Time for instalment 3 of the Uncover Podcast series.

A number of the witnesses at Mr. Assoun’s trial had troubled pasts. Specifically his nephew had a lengthy criminal record. There was also a classic feature of wrongful conviction cases, a jailhouse informant who had received a discounted sentence for drug offences in exchange for his testimony. 

When considering the reliability of evidence from disreputable or unsavoury witnesses a trial judge will often given the jury what is known as a Vetrovec warning. 

The Vetrovec warning takes its name from the decision of the Supreme Court of Canada in R. v. Vetrovec, [1982] 1 S.C.R. 811.  In that case, the Court outlined the principles to be followed by trial judges in instructing juries with respect to the special care that needs to be taken in assessing the testimony of Crown witnesses who are unsavoury or unreliable, such as accomplices and jail-house informers.  

The warning assigns unsavoury witnesses a special status, namely, it sets them apart from other witnesses and encourages an assessment of their credibility bearing in mind the unique reliability concerns they bring to a trial.

The elements of a Vetrovec warning are:

(1)        drawing the attention of the jury to the testimonial evidence requiring special scrutiny;

(2)        explaining why this evidence is subject to special scrutiny;

(3)        cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and

(4)        that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.

In order to usefully confirm the story told by the unsavoury witness, the evidence needs to be independent, in that it is unrelated to the witness, in order to provide comfort to the trier of fact that the witness is telling the truth. 

In cases that involve witnesses that would be subject to a Vetrovec warning much time is spent by the Crown attempting to produce evidence which corroborates the Vetrovec witness’ evidence. Given the warning it can be difficult to get a conviction without corroboration.

Surprisingly, the trial judge in Mr. Assoun’s case did not give the jury a Vetrovec warning. This decision was also surprisingly upheld on appeal. The purpose of the Vetrovec warning is to alert the jury that there is a special need for caution in approaching the evidence of certain witnesses whose evidence plays an important role in the proof of the accused’s guilt.As a result of the lack of warning the jury was not told that it would be dangerous to convict on the basis of evidence from obviously unsavoury sources. The conviction in such circumstances speaks for itself.

The failure of the trial judge to give a Vetrovec warning in the Assoun case is troubling. That brings us to the final issue in our Uncover series, the role of a trial judge when an accused is self-represented and what courts can do to assist someone defending themselves.

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