COURT FILE NO.: 10856

DATE: 2012-05-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.

COUNSEL: Michael Carnegie, Counsel for the Crown

Dirk Derstine, Counsel for the Accused

HEARD: May 3 and 4, 2012

ENDORSEMENT: VETROVEC WARNING

[1] This endorsement arises out of discussions during the pre-charge conference that took place on May 3 and 4, 2012.

[2] Those discussions centred on my draft charge, which had been provided to counsel in advance, and which formed the basis for our discussions at the conference. It included a Vetrovec warning relating to the unsavoury witness, McClintic, since both parties had previously requested it. It went into detail regarding her criminal background, her history of violence dating back to childhood, her use of drugs, her fascination with death rap, and the extent to which her choice of music and writings are filled with violent imagery. It also pointed out the most striking feature of her unsavoury background: that she had confessed to having killed the victim in this murder case, Victoria Stafford.

[3] The charge warned the jury that it would be dangerous to convict the accused on the unsupported evidence of McClintic alone. In accordance with standard practice, it went on to suggest 14 items of independent evidence that the jury might find to be supportive of important features in her evidence. There were actually more than 14 on the list, since the item relating to corroboration of her testimony regarding the accused’s sexual assault of Victoria Stafford had 3 parts to it.

[4] Crown counsel, Mr. Carnegie, in submissions at the pre-charge conference, suggested that the list be expanded to include an additional 10 items of evidence, each one of which also provided independent support for important parts of McClintic’s evidence.

[5] Mr. Derstine submitted that the list of potentially supportive evidence served to nullify the Vetrovec warning entirely. He asked whether I was inclined to include something along the lines of my draft charge in the final version. I indicated that I was but, in response to his submissions, I would be inclined to trim the list of items down somewhat. He then requested on behalf of his client that no Vetrovec warning be included at all. I asked whether, if the list were trimmed down to, say, 6 to 8 items, his position would still be the same, and he confirmed that it would.

[6] The issue then became whether the court should honour the tactical decision of defence counsel, and omit the Vetrovec warning altogether.

[7] That issue was set aside so that some legal research could be conducted. Mr. Carnegie, quite helpfully, found a decision precisely on point, R. v. Brooks, 2000 SCC 11, [2000] S.C.J. 12. In that decision, Bastarache J., speaking for himself and McLachlin and Gonthier JJ., began by noting what Dickson J. (as he then was) had ruled in Vetrovec itself: 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” (para. 2).

[8] He went on to say the following, at para. 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.

[9] At para. 4 he noted the factors that the judge should take into consideration in exercising that discretion:

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.

[10] The final point in the passage outlined above considers the situation where the Vetrovec warning may actually prejudice the accused’s case rather than assist it. Justice Bastarache elaborated further on this point at para. 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.

[11] And finally, at para. 19, he emphasized the importance of allowing defence counsel to make their own tactical decisions, instead of imposing on them an instruction that they have determined to be counter-productive:

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.

[12] Applying those principles to the case before me, it is clear that a Vetrovec warning is not required in this case, because there is simply no risk that the jury would convict the accused on the testimony of McClintic “without more”. While her testimony certainly occupies an important place in the Crown’s case, it represents more of a framework for the Crown’s case, as opposed to constituting the entirety of the Crown’s case itself. Fact after important fact in her testimony is corroborated or supported by independent evidence, including: surveillance video from no fewer than 8 sources; banking records; sales records from the Home Depot; cell phone records and other business documents; DNA evidence; pathology evidence; fabric analysis evidence; objects, such as her running shoes, which were found in a ditch as she had described, and clothing and other items seized from the house of the accused; oral testimony from many witnesses; and physical evidence found at the body recovery scene, as well as the layout of the scene itself.

[13] Unsavoury though she may be, there is simply no reason to doubt her testimony as to the events of April 8. It follows that there is no need for a Vetrovec warning. The jury may well conclude that the only real question they need to grapple with is whether the accused is the killer, as she said in her May 24, 2009 statement, or whether she killed the child, but the accused aided or abetted in the killing, as she testified at trial. Almost everything else she said about the events of April 8 can be independently corroborated, other than the private conversations she had with the accused.

[14] The wealth of compelling, independent corroborative evidence that is available, much of which, to present a fair picture to the jury, would have to be reviewed in my charge, has undoubtedly prompted Mr. Derstine’s request that the Vetrovec warning be omitted. This is precisely the situation contemplated by Bastarache J. at para. 16 of Brooks, where the Vetrovec warning would be counter-productive to the defence, and would actually strengthen the case for the prosecution.

[15] Mr. Derstine has shown himself to be a very experienced, highly skilled defence counsel. I am loath to interfere with his tactical decision, and impose upon his client an instruction that, while intended to help the defence, would, in his considered opinion, be harmful to his case.

[16] The better course of action, in my view, is to defer to his request and delete the Vetrovec caution from my charge. I have already dealt with some of the unsavoury aspects of McClintic’s background in my instructions relative to the May 24 statement, and those can be augmented somewhat. I will also add a separate instruction regarding her criminal record, and the use that the jury can make of it in assessing her credibility.

[17] Otherwise, I will leave it to the Crown to review the supporting evidence in urging the jury to accept McClintic’s evidence, and to the defence to review the unsavoury aspects of this witness in urging the jury to disbelieve her.

“Mr. Justice T. A. Heeney”

Mr. Justice T. A. Heeney

Date: May 6, 2012