COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Kanagalingam, 2014 ONCA 727
DATE: 20141022
DOCKET: C54541
Laskin, Cronk and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nirmalarasan Kanagalingam
Appellant
Ian R. Smith and Amy Ohler, for the appellant
Tracy Kozlowski, for the respondent
Heard: June 18, 2014 and June 19, 2014
On appeal from the conviction entered on July 13, 2011 and the sentence imposed on September 9, 2011 by Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury.
R.A. Blair J.A.:
Overview
[1] The appellant and four other men were charged with a series of offences arising out of a fraudulent credit and debit card scheme. The four other men pled guilty to various offences relating to the scheme, and did so based on agreed statements of fact that implicated the appellant in the criminal activities.
[2] The appellant, on the other hand, pled not guilty. After a 17-day jury trial, he was convicted of multiple counts of fraud, conspiracy to commit fraud, fraudulent use and possession of credit card data, and participating in the activities of a criminal organization involved in debit card fraud. He was acquitted on a charge of directing others to commit an offence while being a member of a criminal organization. The trial judge sentenced him to a total of 6 years’ imprisonment and ordered him to pay restitution in the amount of $50,000.
[3] At trial, the Crown’s case rested primarily on the testimony of the former co-accused. Inconveniently, however, each of them recanted portions of the agreed statements of fact upon which their earlier pleas had been based, as well as portions of other prior statements implicating the appellant. In two cases the recanted statements were made during testimony given at the appellant’s preliminary inquiry.
[4] Crown counsel accordingly applied to have the relevant portions of the agreed statements of fact and the other statements – including excerpts from the guilty pleas and preliminary inquiry transcripts – admitted into evidence for the truth of their contents, relying upon the principles set out in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740. The trial judge admitted them and the jurors’ acceptance of their contents undoubtedly played a central role in their decision to convict.
[5] The appellant contests both his conviction and sentence. On the conviction appeal, his first major ground of appeal focuses on the admission of three of the agreed statements of fact. The appellant argues that the former co-accused’s powerful motives to lie in order to obtain lenient sentences, the withdrawal of other charges and, in some cases, benefits to family members, undermined the threshold admissibility of the statements. He submits that the trial judge erred in admitting them.
[6] A second ground on the conviction appeal arises out of the Vetrovec warning[^1] given by the trial judge to the jury cautioning them about the risks of relying on the evidence of the former co-accused who were all unsavoury witnesses. The appellant submits the warning was inadequate.
[7] For the reasons that follow, I would allow the appeal and order a new trial. While I am not persuaded that the trial judge erred in admitting what I will refer to as the “K.G.B. statements”, I agree with the appellant that the Vetrovec warning was inadequate to serve its intended purpose in the circumstances. As a result, it is unnecessary to deal with the sentence appeal.
Facts
[8] The details of the fraudulent conspiracy are not important. In substance, it involved the theft of banking information from debit card PIN pads at various retail stores. This was accomplished by co-opting a cashier at the targeted outlet, who would turn a blind eye while a member of the organization removed the PIN pad from the debit machine and replaced it with a decoy. The PIN pad was then taken to another site and altered to enable the organization to steal data from subsequent uses of the PIN pad. The original now-altered PIN pad would then be returned and reinstalled at the retail outlet. A member of the organization would return to the store some days or weeks later to recover the data using a handheld electronic device such as a smartphone. The stolen data was then used to produce counterfeit debit or credit cards that were, in turn, used to withdraw funds from the targeted accounts by way of automated teller machines (“ATMs”).
[9] An attempted debit card fraud at a Sunoco gas station in Whitby – unsuccessful because the cashier tipped off the police – and successful frauds carried out at Guess Jeans retail stores in Woodbridge and at the Yorkdale Mall formed the basis for the charges against the appellant and his co-accused. Those involved in the conspiracy netted proceeds of approximately half a million dollars.
[10] For the following particulars I rely principally on the appellant’s recitation of the facts, which was accepted in substance by counsel for the Crown.
[11] The appellant is alleged to have been the “handyman” in the organization, that is, the person responsible for the alteration of the PIN pads that enabled the data to be collected surreptitiously.
