R. v. Brooks, [2000] 1 S.C.R. 237

Her Majesty The Queen Appellant

v.

Frederick Alexander Brooks Respondent

Indexed as: R. v. Brooks

Neutral citation: 2000 SCC 11.

File No.: 26948.

1999: October 8; 2000: February 17.

Present: Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

on appeal from the court of appeal for ontario

Criminal law -- Charge to jury -- Evidence of jailhouse informants -- Failure to provide Vetrovec warning -- Testimonies of two jailhouse informants introduced by Crown at trial -- Accused convicted of first degree murder -- Whether Court of Appeal erred in concluding that trial judge failed to adequately instruct jury about unreliability with respect to informants’ testimonies.

Criminal law Evidence -- Jailhouse informants -- Testimonies of two jailhouse informants introduced by Crown at trial -- Accused convicted of first degree murder -- Whether evidence supported implied finding at trial that informants were trustworthy.

Criminal law -- Verdicts -- Testimonies of two jailhouse informants introduced by Crown at trial -- Accused convicted of first degree murder -- Omission of caution to jury about unreliability with respect to informants’ testimonies -- Whether verdict would have been the same if caution had been given -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(b)(iii).

A 19‑month‑old child was found murdered in her crib wrapped in a green comforter. Only the accused and the child’s mother had access to her on the night of the murder. The child had blood and vomit on her face, a swollen left eye, bruises on her head, and bruising and redness on her genital area. The cause of death was acute brain injury. Trace amounts of semen were found on vaginal and anal swabs but DNA testing of sperm proved inconclusive, likely due to contamination of the sample. The Crown’s expert could neither include nor exclude the accused as the possible source of the sperm. There had been intense sexual activity in the apartment in the period preceding the murder. Sperm, including sperm from the child’s natural father, was found throughout the apartment including on a toy in the crib, on the child’s pyjama top, on the crib sheets and in two places on the green comforter. However, the child had been bathed just before the night of the murder and this, combined with the bacterial environment of a child in diapers, would quickly degrade sperm. The accused’s grey track pants were found in the apartment stained with semen, blood of the same type as the child’s, and a juice substance similar to that in her bottle. On the way to the hospital the following morning, the accused whispered to the mother three times that he was sorry. The accused made other inculpatory statements.

There was no direct evidence establishing that the accused had struck the fatal blows. There was evidence of previous physical abuse committed against the child. One month prior to the murder, the accused had thrown the child approximately one metre into the wooden frame of a couch. An injury to the child’s right buttock had appeared on a day on which the accused had exclusive care of the child. The mother had also been seen striking the child on several occasions.

The Crown led evidence from two jailhouse informants who testified that the accused, while incarcerated, had admitted that he had killed the child to stop her crying. Their testimony did not include a suggestion that the killing was committed during the commission of a sexual assault. Both informants had lengthy criminal records of dishonesty. One unsuccessfully sought a lighter sentence in return for his testimony and had testified as an informant in a prior trial. The other had a history of substance abuse and a psychiatric history highlighted by suicide attempts, paranoia, deep depression and a belief in clairvoyant ability. Both had histories of offering to testify in criminal trials.

In closing argument, defence counsel ridiculed both informants and invited the jury to reject their testimonies. Crown counsel’s jury address noted their criminal records and that one had previously appeared as a Crown witness and had attempted to make a deal. The trial judge’s jury charge did not provide a Vetrovec warning to the jury about the danger of relying on the informants’ testimonies. Neither counsel requested a warning nor objected to the lack of a warning. The accused was convicted of first degree murder. The Court of Appeal set aside the conviction and ordered a new trial.

Held (Iacobucci, Major and Arbour JJ. dissenting): The appeal should be allowed.

Per Gonthier, McLachlin and Bastarache JJ.: There was no error of law on the part of the trial judge in failing to provide a Vetrovec warning. It was within the discretion of the trial judge whether to give a warning and there was a foundation for his exercise of discretion.

Trial judges must not pigeon-hole witnesses into categories and should examine all factors that might impair the worth of a witness. No Vetrovec warning is necessary if the trial judge believes the witness can be trusted even if the witness is a jailhouse informant. The facts raised preliminary doubts as to the credibility of the informants but not cogent reasons to overrule the trial judge’s implicit finding that they were sufficiently trustworthy not to mandate a caution. An informant’s prior psychiatric history has no relevance and does not make the informant of unsavoury character. The informants’ testimonies were supported by other evidence and no evidence was adduced that either had lied or acquired their information elsewhere. The verdict did not turn on their testimonies because other evidence sustained the conviction. Defence counsel neither requested a warning nor objected to the absence of a warning. Counsel’s opinion is relevant where there may be tactical reasons for not requesting a warning. The trial judge directed the jury on credibility. The Court of Appeal had insufficient reason to interfere. A Vetrovec warning was not required.

Per Binnie J.: The trial judge erred in law in failing to give a Vetrovec warning but the appeal should nevertheless be allowed because there is no reasonable possibility on the particular facts of this case that the verdict would have been different if the warning had been given.

The trigger for a Vetrovec warning is the extent to which underlying sources of potential unreliability are present. The testimony of the informants here exhibited some of the worst characteristics of purveyors of jailhouse confessions. It is not sufficient for the trial judge to conclude that in his view these particular informants were reasonably capable of belief. The trial judge must provide the proper framework within which the jury can determine for itself the issue of credibility. The testimony of these jailhouse informants was important to the Crown’s case and justified an inference of untrustworthiness. This was sufficient to require a Vetrovec warning. The trial judge erred in law in the exercise of his discretion in deciding otherwise.

The accused was not entitled to a trial that excluded the evidence of the informants, only to having the testimony accompanied by a warning. Other direct evidence untainted by the error of law implicated the accused, including his other inculpatory statements, evidence of sexual assault and evidence of a prior pattern of violence. The jury accepted circumstantial evidence of sexual assault by the accused contemporaneously with the murder that was in no way dependent upon the informants’ testimony. A Vetrovec warning would have been accompanied by a review of corroborative evidence unhelpful to the accused. In the circumstances, the verdict should be upheld under s. 686(1)(b)(iii) of the Criminal Code.

Per Iacobucci, Major and Arbour JJ. (dissenting): The trial judge ought to have given a Vetrovec warning. The charge was not adequate and it cannot be said that the verdict would necessarily have been the same.

A Vetrovec warning is a matter of a trial judge’s discretion and is not required in all cases of unsavoury witnesses. Trial judges should consider all factors but should focus on a witness’s credibility and the importance of his or her testimony to the Crown’s case. A failure to give a required caution is an error of law and the prejudice occasioned by the error can be assessed under s. 686(l)(b)(iii) of the Criminal Code. The credibility of the informants was inherently suspect and their testimonies of sufficient importance to require a Vetrovec warning. The jury charge, however, did not contain the essential values of a Vetrovec warning. It did not focus the jury’s attention specifically on the inherent unreliability of these informants. Defence counsel’s summation to the jury was not a substitute. The absence of a request from defence counsel for a caution is not determinative. There is a serious question of whether a sexual assault occurred. The conviction for first degree murder cannot be sustained if there was no sexual assault. Other evidence had the potential to raise a reasonable doubt. It is difficult to preclude a different result.

Cases Cited

By Bastarache J.

Followed: Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811; referred to: R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525; R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122; R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599; R. v. Cain (1996), 1996 487 (ON CA), 90 O.A.C. 156; R. v. Glasgow (1996), 1996 4009 (ON CA), 110 C.C.C. (3d) 57; R. v. Gravino, [1995] O.J. No. 3109 (QL).

By Binnie J.

Followed: Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811; referred to: R. v. Frumusa (1996), 1996 834 (ON CA), 112 C.C.C. (3d) 211; R. v. Simmons (1998), 1998 1136 (ON CA), 105 O.A.C. 360; R. v. Bevan (1991), 1991 7150 (ON CA), 63 C.C.C. (3d) 333, rev’d 1993 101 (SCC), [1993] 2 S.C.R. 599; Fanjoy v. The Queen, 1985 53 (SCC), [1985] 2 S.C.R. 233; R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516; R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595; R. v. Sanderson (1999), 1999 18744 (MB CA), 134 Man. R. (2d) 191; R. v. Siu (1998), 1998 4639 (BC CA), 124 C.C.C. (3d) 301.

By Major J. (dissenting)

Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811; R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599; Brown v. Crashaw (1613), 2 Bulstr. 154, 80 E.R. 1028; R. v. Rudd (1775), 1 Cowp. 331, 98 E.R. 1114; R. v. Jones (1809), 2 Camp. 131, 170 E.R. 1105; R. v. Barnard (1823), 1 Car. & P. 87, 171 E.R. 1113; R. v. Wilkes (1836), 7 Car. & P. 272, 173 E.R. 120; R. v. Tate, [1908] 2 K.B. 680; R. v. Baskerville, [1916] 2 K.B. 658; Veuillette v. The King (1919), 1919 64 (SCC), 58 S.C.R. 414; Manchuk v. The King, 1938 6 (SCC), [1938] S.C.R. 341; Hebert v. The Queen, 1954 48 (SCC), [1955] S.C.R. 120; Brown v. The Queen, 1962 48 (SCC), [1962] S.C.R. 371; Colpitts v. The Queen, 1965 2 (SCC), [1965] S.C.R. 739; Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277; McFall v. The Queen, 1979 176 (SCC), [1980] 1 S.C.R. 321; Olbey v. The Queen, 1979 61 (SCC), [1980] 1 S.C.R. 1008; Young v. The Queen, 1981 55 (SCC), [1981] 2 S.C.R. 39; R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3; R. v. Romeo, 1991 113 (SCC), [1991] 1 S.C.R. 86; R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697; R. v. Livermore, 1995 43 (SCC), [1995] 4 S.C.R. 123; R. v. G. (R.M.), 1996 176 (SCC), [1996] 3 S.C.R. 362; R. v. Hinchey, 1996 157 (SCC), [1996] 3 S.C.R. 1128; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314; R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223; R. v. Hayes, 1989 108 (SCC), [1989] 1 S.C.R. 44; R. v. Pittman, 1994 108 (SCC), [1994] 1 S.C.R. 148.

Statutes and Regulations Cited

Act for improving the Law of Evidence (U.K.), 6 & 7 Vict., c. 85.

Canada Evidence Act, 1893, S.C. 1893, c. 31.

Criminal Code, R.S.C., 1985, c. C-46, s. 686(l)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].

Authors Cited

Bentham, Jeremy. Rationale of Judicial Evidence, vol. 5. London: Hunt & Clarke,1827.

Ontario. Commission on Proceedings Involving Guy Paul Morin. The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report). Toronto: Ontario Ministry of the Attorney General, 1998.

Report of the 1989-1990 Los Angeles Grand Jury: Investigation of the Involvement of Jail House Informants in the Criminal Justice System in Los Angeles County, June 26, 1990.

Rosenberg Marc. “Developments in the Law of Evidence: The 1992-93 Term” (1994), 5 S.C.L.R. (2d) 421.

Sherrin, Christopher. “Jailhouse Informants, Part I: Problems with their Use” (1998), 40 C.L.Q. 106.

Sherrin, Christopher. “Jailhouse Informants in the Canadian Criminal Justice System, Part II: Options for Reform” (1998), 40 C.L.Q. 157.

