SUPREME COURT OF CANADA
Vetrovec v. The Queen, [1982] 1 S.C.R. 811
Date: 1982-05-31
Joseph Vetrovec Appellant;
and
Her Majesty The Queen Respondent.
and
Joseph Gaja Appellant;
and
Her Majesty The Queen Respondent.
File Nos.: 16348 and 16349.
1981: May 20; 1982: May 31.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Evidence — Corroboration — Accomplices — Charge to jury — Whether or not trial judge required by law to instruct jury as to danger of unconfirmed testimony of an accomplice — Whether or not trial judge to define corroboration and analyse evidence in that regard.
The appellants were convicted with conspiracy to traffic in heroin. The only question before this Court relates to the rule of law, long recognized in this Court, requiring a trial judge to warn the jury that it is dangerous to find a conviction on the evidence of an accomplice unless that evidence is corroborated in a material particular implicating the accused. The trial judge so instructed the jury, but the appellants object to the judge's comments on those pieces of evidence which were capable of corroborative effect.
Held: These appeals should be dismissed.
This Court has in the past declared its willingness to depart from its own prior decisions as well as decisions of the Privy Council and House of Lords. The present case is an appropriate occasion to exercise this direction. The law of corroboration is unnecessarily complex and technical.
There is no special category for "accomplices". The testimony of some accomplices may be untrustworthy, but this can also be said of many other categories of witnesses. There is nothing inherent in the evidence of an accomplice which automatically renders it untrustworthy. To construct a universal rule singling out accomplices is to fasten upon this branch of the law a
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blind and empty formalism. Rather than attempting to pigeon-hole a witness into the accomplice category, the trial judge should direct his mind to all factors which might impair the worth of a witness, and if, in his judgment, the credit of the witness is such that the jury should be cautioned, the trial judge may then issue a clear and sharp warning to attract the jury's attention to the risks of adopting, without more, the evidence of the witness.
The fact that some of the corroboration evidence in this case did not directly relate to overt acts testified to by the accomplice is irrelevant. Such evidence is capable of inducing a rational belief that the accomplice was telling the truth. The trial judge's instruction to the jury therefore did not prejudice the appellants.
Director of Public Prosecutions v. Hester, [1972] 3 All E.R. 1056; Warkentin et al. v. The Queen, [1977] 2 S.C.R. 355; Murphy and Butt v. The Queen, [1977] 2 S.C.R. 603, considered; R. v. Baskerville, [1916] 2 K.B. 658; Kirsch et al. v. The Queen, [1981] 1 S.C.R. 440; R. v. McNamara et al. (1981), 56 C.C.C. (2d) 193; Director of Public Prosecutions v. Kilbourne, [1973] 1 All E.R. 440; Davies v. Director of Public Prosecutions, [1954] I All E.R. 507; R. v. Farler (1837), 8 Car. & P. 106; R. v. Mullins (1848), 3 Cox C.C. 526; Trial of William Davidson and Richard Tidd for High Treason (1820), 33 How. St. Tr. 1338; R. v. Kelso (1953), 105 C.C.C. 305; Director of Public Prosecutions v. Boardman, [1975] A.C. 421; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; A.V.G. Management Science Ltd. v. Barwell Developments Ltd., [1979] 2 S.C.R. 43; R. v. Bullyment (1979), 46 C.C.C. (2d) 429, referred to.
APPEALS from a judgment of the British Columbia Court of Appeal (1980), 58 C.C.C. 537, dismissing appeals from convictions at trial by McKay J. Appeals dismissed.
H. A. D. Oliver and Randy Walker, for the appellant Vetrovec.
R. J. Allan, for the appellant Gaja.
L. Harris McDonald, Q.C., for the respondent.
The judgment of the Court was delivered by
DICKSON J.—The appellants were charged, with seven others, with conspiracy to traffic in
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heroin between September 1, 1974 and May 26, 1976 at the City of Vancouver and elsewhere in Canada. After a long and complicated trial lasting over one hundred days, and a charge to the jury which lasted six days, both accused were convicted. Vetrovec was sentenced to 16 years imprisonment, Gaja to life imprisonment. Appeals to the British Columbia Court of Appeal were dismissed.
