DATE: 20051024

DOCKET: C36766

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., LASKIN AND MACPHERSON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Riun Shandler for the respondent

Respondent

• and -

CRAIG PATRICK

James Lockyer and Jennifer Budgell for the appellant

Appellant

Heard: May 5, 2005

On appeal from the conviction and sentence entered by Justice Eugene G. Ewaschuk and a jury of the Superior Court of Justice, dated January 14, 2001.

Laskin J.A.:

A. Introduction

[1] On Sunday afternoon, June 13, 1999, in a parking lot next to a housing complex in the Jane and Finch area of Toronto, Warren Blackstock was shot five times in the chest as he was getting ready to drive away in his car with his three-year-old daughter, Brianna Davy. Blackstock survived the shooting, though he was paralysed from the waist down. Tragically, Brianna was struck in the head by a stray bullet and died instantly.

[2] The appellant, Craig Patrick, was charged with the first-degree murder of Brianna and the attempted murder of Blackstock. He was tried before Ewaschuk J. and a jury. The issue at trial was whether the appellant was the shooter. No eyewitnesses identified him, and no forensic evidence linked him to the crime scene.

[3] The Crown’s case relied in part on circumstantial evidence of motive, opportunity, and the appellant’s conduct after the shooting. But it was mainly based on Blackstock’s identification of the appellant as the shooter. The appellant testified and denied that he was the shooter. He maintained that at the time of the incident he was playing basketball with a group of people at a nearby court.

[4] The jury found the appellant guilty on both counts. On the count of first-degree murder he was sentenced, as the law requires, to life imprisonment with no eligibility for parole for twenty-five years. On the count of attempted murder, he was sentenced to life imprisonment.

[5] The appellant appeals both convictions. He raises numerous grounds of appeal. His principal ground is that the trial judge erred in law in refusing to give a Vetrovec[^1] warning for the evidence of Blackstock. He submits that a warning to the jury about the danger of relying on Blackstock’s evidence was mandatory because Blackstock was unsavoury, his identification testimony was fraught with inconsistencies, and yet his evidence was central to the Crown’s case. I agree with this submission. On this ground of appeal alone, I would set aside the convictions and order a new trial. Because the trial judge’s failure to give a Vetrovec warning is decisive of the appeal, I will not deal with the other grounds of appeal raised by the appellant.

B. Overview of the evidence

(a) The relationship between Blackstock, the appellant, and Gardness

[6] At trial, Blackstock identified the appellant – known to him as “Titus” – as the shooter. He said they had first met about six months before the shooting at a Boxing Day dance. Blackstock had financed the dance with a man named Gardness. The appellant knew Gardness and was helping as a doorman. After the dance, Blackstock and Gardness had a falling out. According to Blackstock, Gardness kept most of the profits from the dance. Yet he was spreading rumours that Blackstock had robbed him.

[7] Blackstock testified that after the Boxing Day dance, he saw the appellant only about three times. On June 12, the day before the shooting, they saw each other at a beach party at Wasaga Beach. According to Blackstock, the appellant was “clocking him” – watching him closely and giving him dirty looks. The appellant, however, testified that they neither spoke nor made eye contact at the beach party. That evening the two saw each other again at a party in downtown Toronto in a building called “The Palisades.”

(b) Evidence of the appellant’s motive: the pistol whipping at The Palisades

[8] Ironically the Crown’s evidence of motive came not from Blackstock but from the testimony of the appellant and of a mutual friend, Kwami Mingo. The testimony concerned an incident at the party at The Palisades the night before the shooting.

[9] The appellant arrived at the party at about midnight and left at about 2 a.m. As he stepped out of the elevator on the ground floor, he saw Blackstock getting off another elevator. According to the appellant, Blackstock approached him, grabbed his shoulder, and spun him around. The appellant tried to walk away, but Blackstock grabbed him again and ripped his shirt. Blackstock then pulled out a gun and shoved it in the appellant’s face and said that if the appellant and his friends thought they were all so tough he would “wipe all of you guys out.” Later, a girl who had witnessed the assault told the appellant that Blackstock was sorry for what had happened. The appellant testified that this made him feel a little better and “glad at least there would be no further problems between me and this man.”