Wigmore, John Henry. Evidence in Trials at Common Law, vol. I, 2nd ed. Boston: Little, Brown & Co., 1923.

APPEAL from a judgment of the Ontario Court of Appeal (1998), 1998 5686 (ON CA), 41 O.R. (3d) 661, 113 O.A.C. 201, 129 C.C.C. (3d) 227, 20 C.R. (5th) 116, [1998] O.J. No. 3913 (QL), allowing an appeal from conviction and ordering a new trial. Appeal allowed, Iacobucci, Major and Arbour JJ. dissenting.

Lucy Cecchetto, for the appellant.

Irwin Koziebrocki, for the respondent.

The reasons of Gonthier, McLachlin and Bastarache JJ. were delivered by

[1] Bastarache J. – I have read the reasons of my colleague Justice Major. I agree with him that failure to give a Vetrovec warning when required amounts to an error of law (Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811). I am, however, of the view that this appeal should be allowed and the conviction restored, there being no error of law on the part of the trial judge in failing to provide a “clear and sharp” Vetrovec warning in the circumstances of this case. Rather, it is my opinion that the decision not to give a Vetrovec warning was within the discretion of the trial judge and that the exercise of this discretion should not have been interfered with on appeal. I have reached this conclusion for the reasons I set out below.

[2] In Vetrovec, Dickson J. (as he then was) held that a trial judge has the discretion, and not the duty, to give a clear and sharp warning to the jury with respect to the testimony of certain “unsavoury” witnesses. Dickson J. followed what he referred to as the “common sense” approach, moving away from “blind and empty formalism” and “ritualistic incantations” (at p. 823):

Rather than attempting to pigeon‑hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an “accomplice” no warning is necessary. [Emphasis added.]

[3] Therefore, this Court in Vetrovec deliberately chose not to formulate a fixed and invariable rule where “clear and sharp” warnings would be required as a matter of course regarding the testimony of certain categories of witnesses. Rather, where a witness occupies a central position in the determination of guilt and, yet, may be suspect because of a disreputable or untrustworthy character, a clear and sharp warning may be appropriate to alert the jury to the risks of adopting the evidence “without more”. It is therefore within the trial judge’s discretion to give a Vetrovec caution. This discretionary approach was confirmed by this Court in R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, at p. 557, wherein Wilson J. states:

Vetrovec, in my view, represents a rejection of formalistic and a priori categories concerning the trustworthiness of evidence both with regard to warnings and corroboration. In every case it is for the trial judge on the basis of his or her appreciation of all the circumstances and, may I add, on the basis of the application of sound common sense, to decide whether a warning is required. [Emphasis added.]

[4] In exercising his or her discretion to warn the jury regarding certain evidence, the trial judge may consider, inter alia, the credibility of the witness and the importance of the evidence to the Crown’s case. These factors affect whether the Vetrovec warning is required. In other words, the greater the concern over the credibility of the witness and the more important the evidence, the more likely the Vetrovec caution will be mandatory. Where the evidence of so called “unsavoury witnesses” represents the whole of the evidence against the accused, a “clear and sharp” Vetrovec warning may be warranted. Where, however, there is strong evidence to support the conviction in the absence of the potentially “unsavoury” evidence, and less reason to doubt the witness’s credibility, the Vetrovec warning would not be required, and a lesser instruction would be justified. The trial judge’s instruction with respect to the evidence of jailhouse informants must therefore be commensurate with the particular circumstances of the case. For example, the trial judge is not required to give a “clear and sharp” warning on the dangers of convicting on the impugned evidence where, in the circumstances, the trial judge believes that there is no such danger. Similarly, the trial judge may properly decline to give a warning if the warning may prejudice the accused’s case rather than assist it. Provided there is a foundation for the trial judge’s exercise of discretion, appellate courts should not interfere. Here that foundation is established having regard to the credibility of the witnesses, the importance of their evidence and the failure to request a warning.

Credibility of the Witnesses

[5] In assessing the credibility of a witness to determine whether to give a Vetrovec warning, trial judges must avoid pigeon-holing witnesses into particular categories such as “jailhouse informants”. Rather, the trial judge should “direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness” (Vetrovec, at p. 823). If the trial judge believes the witness can be trusted, then, regardless of whether he or she is an accomplice or a jailhouse informant, no Vetrovec warning is necessary.

[6] Appellate courts should show great deference to the findings of credibility made at trial and the importance of taking into consideration the special position of the trier of fact in judging credibility and of having the advantage, denied to the appellate court, of directly observing the testimonies of the witnesses (R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 131).

[7] Clearly each of King and Balogh falls within the definition of a “jailhouse informant” as an “inmate, usually awaiting trial or sentencing, who claims to have heard another prisoner make an admission about his case”; see C. Sherrin, “Jailhouse Informants, Part I: Problems with their Use” (1998), 40 C.L.Q. 106, at p. 107. There is no doubt that the criminal records of King and Balogh, and King’s admissions that he sought to avoid incarceration in exchange for his testimony and that he had previously testified in exchange for a deal to avoid incarceration, raise preliminary doubts as to their credibility. I believe, however, that such doubts alone do not mandate a “clear and sharp” Vetrovec warning in this case.

[8] In assessing the credibility of King and Balogh, the majority of the Court of Appeal took into consideration their lengthy criminal records, their motivation to lie and Balogh’s psychiatric history. On that basis alone, the Court of Appeal concluded that there were cogent reasons to suspect their credibility and hence overruled the trial judge’s implicit finding that the witnesses were sufficiently trustworthy not to mandate the giving of a Vetrovec caution.

[9] The Court of Appeal held that Balogh’s credibility was suspect based on his long psychiatric history and his motivation to lie. With respect, a witness’s prior psychiatric history has no relevance to the giving of a Vetrovec warning. While a witness’s psychiatric profile may be a factor to consider in assessing the credibility of the witness, it does not make the witness a person of “unsavoury character”. The trial judge highlighted Balogh’s psychiatric history in his charge to the jury and it was for the jury to judge Balogh’s credibility in this respect. No special Vetrovec warning is required each time a witness who has attempted suicide in the past, spent time in a psychiatric institution, or consumed drugs testifies. If there were contradictions in Balogh’s testimony or between his testimony and other facts in evidence, perhaps there would be a basis to doubt his credibility. The record demonstrates, to the contrary, that Balogh’s testimony was consistent, accurate and supported by other evidence.

[10] Moreover, no facts were adduced by defence counsel to demonstrate that Balogh had been motivated to lie or that he had sought some benefit for his testimony and no contradictions were brought out by defence counsel on cross-examination. In fact, no evidence was adduced by defence counsel that either King or Balogh had lied or that they had acquired this information elsewhere. On the contrary, ample evidence was adduced which confirmed the accounts of King and Balogh, as described by the appellant, at p. 36 of its factum:

There was a richness of detail concerning the circumstances of the event as opposed to a simple allegation or a bald admission by the accused. King and Balogh’s evidence contained details as to the location of the injuries, the prior hitting of Samantha by the Respondent, the detail that the mother had also hit the child on occasion to discipline her, that Samantha was always crying and that she was crying on the night she died and that she choked.

Many of the facts in the accused’s admissions to King and Balogh were confirmed by independent evidence. The fact that the baby’s mother’s name was Norma, that she was the Respondent’s girlfriend, that they lived in the apartment building near the Centre, and that the mother was going to testify against the Respondent were all accurate. The evidence that the Respondent told King and Balogh that he had struck . . . Samantha repeatedly in the head was consistent with the medical and forensic evidence as to the location of the injuries. The fact that Samantha choked was confirmed by the vomit on . . . her face. The fact that the [Respondent] would hit Samantha when she cried was confirmed by the evidence of witnesses at the trial. The fact that Samantha was crying on the night she was killed was confirmed by the mother. [Emphasis added.]

The fact that King had sought to avoid incarceration by testifying, while certainly a factor which may undermine credibility, is not in itself sufficient to mandate a “clear and sharp” Vetrovec caution. An appellate court should show greater deference to the trial judge rather than to impose its view after the fact based on an abstract category of witness without having heard the testimonies directly.

The Importance of the Impugned Evidence

[11] In R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, Major J. described the untrustworthy evidence as “crucial to the Crown’s case” (p. 615). In Vetrovec, Dickson J. spoke of the need for helpful direction of the jury where “guilt or innocence might, and probably will turn on the acceptance or rejection, belief or disbelief, of the evidence of one or more witnesses” (pp. 831-32). The trial judge must therefore examine the importance of the impugned evidence. Indeed, as M. Rosenberg (now Rosenberg J.A.) states in “Developments in the Law of Evidence: The 1992-93 Term” (1994), 5 S.C.L.R. (2d) 421, at p. 463:

. . . the trial judge must assess the importance of the witness to the Crown’s case. If the witness plays a relatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point, as where the witness plays a central role in the proof of guilt, the warning is mandatory.

[12] In the circumstances of this case, guilt or innocence did not turn on the acceptance of the evidence of King and Balogh. Rather, upon reviewing the record, it is my opinion that there was sufficient evidence which would sustain the conviction even if the jury had completely rejected the evidence of King and Balogh.

[13] The jury was properly instructed by the trial judge on the elements that had to be proved to find the respondent guilty of first degree murder. A competent jury convicted the respondent, concluding that he had caused the death of Samantha Johnings while committing a sexual assault against her. The evidence of King and Balogh made no reference to sexual assault. The jury had sufficient evidence to convict based solely on the forensic evidence, the mother’s testimony and the inconsistency in the respondent’s statements. The physical and forensic evidence in this case, namely the track pants, the genital injuries and the semen in Samantha’s anus and vagina coupled with the fact that the respondent was the sole male present and that he had earlier bathed Samantha, is conclusive.

[14] It cannot be ignored that the whole of the evidence implicating the respondent in this case, absent the evidence of King and Balogh, is far more compelling than the evidence against the accused in Vetrovec and Bevan absent the impugned evidence in those cases. The evidence of King and Balogh may have been important but it was not determinative, and, where the evidence of a witness merely provides further support for a jury’s finding, appellate courts should more likely find that the decision to give a “clear and sharp” Vetrovec warning is within the trial judge’s discretion.

Failure to Request a Warning

[15] A further problem with making the “clear and sharp” Vetrovec warning mandatory is that it may have the unintended effect of causing greater prejudice to the accused either by calling attention to the impugned evidence or to evidence corroborating the impugned evidence.

[16] While this Court has established in Bevan that the trial judge need not necessarily point to corroborating evidence each time a Vetrovec warning is given, it is usually a corollary of the Vetrovec warning that the trial judge refer to evidence supporting the impugned evidence of the “unsavoury” witness. Therefore, if the trial judge had given a “clear and sharp” Vetrovec warning in this case, it would have been open to him to highlight for the jury the ample evidence which confirmed the evidence of King and Balogh. In requesting a Vetrovec warning, defence counsel therefore risks bolstering the credibility of the “unsavoury” witness by highlighting the inculpatory evidence against the accused. In this regard, Vetrovec warnings may, in certain circumstances, be counter-productive by actually strengthening the case against the accused.