The only question before this Court relates to the correctness of the trial judge's charge to the jury on the issue of corroboration. The issue arises in connection with the testimony of one Langvand, an accomplice who testified on behalf of the Crown. The trial judge summarized Langvand's evidence as follows:
I will now deal with the evidence of Langvand. His evidence relates solely to count number two. His evidence does not purport to implicate Jasicek, Padaras, Starostik and Kotrbaty. His evidence, if accepted, may implicate Vetrovec and Gaja. It is Langvand's evidence that he was asked by Emil Cernansky, an unindicted co-conspirator in count number two, to act as a courier in the transporting of one to one and a half pounds of heroin from Hong Kong for a consideration of $15,000. He says that he went to Hong Kong on May 11, 1975, with $4,000, given to him by Cernansky. He says that he was met by the accused Vetrovec whom he had never previously met. That he gave the $4,000 to Vetrovec; that Vetrovec instructed him to buy a suit in a large size. That on May 16, 1975, Vetrovec and Gaja strapped six pounds of heroin on him. That he, with the assistance of Vetrovec, Cernansky and Sarkozi and Gaja, managed to smuggle the heroin into the United States and then into Canada. That he gave one of the three packages to Vetrovec and later gave the other two to Cernansky and Gaja, and that he was later paid $10,200 by Cernansky for his efforts.
The trial judge instructed the jury that, while they could convict on the testimony of an accomplice, it was dangerous to do so unless this testimony was corroborated. He charged the jury on the meaning of corroboration in accordance with the judgment of Lord Reading in R. v. Baskerville, [1916] 2 K.B. 658. He also advised them that "the only rational conclusion that you can come to is that Langvand must be treated as an accomplice".
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There is no objection taken to these portions of his charge.
The objection of the appellants is to the trial judge's comments on those pieces of evidence which are capable of having corroborative effect. The trial judge stated that a number of items of evidence which were seized in Vetrovec's apartment on May 26, 1976 could corroborate Langvand's testimony. The relevant passage is as follows:
Is there any evidence which is capable of being considered by you as corroborative of the evidence of Langvand insofar as his evidence may implicate Vetrovec? Yes, there is. There is, first, the Canadian passport in the name of Joseph Vetrovec, which shows an entry into Hong Kong on February 9th, 1976, and an exit on February 13, 1976. It also shows that it was issued by the Canadian Embassy in Paris on October 9th, 1975, which means there is no record of passport usage prior to that date.
There is, next, one half of a $10.00 U.S. bank note found in his possession.
When you are determining whether you accept that evidence and whether you will treat it as corroborative, you will, of course, keep in mind the remarks of counsel with respect to that bank note: That it was found with other American money that was in American funds and was not the $2.00 Canadian bill that had been earlier described.
There is, next, the money found in what appears to be Mrs. Vetrovec's purse; one envelope containing nine one thousand dollar bills and another envelope containing $5,640. Also found in the apartment was $6,000 in travellers' cheques; some in the name of Mrs. Vetrovec and some in the name of Joseph Vetrovec. Also found was a brown paper bag containing $2,000 in $100 bills. This, I believe, was—my recollection is it was found under the sink.
Also found in his safety deposit box was cash in the amount of $58,850.
There are the custom declarations showing that Vetrovec, Gaja, Cernansky, Sarkozi and Langvand all arrived in Honolulu on Air Siam flight 908 on May 16, 1975.
You will, of course, in determining whether to accept such evidence as corroborative keep in mind the submissions of Vetrovec's counsel.
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With respect to the appellant Gaja, the trial judge stated that conversations between the appellant and one Soave, a police undercover officer, were capable of having corroborative effect.
There is the evidence of Corporal Soave that he met Gaja at the Prague Restaurant late in the evening of April 28, 1976. The restaurant was closed. Janda and Soave sat with Gaja. Gaja said that Jasicek, although a nice fellow, did not have Gaja's power. According to Soave, Gaja indicated that although Soave did not know it, he, Gaja, had been involved in negotiations for the sale of one pound of brown heroin to Soave some weeks earlier and that Jasicek had been the middle man. According to Soave, Gaja said that night in question Jasicek came to him about the sale of one pound of heroin to Soave and that Jasicek wanted an answer in half an hour. Gaja said that he could not give an answer in that short a time and, further, he told Jasicek that the price for one pound would be $35,000. According to Soave, he then asked Gaja if he was still interested in doing business and Gaja said; "Of course, but I leave tomorrow". They agreed to meet the following day. That evidence, if accepted by you, is capable of being corroborative with respect to Gaja.