[12] The co-accused who pled guilty played other roles. While the details of the scheme are not important for purposes of the appeal, the particulars of the guilty pleas and the agreed statements of fact on which they were based are.
[13] Kajenthiran Vijayakumar and Vigitharan Selvaraj participated in the attempted fraud at the Whitby Sunoco station. Vijayakumar’s role was to recruit a cashier to participate in the endeavour. He also worked generally as a “runner” for Selvaraj. A “runner” picks up the counterfeit cards on which the stolen credit card or debit card data has been imprinted, takes them to an ATM, and uses them to withdraw money from the victims’ accounts. Selvaraj’s role was to steal the PIN pad; he went to the Sunoco station on the night of the attempted fraud, switched the decoy pad for the real PIN pad, and returned the stolen pad to a hotel where he handed it over to a person he understood to be responsible for altering the pads.
[14] Mithun Indrakumaran recruited the Guess Jeans cashier at the Yorkdale Mall. He also delivered the PIN pad to another man, Arthick Antonito, who took it away for alteration and then returned it to Indrakumaran to have it exchanged for the decoy. Aruncumar Ravindran recruited the cashier at the Guess Jeans store in Woodbridge. He delivered stolen PIN pads to Antonito too.
[15] Vijayakumar, Selvaraj, Indrakumaran and Ravindran each pled guilty based on agreed statements of fact prepared by their lawyers in consultation with each other. Selvaraj, Indrakumaran and Ravindran confirmed the truth of those statements under oath at the time of their guilty pleas. Vijayakumar gave an earlier videotaped statement to the police based on his agreed statement of fact, under oath and in the presence of his then counsel. Indrakumaran and Ravindran testified at the appellant’s preliminary inquiry.
[16] In each case, the statements implicated the appellant in the crimes. Vijayakumar placed the appellant in the hotel room where the PIN pads were altered and the arrests were made. Selvaraj said that he gave the stolen Sunoco PIN pad to the appellant whom he knew was the person responsible for altering the PIN pads, and that the members of the organization who worked under the appellant would act as runners. Indrakumaran’s agreed statement of fact stated that he and Ravindran reported to the appellant, that he delivered stolen PIN pads to the appellant, that the appellant told them he was able to alter commercial credit and debit PIN pads electronically, and that monies collected from the frauds would be returned to the appellant. At the preliminary inquiry, Indrakumaran described a meeting at a restaurant attended by Antonito (the man to whom the Guess Jeans PIN pads had been delivered), Ravindran, the appellant and himself, and said that the appellant was the person who gave out the codes to unlock the safes containing the counterfeit cards. Ravindran’s statements connected the appellant with Antonito as well.
[17] At trial, however, the stories were different.
[18] Vijayakumar denied the appellant was in the room at the hotel and refused to adopt other portions of his video statement implicating the appellant. He said he lied to the police because his lawyer told him that the only way he would get a deal on sentencing was to say the appellant had been in the hotel room.
[19] Selvaraj testified at trial that he did not know the name of the person to whom he had given the PIN pad. The appellant’s name had been given to him later. He explained that he had not reviewed the agreed statement of fact carefully before the plea, but just wanted to get out of jail (he had served 500 days of pre-trial custody). His lawyer read him the facts and told him it had been created by Vijayakumar’s lawyer and that Vijayakumar was pleading guilty the same day to the same facts. He thought that if he did not accept the facts his guilty plea would not proceed.
[20] In spite of his detailed agreed statement of fact fingering the appellant, Indrakumaran testified at trial that he had never met the appellant, although he had seen him once at a Tim Horton’s – but did not speak with him – when he had met with Antonito to pick up money after a “run”. With respect to his preliminary inquiry evidence about a restaurant meeting with the appellant and others, Indrakumaran maintained his only encounter with the appellant was at the Tim Horton’s. Nor did he really know that the appellant was the person who gave out the codes to unlock the safes containing the counterfeit cards; he just assumed the person above Antonito in the organization did so. He was no longer sure that person was the appellant.