[10] Kwami Mingo testified that he had seen Blackstock on the Sunday morning before the shooting. Blackstock told Mingo that he had pistol-whipped someone the night before. According to Mingo, Blackstock appeared remorseful and was on his way to extend an apology through Mingo’s sister. Just after noon, Mingo saw Blackstock again. Blackstock admitted to pulling a gun on the appellant the night before and appeared to be embarrassed about the incident.

[11] A short while later, Mingo saw the appellant near a basketball court. The appellant did not look well and his face was scratched. The appellant told Mingo that Blackstock had pistol-whipped him the night before. Mingo told the appellant not to worry about it. The appellant seemed “pissed” at Blackstock but told Mingo that he had spoken to “one of the girls,” that everything was all right, and that he had put the incident behind him.

[12] After speaking to both the appellant and Blackstock, Mingo thought that their argument was not serious and that any hostilities between the two had dissipated.

[13] Blackstock gave an entirely different version of what had occurred at The Palisades. He admitted that he had seen the appellant there, near the elevators. He confronted him and said, “This is not your argument. This is me and Gardness, right.” However, Blackstock denied that he pulled out a gun and pistol-whipped the appellant. He testified that after speaking to the appellant they went their separate ways.

(c) The shooting

[14] On Sunday afternoon June 13, Blackstock went to his mother’s house to pick up his daughter Brianna. He saw the appellant in the neighbourhood near a basketball court with four or five other men.

[15] After picking up Brianna, Blackstock walked toward the lot where his car was parked. As he did so, Mingo, who was nearby, called out to him, “it done happened already” and mumbled something that Blackstock could not hear.

[16] Blackstock testified that he unlocked his car doors and put Brianna in the front passenger seat. The windows were rolled up and the sunroof was slightly ajar.

[17] Blackstock closed the passenger door and walked around to the driver’s side of the car. He testified that as he opened the door he saw “shadows” in the mirror, which he thought were caused by two men moving toward him. While he was outside the car Blackstock heard a gunshot. He thought that he had been shot in the back. He heard two more shots. He thought that these had hit him in the back as well. Then he passed out. However, he recalled struggling with the shooter, whom he identified as the appellant. He pushed the gun away and managed to open his car door. The shooter fired another shot at Blackstock and then ran from the parking lot.

[18] Blackstock testified that he got into the car, started it, and reversed it. He could not move the left side of his body. The car rolled back and hit a van. However, he managed to roll down the window and tell a friend, who had arrived at the scene, to call his mother. He then lapsed into unconsciousness.

(d) Blackstock’s previous inconsistent statements to the police

[19] Blackstock gave two key statements to the police: the first on the morning of June 15 – two days after the shooting – while he was still in the hospital; the second on June 21 – after the appellant had been arrested. The two statements were entirely different.

[20] In his June 15 statement, Blackstock said that he was sitting in his car when he saw the shooter in a side-view mirror. There was only one shooter and he wore a blue bandana over the lower part of his face. Blackstock could not identify him. When the police asked who had shot him, Blackstock replied, “It could be a lot of people.” He named Gardness and the appellant. Blackstock then asked to see a photographic lineup. The police produced one that included the appellant. However, Blackstock did not identify the appellant or anyone else in the lineup.

[21] At trial, Blackstock testified that he did not remember making the June 15 statement. In cross-examination he was asked whether he was telling the truth when he told the police that he did not know who shot him. He said “no.” He was then asked, “You lied to her [the officer] at that time?” and he answered, “Yeah.”

[22] By the time Blackstock gave his June 21 statement to the police, he knew the appellant had been arrested, he had read several newspaper articles about the arrest, he had seen the appellant’s picture in the paper, and he had been visited by members of his family.

[23] In his second statement, Blackstock told the police that two men had approached his car. One hour and twenty minutes into his interview with the police, he claimed that one of the men was the appellant, whose face was uncovered. The other man, whom Blackstock could not identify, left the scene and did not take part in the shooting. The police questioned Blackstock about the appellant. Blackstock said that he had no idea why the appellant would shoot him because they were not enemies. In neither his June 21 nor his June 15 statement did Blackstock tell the police he had spoken to or even seen the appellant at The Palisades.