[17] Defence counsel in this case neither requested a Vetrovec warning nor objected when one was not provided. This may well have been the result of a tactical decision on the part of defence counsel to avoid the risk of causing greater prejudice to the accused. Defence counsel chose to concentrate on attacking the Crown’s circumstantial and physical evidence in this case rather than to draw attention to the evidence of King and Balogh. Indeed, defence counsel, in his address at trial, referred to the evidence of King as “comic relief”, stating that King and Balogh had concocted stories that “didn’t make sense” and that nothing further needed to be said about them. It is at least implicit from the defence’s references to the evidence of King and Balogh that the defence felt that there was no striking need for a “clear and sharp” Vetrovec caution, that the evidence of King and Balogh was insignificant, and that the jury was fully capable of assessing the credibility of these witnesses on its own. Had defence counsel requested a Vetrovec warning, however, the evidence of King and Balogh would have been singled out for the jury’s attention and possibly emphasized by the trial judge.

[18] The cases of R. v. Cain (1996), 1996 487 (ON CA), 90 O.A.C. 156 (C.A.), and R. v. Glasgow (1996), 1996 4009 (ON CA), 110 C.C.C. (3d) 57 (Ont. C.A.), support the position that, absent a request for a “clear and sharp” Vetrovec warning, the trial judge should only be required to give a warning where the circumstances of the case clearly demand one. While it is true that counsel’s opinion with respect to the Vetrovec warning is not determinative, it is nevertheless relevant and worthy of greater consideration where circumstances point to the fact that there may be tactical reasons for not requesting a warning. In Glasgow, at pp. 60-61, Doherty J.A. addressed the effect of a failure on the part of counsel to request a Vetrovec warning as follows:

The trial judge alerted the jury to the importance of the assessment of the credibility of these two witnesses and spent some time detailing the manner in which that assessment should be made. He was not asked to give, and did not give a “Vetrovec” warning. It is well established that a trial judge has a discretion as to whether to give a “Vetrovec” warning. An appellate court must show deference when reviewing the exercise of that discretion. If a trial judge was not asked to give the warning, it is difficult to understand how the trial judge can be said to have erred in the exercise of her or his discretion.

A full “Vetrovec” instruction, even as modified in R. v. Bevan . . ., can benefit both the Crown and the defence. Where counsel for the accused is satisfied that issues pertaining to a witness’s credibility have been fully and fairly put to the jury without resort to a “Vetrovec” instruction, I would hold that the failure to give the “Vetrovec” warning resulted in reversible error only if satisfied that the instruction was essential to a fair trial. In other words, I would place the onus on the appellant to show that the circumstances at trial so compelled a “Vetrovec” warning that the trial judge effectively had no discretion and was compelled to give the “Vetrovec” warning. As I am not satisfied that this was such a case, I would not give effect to this ground of appeal. [Emphasis added.]

[19] In my view, the defence had a clear tactical advantage in not requesting a Vetrovec warning in this case. To hold that the Vetrovec warning is mandatory in such circumstances would deny future counsel this tactical decision. As professed by the Ontario Court of Appeal in R. v. Gravino, [1995] O.J. No. 3109 (QL), at para. 10:

The fact that very experienced and competent counsel at trial . . . neither asked for a Vetrovec caution nor objected when one was not given must be taken to reflect the atmosphere at the trial that Ireland’s evidence had been subjected to very careful scrutiny. In these circumstances we are unable to conclude that it was an error on the part of the trial judge to decline to give a Vetrovec caution.

[20] In the present case, the trial judge exercised his discretion not to give a “clear and sharp” Vetrovec warning. Rather, in instructing the jury, the trial judge focussed on the credibility of King and Balogh, their criminal records, and King’s motivation to lie. In essence, the trial judge directed the jury on credibility, at the very beginning of his instruction, specifically focussing on the criminal records of King and Balogh:

We have also had in this trial witnesses who have a criminal record. You will recall the testimony of Mr. Balogh and Mr. King. Both of these witnesses admitted that they had a record and once again you may take their record into account when considering the credibility and weight of their evidence. It is for you to decide what significance, if any, you will attach to their records when you size them up as witnesses.

Credibility and weight of the evidence are entirely for you. If you have a reasonable doubt as to the accuracy of the evidence or the weight to be given to such evidence, you must give the benefit of that doubt to the accused and not to the Crown. This is an important part of a criminal trial and I repeat this for you. Credibility and weight of evidence are entirely for you, the Jury.

[21] Later, in his charge to the jury, while reviewing the individual evidence of each of the witnesses, the trial judge once again referred to King and Balogh’s criminal records. He then proceeded to highlight Balogh’s psychiatric troubles. The trial judge also referred to King’s motivation to lie, emphasizing the fact that King “tried to get a lighter sentence”, and that King had admitted that “he was a rat”. In the circumstances of this case, the exercise of the discretion not to give a “clear and sharp” Vetrovec warning but to direct the jury on credibility as was done was in conformity with the spirit of Vetrovec.

[22] For the above reasons, I am of the opinion that the majority of the Court of Appeal had insufficient reason to interfere with the trial judge’s exercise of his discretion to instruct the jury as he did. Although there may have been some reason to doubt the credibility of King and Balogh at the outset, based on their criminal records as well as King’s motivation to lie, these factors were highlighted by the trial judge in instructing the jury and, in isolation, do not automatically require a “clear and sharp” Vetrovec warning. It is my view that the role of the evidence of King and Balogh in relation to the totality of evidence adduced by the Crown in this case justified the trial judge’s discretion not to provide a Vetrovec caution.

[23] Considering that the impugned evidence was not essential to the determination of guilt or innocence, and that there were insufficient reasons to doubt the credibility of King and Balogh, a Vetrovec warning was not required in the circumstances. The Court of Appeal, therefore, erred in reversing the decision of the trial judge to instruct the jury as he did.

Conclusion

[24] To find that the trial judge’s failure to provide a “clear and sharp” Vetrovec warning in the circumstances of this case amounts to an error of law runs counter to the spirit of Vetrovec, which affirmed a judicial discretion to provide warnings only in appropriate circumstances. Provided there is a foundation for the judge’s exercise of discretion, appellate courts should not interfere. Here that foundation existed.

[25] For these reasons, I am unable to conclude that the failure of the trial judge to give a “clear and sharp” Vetrovec warning amounted to an error of law. I would allow the appeal accordingly and restore the conviction entered by the trial judge.

The reasons of Iacobucci, Major and Arbour JJ. were delivered by

[26] Major J. (dissenting) -- Stephen David Balogh and Albert Edward King were jailhouse informants and men of unsavoury character. The trial judge permitted their evidence to go to the jury without the caution of a Vetrovec warning.

[27] The respondent, Frederick Alexander Brooks, was convicted of first degree murder in the death of Samantha Johnings. He was sentenced to life imprisonment without eligibility for parole for 25 years. The Ontario Court of Appeal, by a majority, ordered a new trial.

[28] This appeal as of right was on a point of law raised in the dissent; that is, whether a clear, sharp warning in accordance with Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811, ought to have been included in the trial judge’s charge to the jury on the evidence of the two disreputable Crown witnesses.

[29] In the absence of a Vetrovec warning, was the charge to the jury sufficient to overcome that failure?

[30] If the answer is no, then in the circumstances should the curative provision of s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, be engaged and if so, would the verdict have necessarily been the same.

[31] In my opinion, the trial judge ought to have given a Vetrovec warning. In its absence the charge was not the equivalent nor was it adequate. In the result it cannot be said that the verdict would necessarily have been the same and accordingly the appeal should be dismissed.

I. Facts

[32] Around 10:30 p.m. on December 13, 1992, 19‑month‑old Samantha Johnings stirred in her sleep when her aunt checked on her before leaving the apartment. The next day at 11:00 a.m., Samantha’s mother Norma Jean Johnings found her dead in her crib. She had been murdered. Rigor mortis was setting in. There was blood and vomit on her face. Her left eye was swollen shut and she had three bruises on her head caused by blunt force trauma. The body was wrapped in a green comforter. Her mother attempted in vain to revive her. She then called 911.

[33] Only two persons had access to Samantha on the night of her murder -‑ her mother and the respondent. The respondent had been living in the apartment with Norma Jean since the previous October. He was not the father of Samantha, nor of her newborn brother, Anthony.

[34] At autopsy, it was noted that Samantha’s genital area had a well-demarcated area of bruising and redness, which was inconsistent with a diaper rash but consistent with a rubbing action, or the use of a blunt object. Trace amounts of semen were found on vaginal and anal swabs taken from her body. The cause of death was acute brain injury. The head injuries could have but did not necessarily precede the injuries to the vagina and anus. A healing lesion of one centimetre in diameter was also noted on the right buttock.

[35] DNA testing of the sperm proved inconclusive, likely due to contamination of the sample. No one could be included or excluded as the source.

[36] The respondent’s grey track pants were found in the apartment and seized on January 27, 1993. Those pants contained blood stains of the same blood type as Samantha’s. An expert witness for the Crown testified that the blood’s DNA signature matched Samantha’s and that the frequency of that profile in Caucasians is one in 80 million. The track pants had semen on them, as well as a juice substance, similar to what was found in Samantha’s bottle. The respondent was charged with murder.

[37] At the respondent’s trial, Norma Jean testified that in the early morning of December 14, her newborn, Anthony, had developed gas and began to cry continuously. She repeatedly walked up and down the apartment’s hallway with Anthony in an unsuccessful effort to soothe him. At 2:00 a.m. she saw the respondent in Samantha’s room, wrapping her in a green comforter. She did not check on Samantha at that time. She testified that by the time she went to bed at 4:00 a.m. the respondent had changed from his grey sweat pants into black sweat pants. On the way to the hospital the next morning, the respondent whispered to her three times that he was sorry.

[38] The respondent testified at the trial and denied the charge. He denied checking on Samantha at 2:00 a.m. or wrapping her in the comforter. On cross-examination he stated that although he had told the police that he had wrapped Samantha in a comforter at around 2:00 a.m., this had been a “slip up”. Instead, he testified that that comforter had been on Norma Jean’s bed and he believed that she had put it on Samantha.

[39] The respondent also testified that on December 14, the morning that Samantha’s death was discovered, he had been wearing the grey track pants, and that the blood must have gotten onto them while he was attempting to revive her. He said the police had permitted him to change into a pair of black sweat pants before being taken to the police station. Constable Bennett contradicted this evidence and said the respondent never asked to change his sweat pants and that he was taken to the police station in the same sweat pants he was wearing when the police arrived.

[40] Other witnesses testified that the respondent’s relationship with Samantha had been characterized by violence. Testimony from Samantha’s grandfather, Robert Johnings, and 10-year-old Hayley Arkell, indicated that about one month prior to the murder, the respondent had thrown Samantha approximately one meter into the wooden frame of a couch.

[41] Four relatives confirmed that the injury to Samantha’s right buttock had appeared on December 5, 1992, a day on which the respondent had exclusive care of Samantha while Norma Jean was giving birth to Anthony. The respondent had suggested that the injury occurred when Samantha fell on a small funnel bath toy. A pathologist’s expert opinion was that the injury was inconsistent with a funnel but consistent with a cigarette burn.