[21] Indrakumaran also testified that he felt pressured to plead guilty. His brother had been charged with “obstructing police” in connection with a pre-trial breach of bail by Indrakumaran and faced the estreatment of $105,000 posted for Indrakumaran’s pre-trial release. The charges against the brother and the bail estreatment were withdrawn following the guilty plea. Indrakumaran, too, agreed under oath at the time of the guilty plea that the contents of the agreed statement of fact were true. He explained at trial, however, that his lawyer had told him certain things had to be contained in the statement for the Crown to agree to a deal. While he knew there was someone above Antonito in the organization, he simply “figured” on the basis of persistent police questioning and having seen the appellant at Tim Horton’s that that person was the appellant.
[22] Each former co-accused profited considerably from their guilty pleas and the agreed statements of fact and pre-trial statements underlying them.
[23] Vijayakumar received a suspended sentence after pleading guilty to conspiracy to commit fraud over $5,000, attempt to commit fraud over $5,000, theft under $5,000 and possession of property obtained by crime under $5,000. Several charges – including participating in a criminal organization – were withdrawn. He had a prior criminal record for robbery and failing to comply with bail.
[24] Selvaraj had served 500 days of pre-sentence custody and was sentenced to a further 18 months’ imprisonment. On his guilty plea a number of charges were withdrawn. He did not have a prior criminal record, but had received a conditional discharge.
[25] As noted above, both Indrakumaran and his family benefited considerably from his guilty plea to five counts of fraud over $5,000. The Crown withdrew 41 other charges, including conspiracy to commit an indictable offence and committing an offence for the benefit of a criminal organization. The Crown also withdrew the “obstruction of police” charge against his brother and abandoned the application to estreat the $105,000 posted for his bail by his brother and a family friend. On a joint submission, Indrakumaran received a conditional sentence.
[26] Ravindran pled guilty to five counts of fraud on the same day as Indrakumaran’s plea and based on a very similar agreed statement of fact. He had also been in breach of his bail conditions and was in custody at the time of his plea. On a joint submission, he agreed to forfeit $35,000 found in a safety deposit box and received a conditional sentence.
Analysis
[27] I turn first to the K.G.B. statements.
The K.G.B. Statements
[28] As I have said, a new trial is necessary based on the Vetrovec ground of appeal. Strictly speaking, therefore, it is not necessary to deal with the admissibility of the K.G.B. statements. In the event of a new trial, however, it may be useful to do so.
[29] The appellant attacks the trial judge’s decision to admit three of the agreed statements of fact for purposes of threshold reliability – those of Selvaraj, Indrakumaran and Ravindran.[^2] In my view, she did not err in doing so.
[30] I agree with the trial judge’s conclusion that the appellant’s objections conflate threshold reliability and ultimate reliability. While there were many questions to be resolved in terms of the ultimate reliability of the witnesses’ statements implicating the appellant – something to which I will return in the Vetrovec portion of these reasons – those questions were for the jury to resolve. The trial judge had an ample basis on which to conclude that there were sufficient indicators of threshold reliability for purposes of admissibility, in my view.
[31] There are generally speaking two ways of satisfying threshold reliability: either the trier of fact has a sufficient basis on which to assess the hearsay statement’s truth and accuracy, using substitutes for the typical adversarial process (procedural reliability), or the circumstances in which the statement was made provide guarantees that the statement is reliable or trustworthy (substantive reliability): R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 62-63; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.
[32] In K.G.B., at pp. 795-96, the Supreme Court of Canada recognized three indicators of threshold reliability that would generally justify the admission of a statement: (i) the statement is made under oath or affirmation following a warning on the significance of the oath and the availability of sanctions for giving a false statement; (ii) the statement is videotaped in its entirety; and (iii) the opposing party has a full opportunity to cross-examine the witness respecting the statement. These three indicators provide a means by which the trier of fact can test the hearsay statement.