(e) The forensic evidence

[24] Blackstock had three wounds on the front of his body and two wounds on his back. The doctors removed two bullets. One bullet that had been lodged in the right side of his abdomen likely caused his paralysis. The defence’s position was that Blackstock was seated in the driver’s seat of his car at the time of the shooting and moved his body toward the passenger side when he was shot so that he was unlikely to have seen his assailant. The Crown’s position was that Blackstock was outside the car when he was shot and was able to identify the appellant. The forensic evidence led at trial was neutral. It certainly did not support the Crown’s position.

(f) The “Titus” statements

[25] Two witnesses testified that before he was taken into the hospital, Blackstock identified the appellant as the shooter. One witness was Althea Eldemire, a good friend of Blackstock. The other was Delroy McGregor, Blackstock’s stepfather. However each one’s evidence conflicted with the other’s, and both of their accounts were inconsistent with the evidence of the officers at the scene and with the evidence of Blackstock.

[26] Eldemire, McGregor, and a third person, Vernon Khan, drove Blackstock to the hospital. Once there, Eldemire took Brianna’s body into the emergency ward. She then went back out to the car and stood near Blackstock’s head. Eldemire said, “[i]f you know who did this to you tell us before you go in there and something should happen to you.” According to Eldemire, Blackstock whispered “Titus” three times. However she had trouble hearing what he said; she was upset and she was confused. She was even unsure whether she had told the police officers about the Titus statements.

[27] McGregor gave a different version of what had occurred outside the hospital. He testified that when Eldemire took Brianna into the emergency ward, he said to Blackstock “tell me who did this to you.” Blackstock replied, “Titus did it.” He said it only once. A police officer nearby asked McGregor whom Blackstock had named. McGregor responded, “don’t ask me that question now.” Then, according to McGregor, the officer asked him, “did he say Titus?” and McGregor replied, “yes, that’s the name he used”. At trial McGregor testified that Blackstock was having trouble talking and that he may have misheard what Blackstock was saying.

[28] None of the three police officers present outside the hospital saw or heard Blackstock being questioned by either Eldemire or McGregor. One of the officers described Eldemire as “hysterical.” This officer asked Blackstock if he knew who shot him. Blackstock did not answer. The officer described Blackstock’s condition as follows:

“He didn’t even acknowledge me. There was no verbal response and no physical response even looking up at me.”

[29] Another officer spoke to Eldemire, McGregor, and Khan at the hospital. The Crown did not seek to elicit the contents of this conversation. However, during the officer’s evidence the Crown played an audiotape of a police radio call about ten minutes after the initial 9-1-1 call. In the tape, officers state that they are looking for a man named Titus.

[30] Blackstock testified that at the hospital he told both Eldemire and McGregor that Titus was the shooter. However, he cannot remember whether he told anyone before he got to the hospital. Moreover, in his June 21 statement he said that he did not say anything to anyone in the car. All he remembered saying was “yes” to questions posed by Eldemire.

(g) The appellant and his alibi evidence

[31] At the time of his arrest the appellant was twenty-one-years old. He worked as a forklift operator at a Grand & Toy warehouse. He also did volunteer work with children at a local recreation centre. He had youth court convictions for property-related offences, and an adult criminal record for possession of a narcotic, trafficking, carrying a concealed weapon (a knife), and being unlawfully at large.

[32] He testified that after he saw Mingo in the early afternoon on Sunday June 13, he met up with a group of fifteen friends who were “chilling” out at the local basketball court. The appellant played some basketball with them. While he was at the court, the appellant saw Blackstock ride by on a bicycle. Twenty minutes later, a neighbourhood kid nicknamed “So-For-Real” came by and told the group that someone had been shot. He had heard that the victims were Warren Blackstock and a baby. The appellant and the others in the group walked toward the parking lot to see what had happened. As they did so, Blackstock’s sister Juleen Blackstock confronted the appellant. She yelled, “if it’s you or any of your friends who shot my brother you guys are gonna get it,” to which the appellant replied, “Listen, man, I don’t have anything to do with anything so could you please leave me out of whatever you’re trying to yell at me about or whatever.”