The trial judge also held that certain items of evidence seized from Gaja's apartment could corroborate Langvand's testimony.
There is the passport of Gaja showing entry into Hong Kong on May 11, '75, and an exit on May 16, '75. An entry on February 9, '76, and an exit on February 14, '76. It is to be noted that the May 11, '75, May 16, '75, visit to Hong Kong coincides with the dates given by Langvand.
There is the evidence of $7,600 in cash seized at his apartment. There is the set of scales, the tin of lactose, and the package of balloons found on the premises of Gaja. There are the customs declarations showing that Gaja, Vetrovec, Cernansky, Sarkozi and Langvand all arrived in Honolulu on Air Siam on flight 908 on May 16, '75.
The objection of the appellants is framed in the following manner. The testimony of Langvand, the accomplice, related to a trip to Hong Kong for the purpose of importing heroin between May 11 and May 16, 1975. None of the evidence outlined by the trial judge, with the exception of the customs declarations and Gaja's passport, relates directly to this specific trip. It tends to connect the appellants
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with drug trafficking generally, but not necessarily with the trip described by Langvand. Therefore, according to the appellants, it cannot be regarded as corroborative. It does not relate to the 'overt act' testified to by Langvand. Putting the objection another way, the supporting evidence is said to be 'too remote' to have corroborative effect.
The majority of the Court of Appeal rejected these arguments. Mr. Justice Seaton, speaking for himself and Mr. Justice Taggart, stated that the evidence was corroborative because it tended to connect the accused with the crime charged. It was not necessary, in his view, that the supporting testimony relate directly to the 'overt act' described by the accomplice in his evidence. Mr. Justice Anderson agreed that the appeal of Gaja should be dismissed, but he would have ordered a new trial for the appellant Vetrovec. In his opinion, the only evidence capable of directly corroborating Langvand's evidence regarding Vetrovec was the customs declaration filed on May 16, 1975. The rest of the evidence was 'too remote' and not directly connected with the events described by Langvand. In his opinion, the trial judge had erred in leaving this evidence to the jury on the question of corroboration.
Let me say at the outset that I agree with the majority of the Court of Appeal that both appeals should be dismissed.
Before elaborating, however, I would like to review and reassess general principles relating to the law of corroboration of accomplices. This is one of the most complicated and technical areas of the law of evidence. It is also in need of reform. Both the Law Reform Commission of Canada (Report on Evidence, s. 88(b) of the proposed Code) and the English Criminal Law Revision Committee (11th Report on Evidence 1972, Cmnd 4991, paras 183-85) have recently recommended a drastic overhaul of the law of corroboration. The Evidence Code proposed by the Law Reform Commission of Canada would contain the following provision:
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88. For greater certainty it is hereby provided that
a) ...
b) every rule of law that requires the corroboration of evidence as a basis for a conviction or that requires that the jury be warned of the danger of convicting on the basis of uncorroborated evidence is abrogated.
Professor Heydon states that "it is at least difficult to deny that the current English law on accomplice evidence has become both too wide and too narrow for the mischief it is attempting to control. It is too wide in applying to accomplices who are in fact trustworthy; it is too narrow in applying only to participants in exactly the same crime as that charged against the accused" (The Corroboration of Accomplices, [1973] Crim. L.R. 264, at p. 281). Professor Wakeling questions the necessity for the rules and wonders whether "the rules will impede justice as often as promote it" (Corroboration in Canadian Law (1977), at p. 103) although she favours a non-discretionary warning with respect to accomplice evidence (ibid., at pp. 112-13).
As Professor Schiff has noted, Evidence in the Litigation Process (1978), vol. 1, at p. 607, common law doctrine in Canada and England requiring a special jury instruction for certain categories of witnesses has little counterpart in the United States. The trial judge has a discretion, whether to give, or not give, an accomplice/corroboration warning. Judges are not bound to give the warning in every trial where an accomplice has testified for the prosecution. "Indeed," says Professor Schiff, "corroboration doctrine has been of so little relative importance in American evidence law that the term is not mentioned in either edition of Professor McCormick's book concerning the testimony of any category of witness, and the term is not mentioned at all in the Model Code, the Uniform Rules of Evidence or the Federal Rules of Evidence" (at pp. 607-08).