[33] Here, Selvaraj, Indrakumaran and Ravindran were each represented by counsel who assisted in the preparation of the statements. Each reviewed their respective statements with counsel prior to their guilty plea hearing. Each testified under oath, affirmation or a promise to tell the truth at their guilty pleas that the contents of their agreed statement of fact were true. They did not simply state themselves, or through counsel, that the facts were “substantially true”; indeed, Indrakumaran and Ravindran testified that they were completely accurate, “100 per cent”. The judge hearing their guilty pleas accepted, based on their assurances, that the pleas were voluntary, and on their testimony, that they were founded on evidence that was true and accurate. Finally, they were available for cross-examination not only (in the case of Indrakumaran and Ravindran) at the appellant’s preliminary inquiry but – most significantly – at the appellant’s trial, where their conflicting evidence and their explanations for changing their testimony could be tested. There was little need, therefore, for the taking of the statements to have been videotaped.
[34] In short, the threshold reliability requirement “[was] met on the basis that the trier of fact [had] a sufficient basis to assess the statement’s truth and accuracy” and there was therefore “no need to inquire further [at that stage] into the likely truth of the statement”: Khelawon, at para. 92.
[35] The appellant submits, however, that even where the K.G.B. indicators of reliability are present the trial judge retains a residual discretion to refuse to admit the impugned evidence. He argues that the trial judge erred here in failing to exercise that discretion given the circumstances rendering the agreed statements of fact “inherently unreliable” – the strong motivations to lie in order to obtain the benefit of favourable sentences and other advantages. I do not agree.
[36] The trial judge has a residual discretion. The appellant’s argument is tantamount, however, to saying that he or she must exercise that discretion to exclude a prior statement at the threshold reliability stage where the trier of fact has sufficient means to test the evidence, but “the circumstances under which the statement was made undermine the veracity of the indicia of reliability”: K.G.B., at p. 801. This proposition is the antithesis of discretion, and I do not read K.G.B. and its progeny as going that far.
[37] As K.G.B. indicates, the residual discretion concept evolved out of the notion that K.G.B. statements were prone to the same kinds of frailties that gave rise to the rule relating to confessions. That rule is designed to ensure that the statement is made voluntarily and not by way of inducement or other improper factors that would tend to bring the administration of justice into disrepute: see K.G.B., at pp. 801-2.
[38] The proposition that there is a rule excluding admission of a witness statement where the witness may be motivated to lie and to implicate another person is counter-intuitive to the notion of discretion, and has been rejected by this Court in R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 547, [2012] S.C.C.A. No. 46, [2012] S.C.C.A. No. 151, [2012] S.C.C.A. No. 166. There, the Court noted, at para. 145, that “just as the question of admission should not be treated as a mechanical exercise, neither in our view, should the question of exclusion. The per se rule suggested by the appellants runs precisely that risk – and we reject it for that reason.”
[39] In response, the appellant relies heavily on the recent decision of the Supreme Court of Canada in Youvarajah, and there are similarities with that case, to be sure – it involved a guilty plea by one accused based on an agreed statement of fact implicating another accused that was recanted at the trial of the second accused.
[40] Youvarajah and D.S. were charged with first degree murder. The Crown’s theory was that Youvarajah had planned the murder and provided the weapon to D.S. (a young offender) to shoot the victim. D.S. pled guilty to second degree murder on the basis of the agreed statement of fact. At Youvarajah’s trial, D.S. denied the facts in the statement implicating Youvarajah in the murder. He invoked solicitor-client privilege and refused to testify further on these matters, precluding cross-examination on his reasons for recanting.
[41] The Crown applied to have D.S.’s statement admitted on K.G.B. grounds, but the trial judge rejected the application. In the course of her reasons delivered on behalf of the majority, Karakatsanis J. expressed serious reservations about the reliability of a statement made by one accomplice implicating another, where the statement may be motivated by self-interest. Her observations included the comment – relied upon by the appellant, and found at para. 62 – that “statements by a co-accused or accomplice are recognized as inherently unreliable.”
[42] At the end of the day, however, the basis for upholding the trial judge’s decision was that the reliability of D.S.’s statements could not be adequately tested at trial. As Karakatsanis J. stated, at paras. 64 and 71-72:
The administration of justice would not be enhanced in permitting admissions made by a co-accused in his own interest, as part of a plea bargain for a conviction of a lesser crime and favourable sentence, to be used against a co-accused, in circumstances where the reliability of the statements cannot be adequately tested.