[33] Neither the Crown nor the defence called Juleen Blackstock as a witness at the trial. The appellant did not call So-For-Real and he neither called nor named any of the fifteen people who were playing basketball. He testified that when he was arrested he assumed that people from his neighbourhood would come forward to tell the police that he had nothing to do with the shooting. However, he also explained that his neighbourhood was ruled by the “G Code” or Gangster Code. According to this Code, people would not speak to the police even if they knew something about a crime. Those at the top, older people who had “done more bad things,” would exact retribution on anyone who assisted the police.

[34] Both Blackstock and Mingo confirmed the existence of this neighbourhood Code. Blackstock testified that people “straightened things out themselves” without the assistance of the police. Mingo, who claimed not to remember anything about the day of the shooting until the trial judge found him in contempt of court, said that the culture of “the Jane” meant the police would have difficulty finding witnesses who would cooperate.

(h) The appellant’s conduct after the shooting

[35] At 9 p.m. on the night of the shooting the appellant went to work at Grand & Toy. At 2 a.m. his sister came to see him and told him that people in the neighbourhood were saying that he was involved in the shooting. The appellant left work early and accompanied his sister to her house in Scarborough. He testified that he was concerned his life would be in danger if he went to his own house.

[36] The next morning the appellant met with his lawyer and talked to his mother and other members of his family. That evening he returned to his own residence at Jane and Finch, and then left for work. As he was driving, he heard on the radio that he was wanted for the shooting.

[37] The appellant testified that on hearing his name on the radio he started “freaking out.” Instead of going to work, he stopped at a mall, called his cousin Rory Ellis, and went to Ellis’s home in Ajax. That night he slept in the basement of his cousin’s home. The next morning he sought advice from another cousin named Patrick. After speaking with Patrick, the appellant decided to contact his lawyer and turn himself in the following morning. He went out to get something to eat for dinner, returned to Ellis’s house at about 10 p.m., and fell asleep in the basement. The next day the police entered the house with a search warrant and arrested the appellant. According to the arresting officer, the appellant was hiding underneath a blanket behind a washing machine.

C. The issues on the appeal

1. The failure to give a Vetrovec warning

[38] The appellant argues that the trial judge erred in law in refusing to give the jury a Vetrovec warning about the evidence of Warren Blackstock. The appellant contends that the trial judge was required to give a clear, sharp warning of the danger of acting on Blackstock’s evidence without confirmation of it. The Crown argues that the trial judge acted within his broad discretion in refusing to give a Vetrovec warning. Alternatively, the Crown contends that the trial judge’s refusal to warn the jury about Blackstock’s evidence caused no substantial wrong and that therefore this court should apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.[^2]

[39] A Vetrovec warning 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” (at p.17). Although no particular language is required, the warning should focus the jury’s attention on the potential untrustworthiness of the witness’s evidence. It should refer to the characteristics of the witness that raise serious questions about the witness’s credibility. And it should emphasize the danger of convicting the accused on the witness’s evidence, unless that evidence is confirmed by independent evidence: see R. v. Brooks (2000), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.) at para. 94.

[40] Defence counsel asked the trial judge to give a Vetrovec warning for Blackstock’s evidence. The trial judge would not do so. Although he did not give a formal ruling, in his dialogue with counsel the trial judge indicated that a Vetrovec warning was inappropriate because Blackstock was a victim:

The Court: Generally it would, and I’ve never seen it applied to a victim, quite frankly. Generally it would apply to a situation where he or she participated in a crime, which is the accomplice; or somehow he or she was a recipient of a confession and had something to gain by testifying in favour of the Crown. Neither of those situations apply here. He’s the victim, his daughter is the victim.

The Court: I don’t necessarily understand why I should give an unsavoury witness direction with respect to the victim of the crime.

[41] I take a different view of the law. I believe Dickson J.’s judgment in Vetrovec itself indicates that no category of witness is exempt from being the subject of a Vetrovec warning. Although giving a Vetrovec warning for the evidence of a complainant or a victim is perhaps unusual, the principles that underlie the warning do not distinguish between complainants or victims and other witnesses.