In the case of a jury charge in which a witness who might be regarded as an accomplice testifies,
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it has become not merely a rule of practice but a rule of law for the trial judge to warn the jury that it is dangerous to found a conviction on the evidence of an accomplice unless that evidence is corroborated in a material particular implicating the accused. The jury may convict in such circumstances but it is dangerous to do so. The judge must determine as a matter of law whether the witness might be an accomplice for the purposes of the rule. The jury must then decide whether he is in fact an accomplice. The judge explains the legal definition of "corroboration" with heavy reliance upon what was said by Lord Reading in R. v. Baskerville, supra. The judge lists for the jury the pieces of evidence which are in his view capable of amounting to corroboration. Finally, they are told that it is for the jury to decide whether the evidence to which their attention has been directed does amount to corroboration. As the study paper of the Law Reform Commission of Canada Evidence II. Corroboration dryly observes at p. 7 an "enormous superstructure ... has been erected on the original basic proposition that the evidence of some witnesses should be approached with caution".
The accused is in the unhappy position of hearing the judge draw particular attention to the evidence which tends to confirm the testimony the accomplice has given. Cogent prejudicial testimony is thus repeated and high-lighted. For the jury this part of the charge can only be, in the words of Lord Diplock in Director of Public Prosecutions v. Hester, [1972] 3 All E.R. 1056, at p. 1075, "a frequent source of bewilderment". The task of a trial judge seeking to identify the evidence capable of amounting to corroboration is unenviable. Lord Reading in the Baskerville case said that it would be in high degree dangerous to attempt to formulate the kind of evidence which could be regarded as corroboration. It is also often a difficult and dangerous exercise identifying what pieces of evidence are capable of being corroborative. To take a simple example. In a rape case, to what degree must the appearance of the complainant be dishevelled, or a garment torn, in order to constitute evidence capable of amounting to corroboration as to non-consent?
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Two circumstances in particular make it appropriate, as it seems to me, to pause and reassess the law as it affects corroboration, with particular reference to accomplice evidence. The first such circumstance is the increasing length and complexity of criminal trials, particularly in cases of so-called "white collar" crime. I think of the case of Kirsch et al. v. The Queen, [1981] 1 S.C.R. 440, which came to the Court recently. After a trial extending over some weeks and a guilty verdict, the whole process started afresh after this Court found that the Crown prosecutor was in error in telling the jury that two pieces of evidence were capable of corroborative effect and the trial judge had failed to correct the error. I think of the case of R. v. McNamara et al. (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), another trial that extended over months. At the end, the trial judge charged the jury that there were some forty-two pieces of evidence, each of which the judge referred to, as being capable of corroborating certain accomplice testimony. I think of the instant case and the task facing the trial judge in sifting through over nine thousand pages of transcript in a search for evidence capable of corroborative effect.
The second circumstance is the apparent trend in the English Courts to cast aside the technical impedimenta with which the idea of corroboration has increasingly been loaded and return to the conceptual basics. I refer in particular to Director of Public Prosecutions v. Hester, supra, and Director of Public Prosecutions v. Kilbourne, [1973] 1 All E.R. 440 (H.L.). The House of Lords has never specifically approved the definition of corroboration set out in Baskerville. The same antipathy to the detailed Baskerville doctrine can be discerned in two recent cases in this Court, Warkentin et al. v. The Queen, [1977] 2 S.C.R. 355 and Murphy and Butt v. The Queen, [1977] 2 S.C.R. 603.
I
The common law, rejecting the 'numerical criterion' common to some legal systems, has traditionally held that the testimony of a single witness is a sufficient basis for a criminal conviction. The general rule applied equally in the case of
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accomplices: where the testimony of an accomplice was admissible, it could justify a verdict of guilty. But while the common law (after some initial doubts) recognized an accomplice as a competent witness, it continued to harbour some suspicions as to the trustworthiness of his testimony. There appeared to be something unsavoury about a self-confessed knave, often for reward, accusing his companions in crime. Thus the practice arose in the 18th century of warning the jury that, while they might legally convict on the basis of the testimony of an accomplice, it would be dangerous to do so unless the testimony were supported or 'corroborated' by other unimpeachable evidence. This warning was for many years a matter for the discretion of the trial judge but in 1916, the English Court of Criminal Appeal declared that the practice had become "virtually equivalent to a rule of law" (R. v. Baskerville, supra, at p. 663). The Court also took the opportunity, at p. 667, to state that 'corroboration' had a precise legal meaning:
We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.