[42] Much of the testimony of the Crown’s forensic experts focussed on the sperm found in Samantha’s body. Six sperm were noted on a vaginal swab and approximately five on an anal swab. The amounts were insufficient for any conventional groupings. The Crown’s pathologist Dr. Rao testified that although the sperm count in male ejaculate usually runs in the millions, the child had been brought into the emergency ward with a soiled diaper and the swabs were taken only after the faeces had been removed. As well, the fact that there was no penetration, only surface contact, could account for the sparse yield of sperm.

[43] The defence suggested that the sperm may have been several days old, and, therefore, deposited at a time before the respondent’s access to Samantha. A forensic biologist for the Crown acknowledged that studies had shown that semen can survive up to five or six days in an adult female’s vaginal sample and two to three days in an anal sample, but she was not aware of any comparable studies for infants. However, Norma Jean testified that she had bathed Samantha between 10:00 and 11:00 p.m. on December 12 and again the next morning. The respondent testified that when he changed Samantha’s diaper on December 12, he did not notice any marks around her vaginal area. The respondent was the only male with access to Samantha during the day of December 13 and overnight.

[44] The defence also postulated that the sperm may have been deposited upon Samantha from a semen stain, such as the one found on the green comforter. Doctor Rao discounted this theory as improbable. In her opinion, while semen can sometimes be detected on the skin surface of a child placed in contact with a fresh and wet semen stain, it is unlikely that semen would pass to the child’s vaginal orifice from simple contact with a stain. The defence claimed that the sperm may have been deposited internally as the result of self‑exploration of her vagina by Samantha. Doctor Rao’s opinion was that a 19-month-old child was too young for that activity.

[45] Doctor Newall, the Crown's DNA expert, initially excluded the respondent as the source of the sperm found on Samantha, but later concluded that as the sample had been contaminated it was impossible for her to conclude anything about the possible origin of the sperm in the sample. She could neither include nor exclude the respondent as the source.

[46] There was evidence from some of Samantha’s relatives that Norma Jean had been seen striking Samantha on numerous occasions. Samantha’s and Anthony’s natural father testified that Norma Jean had on other occasions lost her temper and thrown punches at men.

[47] Samantha’s family doctor, Dr. Ambis, testified that Norma Jean lacked experience as a parent and exhibited immaturity. He had suggested that she get parent counselling, but she had angrily refused. It was generally agreed, however, that Norma Jean loved her daughter and that Samantha was developing normally and without any significant health problems.

[48] The evidence at the centre of this appeal, as earlier noted, was led by the Crown from the two jailhouse informants, Balogh and King. Each testified that while incarcerated in the Segregation Unit of the Hamilton‑Wentworth Detention Centre, the respondent had admitted to them that he had killed Samantha to stop her crying. In addition, King said that shortly before the trial he had been left alone in a holding cell with the respondent and that the respondent had then recited King’s mother’s street address and threatened to have her house burned down if King testified. The informants’ testimony did not include any suggestion that the killing was committed during the commission of a sexual assault.

[49] Both Balogh and King were of unsavoury and infamous character. Both had lengthy criminal records of dishonesty. King had informed the police that in coming forward he was seeking a lighter sentence for his most recent conviction, although that did not happen.

[50] In addition, Balogh had a history of substance abuse and an alarming psychiatric history highlighted by three suicide attempts, paranoia, deep depression and a belief in clairvoyant ability. As well, both witnesses had histories of offering to testify against other accuseds. One of Balogh’s past accusations had been the result of a paranoid delusion.

[51] In closing argument, defence counsel emphasized Norma Jean’s shortcomings as a mother, in particular that she had struck Samantha on several occasions, all in an effort to raise the possibility that she was the killer and not the respondent.

[52] Defence counsel invited the jury to reject the testimony of Balogh and King in its entirety. Expressions such as “comic relief”, and “incapable of belief” were used in the jury address. He told the jury that King was a “con artist”, and a “witness for hire”, one who would “seize the opportunity to look out for number one” and who would concoct a story in the hope of reducing his sentence, oblivious to the harm caused to others. He suggested that King had used details that he was aware of to concoct a story that simply did not make sense. Defence counsel referred to Balogh as a “very sad individual” who obviously had “some problems with himself” and who was a “willing foil” for King. He suggested that Balogh’s story made no sense and that nothing further needed to be said about Balogh and King.

[53] The Crown’s position was that the respondent’s guilt was the only reasonable conclusion arising from the evidence. Although Norma Jean was not a perfect mother, it was pointed out to the jury that she could not have been the source of the sperm found in Samantha’s vagina and anus.

[54] The Crown told the jury that the respondent was the only adult male with access to Samantha during the period that the unidentifiable sperm was deposited and the injuries to the vagina and anus were incurred.

[55] Crown counsel referred to Balogh and King as criminals with long criminal records. He referred to the fact that King had previously been a Crown witness and testified in an earlier murder trial. The Crown acknowledged that King had attempted to make a deal to avoid going to a federal penitentiary, and that even if he did not get that deal, the police had testified at his parole hearing to confirm that King’s criminal history did not include violence. The Crown referred to Balogh’s criminal record, but noted that he did not seek or get a deal.

[56] The trial judge did not provide the “clear and sharp warning” directed by Vetrovec, that it would be dangerous to convict the respondent based on the evidence of Balogh and King unless corroborated by independent evidence. Nor did the trial judge refer to evidence capable of supporting their stories.

[57] Neither counsel requested a specific Vetrovec warning in the charge to the jury and neither counsel objected to its omission.

II. Judgments in the Court of Appeal for Ontario

[58] The majority of the Court of Appeal found that the trial judge erred in the exercise of his discretion by failing to give a Vetrovec warning. They concluded that both the Crown’s case and the trial judge’s charge were insufficient to justify the application of the curative provision of s. 686(l)(b)(iii) of the Criminal Code. The appeal was allowed and a new trial ordered: (1998), 1998 5686 (ON CA), 41 O.R. (3d) 661.

[59] Weiler J.A. dissented. In her view a Vetrovec warning was not required since Balogh’s and King’s testimony was relatively unimportant to the Crown’s case. In addition, the details of the testimony in the context of the case were sufficiently reliable to overcome the difficulties presented by their unsavoury character. She concluded that the trial judge’s charge sufficiently alerted the jury to the frailties of their evidence.

III. Points in Issue

[60] As noted the following issues arise:

1. Was there a need for the trial judge to provide a Vetrovec warning to the jury?

2. If so, was that warning or its equivalent given?

3. If the answer to question two is no, can s. 686(1)(b)(iii) of the Criminal Code be applied?

4. If the answer to question three is yes, ought s. 686(1)(b)(iii) be applied to cure the error?

IV. Analysis

[61] The analysis will be in the following order:

A. History of the Vetrovec Rule

B. Is the Failure to Give a Vetrovec Warning a Potential Error of Law or Miscarriage of Justice?

C. Was There a Need for the Trial Judge to Provide a Vetrovec Warning to the Jury?

D. Was an Equivalent Warning Given?

E. Defence Counsel’s Failure to Request a Vetrovec Warning

F. Should s. 686(1)(b)(iii) of the Criminal Code Be Applied to Cure the Error?

A. History of the Vetrovec Rule

[62] The historical roots of the Vetrovec warning are traceable to the early common law rule which disqualified the testimony of anyone convicted of a felony. The rule was reflected in several decisions of the early 1600s, including that of Coke C.J. in Brown v. Crashaw (1613), 2 Bulstr. 154, 80 E.R. 1028, where it was held that the evidence of a person formerly convicted of a felony was to be rejected in all cases.

[63] A policy rationale underlying the rule excluding the evidence of “persons of infamy” from legal proceedings was to continue the punishment of the person excluded. It was also based upon a theory of moral turpitude. In 1727, Chief Baron Gilbert explained the rationale as follows (cited in J. H. Wigmore, Evidence in Trials at Common Law (2nd ed. 1923), vol. I, at p. 934):

... where a man is convicted of falsehood and other crimes against common principles of honesty and humanity, his oath is of no weight, because he hath not the credit of a witness, ... and he is rather to be intended as a man profligate and abandoned than one under the sentiments and convictions of those principles that teach probity and veracity.

The rigidity of excluding such evidence resulted almost immediately in exceptions being made (see R. v. Rudd (1775), 1 Cowp. 331, 98 E.R. 1114).

[64] By the 19th century, while convictions could be based upon such evidence, judges generally advised juries that it would be dangerous to convict a prisoner upon the testimony of an accomplice unless corroborated by independent evidence. See R. v. Jones (1809), 2 Camp. 131, 170 E.R. 1105, per Lord Ellenborough, at p. 1106 E.R.:

No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice only. Judges in their discretion will advise a jury not to believe an accomplice, unless he is confirmed, or only in as far as he is confirmed; but if he is believed, his testimony is unquestionably sufficient to establish the facts which he deposes.

(See also R. v. Barnard (1823), 1 Car. & P. 87, 171 E.R. 1113, and R. v. Wilkes (1836), 7 Car. & P. 272, 173 E.R. 120.)

[65] At the same time, the shortcomings of the aforementioned general exclusionary rule were recognized. Criticism of the rule pointed out that the punishment of the exclusion had not fallen upon the witness disqualified, but upon all persons who had need of the evidence (J. Bentham, Rationale of Judicial Evidence (1827), vol. 5, at pp. 87‑88). It was obvious that the rule was based not only upon the notion that such witnesses were incapable of telling the truth, but also upon the presumption that juries were incapable of recognizing a lie.

[66] The general rule of exclusion was abrogated in England in 1843 by An Act for improving the Law of Evidence (“Lord Denman’s Act”), 6 & 7 Vict., c. 85, and in Canada in 1893 by The Canada Evidence Act, 1893, S.C. 1893, c. 31. The effect was that accomplices became competent witnesses.

[67] The practice of jury warnings persisted beyond the passage of Lord Denman’s Act. Although initially a discretionary measure, the practice eventually evolved into a firm rule of law (see R. v. Tate, [1908] 2 K.B. 680 (C.C.A.), where it was held that the failure on the part of the trial judge to give the warning would necessitate quashing the conviction). This was the Canadian position from R. v. Baskerville, [1916] 2 K.B. 658, until the 1982 Vetrovec decision of this Court.

[68] The decision of Dickson J. (later C.J.) in Vetrovec varied the law in several respects. The Vetrovec case did away with what were seen as cumbersome and technical definitions of “accomplice” and “corroboration”. Rather than attempting to “pigeon­hole” a witness as falling within or without the definition of an accomplice, it was held that trial judges ought to consider all of the factors which might impair the credibility of a particular witness and accordingly decide whether a special instruction was necessary.

[69] Similarly, the trial judge did not have to apply the technical definition of corroboration. Instead, the trial judge was required to consider whether the evidence properly weighed overcame its suspicious roots. This new approach, while a change, was not intended to prejudice the accused. It would not lessen the protection afforded the accused when faced with unsavoury witnesses. Equally, it was intended that the jury could view that evidence with more ease but not less scepticism than previously required.

[70] In R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, this Court recognized that the long‑standing technicalities had been removed and that a caution to the jury was a matter of the trial judge’s discretion and not required in all cases of unsavoury witnesses. It was also recognized that there are cases where a Vetrovec caution is required. The failure of the court to give the caution where required is a misdirection.