[42] In the Supreme Court of Canada’s most recent Vetrovec case, Brooks, supra, Major J. pointed out at para. 80 that whether a Vetrovec warning is needed turns on the interplay of two factors: the importance of the witness’s evidence to the Crown’s case and the witness’s credibility:

In summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness’s credibility, and the importance of the witness’s testimony to the Crown’s case. No specific threshold need be met on either factor before a warning becomes necessary. Instead, where the witness 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. In short, the factors should not be looked to independently of one another but in combination.

[43] If the trial judge had applied the analysis suggested by Major J. in Brooks, he should have concluded that a Vetrovec warning for the evidence of Blackstock was necessary. Although in many cases a trial judge has broad discretion whether or not to give a warning, this, in my view, is one of those cases where a Vetrovec warning was mandatory. It was mandatory because Blackstock’s evidence was critical to the Crown’s case, and yet he was a most unsavoury witness. Thus the failure to give the warning amounts to an error in law. I will briefly elaborate on why I consider that the warning was mandatory.

(a) The importance of Blackstock’s evidence to the Crown’s case

[44] No physical or forensic evidence linked the appellant to the shooting. The crucial evidence against him was Blackstock’s identification evidence. I agree with Mr. Lockyer’s submission that apart from Blackstock’s evidence, the Crown’s case rested on circumstantial evidence, which, standing alone, was likely insufficient to make out even a prima facie case against the appellant. Even if I were to accept the Crown’s contention that overall its case against the appellant was very strong, the Crown still acknowledges that the centerpiece of its case was Blackstock’s identification of the appellant as the shooter. Thus, on either side’s view of the case, Blackstock’s evidence was essential to the prosecution. Indeed, during a discussion with counsel, the trial judge remarked that, “it would be inconceivable to think of a scenario where the Crown could obtain a conviction unless the jury believed the testimony of Mr. Blackstock.”

(b) Blackstock’s credibility

[45] During his dialogue with counsel, the trial judge commented that Blackstock “isn’t unsavoury. . . . he doesn’t have, really, what you would call an unsavoury criminal record.” In my view, the trial judge’s assessment of Blackstock’s credibility was unreasonable. On my reading of the transcript, Blackstock’s criminal record was but one of numerous and compelling reasons to be very wary of trusting his evidence.

[46] First, Blackstock’s June 15 statement to the police, his June 21 statement to the police, and his trial testimony differed materially from each other on four crucial points: whether Blackstock could identify the appellant as the shooter, the number of his assailants, whether Blackstock was inside or outside of the car when he was shot, and whether the shooter’s face was covered. The following chart summarizes these material inconsistencies in Blackstock’s account:

	Identification of Shooter	Number of Assailants	Face of the Shooter	Inside or Outside Vehicle
June 15 Statement	Could not identify appellant or anyone else	One	Covered	Inside
June 21 Statement	Identified the appellant (1 hour and 20 minutes into the interview)	Two	Uncovered
Trial Testimony	Identified the appellant	Two	Initially Covered	Outside

[47] Second, on the crucial issue of motive, Blackstock directly contradicted the Crown’s theory. In neither his pretrial statements to the police nor in his trial testimony did Blackstock acknowledge that at The Palisades the night before the shooting he had pulled out a gun and pistol-whipped the appellant. In his June 21 statement to the police Blackstock told the interviewing officer that he could not even remember whether the appellant had been at The Palisades. When cross-examined at trial about why he would lie to police, he first claimed he didn’t know and then said, “You know, really, them days you know what, I was saving everything for the courts . . . . I figure if I said yeah there was an argument and that I might have got a charge for something ‘cause I don’t have no luck.”

[48] Third, Blackstock had a criminal record, and it was not a minor record. As a youth he was convicted of four counts of robbery. As an adult his record showed two convictions for assault, a conviction for mischief, and most importantly, a 1993 conviction for manslaughter. His manslaughter conviction arose from the 1991 shooting death of Dwight Kelly. Initially Blackstock and a man named Ferrier were charged with first-degree murder. Ferrier fired the fatal shots. Blackstock pleaded guilty to manslaughter. At his guilty plea, he admitted that he was armed with a gun, which he had brandished on hearing the shots being fired. He was sentenced to two years imprisonment in addition to eighteen months pretrial custody.

