R. v. Kehler, [2004] 1 S.C.R. 328, 2004 SCC 11

Russell Alan Kehler Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Kehler

Neutral citation: 2004 SCC 11.

File No.: 29755.

Hearing and judgment: January 15, 2004.

Reasons delivered: February 19, 2004.

Present: Iacobucci, Major, Bastarache, Binnie, Arbour, Deschamps and Fish JJ.

on appeal from the court of appeal for alberta

Criminal law — Evidence — Corroboration — Accomplices — Accused charged with armed robberies — Evidence of accomplice corroborated as to robbery but not as to identity of accused — Where identity only issue at trial, whether corroboration must implicate accused.

The sole issue in this appeal as of right concerned the trial judge’s application of the principles laid down in Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. The accused was convicted on three counts concerning an armed robbery and the trial judge, as the testimony of a disreputable accomplice was the only evidence linking the accused to the crime, had looked for corroboration before acting on it. Independent evidence confirmed the account of the robbery and the witness’s involvement in it but did not implicate the accused. The trial judge, nevertheless, found that the confirmatory evidence was sufficient to persuade him that the witness was telling the truth. A majority of the Court of Appeal decided that the trial judge had committed no error warranting appellate intervention.

Held: The appeal should be dismissed.

The trial judge instructed himself in accordance with Vetrovec. While confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, “relevant” should not be equated with “disputed”. The independent evidence does not have to implicate the accused. There is no separate rule in this regard for cases where the only evidence of the accused’s participation in the offence is that of a tainted witness. Triers of fact will not lightly accept unsupported assertions by a disreputable witness where nothing but his or her word implicates the accused in the commission of the crime charged. Where a particular risk attaches to one critical element of that evidence, the trier of fact must be satisfied that the witness’s potentially unreliable evidence can be relied upon as truthful in that regard. Having considered the totality of the evidence, the trier of fact is entitled to believe the evidence of the disreputable witness — even on disputed facts that are not otherwise confirmed — if the trier is satisfied that the witness, despite his or her shortcomings, is truthful. Here, the trial judge was satisfied beyond a reasonable doubt on the evidence as a whole that the accused had participated in the robbery. In reaching that conclusion, the trial judge instructed himself correctly in law and committed no reviewable error on the facts.

Cases Cited

Applied: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811; referred to: Director of Public Prosecutions v. Hester, [1972] 3 All E.R. 1056.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, s. 675(1)(a).

APPEAL from a judgment of the Alberta Court of Appeal, [2003] 7 W.W.R. 731, 15 Alta. L.R. (4th) 24, 327 A.R. 66, 296 W.A.C. 66, 178 C.C.C. (3d) 83, [2003] A.J. No. 387 (QL), 2003 ABCA 104, affirming a decision of the Court of Queen’s Bench, 2001 CarswellAlta 1879. Appeal dismissed.

Marvin R. Bloos, Q.C., for the appellant.

James A. Bowron, for the respondent.

The judgment of the Court was delivered by

Fish J. —

I. Introduction

1 This appeal comes to the Court as of right on the strength of a dissent in the Court of Appeal for Alberta ([2003] 7 W.W.R. 731, 2003 ABCA 104).

2 The dissent concerned the application by the trial judge of the principles laid down in Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

3 At the conclusion of the hearing, we agreed with the majority in the Court of Appeal that the trial judge had instructed himself in accordance with Vetrovec and, in deciding as he did, committed no error warranting appellate intervention.

4 Accordingly, we dismissed the appeal, with reasons to follow.

II. Overview

5 Russell Alan Kehler was acquitted on October 16, 2001 by Sanderman J. of the Court of Queen’s Bench of Alberta, on several counts relating to four armed robberies in Edmonton. He was at the same time convicted, however, on three counts concerning an armed robbery committed at Red Deer on July 13, 2000.

6 The only evidence implicating the appellant in any of these offences was that of Vincent Greenwood, who testified that he and the appellant had committed the robbery together.

7 At the conclusion of the trial, Sanderman J. noted that Mr. Greenwood was not only a recidivist and an accomplice, but also a confirmed liar, a drug dealer and a consumer of drugs himself. Understandably, Sanderman J. therefore felt bound “to view his evidence with a tremendous amount of scepticism and look for corroboration before [he] could act upon it” (2001 CarswellAlta 1879, at para. 19).

8 It is undisputed that there was independent evidence confirming Mr. Greenwood’s account of the robbery and his own involvement in it. None of this evidence, however, implicated the appellant.

9 The trial judge nonetheless found that the confirmatory evidence was sufficient to persuade him, but only as regards the robbery at Red Deer, that Mr. Greenwood was telling the truth. He noted at para. 20 that Mr. Greenwood had not received a “sweetheart deal” from either the police or the Crown. In the judge’s view, the witness had in fact “received no great benefit as a result of his cooperation with the authorities in this case” (para. 20).

10 There is no suggestion that the trial judge misapprehended the evidence in this regard.

11 The decisive issue in this Court is whether the trial judge erred in law in applying Vetrovec, supra, as he did. That is the sole issue upon which the Court of Appeal divided. This appeal as of right is therefore limited by its scope: see s. 675(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

III. Discussion

12 The appellant concedes, at para. 11 of his factum, that “confirmatory evidence”, in the sense that concerns us here, “need not directly implicate the accused or confirm the Crown witness’ evidence in every respect”. In his submission, however, “the evidence should . . . be capable of restoring the trier’s faith in the relevant aspects of the witness’ account” (emphasis added).