B. Is the Failure to Give a Vetrovec Warning a Potential Error of Law or Miscarriage of Justice?

[71] The appellant submitted that the majority decision in the Court of Appeal mistakenly assessed the Vetrovec issue as a potential error of law under s. 686(l)(a)(ii) of the Code rather than a potential miscarriage of justice under s. 686(l)(a)(iii). If the majority’s approach was correct, the trial judge’s failure to give a Vetrovec warning constituted an error of law. The curative provision of s. 686(l)(b)(iii) then would have arisen and required the Crown to establish that the verdict would necessarily have been the same in spite of the error.

[72] On the other hand, if the failure of the trial judge amounted to a miscarriage of justice under s. 686(l)(a)(iii), the curative provision had no application and the remedy would have been to allow the appeal and order a new trial or enter an acquittal.

[73] The Criminal Code provisions read:

686. (l) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

[74] The nature of the trial judge’s decision to provide the jury with a warning was described by Dickson J. in Vetrovec at p. 831:

Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness.

[75] Two post‑Vetrovec decisions of this Court suggested that the matter was not a question of law, and therefore not subject to review under s. 686(l)(a)(ii): see R. v. Hayes, 1989 108 (SCC), [1989] 1 S.C.R. 44, and R. v. Pittman, 1994 108 (SCC), [1994] 1 S.C.R. 148. However, in Bevan, this Court held that the trial judge’s failure to give a Vetrovec warning was an error of law and that the prejudice occasioned by the error could be assessed under the curative provision of s. 686(l)(b)(iii).

[76] This Court was invited by the Crown to adopt the approach suggested in Hayes and Pittman, that the failure to give the warning is a miscarriage of justice, rather than that adopted in Bevan that it is an error of law. In striving to determine the preferable rule, it bears noting that the Hayes case, decided in 1989, pre‑dates Bevan. Moreover, I read the decision of L'Heureux‑Dubé J. for the majority in Hayes as being equivocal with respect to this issue (see p. 48). The post‑Bevan case of Pittman made a simple assertion that in the circumstances of that case, the failure to give a Vetrovec warning only raised the possibility of a miscarriage of justice. While there may be cases in which the failure to warn will result in a miscarriage of justice, the usual result of such failure is an error of law subject to the curative provision.

[77] There was no persuasive submission made to depart from the principles adopted in Bevan. Errors and omissions in jury charges have consistently been treated as errors of law under s. 686(l)(a)(ii) and its predecessors: see Veuillette v. The King (1919), 1919 64 (SCC), 58 S.C.R. 414; Manchuk v. The King, 1938 6 (SCC), [1938] S.C.R. 341; Hebert v. The Queen, 1954 48 (SCC), [1955] S.C.R. 120; Brown v. The Queen, 1962 48 (SCC), [1962] S.C.R. 371; Colpitts v. The Queen, 1965 2 (SCC), [1965] S.C.R. 739; Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277; McFall v. The Queen, 1979 176 (SCC), [1980] 1 S.C.R. 321; Olbey v. The Queen, 1979 61 (SCC), [1980] 1 S.C.R. 1008; Young v. The Queen, 1981 55 (SCC), [1981] 2 S.C.R. 39; R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3; R. v. Romeo, 1991 113 (SCC), [1991] 1 S.C.R. 86; R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697; R. v. Livermore, 1995 43 (SCC), [1995] 4 S.C.R. 123; R. v. G. (R.M.), 1996 176 (SCC), [1996] 3 S.C.R. 362; R. v. Hinchey, 1996 157 (SCC), [1996] 3 S.C.R. 1128; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314; R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320.

[78] The approach in Bevan is consistent with the application of a Vetrovec warning to the use of children’s testimony in R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, children being a group whose evidence historically had required corroboration.

C. Was There a Need for the Trial Judge to Provide a Vetrovec Warning to the Jury?

(1) Approach to the Vetrovec Warning

[79] The “common sense” approach to this issue was described by Dickson J. in Vetrovec as follows at p. 823:

Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then regardless of whether the witness is technically an “accomplice” no warning is necessary.

Additional commentary is found in Bevan (at pp. 614-15):

While under Vetrovec a caution to the jury is a matter of the trial judge’s discretion and is not required in all cases involving testimony of accomplices or accessories after the fact, there are some cases in which the circumstances may be such that a Vetrovec caution must be given. The trial judge’s discretion whether to give a Vetrovec warning should generally be given wide latitude by appellate courts. But in my respectful view a Vetrovec caution was clearly required in this case with respect to the testimony of both Dietrich and Belmont.

Both of them had lengthy criminal records, had strong motivations to lie, and approached the police only when each perceived that some benefit -- such as release from prison, a discontinuation of charges against them, or cash payments -- could be obtained in exchange for their testimony. Both of them explicitly told the police at the time they came forward that they were seeking a “deal” in exchange for their evidence against the appellants. Moreover, the evidence of Belmont and Dietrich was incriminating to the appellants, and crucial to the Crown’s case.

I agree with the view expressed in “Developments in the Law of Evidence: The 1992-93 Term” (1994), 5 S.C.L.R. (2d) 421. The author, M. Rosenberg (now Rosenberg J.A.), concluded that Vetrovec and Bevan require the trial judge to focus on two different elements of the case in determining whether or not a warning is necessary. At p. 463 he stated:

The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness according to the traditional means by which such determinations are made. This would include a review of the evidence to determine whether there are factors which have properly led the courts to be wary of accepting a witness’s evidence. Factors might include involvement of criminal activities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trial judge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness’s story be approached with caution. Second, the trial judge must assess the importance of the witness to the Crown’s case. If the witness plays a relatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point, as where the witness plays a central role in the proof of guilt, the warning is mandatory. This, in my view, flows from the duty imposed on the trial judge in criminal cases to review the evidence and relate the evidence to the issues.

[80] 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.

(2) Recommendations of the Kaufman Report

[81] Since the decisions of this Court in Vetrovec and Bevan, the extreme dangers of relying on the use of “jailhouse informers” as witnesses in criminal prosecutions has been highlighted in the Report of The Commission on Proceedings Involving Guy Paul Morin (the “Kaufman Report”) released in 1998 where the Honourable Fred Kaufman, C.M., Q.C., stated at p. 602:

In-custody informers are almost invariably motivated by self-interest. They often have little or no respect for the truth or their testimonial oath or affirmation. Accordingly, they may lie or tell the truth, depending only upon where their perceived self-interest lies. In-custody confessions are often easy to allege and difficult, if not impossible, to disprove.

and at p. 638:

The evidence at this Inquiry demonstrates the inherent unreliability of in-custody informer testimony, its contribution to miscarriages of justice and the substantial risk that the dangers may not be fully appreciated by the jury. In my view, the present law has developed to the point that a cautionary instruction is virtually mandated in cases where the in-custody informer’s testimony is contested: see R. v. Simmons, [[1998] O.J. No. 152 (QL) (C.A.)]; R. v. Bevan, [(1993), 1993 101 (SCC), 82 C.C.C. (3d) 310].

Since the release of the Kaufman Report, the Ministry of the Attorney General of Ontario has revised its internal policies to reflect many of the Report’s recommendations. New policies include the establishment of an “In-Custody Informer Committee”, the function of which is to review the use of all in-custody informers in criminal trials to determine whether their use as a witness is in the public interest.

[82] The Ministry has also adopted into its Policy Manual the Kaufman Report’s recommended list of factors to be considered in assessing an informer’s reliability or lack thereof. The factors also serve as a useful guide to a trial judge when determining whether a Vetrovec warning is necessary. The list is at pp. 607-9 and may be paraphrased as follows:

1. The extent to which the statement is confirmed by independent evidence;

2. The specificity of the alleged statement. For example, a claim that the accused said “I killed A.B.” is easy to make but extremely difficult for any accused to disprove;

3. The extent to which the statement contains details and leads to the discovery of evidence known only to the perpetrator;

4. The degree of access that the in-custody informer has to sources of outside information (e.g. media reports, preliminary inquiry transcripts, etc.);

5. The informer’s general character, which may be evidenced by his or her criminal record or other disreputable conduct;

6. Any request the informer has made for special benefits and any promises that may have been made;

7. Whether the informer has in the past given reliable information to the authorities;

8. Whether the informer has previously claimed to have received statements while in custody;

9. Whether the informer has previously testified in any court proceeding and the accuracy or reliability of that evidence, if known;

10. Whether the informer made some written or other record of the words allegedly spoken by the accused and, if so, whether the record was made contemporaneously with the alleged statement of the accused;

11. The circumstances under which the informer’s report of the alleged statement was taken (i.e., how soon after it was made and to more than one officer, etc.);

12. The manner in which the report was taken by the police;

13. Any other known evidence that may attest or diminish the credibility of the informer, including the presence or absence of any relationship between the accused and the informer;

14. Any relevant information contained in any registry of informers.

Another useful factor not expressly referred to in the Kaufman Report, but added to the list in the Attorney General for Ontario’s Policy Manual is the following:

15. Any medical or psychiatric reports concerning the in-custody informer where relevant....

[83] The trial judge in this case did not have the benefit of this report. However, with its availability trial judges should consider such factors as these in determining whether or not a Vetrovec warning is necessary in the circumstances of a particular trial.

(3) Application to the Facts of This Case

(a) Credibility of the Witnesses

[84] A careful consideration of the factors relevant to the first stage of the Vetrovec inquiry makes it obvious that the credibility of Balogh and King was inherently suspect. While the trial judge has a wide discretion in determining whether a warning should be given, such discretion must be reasonably exercised. In my view, the risks associated with the use of jailhouse informers, coupled with the character of the witnesses and the conditions to be considered in the Kaufman Report, should have on a reasonable exercise of discretion lead the trial judge to give a Vetrovec warning.

[85] It is worth reviewing again and in greater detail the personality and character of the jailhouse informers, in this appeal, who were cellmates at the relevant time. Balogh was 32 at the time of trial yet had 25 criminal convictions. These included convictions for break, enter and theft, possession of property obtained by crime, theft over $200, mischief to private property, being unlawfully at large, dangerous driving, taking an automobile without the owner’s consent, breach of probation, failing to appear at court, failing to comply with recognizances, and possession of a substance contrary to the Narcotic Control Act, R.S.C., 1985, c. N-1.

[86] King, for his part, admitted that he was a career burglar. Although he was only 24 at the time of trial, his record already included 18 convictions for break, enter and theft.

[87] Balogh and King had both offered to testify against other accuseds on earlier occasions. Although Balogh had never, in fact, been called to testify, he had come forward with information three times. On one of these occasions, he had alleged that a police sergeant and an inmate had conspired to fabricate a case against an accused, an allegation later proved to have been the product of his paranoia. Two years prior to the respondent’s trial, King had testified against a former schoolmate named McCullough and had secured a lighter sentence in exchange.

[88] King admitted that he came forward to testify against the respondent for the same reason that he had come forward to testify against McCullough. Specifically, he had to receive a sentence of no more than two years less a day in order to avoid being incarcerated in a federal institution. Although King in fact received a sentence of three years, he was promised special protection during his term of incarceration. As well, two police officers agreed to appear on his behalf at a parole hearing.

[89] Turning to Balogh, he had been in and out of psychiatric hospitals since he was 15. He had attempted suicide on at least three occasions. In 1989, concerns had arisen with respect to his competency to stand trial, based on his hearing voices and experiencing paranoia and severe depression. Balogh believed that he had had several clairvoyant experiences and premonitions over the years. He had been prescribed medication to treat his depression, but his drugs of choice were LSD, marijuana and alcohol.

