Joint Reasons for Judgment — Martin, Kasirer, Jamal and O’Bonsawin JJ.
The appellant was convicted at trial before a provincial court judge of the offences of robbery and having his face masked with the intent to commit an indictable offence. The robbery was recorded on a security camera video and revealed two participants, both of whom had their faces fully masked, in a sequence that lasted about a minute. The sole issue at trial was the appellant’s identity.
The Crown’s case against the appellant hinged on the recognition evidence of C.S., a former gang associate of the appellant, who identified the appellant as a participant in the robbery. The trial judge found C.S.’s evidence to be both credible and reliable and found the appellant guilty. A majority of the Court of Appeal for Saskatchewan dismissed the appeal from conviction. Drennan J.A., in dissent, would have allowed the appeal and ordered a new trial (2024 SKCA 40, 436 C.C.C. (3d) 279). The appellant now appeals to this Court as of right on the question of whether the trial judge erred in law in assessing the evidence of the Crown’s unsavoury witness.
We would dismiss the appeal. We agree with Kalmakoff J.A., for the majority, that the trial judge’s reasons “amply demonstrate that she recognized the dangers of relying on C.S.’s evidence in a general sense and based on Vetrovec considerations” (para. 75, citing Vetrovec v. The Queen, [1982] 1 S.C.R. 811).
First, the trial judge did not view the evidence of C.S. as more worthy of belief on the basis that C.S. had no motive to falsely implicate the appellant. In our view, having self-instructed on the dangers associated with C.S.’s evidence and applied to it the requisite scrutiny, the trial judge was entitled to accept that evidence without corroboration because she was satisfied that it was true.
Second, the trial judge did not engage in circular reasoning by finding that the evidence of C.S. was more credible because it was consistent with the contents of the security camera video. The trial judge simply found that the evidence of C.S. provided contextual details based on his personal knowledge and experience of the appellant, which supported the truthfulness of his testimony. The trial judge was best positioned to make this credibility determination.
Lastly, we do not accept that the trial judge did not apply the requisite scrutiny to the reliability of C.S.’s recognition evidence. In our view, the trial judge understood and correctly applied the relevant legal principles bearing on reliability. Her factual determinations on reliability are entitled to deference, as Kalmakoff J.A. properly noted at para. 75 of his reasons.
Accordingly, we see no basis for appellate intervention and we would dismiss the appeal.
The following are the reasons delivered by
Rowe J. —
Dissenting Reasons — Rowe J.
As a matter of law, it is open to a trier of fact to convict based solely on the testimony of a Vetrovec witness; yet, a high degree of caution is warranted, given the inherent weaknesses of such evidence (Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at pp. 830-32; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 16-17; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 2, 11 and 47; R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 14; R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, at para. 12).
In this case, the only evidence linking the accused to the offence was the testimony of a Vetrovec witness. This witness, while in custody for an unrelated offence, identified the accused from a short surveillance video where two robbers were masked and their respective heights were indistinguishable. After identifying the accused from the video, the witness then told police that the accused had confessed to the robbery.
Such an alleged confession by an accused can feature in the testimony of a Vetrovec witness (R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 76); 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.
I agree with Justice Drennan (in dissent) that the conviction arose from a “failure to apply the requisite scrutiny” to the Vetrovec witness’s evidence (2024 SKCA 40, 436 C.C.C. (3d) 279, at para. 109). I would have allowed the appeal and ordered a new trial.
Cases cited
- 2024 SKCA 40 2024 SKCA 40 para 75, para 109 ¶ 2, ¶ 6, ¶ 11
- Vetrovec v. The Queen 16348, 16349-1982-05-31 pp 830-32 ¶ 3, ¶ 8, ¶ 9, ¶ 10, ¶ 11
- R. v. Kehler 2004 SCC 11 paras 16-17 ¶ 8
- R. v. Khela 2009 SCC 4 paras 2 ¶ 8
- R. v. Smith 2009 SCC 5 para 14 ¶ 8
- R. v. Hurley 2010 SCC 18 para 12 ¶ 8
- R. v. Sauvé 182 C.C.C. (3d) 321 para 76 ¶ 10