13 As a matter both of law and of logic, we agree with that submission.

14 The appellant argues that the only relevant aspect of Mr. Greenwood’s evidence relates to the implication of the appellant in the Red Deer robbery. He contends that the legal test, applied contextually, therefore required confirmatory evidence implicating the appellant. Nothing less, he says, could rationally restore the trier’s faith in the relevant aspects of Mr. Greenwood’s account.

15 The appellant wrongly equates “relevant” with “disputed”. Mr. Greenwood’s detailed account of the robbery, though undisputed, was no less “relevant” to the offences charged than his implication of the appellant in their commission. And while confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, it hardly follows that the confirmatory evidence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged.

16 As the appellant himself concedes, it is clear from Vetrovec, supra, that independent evidence, to be considered confirmatory, does not have to implicate the accused. There is no separate rule in this regard for cases where the only evidence of the accused’s participation in the offence is that of a tainted witness.

17 We recognize, of course, that triers of fact will not lightly accept unsupported assertions by a disreputable or unsavoury witness where nothing but the word of that witness implicates the accused in the commission of the crime charged. The danger of founding a conviction on such assertions alone is the very reason for requiring the “clear and sharp warning” mandated in those circumstances by Vetrovec, supra, at p. 831.

18 The purpose of that warning, moreover, is “to attract the attention of the juror to the risks of adopting, without more, the evidence of the [otherwise unreliable] witness” (ibid.) concerning the guilt of the accused.

19 Thus, speaking for the Court in Vetrovec, supra, at p. 829, Dickson J. (later C.J.) cited with approval Lord Diplock’s observation in Director of Public Prosecutions v. Hester, [1972] 3 All E.R. 1056 (H.L.), at p. 1073:

What is looked for under the common law rule is confirmation from some other source that the suspect witness is telling the truth in some part of his story which goes to show that the accused committed the offence with which he is charged. [Emphasis added.]

And, at pp. 832-33, Dickson J. explained:

. . . The question that must be kept in mind is: does this supporting evidence strengthen our belief that Langvand [the tainted witness] is telling the truth?

The answer to this question can only be in the affirmative. Langvand had testified as to a trip to Hong Kong in 1975 for the purpose of purchasing and importing heroin. The supporting evidence strongly implicated the accused in illegal drug trafficking. As Mr. Justice Seaton noted in the Court below, the supporting evidence against Gaja [co-accused with Vetrovec] would, considered alone, have been sufficient to support his conviction on the charge. As for the appellant Vetrovec, the material found in his apartment all pointed to his participation in illegal drug trafficking (see the evidence on this point of Sgt. Domansky, at trial). The items of evidence were, to use the phrase of Mr. Justice Seaton, “badges of membership in this conspiracy”. All of this incriminating evidence, when considered together, strongly strengthens the belief that Langvand was telling the truth regarding the participation of Vetrovec and Gaja. It rebuts any suggestion that he is falsely implicating innocent individuals. The fact that this supporting evidence does not directly relate to the other overt acts testified to by Langvand is irrelevant. The evidence is capable of inducing a rational belief that Langvand is telling the truth and is for that reason corroborative. It seems to me that the point was covered in R. v. Bulleyment (1979), 1979 CanLII 2922 (ON CA), 46 C.C.C. (2d) 429 (Ont. C.A.), and in my view that case was correctly decided. [Emphasis added.]

20 Where a particular risk attaches to one critical element of the evidence of “an accomplice, or a disreputable witness of demonstrated moral lack” (Vetrovec, supra, at p. 832), the trier of fact must be satisfied that the “potentially unreliable” evidence of the witness can be relied upon as truthful in that regard.

21 Such a risk may arise, for example, where there is any basis in the record for suggesting that the unsupported evidence of an accomplice, though evidently truthful as to his own participation in the offence charged, is for any reason subject to particular caution as regards his implication of the accused.

22 However, even then, having considered the totality of the evidence, the trier of fact is entitled to believe the evidence of the disreputable witness — even on disputed facts that are not otherwise confirmed — if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful.

23 That was the case here.

24 The trial judge explained with care why he considered that Mr. Greenwood was a disreputable and unreliable witness. Quite properly, he then gave himself a “clear and sharp warning”, in accordance with Vetrovec.

25 The trial judge was alert to the inherent danger of relying on evidence given by accomplices who have received — or hope to receive — lenient sentences for themselves, or some other personal advantage.

26 The trial judge was alert as well to the need for confirmatory evidence to satisfy himself that Mr. Greenwood was testifying truthfully as regards the appellant’s participation in the robberies which Mr. Greenwood claimed to have committed with him in Edmonton and in Red Deer.

27 Mr. Greenwood’s credibility was a matter for the trial judge alone to determine.

28 After considering the confirmatory evidence before him, the trial judge, for reasons he explained, found that he could not safely rely on Mr. Greenwood’s implication of the appellant in the Edmonton robberies. He therefore acquitted the appellant on the corresponding counts of the indictment.

29 Comforted by the confirmatory facts he mentioned, however, the judge felt that he could safely accept Mr. Greenwood’s evidence regarding the robbery in Red Deer. On the evidence as a whole — uncontradicted and unexplained, we might add — he was satisfied beyond a reasonable doubt that the appellant had participated in that robbery.

30 In reaching that conclusion, the trial judge instructed himself correctly in law and committed no reviewable error on the facts.

IV. Conclusion

31 It was for these reasons that the appeal was dismissed at the conclusion of the hearing on January 15, 2004.

Appeal dismissed.

Solicitors for the appellant: Beresh Depoe Cunningham, Edmonton.

Solicitor for the respondent: Alberta Justice, Edmonton.