(b) Importance of the Witnesses’ Evidence

[90] Balogh’s and King’s testimonies were important but not crucial to the Crown’s case against the respondent. They were incriminating and relevant. In Bevan, the evidence was determinative and therefore found to be crucial. Here the evidence of Balogh and King did not reach that level. It incriminated the accused in an assault leading to an unlawful death but did not implicate the accused in the sexual assault, a fact necessary for the first degree murder conviction.

[91] Although the Crown had mounted an independent circumstantial case against the accused, the evidence of the jailhouse informant was of sufficient importance that a Vetrovec warning should have been given. The jury was entitled to be alerted to its frailties if they were to hear that evidence.

(4) Conclusion on the Need for a Vetrovec Warning

[92] A trial judge’s discretion, if properly exercised, ought not to be lightly interfered with on appeal. In my opinion, the trial judge in this case failed to evaluate the evidence of Balogh and King in light of the considerations set out above. Had he done so, he would have concluded that it was necessary to approach their evidence with extreme caution and the proper warning would have followed. A Vetrovec warning was required on the facts of this case.

D. Was an Equivalent Warning Given?

[93] It was submitted that the trial judge’s jury charge contained the essential values of a Vetrovec warning. If taken in its entirety, it was argued the charge amounted to the equivalent of that warning. I disagree. Vetrovec refers to “a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness” (p. 831). A review of the jury charge in its entirety does not disclose a clear, sharp warning.

[94] What then is a clear, sharp warning? It is obvious there is no particular language or formula. At a minimum, a proper Vetrovec warning must focus the jury’s attention specifically on the inherently unreliable evidence. It should refer to the characteristics of the witness that bring the credibility of his or her evidence into serious question. It should plainly emphasize the dangers inherent in convicting an accused on the basis of such evidence unless confirmed by independent evidence.

[95] The warning does not come without risk to the accused as it should also be accompanied by a reference to the evidence capable of providing independent confirmation of the unsavoury witness’s testimony. The independent confirmation relates to other evidence that would support the credibility of the unsavoury witness. It does not mean reference to any other evidence supporting the Crown’s case. It is not apparent what other evidence the trial judge could have referred to that would have bolstered the evidence of Balogh and King.

[96] The Kaufman Report at pp. 638-39 recommends that a trial judge ought to caution the jury in terms even stronger than those traditionally contained in a Vetrovec warning. Specifically, the Report recommends that the warning ought to emphasize that jailhouse informers are almost invariably motivated by self-interest and that historically, such evidence has been shown to be untruthful and has produced miscarriages of justice in the form of unjust convictions. It further recommended that the warning should be given not only during the charge to the jury but immediately before or after the evidence is tendered by the Crown.

[97] Our law does not go as far as the Kaufman recommendation. The added measures suggested by the Report are not presently necessary to ensure a fair trial. A proper Vetrovec warning suffices. Nonetheless, the trial judge in a particular case may find the extra caution helpful in identifying unreliable evidence from unsavoury witnesses.

[98] In this case, although the trial judge did point to problems with the evidence of Balogh and King, this was done in the course of a lengthy, seriatim review of the evidence, and in his general discussion on credibility. The problems with Balogh’s and King’s evidence were not singled out for special attention, instead, the trial judge merely summarized and repeated the problems with their testimonies elicited on direct and cross-examination. The fact that defence counsel challenged their evidence in summation to the jury is not a substitute for the trial judge’s instruction.

E. Defence Counsel’s Failure to Request a Vetrovec Warning

[99] The absence of a request from defence counsel is not determinative of the issue of whether or not a Vetrovec warning must, as a matter of law, be included in a trial judge’s charge to the jury. It is the trial judge who is ultimately responsible for the determination of this issue. However, it has often been recognized that once non‑direction or misdirection has occurred, the absence of a request from counsel to correct it is a factor to be considered in evaluating the prejudice that has been occasioned.

[100] In this case, defence counsel did not request that a Vetrovec warning be included in the charge. The Vetrovec warning, while usually helpful, carries the risk of having the opposite effect. This is so since following the warning the trial judge should point to independent evidence, if any, that supports the impugned evidence. In those cases where such evidence is available the attention drawn to it may carry a risk greater than the gain obtained from the warning. For that reason, it may be that the defence chose not to request a warning for tactical reasons. On the other hand, it is possible that no request was made by defence counsel due to oversight or inadvertence. In either event, I find the prejudice occasioned by the absence of a Vetrovec warning to be substantial.

[101] In deciding whether to include a Vetrovec warning, the absence of a specific request from defence counsel for a Vetrovec warning does not vitiate the trial judge’s responsibility. However, the trial judge would undoubtedly be assisted by seeking submissions of counsel for both the Crown and the defence in the absence of the jury as to whether that warning should be given.

F. Should s. 686(1)(b)(iii) of the Criminal Code Be Applied to Cure the Error?

[102] The argument was made that if the evidence was important enough to require a Vetrovec warning then it must follow that in the absence of that evidence it cannot be said that the verdict would necessarily have been the same. The argument is not sound. It seems apparent that cases could occur in which the evidence precluded by the absence of the Vetrovec warning while important by definition, is not crucial. In those cases the other evidence on its own will sustain the conviction.

[103] It will have to be determined in each particular case what, in the absence of a Vetrovec warning, the effect of excluding the unsavoury evidence was. In most cases, it seems likely that the precluded evidence will not permit use of the curative proviso, s. 686(1)(b)(iii). However, it seems equally clear that there will be instances when the precluded evidence would not raise the possibility of a different result.

[104] Bevan described the nature of the test to be met by the Crown under s. 686(l)(b)(iii) in the following terms at pp. 616‑17:

The question to be asked in determining whether there has been no substantial wrong or miscarriage of justice as a result of a trial judge’s error is whether “the verdict would necessarily have been the same if such error had not occurred”: see Colpitts v. The Queen, [ 1965 2 (SCC), 1965] S.C.R. 739, per Cartwright J. (as he then was), at p. 744; Wildman v. The Queen, 1984 82 (SCC), [1984] 2 S.C.R. 311, at pp. 328‑29. This test has also been expressed in terms of whether there is any possibility that if the error had not been committed, a judge or properly instructed jury would have acquitted the accused: see Colpitts, per Spence J., at p. 756; R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, per Sopinka J., at p. 919; R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, at p. 620; R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, per Iacobucci J. at pp. 736‑37. I do not interpret these two approaches as being intended to convey different meanings. Under either approach, the task of an appellate court is to determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.

[105] In my opinion the failure of the trial judge to give a Vetrovec warning was a misdirection of law. The question is then whether in light of all the evidence the test in Bevan is met. Would the result have necessarily been the same?

[106] The relevant evidence at the trial was that Balogh and King related statements made to them by the accused that he had struck the baby on the head, that the baby had started choking and had then stopped moving. There was no mention of a sexual assault. The following review of the evidence as it was presented, in my opinion, raises some doubt as to whether a sexual assault occurred at all at the time in question.

[107] There was evidence that the accused was the only male person alone with Samantha on the night of her death and that sperm was found on her body. The impact of that evidence was lessened by the Crown expert’s inability to determine the age and source of the sperm. The result of this uncertainty was to destroy the Crown’s theory of exclusive opportunity.

[108] There was evidence of intense sexual activity in the apartment during the weeks preceding the death, and that the housekeeping conditions were poor. Sperm was found on a toy in the crib, on the neckline of Samantha’s pyjama top, on the crib sheets and in two places on the green comforter in which the child had been wrapped. At least one of these samples was identified as not being from the accused but from the child’s natural father.

[109] The largest sperm stains were found on the green comforter. The semen mixture matched DNA from the respondent and from Norma Jean. However, testimony indicated that sexual relations between them occurred at a rate of approximately 25 times per week and usually on the bed where the green comforter was kept. This confirms that there were many opportunities apart from the night of the murder when the accused’s sperm could have been deposited on the bed and the green comforter.

[110] While the pathologist, Dr. Rao, thought it unlikely that the sperm removed from Samantha could have originated from this stain, that possibility was not ruled out by her evidence. Given the presence of semen throughout the apartment, it was possible for trace amounts, which is all that was present, to have found their way into Samantha’s vagina and anus. While the semen was on the interior of these orifices, it was near the entrance, was not consistent with penile penetration, and could have been deposited in an innocent fashion. For example, while wiping Samantha clean in the course of changing her diaper, or drying her after a bath, either Norma Jean or the respondent could have transferred semen traces from their hands to Samantha. Therefore even this potentially most damning of the Crown’s evidence was open to question.

[111] It could not be established that the sperm found in Samantha’s body was deposited on the night of her death. The Crown’s expert testified that sperm samples from an adult can survive in a vaginal sample for five to six days and in a rectal sample for two to three days, but she was not familiar with any comparable studies involving infants.

[112] In light of the foregoing there is a serious question as previously commented on whether a sexual assault occurred that evening or early morning. If there was no sexual assault then the conviction for first degree murder cannot be sustained even accepting the evidence of the unsavoury witnesses.

[113] In the several days preceding her death, Samantha had had contact with other male adults. Her grandfather had seen her on December 11. The jury heard evidence that he had sexually abused his own daughter, Norma Jean, when she was a child. In addition, Charles Furry, the common law spouse of Samantha’s grandmother, babysat Samantha alone on December 12 from 6:00 p.m. to 10:00 p.m.

[114] There was evidence to indicate that grey track pants worn by the accused on the night of the murder contained stains of Samantha’s blood and of a fruit juice similar to that in her feeding bottle. If the accused was wearing the grey pants at the time of the assault that would account for the blood and fruit juice stains. There was evidence that he had changed from his grey track pants to his black pants prior to trying to revive Samantha. If that had occurred and he was wearing his black pants when trying to revive Samantha then the blood and juice on his grey pants was not deposited at the time of the attempted revival. Both Norma Jean and the police gave evidence consistent with the accused changing his pants prior to the time stated by him.

[115] That evidence raised serious suspicions pointing to the accused. However, in the conflicting circumstances of the testimony at the trial, that evidence alone and as presented would not by itself necessarily result in the same jury verdict. There was evidence that the accused said he was sorry and repeated this more than once on the way to the hospital. But there is no evidence of what he was sorry about.

[116] The Crown’s case turned in part on the theory that the accused was the only male person with the opportunity to murder Samantha but as pointed out earlier, the evidence on the identification of the sperm was inconclusive. The question, therefore, should be whether the accused was the only person regardless of sex with the opportunity to commit this crime.

[117] The answer is no. The mother had as much opportunity to commit the crime as did the respondent. This is significant when considered in light of the evidence previously noted that the mother, Norma Jean, had problems with her temper. Several witnesses testified that they had witnessed her strike Samantha’s face on numerous occasions. The apartment was a place of violence with evidence of physical abuse being committed by the mother and the accused as well as visitors such as Samantha’s grandfather who had some history of abuse.