In light of these difficulties, only a full and complete opportunity to cross-examine would have provided a genuine basis on which to assess the reliability of D.S.’s statements. His invocation of solicitor-client privilege, however, would preclude a full opportunity to cross-examine him.
The trial judge did not err in finding that the jury would not have the tools to assess or test the truthfulness of the exculpatory portions of the [agreed statement of fact]. [Emphasis added.]
[43] D.S. asserted solicitor-client privilege, thus severely limiting cross-examination on his decision to plead guilty and his reasons for implicating Youvarajah. In addition, D.S.’s agreed statement of fact had not been videotaped and there was therefore no opportunity to observe his demeanour. There was similarly no opportunity to test his choice of words because Crown counsel drafted the statement with input from defence counsel.
[44] Here, the fact that the statements of Messrs. Selvaraj, Indrakumaran and Ravindran were not videotaped is of less importance, as is the inability to test their choice of words in the agreed statements of fact. They all testified as to the truth of their statements under oath, affirmation or a promise to tell the truth. They were all available for cross-examination to test their choice of words. At least one judge – the judge taking the guilty pleas – had not expressed any concern about their demeanour and was satisfied as to the voluntariness of the pleas and their statements. The fact that the statements had been crafted with the assistance of their counsel is at least one circumstance providing some indication of threshold reliability.
[45] Most significant, however, is the fact that all three witnesses were available for full cross-examination at the appellant’s trial. They had each given an explanation for their statements and their guilty pleas and for their different testimony at trial. Thus their respective stories could readily be tested.
[46] These factors distinguish Youvarajah from the present appeal, in my view. I do not understand Youvarajah to stand for the proposition that there is a per se rule requiring the exclusion of K.G.B. statements at the threshold stage where there are circumstances that may “undermine the veracity of the indicia of reliability.” It is a matter of discretion, and each case must be determined in its own context.
[47] It does not follow that because the trial judge’s discretion not to admit the statement in Youvarajah was upheld, that the trial judge’s exercise of discretion in the case at bar to admit the statements was in error. Quite the contrary, in fact, for the reasons outlined above. A trial judge’s determination of threshold reliability is entitled to deference, absent an error in principle: Youvarajah, at para. 31. Given the indicators of threshold reliability existing, it was appropriate for the trial judge to leave the statements, and the issue of their ultimate reliability, to the jury.
[48] I would not give effect to this ground of appeal.
The Vetrovec Warning
[49] Different considerations arise with respect to the Vetrovec warning, however. In this context, the need to be concerned about ultimate reliability was very much in issue.
[50] The former co-accused (now witnesses) who testified against the appellant had compelling motives to lie about his involvement, both in their agreed statements of fact and in their other pre-trial statements: they – and in the case of Mr. Indrakumaran, his family and a friend – stood to benefit handsomely from their guilty pleas. Many charges were withdrawn (including, in Mr. Vijayakumar’s case, the serious charge of participating in a criminal organization). The sentences received were, on balance, quiet lenient. Mr. Indrakumaran, his family, and a friend, dodged the loss of $105,000 to bail estreatment.
[51] None of this was brought home to the jury in the context of the Vetrovec warning.
[52] The purpose of a Vetrovec warning is “to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony”: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 11.
[53] It is well settled that a trial judge has a considerable amount of discretion in crafting a Vetrovec caution to fit the circumstances, and that no particular language is mandatory for that purpose. Appellate intervention is not warranted “unless a cautionary instruction should have been given but was not, or the cautionary instruction that was given failed to serve its intended purpose”: Khela, at para. 13. Nonetheless, the courts have developed “a principled framework” to assist judges in constructing warnings appropriate to the circumstances. As articulated by this Court in R. v. Sauvé (2004), 2004 9054 (ON CA), 182 C.C.C. (3d) 321, leave to appeal to S.C.C. refused, [2005] 1 S.C.R. xv, at para. 82, and confirmed by the Supreme Court in Khela, at para. 37, the “four main foundation elements” of such a caution require the trial judge, at a minimum, to:
a) identify to the jury the witnesses whose evidence requires special scrutiny;
b) explain the reasons why the evidence is subject to special scrutiny;
c) caution the jurors about the dangers of convicting the accused on the unconfirmed evidence of the witness, although they are entitled to do so if they believe that the evidence of the witness is true; and
d) advise the jurors that, in determining whether the suspect evidence is true, they should look for independent evidence tending to confirm that the untrustworthy witness is telling the truth as to the guilt of the accused.