[49] Fourth, Blackstock’s evidence concerning his manslaughter conviction shows that he has no hesitation in lying when he thinks to do so is advantageous. Despite having agreed to the facts read at his guilty plea, at the appellant’s trial Blackstock maintained that he had not been carrying a gun. When confronted with the contradiction, Blackstock testified that he had lied to his own lawyers about having a gun. He was then reminded that while serving his sentence for his manslaughter conviction he had told the corrections authorities he was carrying a gun the night Kelly was killed and indeed, always carried a gun when he went to certain areas. However, Blackstock testified at the appellant’s trial that he had lied to the corrections authorities because he figured he needed to “tell them what they want to hear” to obtain early parole. In short, he either lied to his lawyers and the corrections authorities and knowingly permitted his lawyers to mislead the court, or he lied under oath at the appellant’s trial.

[50] In the light of Blackstock’s evidence concerning his manslaughter conviction and his refusal to acknowledge that he had pistol-whipped the appellant, which was the central underpinning of the Crown’s case, it is hardly surprising that in closing argument the Crown told the jury, “I must say to you it’s also very clear that Warren Blackstock has a motive to lie when the truth might incriminate him. In fact he admits as much”; and, “Warren Blackstock isn’t going to tell the truth when his doing so will put him in jail.”

[51] Fifth, at the time of the shooting, Blackstock was facing outstanding charges of assault with a weapon and uttering threats, and two counts of failing to comply with his recognizance. The assault with a weapon charge related to an incident in February 1999. Blackstock allegedly got into an argument with three men and brandished a handgun at one of them. In cross-examination, Blackstock denied the allegation.

[52] The uttering threats charge concerned telephone calls to the mother of two of his children in the period of January-June 1995, while he was on mandatory supervision for his manslaughter conviction. He allegedly made twenty-two calls to the woman, threatened to shoot her in the head, and said, “a pussy like you deserves to be dead.” Blackstock denied the allegations. He claimed that the woman telephoned the police to have him returned to the penitentiary.

[53] Blackstock admitted that he had violated several conditions of his recognizance for his assault with a weapon charge. These included the conditions that he not associate with anyone he knew had a criminal record, that he live with his surety, and that he obey a curfew.

[54] Sixth, other evidence suggested Blackstock was a drug dealer and led a dubious lifestyle. At trial, he denied that he was a drug dealer, even though in his June 21 statement he acknowledged to the police that he was involved with drugs and “was dealing with good stuff.” He also denied that he had ever used cocaine even though his urine samples taken the day after the shooting revealed traces of cocaine metabolite.

[55] Blackstock admitted that he never filed an income tax return and that he kept large sums of cash “stashed away.” Shortly before the shooting, he and a friend, an admitted drug dealer, wire transferred $9,000 to Jamaica. Blackstock claimed that the money had been sent to buy music for his disc jockey business. On the day before the shooting, on his way to Wasaga Beach, he stopped to visit two strippers. One of the women gave him money, but he denied that it was for drugs. Blackstock also denied knowing about the rumours Gardness was spreading, accusing him of selling drugs. But he did agree his problems with Gardness were so serious “word on the street” was that Blackstock was dead.

[56] These six considerations show that Blackstock was an unsavoury and untrustworthy witness. He had no regard for telling the truth, no regard for the law, and no regard for the judicial system. Yet his evidence was crucial to the Crown’s case. The jury ought to have been warned about his evidence.

[57] The Crown seeks to defend the trial judge’s refusal to give a warning as a valid exercise of his discretion. The Crown makes three points. First, it submits that a warning was not required because the untrustworthiness of the witness’s evidence would have been apparent to the jury. Second, though a Vetrovec warning may be required in cases where there is a risk that the witness is testifying in order to curry favour with the authorities, here there is no evidence that Blackstock was attempting to do so in connection with his outstanding charges. Third, the Crown submits that Blackstock had no motive to falsely accuse the appellant of killing his three-year-old daughter.

[58] I do not accept the Crown’s submissions. That Blackstock’s untrustworthiness would have been apparent to the jury does not do away with the need for a warning. The same point about an unsavoury witness could be made in virtually every case where a Vetrovec warning is required. The considerations that determine whether a warning is needed concern the witness’s credibility and the importance of the witness’s evidence to the prosecution’s case. Indeed, often a warning will be most needed where the problems with the witness’s credibility are most obvious.