[118] As well, there existed several inconsistencies in Norma Jean’s testimony which were noted by defence counsel. First, Norma Jean testified that on the morning after the murder, she was awoken at 11:00 a.m. by her mother’s knocking at the door. However, an assistant at the office of the Johnings’ doctor testified that Norma Jean had called the office at 10:25 a.m. to check on an appointment for Anthony. Norma Jean denies ever making this call. Moreover, Norma Jean’s mother testified that when Norma Jean answered the door that morning, a bottle was already warming in the microwave, contradicting Norma Jean’s testimony that she had not been awake prior to her mother’s arrival. It is inconsistencies like these out of which reasonable doubt is formed.

[119] Another question raised by the evidence is how Norma Jean did not hear Samantha being assaulted and murdered. The autopsy revealed multiple wounds to the head caused by blunt force trauma. It seems unlikely that this could have been done silently. Moreover, Norma Jean testified that she saw the respondent wrapping Samantha in a green comforter around 2:00 a.m. If the respondent is the culprit, the sexual assault, if there was one, and murder most likely occurred prior to this. However, Norma Jean, according to her own testimony, had been walking up and down the hallway for the last hour and a half, trying to soothe Anthony, who had been crying. Would she not have heard the respondent doing anything untoward to Samantha? Moreover, even after 2:00 a.m., Norma Jean testified that she was asleep on the couch with Anthony, and that she was a light sleeper. If this were so, one would expect her to hear any violence committed by the respondent during this time period.

[120] A third area of inconsistencies surrounding Norma Jean’s testimony is that she claimed to have found Samantha in her crib, and then rushed her to the bathroom while attempting to revive her. Substantial amounts of blood and vomit were found spattered around the bathtub. Moreover, while it had dried by the time the police arrived, the blood and vomit had clearly been relatively fluid at one point, as photographs show that the blood and vomit had flowed towards the drain. If the blood and vomit had been in a liquid state when Samantha was found, why was none of it found between the crib and the bathtub? Would it not have been likely to spill or splatter somewhat while Norma Jean was rushing Samantha into the bathroom?

[121] Moreover, there was evidence from other witnesses which indicated that Norma Jean’s difficulties in dealing with her children had intensified over the several days preceding Samantha’s death. For example, the respondent’s mother testified that at 2:00 a.m., while on the phone with the respondent (who was seeking advice on how to soothe Anthony), she overheard Norma Jean yell, “I can’t handle this anymore!” As well, Norma Jean’s father Robert Johnings testified that Norma Jean was having difficulty dealing with Samantha’s jealousy towards her new brother. Samantha had struck her baby brother on more than one occasion and Norma Jean had responded by slapping Samantha. On the night of Samantha’s death, Norma Jean had telephoned Robert Johnings and asked if he would take Samantha for the evening because she could not handle both children.

[122] The mother’s character, family difficulties, the various inconsistencies in her story and the history of physical abuse by people occupying or visiting the apartment had the potential to raise a reasonable doubt in the jury’s mind as to the respondent’s guilt.

[123] The purpose of this review has been to consider the question raised in Bevan: Is there any reasonable possibility that the verdict would not have necessarily been the same? There was evidence that implicated the accused but with a proper instruction regarding the testimony of the jailhouse informants it is difficult for me to preclude the possibility of a different result.

V. Conclusion

[124] I agree with the Court of Appeal and would dismiss the appeal and confirm the order for a new trial.

[125] In cases where a new trial is ordered an appellate court avoids to the extent possible comment on the evidence. For that reason the evidence here was reviewed only to the extent necessary to reach a conclusion on the result that should follow from the misdirection and not to prejudge or suggest a different result should be reached.

[126] It is understood that at the new trial there may be new evidence, the same evidence as is or presented differently and nothing said in these reasons on the evidence in this appeal should affect the new trial.

The following are the reasons delivered by

[127] Binnie J. -- I agree with the result reached by Justice Bastarache, but I reach that conclusion by a different route. In my view, the evidence of the “jailhouse informants” in this case was tainted by a combination of some of the more notorious badges of testimonial unreliability, including the opportunity to lie for personal benefit, and the jury ought to have been given a clear and sharp warning to that effect. The trial judge erred in law in failing to give such a warning, as found by Justice Major and a majority of the Ontario Court of Appeal. At the same time, I differ, with respect, from the conclusion that this error of law requires a new trial. Given the other evidence against the respondent that was necessarily accepted by the jury in reaching their verdict of first degree murder, I think, with great respect to those of the opposite view, that there is no reasonable possibility that the verdict would have been different had the error of law not been made.

[128] The courts have grappled for some years with a growing concern that a conviction based on the evidence of jailhouse informants has led in the past to some wrongful convictions and should be treated with special caution: R. v. Frumusa (1996), 1996 834 (ON CA), 112 C.C.C. (3d) 211 (Ont. C.A.); R. v. Simmons (1998), 1998 1136 (ON CA), 105 O.A.C. 360 (C.A.); Report of The Commission on Proceedings Involving Guy Paul Morin, the Honourable Fred Kaufman, C.M., Q.C., 1998; C. Sherrin, “Jailhouse Informants, Part I: Problems with their Use” (1998), 40 C.L.Q. 106, and “Jailhouse Informants in the Canadian Criminal Justice System, Part II: Options for Reform” (1998), 40 C.L.Q. 157; the Report of the 1989-1990 Los Angeles Grand Jury: Investigation of the Involvement of Jail House Informants in the Criminal Justice System in Los Angeles County (June 26, 1990). The most extensive review of this issue in Canada is the Kaufman Report, which concludes at p. 638:

The evidence at this Inquiry demonstrates the inherent unreliability of in-custody informer testimony, its contribution to miscarriages of justice and the substantial risk that the dangers may not be fully appreciated by the jury. [Emphasis added.]

[129] This Court’s decision in Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811, does not stand in the way of taking appropriate action to address that targeted concern. Vetrovec did not deal with jailhouse informants as such, but more generally with the law of corroboration in relation to accomplices. The trial judge in that case had given a very specific warning about the danger of convicting on the basis of uncorroborated evidence from accomplices, and the issue on the appeal was the correctness of the trial judge’s subsequent reference to pieces of evidence that in his view were capable of having a corroborative effect. In that context, Dickson J. protested against “a fixed and invariable rule regarding all accomplices” and “blind and empty formalism” (p. 823). The Court was unanimous in affirming that in this area as in others a label is no substitute for analysis. That having been said, “jailhouse informant” is a term that conveniently captures a number of factors that are highly relevant to the need for caution. These include the facts that the jailhouse informant is already in the power of the state, is looking to better his or her situation in a jailhouse environment where bargaining power is otherwise hard to come by, and will often have a history of criminality. This is not to deny the possibility that a jailhouse can on occasion produce a trustworthy witness. The trigger for caution is not so much the label “jailhouse informant” as it is the extent to which these underlying sources of potential unreliability are present in a particular case. The testimony of Balogh and King exhibited some of the worst characteristics of purveyors of jailhouse confessions. Both were career criminals who had a history of coming forward to offer incriminating testimony in anticipation of personal reward. They tried to ingratiate themselves with the respondent by offering to get “his girlfriend knocked off”. This was a confidence trick to gain his trust and loosen his tongue. In the circumstances, failure of counsel to request a Vetrovec warning is a relevant consideration in the exercise of the trial judge’s discretion, but does not save a charge that, as a matter of law, is inadequate. The jury in this case should have been warned to proceed with caution.

[130] It is not sufficient, in my view, to say that these particular witnesses apparently impressed the trial judge as reasonably capable of belief. The concern here is with the underlying weaknesses historically associated with jailhouse confessions offered by fellow inmates. Vetrovec affirmed that the court may legitimately concern itself with such factors, and this affirmation was picked up and developed by M. Rosenberg (now Rosenberg J.A.) in “Developments in the Law of Evidence: The 1992-93 Term” (1994), 5 S.C.L.R. (2d) 421, at p. 463:

It is not then whether the trial judge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness’s story be approached with caution.

The jurors will not likely have the benefit of this “experience” unless it is imparted to them by the trial judge in the “clear and sharp warning” contemplated by Vetrovec.

While some passages in Dickson J.’s reasons can be argued to focus on the assessment of the credibility of a particular witness made by the trial judge, he also emphasized that the credibility of a particular witness is for the jury not the trial judge to assess. The trial judge’s role is to provide the proper framework within which that credibility can be evaluated, and in that regard problems historically associated with particular types of evidence should not be overlooked. Jailhouse informants presenting a profile such as Balogh and King, generally do, it seems to me, justify an inference of untrustworthiness, and as a general rule in such cases a Vetrovec warning should be given.

[131] Major J. has reviewed the weaknesses of their testimony and I agree with his conclusions that prosecutorial use of jailhouse informants generally calls for special caution and that the testimony of these particular jailhouse informants manifested the dangers associated with the genre. The trial judge appears not to have taken into account these relevant considerations and he thus erred in the exercise of his discretion. It was a sufficient trigger to the requirement of a Vetrovec warning that their evidence was “important but not crucial to the Crown’s case against the respondent” (para. 90). It will be rare, I think, that an alleged jailhouse confession would not be regarded as important evidence against an accused.

[132] My colleague Bastarache J. concludes that the trial judge’s instruction to the jury amply conveyed the dangers associated with the Balogh and King evidence. I do not agree. He did not, as Dickson J. put it in Vetrovec, supra, at p. 831, clearly “attract the attention of the juror to the risks of adopting, without more, the evidence of the witness”. A useful guide in this regard is the comment of Osborne J.A., dissenting, when R. v. Bevan was in the Ontario Court of Appeal (1991), 1991 7150 (ON CA), 63 C.C.C. (3d) 333, at pp. 361-62:

However, in those cases where a clear sharp warning is required, it seems to me that it is of fundamental importance that the form of the warning take into account that its underlying purpose is to direct the jury’s special attention to the risk of convicting an accused on the basis of the evidence of a witness who may be viewed, for reasons such as self-interest, as untrustworthy. Thus, the witness should be singled out, that is, separated from the pack. The jury should be told to scrutinize the evidence for evidence which would confirm or support the testimony of the witness who is said to have a motive to lie, or who is of unsavoury character. . . . In my view, it is preferable in most cases that the trial judge tell the jury why the evidence of a given witness requires special scrutiny, that is, why the light of the credibility microscope should be turned up. [Emphasis added.]

[133] In the course of his instruction in this case, which covers almost 100 pages of transcript, the trial judge gave only one specific caution bearing on the credibility of Balogh and King, namely that the jury should take their respective criminal records into account “when considering the credibility and weight of their evidence”. Some 70 pages of transcript later, he pointed out that both Balogh and King were in custody with the accused at the time of the alleged confession, but this was noted to identify the physical location of the alleged confession. Far from being “singled out” for special caution, the jailhouse evidence was summarized in much the same language as used for other witnesses. He noted that Balogh had a history of psychiatric problems, including a stint at the London Psychiatric Centre, and had twice attempted suicide, but this, while perhaps relevant to credibility, did not go to the systemic problems of “unsavouriness” associated with jailhouse confessions. The trial judge mentioned that King “tried to get a lighter sentence” from Detective Hrab, but Hrab was not called to testify, and contemporaneous notes made by the two jailhouse informants pooling their recollections and apparently given to Detective Hrab were never produced. The trial judge reminded the jury that King had not been successful in securing a benefit. He noted that Sergeant Harild (who did testify) and Detective Hrab had both appeared before the Parole Board to explain that King’s criminal record did not include any convictions for violence.

