence of the Vetrovec caution that is, given Mr. Borden's background and circumstances; it would be dangerous to accept his evidence and the jury should look to confirmatory evidence to support of his evidence before they accept it.
[38] This leaves this court with one final consideration. Is a Vetrovec caution counterproductive to the Defence position and is this a factor in the exercise of this court’s discretion for not providing the jury with a Vetrovec caution?
[39] I am not persuaded that the Vetrovec caution would be as detrimental to the Defence position as suggested. The Defence will have the benefit of a long list of reasons why the jury should be extremely cautious of Mr. Borden's evidence when the jury is assessing it. The very strong Vetrovec caution will do much to underscore the credibility and reliability concerns regarding Mr. Borden's evidence.
[40] However, and more importantly, where a witness has overwhelming credibility issues and the witness' evidence is essential to the Crown's case, the Vetrovec caution is mandatory. That is this case. I conclude that a Vetrovec caution is both necessary and mandatory in the circumstances of this case.
[41] In my view, this makes a Vetrovec caution for Mr. Borden mandatory and the Defence has not persuaded this court otherwise. In my view, in these circumstances, it is essential that a Vetrovec caution be given to the jury regarding Mr. Borden's testimony.
Application to Mr. Moy-Lingomba's Testimony
[42] Credibility is a major issue regarding Mr. Moy-Lingomba. The jury has heard evidence that he refused to be sworn at the preliminary inquiry; he admitted lying during his own evidence to this court; his gangster lifestyle; he is presently in prison for firearm offences, he has a clear dislike (if not hatred) for the Crown. In my view, Mr. Moy-Lingomba has overwhelming credibility issues.
[43] Mr. Moy-Lingomba's evidence is not as crucial to the Crown's case. It is significant on the issue of motive, but motive is not an essential element for the offence.
[44] However, Mr. Moy-Lingomba’s evidence is critical to the third party suspect issue. Essentially, all the evidence that Mr. Murray is the third party suspect comes from Mr. Moy-Lingomba. The Defence seeks to rely on his evidence in this regard.
[45] On June 23, 2016 both parties agreed that Mr. Moy-Lingomba was a "mixed" Vetrovec witness. Both parties rely on different parts of Mr. Moy-Lingomba's evidence to support their respective positions. Mr. Moy-Lingomba is critical to the Defence third party suspect defence. Mr. Moy-Lingomba is significant to the Crown to establish Mr. Ranglin’s motive to commit the murder.
[46] A "mixed" Vetrovec caution will provide the jury with the necessary tools to properly understand the assessment of inculpatory and exculpatory statements made by Mr. Moy-Lingomba. This is a significant benefit to the Defence. Without the Vetrovec caution, the jury will not be told, understand or apply the appropriate legal assessment to Mr. Moy-Lingomba's inculpatory evidence and the less stringent assessment of his exculpatory evidence. I fail to see how a “mixed Vetrovec ” caution for the Mr. Moy-Lingomba would be detrimental to the Defence.
[47] In my view, the fact Mr. Moy-Lingomba is a “mixed Vetrovec” witness and has overwhelming credibility issues, making it mandatory that a Vetrovec caution be given for Mr. Moy-Lingomba.
Conclusion
[48] The jury charge will include a Vetrovec caution for Mr. Borden and a “mixed Vetrovec ” caution Mr. Moy-Lingomba.
Ricchetti, J.