[59] Nor do I accept that the absence of any evidence showing Blackstock was currying favour with the authorities does away with the need for a warning. No one consideration is decisive of whether a Vetrovec warning must be given: see Brooks at para. 79. Instead, the question is whether on a common sense assessment there are considerations that should lead a court to suspect the witness’s credibility. The considerations that I have listed above show that Blackstock’s evidence should be approached cautiously.

[60] Finally, I think it is speculative to accept the Crown’s contention that when Blackstock identified the appellant he had no motive to lie. He might well have had a motive to lie that would not be readily apparent to the jury. For example, it is just as plausible that Blackstock’s first statement to the police was truthful, and that when he later identified the appellant he was lying in order to give the authorities the evidence that they lacked. I do not consider it at all clear that the jurors’ experience and common sense would enable them to assess Blackstock’s motives when he testified at the trial.

[61] In refusing to give a Vetrovec warning for Blackstock’s evidence, the trial judge erred in two ways. He erred in principle in refusing to give a warning on the ground that Blackstock was a victim. And he erred by making an unreasonable assessment of Blackstock’s credibility. I conclude that a Vetrovec warning for the evidence of Blackstock was mandatory. The failure to give it amounted to an error of law. The remaining question is whether the Crown can rely on the curative proviso by showing that the lack of a Vetrovec warning caused no substantial wrong.

(c) Application of the proviso in section 686(1)(b)(iii) of the Code?

[62] Section 686(1)(b)(iii) of the Code may be applied to cure the absence of a Vetrovec warning: see Brooks, supra, and R. v. Armstrong (2003), 179 C.C.C. (3d) 37 (Ont. C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 554. The Crown bears the burden of showing that if the trial judge had properly warned the jury of the danger of relying on Blackstock’s evidence without confirmation, the jury’s verdict would necessarily have been the same. Or, as Major J. stated in R. v. Bevan, [1993] 2 S.C.R. 599 at para. 42, if “there is any reasonable possibility that the verdict would have been different had the error at issue not been made,” the court should not apply the proviso. I do not think that the Crown can meet its burden. I have come to that conclusion for the following reasons.

[63] First, Blackstock’s identification evidence was crucial to the Crown’s case and the failure to warn the jury about his evidence was a serious error. Without Blackstock’s evidence, the Crown’s case against the appellant was not overwhelming. The other evidence on which the Crown relied – circumstantial evidence of the appellant’s opportunity, motive, and post-offence conduct and the alleged Titus statements – was not sufficient to sustain the conviction. This much the Crown acknowledges.

[64] Second, unlike in Armstrong, the trial judge in this case did not caution the jury in words that approximated or came close to a proper Vetrovec warning. In Armstrong, at 40, the trial judge told the jury that it should approach the evidence of the suspect witness “with care and caution.” He then gave a standard instruction on the use of the witness’s criminal record and he exhaustively reviewed the inconsistencies in the witness’s testimony. These aspects of the charge prompted Rosenberg J.A. at para. 32 to conclude that although the trial judge did not give a proper Vetrovec warning, he did “go a long way to alerting the jury to the fact that [the witness] occupied a special place in the trial and why his evidence had to be approached with caution.”

[65] In this case, the trial judge did not similarly caution the jury. He did give the jury a standard instruction on using Blackstock’s criminal record to assess his credibility and an instruction on how Blackstock’s inconsistent statements to the police “may or may not undermine his credibility.” But he did not clearly warn the jury of the need to approach Blackstock’s evidence cautiously, or of the need to be wary of accepting that evidence. Perhaps the closest the trial judge came to doing so was in his instructions on identification. After telling the jury about the general frailties of identification evidence he did point out that “there are serious weaknesses in Warren Blackstock’s identification of the accused” as the shooter. But this caution was directed to the reliability of Blackstock’s identification evidence. Vetrovec is a warning directed to the credibility of the witness’s evidence.