[134] None of this constituted a “clear and sharp warning” to the jury about the dangers of relying on evidence of jailhouse informants. On the contrary, I expect the impression the jury took from the trial judge’s instruction is that King had been unsuccessful in his plea for special treatment, but he had come forward with his damaging testimony in spite of his disappointment. This would, if anything, add to his credibility in the mind of persons who were unaware of the problems associated with jailhouse confessions. Balogh, with his history of mental illness, seems to have been a tag-along to King’s initiative, although protesting that his motive was revulsion at the nature of the crime. Balogh had attempted to purvey jailhouse confessions on three previous occasions in other cases. Despite his choice of crime for a career, his sense of revulsion at the crimes of others apparently was chronic, if he is to be believed.

[135] It is now established that the failure to give a Vetrovec warning where required is an error of law, which opens up the possibility of salvaging the verdict under s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46. Not every error of law justifies a new trial, as noted by McIntyre J. in Fanjoy v. The Queen, 1985 53 (SCC), [1985] 2 S.C.R. 233, at p. 240:

It is not every error which will result in a miscarriage of justice, the very existence of the proviso to relieve against errors of law which do not cause a miscarriage of justice recognizes that fact.

[136] While it may often be difficult to analyse a record in terms of what would have happened if the error had not occurred -- and any reasonable doubt in that regard must be resolved in favour of an accused -- nevertheless the legitimacy of a “what if” approach is implicit in the Bevan test (“whether there is any reasonable possibility that the verdict would have been different” (R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, at p. 617 (emphasis added))), and explicit in cases such as R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516, per Sopinka J., at pp. 516-17:

The application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, requires the Court to consider whether a jury properly instructed could, acting reasonably, have come to a different conclusion absent the error. In applying this test the findings of the jury in the case under appeal may be a factor in determining what the hypothetical reasonable jury would have done, provided those findings are not tainted by the error. [Emphasis added.]

and R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, per Iacobucci J., at pp. 620-21:

Accordingly, the question here is whether there is any possibility that the trier of fact would have had a reasonable doubt as to the guilt of the accused had the impugned evidence been removed from their consideration. [Emphasis added.]

[137] Whether or not a new trial is necessary will largely depend on the degree of centrality of the evidence of the unsavoury witness to the conviction. In most cases, a witness whose testimony is sufficiently important to require the Vetrovec warning in the first place will likely be sufficiently central to preclude application of s. 686(1)(b)(iii), as in R. v. Sanderson (1999), 1999 18744 (MB CA), 134 Man. R. (2d) 191 (C.A.), at p. 194 (where the unsavoury witness gave “[t]he only evidence presented by the Crown which implicated” the accused), and R. v. Siu (1998), 1998 4639 (BC CA), 124 C.C.C. (3d) 301 (B.C.C.A.), at p. 330 (“the Crown would have had virtually no case” without the unsavoury witness’s evidence). In such cases, application of the curative proviso would clearly be wrong.

[138] I part company from Major J. on whether in this case there is any reasonable possibility that the verdict would have been different had a Vetrovec warning been given. It must be kept in mind that the respondent was not entitled to a trial that excluded altogether the evidence of Balogh and King. The issue under s. 686(1)(b)(iii) is whether there is any reasonable possibility that it would have made any difference to the ultimate verdict if their evidence had been accompanied by a warning instead of merely being heaped with ridicule by defence counsel, as was the case here.

[139] In reaching their verdict of first degree murder, the jury necessarily accepted the evidence of sexual assault contemporaneously with the murder, which was an added feature that did not depend at all on the story told by the jailhouse informants. In addition, the respondent made inculpatory statements to other people, including the victim’s mother. All of this evidence was consistent with, and was not tainted by, the testimony of Balogh and King. I thus conclude that the application of s. 686(1)(b)(iii) is justified on six grounds.

1. Other Inculpatory Statements Made by the Respondent

[140] The victim’s mother testified that the respondent had whispered to her more than once in the ambulance on the way to the hospital with the dead child that he was sorry “for what he had done” (emphasis added). This was vigorously challenged in cross-examination, but the witness remained adamant:

Q. And you said that Mr. Brooks said “I’m sorry, I’m sorry for what I’ve done”?

A. Yes sir.

Q. Now that’s not at all what Mr. Brooks said, was it?

A. That’s exactly what Mr. Brooks said.

Q. He said “I’m sorry”?

A. No, sorry, he said he was sorry, he was sorry for what he had done.

Q. I take it that you were terribly concerned about the death of your daughter?

A. Yes sir.

Q. And somebody has just said to you, “I’m sorry for what I’ve done” and you said “Thanks”?

A. No, I did not say thanks.

Q. Or you stare straight ahead?

A. I don’t know what I was thinking sir, but I remember I didn’t say nothing.

Q. Miss Johnings, that is a lie?

A. No, it’s not sir.

Q. What Fred said to you, more than once, in a low voice, sometimes he mouthed it, is just “I’m sorry”?

A. No sir.

Q. That’s all he said is “I’m sorry”?

A. No sir.

Q. And he said that because what would you expect him to say when he finds out that your daughter’s dead?

A. He said more than that sir.

The sting of these statements depended on what interpretation the jury placed on them, but it is evident from the jury’s verdict that its members believed the mother’s version of events and disbelieved the respondent’s, and that the reference to “what he had done” was taken to refer to his treatment of Samantha that had resulted in her death.

2. Verdict of Sexual Assault

[141] It was not disputed that the appellant was the only male who had access to the child on the day that she was murdered. The jury was instructed that in order to return a verdict of first degree murder, which the jury did, “you must be satisfied beyond a reasonable doubt that in addition to everything required for second degree murder, the accused caused the death of Samantha Johnings while committing or attempting to commit the sexual assault” (emphasis added). While the DNA results were inconclusive, there is no doubt that male semen was present in the dead child’s anus and in her vagina. The uncontradicted evidence was that Samantha had been bathed on both December 12 and 13, and the expert evidence was that the bathing combined with the bacterial environment of a child in diapers would tend to degrade the sperm quickly. The only persons (male or female) with access to Samantha between the time she was put to bed and the time she was discovered dead were the mother and the respondent. The mother testified that she saw the respondent in Samantha’s bedroom at 2:00 a.m. on the morning of her death, wrapping the child in a blanket. The jury clearly rejected the possibility that the sperm had been picked up from the blanket, and this rejection was supported by Dr. Rao’s evidence that semen would be highly unlikely to migrate into the vagina from simple contact of the child’s outer body with a semen stain deposited on bedding at an earlier time. The respondent’s grey track pants revealed deposits of Samantha’s blood and the respondent’s semen, as well as some residue thought to be Samantha’s fruit juice. The evidence of Constable Bennett and the mother tended to confirm that the respondent was wearing his grey track pants at the time of Samantha’s murder. The notion that another male slipped into the child’s bedroom and committed the sexual assault just before or after the mother committed the murder has no support in the evidence.

[142] My colleague Major J. draws attention to matters in the record that could have raised a reasonable doubt in the jurors’ minds regarding the sexual assault, but it is clear that at the actual trial they did not do so. The point here is that in order to find the respondent guilty of first degree murder the jury not only had to entirely reject the respondent’s evidence but had to accept the circumstantial evidence of sexual assault by the respondent that did not depend on the jailhouse confession supplied by Balogh and King. I cannot believe that a jury that was prepared to conclude that the respondent was guilty of sex with the 19-month-old girl at the time of her murder would have reached a different conclusion because of a warning to treat with caution the evidence of Balogh and King of non-sexual physical violence on the night in question.

3. Respondent’s Relationship with the Victim

[143] There was already ample evidence from Samantha’s relatives on the issue of the respondent’s pattern of violence towards Samantha, albeit not in relation to the night of her murder. The respondent himself acknowledged that there were bruise marks close to Samantha’s vaginal area when he bathed her earlier that day, but he said he did not know where they came from. The respondent’s suggestion that the mother, Norma Jean, in a fury murdered her own child was not consistent with the respondent’s own statement to the police that the mother did not have a bad temper:

Q. She’s got a bad temper?

A. Norma, ah, no.

Q. No?

A. Nope.

Q. You’ve never seen her blow her cool?

A. No.

Q. How about you, do you blow your cool?

A. Ah, I try to hold it in and that there, cause I get frustrated a lot, and I’ll just hold it in instead of exploding, cause if I explode, I get myself into trouble, so I, hold it in.

Although the mother was criticized for lack of parenting skills and some inappropriate discipline of Samantha (who was given to the occasional tantrum and flailing of arms and legs), all of the witnesses, including the respondent, agreed that she loved Samantha and that the child was well nourished and thriving. There was no evidence of any significant physical injuries inflicted at any time by the mother. Her expressed concern to the ambulance attendant that she might have hurt or even killed her baby was in the context of talking about thumping the baby’s back in a futile effort to revive the child after she was found comatose in her crib, i.e., after she was already dead. The respondent, on the other hand, was said to have inflicted several injuries on Samantha in their short period of cohabitation in exasperation because of her crying, including picking the child up and throwing her about a metre into the wooden base of a couch with a “heavy thud” a few weeks before the murder. The jury heard that Samantha had a crying fit the night of her murder.

4. A Vetrovec Warning Would Likely Have Been Accompanied by a Review of the Corroborative Evidence.

[144] Consideration of the likely impact of the failure to give a Vetrovec warning must also be qualified by the trial judge’s undoubted discretion to bring to the jury’s attention other evidence capable of corroborating the testimony of Balogh and King, specifically their knowledge of some details of the respondent’s relationship with the mother and Samantha and some details of the child’s injuries which the jury might think would be unlikely to be known to Balogh and King unless told to them by the respondent. As stated, the respondent was not entitled to a trial free of the evidence of Balogh and King. He was entitled only to a Vetrovec warning, which in this case would have been a mixed blessing, as defence counsel perhaps acknowledged by his lack of objection to the trial judge’s failure to deliver a Vetrovec warning.

5. Lack of Objection by the Defence

[145] While the Crown correctly concedes that lack of objection does not foreclose the right of the respondent to a proper instruction by the trial judge on the issue of jailhouse confessions, such failure usefully indicates the absence of prejudice in the professional opinion of experienced counsel who was retained to protect the interests of the accused and who was fully alive to the atmosphere and dynamics of the trial. The position taken by defence counsel in that sense is properly considered as a factor in the application of the curative provision.

6. An Otherwise Favourable Jury Instruction

[146] Finally, while the jury charge was insufficient to constitute a proper Vetrovec warning, it laid out other issues very fairly, many of them in a manner favourable to the respondent.

[147] For these reasons, I conclude that the failure of the trial judge to give a Vetrovec warning was an error of law, but that there is no reasonable possibility the jury would have rendered a different verdict had the proper warning been given. The Crown bears a heavy onus in seeking the application of the curative provision of s. 686(1)(b)(iii) but, for the reasons given, it is my view that justice does not require a new trial on the particular facts of this case. The appeal should therefore be allowed and the respondent’s conviction and sentence restored.

Appeal allowed, Iacobucci, Major and Arbour JJ. dissenting.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitor for the respondent: Irwin Koziebrocki, Toronto.