[54] In his careful submissions, Mr. Smith outlined a number of errors that he said resulted in the Vetrovec warning failing to fulfill its intended purpose here. In my view, it is only necessary to deal with one of them. I am persuaded by his first submission, namely, that the trial judge did not adequately explain the reasons why the testimony of the four formerly co-accused witnesses required special scrutiny, and that a new trial is therefore required.
[55] Although defence counsel requested a broader Vetrovec instruction, the trial judge indicated during pre-charge discussions that she would limit her instructions to the witnesses’ criminal records and status as fraudsters, although she would tell the jury “to consider how they got before the court”. This she did, highlighting the considerable criminal antecedents of the former co-accused involving crimes of dishonesty. But in telling the jury “to consider how they got before the court”, she limited herself to the general comment that they should keep in mind “the circumstances under which the young [men] testified” while providing no details in that regard.
[56] In short – apart from appealing to common sense – the trial judge gave only one reason why the critical testimony of the former co-accused required special scrutiny: their criminal background as fraudsters.
[57] But there was a lot more. As the appellant argues, the Vetrovec instruction was completely silent with respect to a number of salient points underpinning the need to scrutinize very carefully the testimony of these witnesses – including, in particular, their evidence in the K.G.B. statements. These points included:
- most importantly, the fact that all four of the former co-accused were co-conspirators who each had a strong motivation to lie and to implicate the appellant in the scheme – their guilty pleas brought favourably lenient sentences, the withdrawal of many charges and other significant benefits;
- the fact that all four gave evidence at trial that was inconsistent with their prior statements and, indeed, admitted at trial that they had lied under oath at their plea proceedings by stating that the facts implicating the appellant in their agreed statements of fact were true; and,
- the admitted lies of Vijayakumar to the police and Ravindran’s admission that he had lied while testifying at the preliminary inquiry.
[58] I recognize, as this Court has said in R. v. Zebedee (2006), 2006 22099 (ON CA), 81 O.R. (3d) 583, at paras. 93-95, that a trial judge is entitled to take a functional approach to the Vetrovec exercise and is not required to detail all the characteristics that cast doubt on the testimony of the unsavoury witness. Nonetheless, the warning must provide sufficient detail to drive home why the evidence requires special scrutiny in the circumstances; otherwise it does not “serve its intended purpose”, in my opinion. Here, there was more than one compelling reason underlying the need for scrutiny that should have been highlighted for the jury.
[59] Ms. Kozlowski, for the Crown, relied heavily on this Court’s decision in Zebedee. There, the complainants – long-time users and purchasers of cocaine from some of the accused – received enforcement-type beatings for non-payment of drug debts. The trial judge gave a Vetrovec warning highlighting the criminal backgrounds and lifestyle of the complainants but did not mention a number of other characteristics that could have cast doubt on the truth of the complainants’ evidence. These included a benefit that one of the complainants and his girlfriend had received in connection with certain unrelated fraud charges and the fact that the same complainant was seeking to recover money from the Criminal Injuries Compensation Board as a result of the beatings. The complainants had also made prior inconsistent statements.
[60] On appeal, this Court concluded that, while the trial judge could have mentioned all these and other details, he was not obliged to do so. The frailties – in addition to the complainants’ criminal antecedents – would have been self-evident to the jury and the jury, exercising its collective intelligence and common sense, “would … have been alive to them [and] appreciated their significance” (at para. 95). As well, there was strong independent evidence confirming the complainants’ testimony and defence counsel had “emphasized and re-emphasized all of the characteristics that called the complainants’ evidence into doubt”, making it unnecessary for the trial judge “to turn over the same factual ground that counsel had tilled and re-tilled” (at para. 95).
