The SCC said the trial court saw the Vetrovec dangers and correctly assessed the evidence
A Saskatchewan trial judge was entitled to convict a defendant based on the testimony of an “unsavoury witness” without corroborating evidence, the Supreme Court of Canada ruled in a 4-1 decision on Thursday.
Justices Sheilah Martin, Nicholas Kasirer, Mahmud Jamal, and Michelle O'Bonsawin made up the majority. Justice Malcolm Rowe dissented.
The criminal case involved a robbery that a security camera caught on video. The video recording revealed two participants in the robbery who were fully masked.
At trial, the sole issue was the identity of one of the individuals. The Crown’s case hinged on the defendant’s former gang associate, who identified the defendant as one of the robbers. The trial judge accepted the gang associate’s account as credible and reliable and found the defendant guilty of robbery and having his face masked with the intent to commit an indictable offence.
The defendant appealed his convictions, but the Court of Appeal for Saskatchewan dismissed the appeal in a split decision.
In November, the SCC majority dismissed the defendant’s appeal again but did not provide reasons for the ruling until Thursday’s decision.
In the decision, the majority cited three reasons for upholding the trial judge’s ruling. First, the trial judge “self-instructed on the dangers associated with [the gang associate’s] evidence and applied to it the requisite scrutiny,” so she was entitled to accept the evidence without corroboration.
Second, the SCC said that when the trial judge found that the gang associate’s evidence was more credible because it aligned with the contents of the security camera video, she did not engage in circular reasoning.
Third, the trial judge “understood and correctly applied the relevant legal principles bearing on reliability,” the majority said, adding that “her factual determinations on reliability are entitled to deference.”
In his dissent, Rowe cited a 1982 SCC decision, Vetrovec v. The Queen, which addressed the special consideration courts should give to evidence from disreputable or unsavoury witnesses. While judges are technically entitled to convict defendants based solely on the testimony of a Vetrovec witness, Rowe warned that “a high degree of caution is warranted, given the inherent weaknesses of such evidence.”
Rowe noted that “the only evidence linking the accused to the offence was the testimony of a Vetrovec witness.” He also stated that, according to the gang associate, after he identified the defendant in the video recording, the defendant then confessed he committed the robbery.
“When such a confession is recounted to police only after the Vetrovec witness has identified the accused, the risk is enhanced that the witness’s testimony is contrived,” Rowe said.
He concluded that he would have allowed the defendant’s appeal and agreed with the dissenting opinion in the Court of Appeal that “the conviction arose from a ‘failure to apply the requisite scrutiny’ to the Vetrovec witness’s evidence.”
Thomas Hynes of Pfefferle Law, who represented the defendant, told Canadian Lawyer on Thursday, "Nothing has changed about the law of unsavoury witnesses or how trial judges assess their evidence (in cases with recognition evidence, for example). It's more about these particular facts, from this particular trial, and how the trial judge evaluated the unsavoury witness's evidence here."
He added, "The main takeaway is that appeal courts continue to give a high level of deference to trial judge's findings of credibility and reliability, including in cases with unsavoury witnesses."
A spokesperson for Saskatchewan's Ministry of Justice and Attorney General said, "This case involved the application of the appellate standard of review to a trial decision and the Supreme Court affirmed there was no error in the trial judge’s decision to convict."
Editor's Note: This story has been updated with comments from the parties.
