ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-1842
DATE: 2013/09/15
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRIAN PATRICK HUNT
Lia Bramwell, for the Crown
Michael A. Johnston, for the Accused
HEARD: September 13, 2013
RULING
JAMES J.
[1] At the pre-charge meeting, Mr. Johnston for the defence requested that I include a Vetrovec warning in the charge to the jury. The request relates to both the complainant, Alan Pattison and another Crown witness, Trevor Bourque. Mr. Johnston points to their lengthy criminal records (approximately 22 for Mr. Bourque and 9 for Mr. Pattison plus an old conviction from the United Kingdom) and serious credibility concerns respecting both witnesses.
[2] He relies upon R. v. C.P., 2005 38579 (ON CA), [2005] O.J. No. 4486 (C.A.) for the proposition that a warning to the jury in the circumstances of this case is virtually mandatory.
[3] Crown counsel says that these witnesses are not the sort of unsavory characters that engage the need for a Vetrovec warning and that the characteristics that might prompt a jury to take a hard look at their testimony were well canvassed at trial and are out in the open, including their criminal records.
[4] I will deal with Mr. Pattison first. I begin by noting it would be unusual to give a warning in relation to the complainant but the C.P. case tells us that complainants are not exempt.
[5] Mr. Pattison is 53 years old, lives primarily on the proceeds of a disability pension. He supplements his income collecting beverage containers for their refund value.
[6] At the time of the incident he lived in a single room in a rooming house. He consumes alcohol regularly. On the day in question he was at the beer store when it opened at 9:30 a.m. and began drinking almost immediately. He has had substance abuse issues in the past.
[7] His criminal record discloses a history of anti-social behaviour rather than a pattern of dishonesty and there is a substantial gap from 2002 to 2012.
[8] The defence demonstrated a discrepancy in his evidence at trial about how much alcohol he consumed on the day in question when compared to his evidence at the preliminary hearing. He initially misled the police after the incident by saying he did not know the person who caused his injuries when his alleged assailant was well known to him.
[9] He was examined at some length respecting the particulars of the events that led to his convictions.
[10] While the category of types of witnesses who may be the subject of a Vetrovec warning is not closed, we are not dealing here with a jailhouse informant, an accomplice or a witness who seeks to gain lenient treatment or other advantage in testifying for the prosecution.
[11] Crown counsel acknowledges that Mr. Pattison’s evidence is critically important to the case; without it there is no case to advance.
[12] In my view, taking all of the circumstances together, there is no basis to require a special warning to the jury that it would be dangerous to accept his unconfirmed testimony. I agree with Crown counsel that Mr. Pattison does not belong to a special category of untrustworthy witnesses. He is the sort of witness who commonly comes before the court like many of his peers who live on the margins of society. Paraphrasing J.E. Ferguson J. in R. v. Dunbar, [2010] O.J. No. 5971, at para. 5, any defects in his evidence or issues affecting his reliability to give an accurate account of what transpired are plainly visible for the jury to consider. Also, Mr. Pattison will be included in the instruction respecting prior convictions.
[13] As for Trevor Bourque, I agree with the defence submission there is an adequate basis to exercise my discretion so as to require that the warning be given in his case. The factors I take into account include the following:
(1) He has over 20 criminal convictions including crimes of dishonesty such as
(i) possession of property obtained by crime;
(ii) break and enter;
(iii) fraud under $5,000;
(iv) possession of break in instruments; and
(v) numerous fail to comply with recognizance offences.
[14] His evidence at trial respecting the timing of his clean up of Mr. Pattison’s room is clearly at odds with the evidence of Constable Hall.
[15] When one considers the factors set out in R. v. Brooks, 2000 SCC 11, [2000] S.C.J. No. 12, I acknowledge that the situation with Mr. Bourque is not a clear cut example of the type of witness who warrants the warning but I am exercising my discretion in favour of doing so because of the following factors:
(1) his extensive criminal record including crimes of dishonesty;
(2) he has given evidence under oath that is at odds with a police witness and which operates to lessen his exposure to criticism for tidying up Mr. Pattison’s room; and
(3) the fact that his evidence, while not central to the prosecution’s case, is important because it places the accused in Mr. Pattison’s room the day of the incident.
[16] In deciding to give the warning, the caution to the jury includes listing evidence that tends to confirm his evidence. In general terms, I agree with Crown counsel’s submission that there is evidence that may amount to confirming evidence from Mr. Pattison and Constable Hall that ought to be part of the Vetrovec instruction.
James J.
Released: September 15, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRIAN PATRICK HUNT
ruling
James J.
Released: September 15, 2013