WHAT IS A VETROVEC WARNING?

A Vetrovec warning is a warning provided to a jury about “relying on the informer’s unsupported testimony”[1]. These “clear and sharp warning[s]”[2] are given to the jury to alert them to the risk of relying on the evidence of an “unreliable witness”[3]. Whether to issue a Vetrovec warning and its contents are often decided by the trial judge, but in certain cases, there is a legal mandate for a strong Vetrovec warning[4], notably where the “unreliable informants’ ‘ have disreputable or extensive criminal records [5]. In determining if the warning is required by law, the court will weigh the reasons suggesting that the witness in question may be untruthful and how important their testimony is to the prosecution’s case[6]. Where the witness appears so unreliable or so basic to the case that they would run a “clear risk of producing an erroneous conviction” then judges must provide a Vetrovec warning to the jury[7] to bring to the “attention of the jurors the risk of adopting, without more, the evidence of the witness[8]”, advising them to not decide on the basis of the questionable witness’ statements without “independent evidence tending to show that [the[ testimony. . . is true[9] .”

The content of the warning is to include the characteristics of the witness that bring their credibility as a witness into question, reasons why their evidence is suspect, and that they should look for independent evidence that supports the truth of the impugned testimony[10] .

JAILHOUSE INFORMANTS

Jailhouse informants or jailhouse snitches are ones who “(a) allegedly receive one or more statements from an accused, (b) while both are in custody, (c) where the statements relate to offences that occurred outside of the custodial institution[11].” Without any legislative or common law basis to disqualify their testimony, the courts attempt to deal with reliability issues coming from these informants through Vetrovec warnings to the jury[12] .

Vetrovec warnings are frequently issues regarding jailhouse informants because “improper use of in-custody informers has been a contributing factor in several high-profile wrongful convictions.[13]” These informants have been called “totally unreliable witnesses[14]”, predisposed “by character and psychological makeup, to lie” and “motivated by self-interest and unconstrained by morality, they were as likely to lie as to tell the truth[15].”

It is due to these factors that Vetrovec warnings are commonly issued with these questionable testimonies, reminding the jury of the dangers of relying on said testimonies without further independent evidence to support it [16]. However, the decision to issue such a warning or not still lies within the discretion of the trial judge, factoring the credibility of the witness and the importance of the questionable testimony to the Crown’s case [17].

The title of “jailhouse informant” is not what generates such a strong need for a potential Vetrovec warning, but rather “the existence of a number of factors that can affect the credibility of the particular witness [18]”, requiring them where the jailhouse informant testimony suffers serious credibility problems [19].

In a Vetrovec warning, the judge will advise the jury to not rely on the questionable testimony unless it is “accompanied by a reference to the evidence capable of providing independent confirmation of the unsavory witness’s testimony [20]. In Ontario, there are further In-Custody Informer requirements, requiring a “stringent screening process and vetting process” to use an in-custody informant. This requires the Crown to provide an analysis showing the proposed witness’s reliability (as prescribed by the “In-Custody Informer Policy” as well as “public interest factors weighing for and against the use of the . . . testimony” to the In-Custody Informer Committee [21].

CONCLUSION:

A Vetrovec warning informs a jury of the risk of relying on the testimony of a questionable witness. They draw the jury’s attention to the questionable testimony, explain why it is questionable, caution the jury on the risks of relying on said evidence, and tell the jury that, in determining the validity of the questionable testimony, they should look for external confirmatory evidence [22].

Jailhouse informants are a witness who allegedly receive statements from the accused while in custody regarding offences occurring outside of custody. They are frequently accompanied by Vetrovec warnings due to factors that bring their credibility into question. These include self-motivation, disposition for dishonesty, and the difficulty in disproving these testimonies that are easy to allege.

In Ontario, there are requirements to get an in-custody informant approved. The Crown must provide an analysis to the In-Custody Informer Committee outlining the informant’s reliability, as well as public interest factors weighing for and against the admission of the evidence.

Credit

This piece was written originally by Dilan Brar. Currently, Dilan Brar is a second-year law student at the University of Toronto.

Citations []

• 1 Public Prosecution Service of Canada, The Path to Justice: Preventing Wrongful Convictions, (13 September 2011), online: Public Prosecution Service of Canada
• 2 R v Vetrovec, 1982 1 SCR 811, 1982 SCC 4 (CanLII) at 831.
• 3 Allison MacIsaac, Judicial Caution: Vetrovec warnings & the Adduction of New Evidence in R. v. Hurley, (19 May 2010), online: The Court.
• 4 Lisa Dufraimont, “Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions (2008) 22:2 Queen’s LJ at 276.
• 5 E.g., R v Bevan, [1993] 2 SCR 599.
• 6 Supra note 4.
• 7 Ibid citing R v Brooks [2000] 1 SCR 237 at para 130.
• 8 Supra note 2.
• 9 National Judicial Institute, “11.23 Crown Witnesses of Unsavoury Character (Vetrovec Warning)” (April 2016), online: National Judicial Institute . Also see R v Khela [2009] 1 SCR 104 for the SCC’s proposed framework for Vetrovec warnings.
• 10 Ibid.
• 11 Canada, In-Custody Informers, Report of the Working Group on the Prevention of Miscarriages of Justice (07 January 2015), online: Government of Canada.
• 12 Supra note 1.
• 13 Supra note 11.
• 14 Morin Inquiry, p 556.
• 15 Ibid.
• 16 Supra note 9.
• 17 Supra note 11.
• 18 Ibid.
• 19 R v Baltrusaitis (2002), 58 O.R. (3d) 161; 2002 CanlII 36400 (ON CA).
• 20 R v Brooks (2000) 1SCR 237.
• 21 Supra note 11.
• 22 R v Khela [2009] 1 SCR 104