[61] But this case is not Zebedee.
[62] For one thing, the independent evidence confirming the testimony of the complainants in Zebedee was quite compelling. Here, while there was some evidence confirming the stories of the former co-accused, the confirmatory evidence tying the appellant to the crimes was not particularly strong.[^3]
[63] More significantly, however, this case involves the jury’s ability to assess the reliability of “K.G.B. statements”, admitted into evidence for the truth of their contents and made or confirmed under oath or affirmation by co-conspirators in exchange for advantageous guilty pleas and other benefits. Zebedee did not. The law has long recognized the enhanced untrustworthiness of such statements. As stated above, the Supreme Court of Canada recently affirmed in Youvarajah, at para. 64 (albeit in the context of threshold reliability):
The administration of justice would not be enhanced in permitting admissions made by a co-accused in his own interest, as part of a plea bargain for a conviction of a lesser crime and favourable sentence, to be used against a co-accused, in circumstances where the reliability of the statements cannot be adequately tested.
[64] Here, I have concluded that the statements met the test for threshold reliability, amongst other things, for the very reason that they could be adequately tested on cross-examination. The inbuilt danger of their unreliability remained, however, and was an important factor in the assessment of ultimate reliability. I am not persuaded that the legal nuances underlying that inherent unreliability would be “self-evident” and, therefore, that a lay jury exercising its common sense – however intelligent – would be able readily to “appreciate the significance” of factors bearing on the K.G.B. analysis for those purposes without careful legal guidance
[65] The Crown’s case against the appellant rested almost entirely on the testimony of these witnesses. As mentioned above, because they recanted their earlier statements implicating the appellant, the jurors could only have convicted the appellant if they accepted some or all of those earlier K.G.B. statements. Although I have concluded that the K.G.B. statements were admissible for purposes of threshold reliability, the question of their ultimate reliability was quite another matter. Their assessment for that purpose warranted a healthy skepticism.
[66] Making the witnesses’ dishonest history the focal point of the explanation why their testimony required careful scrutiny was not sufficient in these circumstances, in my opinion. While that background undoubtedly provided a basis for disbelieving their testimony, the most compelling reason for mistrusting what they had said in their K.G.B. statements was their very strong motivation to lie by implicating the appellant in order to obtain the considerable benefits of their guilty pleas, as outlined above.
[67] Respectfully, in my view, the trial judge’s failure to draw this to the jury’s attention in the context of the Vetrovec caution rendered the caution inadequate to serve its intended purpose.
[68] I do not think it is an answer to say defence counsel highlighted these details in closing or that the trial judge referred to them in her outline of the defence position. It is one thing for defence counsel to make the arguments and for the trial judge to comment on those arguments; the jury accepts them as arguments. It is another thing for the trial judge to place those frailties in the context of a warning about the danger of convicting on the unconfirmed evidence of an unsavoury witness. In the circumstances of this case, it was the latter that was called for.
[69] Nor do I think that these frailties in the Vetrovec caution can be overcome by application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. In view of what must have been the central nature of the recanted testimony in the jury’s decision to convict, the error was not harmless or minor, nor was the case so overwhelming that a properly instructed jury would inevitably have convicted regardless of the error: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53.
Disposition
[70] For the foregoing reasons, I would allow the appeal and order a new trial.
Released: October 22, 2014 (“J.L.”)
“R.A. Blair J.A.”
“I agree, John Laskin J.A.”
“I agree, E.A. Cronk J.A.”
[^1]: Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811.
[^2]: The threshold reliability of Vijayakumar’s prior videotaped statement was ultimately conceded by the defence at trial.
[^3]: The appellant also attacked the Vetrovec warning on the basis that the trial judge had erred in telling the jurors how to look for confirmatory evidence and that she had erred in instructing them that they could use the evidence of one Vetrovec witness to confirm the evidence of another where there was evidence of collaboration. For the reasons outlined above, I do not think it is necessary to address these grounds of attack.