R. v. James (W.A.) et al., (2009) 273 N.S.R.(2d) 388 (SCC)

• Judge: Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 22, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 273 N.S.R.(2d) 388 (SCC);2009 SCC 5;[2009] 1 SCR 146;273 NSR (2d) 388;[2009] SCJ No 5 (QL);62 CR (6th) 226;383 NR 329;238 CCC (3d) 481;301 DLR (4th) 289

R. v. James (W.A.) (2009), 273 N.S.R.(2d) 388 (SCC);

    872 A.P.R. 388

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.062

Neil William Smith (appellant) v. Her Majesty The Queen (respondent)

(32323)

Wayne Alexander James (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario and Criminal Lawyers' Association (Ontario)

(intervenors)

(31980; 2009 SCC 5; 2009 CSC 5)

Indexed As: R. v. James (W.A.) et al.

Supreme Court of Canada

Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

January 22, 2009.

Summary:

The accused were convicted by a jury of conspiracy to commit murder and first degree murder. The accused Smith allegedly ordered the killing and the accused James allegedly helped arrange the killing. The accused appealed and applied to admit fresh evidence to prove a miscarriage of justice as a result of the Crown's failure to make proper disclosure.

The Nova Scotia Court of Appeal, in a judgment reported (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255, dismissed the appeal. The fresh evidence was not admissible. No miscarriage of justice occurred. All grounds of appeal, including the challenge to the sufficiency of the Vetrovec warning with respect to two unsavoury witnesses, were without merit, with the exception of an error in admitting hearsay evidence of one out of court statement by a co-conspirator. However, the court invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error, where the verdict would necessarily have been the same had the evidence not been admitted. The accused appealed, challenging the sufficiency of the Vetrovec warning.

The Supreme Court of Canada dismissed the appeal. The jury charge achieved its purpose of warning the jury of the danger of relying on the impugned witness' testimony without being comforted, by some other evidence, that the witness was telling the truth about the accused's involvement in the crime. The trial judge's instructions would have clearly left the jury with the impression that the impugned witnesses were highly suspect and that their evidence should be accepted only with great caution.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused were convicted of murder partly on the basis of two Crown witnesses who were accomplices to the murder, were given immunity, and were paid and placed in the witness protection program in exchange for their testimony - The accused submitted that the Vetrovec warning to the jury on the dangers of accepting their testimony was inadequate - The accused argued that the jury should have been specifically told that one of the witnesses, as a paid agent and an accomplice, had a particularly strong motive to falsely implicate the accused - The Nova Scotia Court of Appeal dismissed the appeal - The accused appealed - The Supreme Court of Canada dismissed the appeal - The court stated that "appellate courts must not measure the sufficiency of a caution against the ruler of perfection. Instead, the inquiry should focus on whether the instruction achieved its purpose: To warn the jury of the danger of relying on the impugned witness' testimony without being comforted, by some other evidence, that the witness is telling the truth about the accused's involvement in the crime. The caution should also direct the jury to the type of evidence capable of providing such comfort. The trial judge ... provided a thorough and complete warning in relation to two very unsavoury characters. On any reasonable view of the record, it is clear that the jury would have been left with the impression that the impugned witnesses were highly suspect and their evidence should be accepted only with great caution." - See paragraphs 2 to 3.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused were convicted of murder partially on the basis of the testimony of two unsavoury witnesses, both of whom were admittedly accomplices, were given immunity for their testimony and were placed in the witness protection program - One of the witnesses was paid $500 per week to be a paid police agent - Although the trial judge's Vetrovec warning to the jury outlined, inter alia, the witness' criminal record, involvement in the crime, motive to implicate others and the immunity and payment for being a police agent, the accused submitted that the "warning was insufficient because it failed to explain to the jury why a paid agent, who was an accomplice to the offence, is in a particularly good position - and has a particularly strong motive - to fabricate the involvement of the accused. Counsel for the appellants took the position that a more thorough explanation of the risk associated with these witnesses was necessary." - The Supreme Court of Canada stated that "I am not persuaded that the trial judge erred in this regard. ... In order to assess the risk of accepting testimony from an unsavoury witness, a jury must understand the reasons for special scrutiny. ... This requires identifying for the jury the characteristics of the witness that bring his or her credibility into serious question. It does not necessitate an exhaustive explanation of how a particular characteristic might enable a witness to upset the fact-finding process." - See paragraphs 12 to 14.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See both Criminal Law - Topic 4354 ].

Cases Noticed:

R. v. Khela (G.S.) (2009), 265 B.C.A.C. 31; 383 N.R. 279; 2009 SCC 4, refd to. [para. 2].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 2].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), refd to. [para. 14].

R. v. Zebedee (J.) et al. (2006), 212 O.A.C. 23; 211 C.C.C.(3d) 199 (C.A.), refd to. [para. 20].

Counsel:

Timothy E. Breen, for the appellant, Smith;

Donald C. Murray, Q.C., for the appellant, James;

James A. Gumpert, Q.C., Peter J. Craig and Jennifer A. MacLellan, for the respondent;

Jennifer M. Woollcombe, for the intervenor, Attorney General of Ontario;

Donald B. Bayne and Norman D. Boxall, for the intervenor, Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Fleming, Breen, Toronto, Ontario, for the appellant, Smith;

Donald C. Murray, Dartmouth, N.S., for the appellant, James;

Attorney General of Canada, Halifax, N.S., for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;

Bayne, Sellar, Boxall, Ottawa, Ontario, for the intervenor, Criminal Lawyers' Association (Ontario).

This appeal was heard on March 28, 2008, before Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On January 22, 2009, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Fish, J. (Binnie, LeBel, Abella, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 17;

Deschamps, J., partially concurring - see paragraphs 18 to 23.