[66] This distinction is important here. Reliability goes to the accuracy of the witness’s testimony; credibility goes to its truthfulness. If warned only about reliability, the jury may be left with the impression that it should consider the witness’s conflicting accounts and then weigh each account to determine the one it feels was most accurate. In contrast, a warning about credibility puts all of a witness’s testimony in doubt: see R. v. Mezzo, [1986] 1 S.C.R. 802 at para. 78.

[67] Third, nowhere in his charge did the trial judge catalogue for the jury the numerous considerations that would trigger concern about Blackstock’s trustworthiness. Instead, several aspects of the trial judge’s charge may well have had the opposite effect of partially rehabilitating Blackstock’s credibility in the eyes of the jury.

[68] For example, the trial judge downplayed the seriousness of Blackstock’s conviction for manslaughter. During the defence’s cross-examination of Blackstock, the trial judge had twice said, “the fact he had a gun is irrelevant.” Then in his charge the trial judge told the jury:

[I]n January of 1993 he was convicted of manslaughter. That did not involve him shooting anybody. He was a secondary party to it. He was given two years in the penitentiary. It is the lowest sentence you can get in the penitentiary.

[69] From these comments the jury may have thought Blackstock’s manslaughter conviction was of little significance to his credibility. Yet Blackstock received a two-year sentence in addition to eighteen months of pretrial custody, which effectively meant that he received a five-year sentence. Moreover, through his lawyer, Blackstock admitted to the court that he was brandishing a gun when Kelly was shot, an admission he then disavowed at the appellant’s trial. The manslaughter was a serious offence and Blackstock’s contradictory accounts about whether he had a gun were significant to his credibility.

[70] Also, the trial judge did give a Vetrovec warning for the evidence of Kwami Mingo. The contrast between the warning for Mingo’s testimony and the absence of a warning for Blackstock’s evidence could not have escaped the jury’s consideration.

[71] Further, the trial judge, in effect, made excuses for Blackstock’s failure to identify the shooter in his June 15 statement to the police. The trial judge repeatedly reminded the jury that Blackstock was in intensive care at the time, and speculated that Blackstock likely did not then know he was permanently paralysed and “consequently, he may not have wanted to tell the police the whole truth at that time.” The record, however, does not suggest that either Blackstock’s physical disability or the medication he was taking impaired his coherence, or his ability to communicate when he gave his statement to the police – as he was entitled to do.

[72] Fourth, in cases where a Vetrovec warning is given, the trial judge still retains the discretion to list the evidence capable of supporting the witness’s testimony even though the effect of doing so may be to neutralize the impact of the warning. In this case, although the trial judge did not give a warning, he listed for the jury – as he was entitled to do – the five pieces of evidence relied on by the Crown to support Blackstock’s identification of the appellant: the appellant had motive; the appellant had the opportunity to commit the crime and he did not call an alibi witness; the killer ran out of the same housing complex from which the appellant emerged minutes later; Blackstock named the appellant as his shooter within fifteen minutes of the shooting; and the appellant went into hiding when he learned from his sister that Blackstock had survived. Thus the appellant did not have the benefit of a Vetrovec warning, and yet he still had put against him the evidence capable of confirming Blackstock’s testimony.

[73] Undoubtedly, there was evidence apart from the testimony of Blackstock that implicated the appellant. However, for the reasons that I have set out above, I cannot conclude that the verdict would have necessarily been the same if a proper Vetrovec warning had been given. Therefore, this is not an appropriate case for the application of the curative proviso in 686(i)(b)(iii) of the Code. On this ground alone, I would set aside the appellant’s convictions and order a new trial.

D. Conclusion

[74] The failure to give a Vetrovec warning for Blackstock’s evidence was a serious error in law, which cannot be cured by the application of the proviso in section 686(1)(b)(iii) of the Criminal Code. Thus the appellant was deprived of a fair trial on a first-degree murder charge. I would allow the appeal, set aside the convictions, and order a new trial.

RELEASED:

“OCT 24 2005” “John Laskin J.A.”

“RRM” “I agree Roy McMurtry C.J.O.”

“I agree J.C. MacPherson J.A.”

[^1]: A warning in accordance with the decision of the Supreme Court of Canada in R. v. Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.).

[^2]: R.S.C. 1985, c. C-46.