As Lord Diplock observed in Director of Public Prosecutions v. Hester, supra, at p. 1075, there are several formulae in the Baskerville judgment, of which the above is one.
Since Baskerville, a failure to instruct the jury in accordance with Lord Reading's exegesis will usually result in a conviction being overturned. (See Davies v. Director of Public Prosecutions, [1954] 1 All E.R. 507 (H.L.))
In evaluating the adequacy of the law in this) area, the first question which must be answered is a basic one: why have a special rule for accomplices at all? Credibility of witnesses and the weight of the evidence is, in general, a matter for the trier of fact. Identification evidence, for example, is notoriously weak, and yet the trial judge is not automatically required, as a matter of law, to
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instruct the jury on this point. Similarly, the trial judge is not required in all cases to warn the jury with respect to testimony of other witnesses with disreputable and untrustworthy backgrounds. Why, then, should we automatically require a warning when an accomplice takes the stand?
There are a number of oft-repeated justifications. Wigmore thought the main reason for the rule was that an accomplice may try to save himself from punishment by procuring the conviction of others. As Lord Adinger said in R. v. Farler (1837), 8 Car. & P. 106, at p. 108: "The danger is, that when a man is fixed, and knows that his own guilt is detected, he purchases impunity by falsely accusing others". The risk, then, is that the prosecuting authorities might promise immunity for the accomplice if he agrees to testify against his partners in crime, and this promise might in turn induce perjury.
Wigmore was not much impressed with the soundness of this rationale. As he noted, the promise of clemency is not invariably made. It may be that an accomplice is testifying knowing full well that he in turn will face prosecution for his role in the crime. In these cases, the essential cause for mistrust disappears. Further, Wigmore argued that the influence of the promise of immunity must depend on the nature of the charge and the personality of the accomplice. Even in cases where a promise of immunity is offered, it should not always be assumed that the accomplice cannot be trusted. "[C]redibility is a matter of elusive variety," Wigmore said, "and it is impossible and anachronistic to determine in advance that, with or without promise, a given man's story must be distrusted" (vol. VII, para. 2057, at p. 417).
The prospect of an accomplice purchasing immunity through falsely accusing others is not the only danger traditionally associated with accomplice evidence. It has also been suggested that an accomplice cannot be trusted because he will want to suggest his innocence or minor participation in the crime and to transfer the blame to
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the shoulders of others. But again, if we examine this rationale more closely, we see that it cannot be the foundation for a general rule regarding all accomplices. Some accomplices do indeed attempt to minimize their involvement in the crime; but experience has shown this is not always the case. Logically, where an accomplice openly acknowledges his participation, there should be no need for a warning. Further, even when the accomplice claims that he played a minor role in the crime, this version of the events may be admitted by the accused. Where the part played by the accomplice is common ground, there seems little risk that the accomplice is deliberately fabricating his own participation in order to play up the guilt of others. In short, this second reason cannot support a rule affecting all accomplices: credibility will vary with the facts of the particular case.
It is also said that an accomplice may falsely accuse others in order to protect his friends. As one judge put it: "It often happens that an accomplice is a friend of those who committed the crime with him, and he would much rather get them out of the scrape and fix an innocent man than his real associates" (Maule J. in R. v. Mullins (1848), 3 Cox C.C. 526, at p. 531). While this may occasionally be a danger, it can hardly be said to be generally true of all accomplices. As Chief Baron Joy wrote in his treatise Evidence of Accomplices (Dublin, 1836), at p. 14:
But friendship is not the bond which unites associates in crime; and the accomplice who avows his own guilt, will not feel much disposition to conceal that of his associate: at least he will not incur any risk on his account. In my experience I have ever found it so; the utmost favor that I have ever known an accomplice to show to any of his companions having been to assign to him a less prominent part in the transaction, and to make him comparatively better, by making him less active, than the others. These considerations have, with me at least, great weight; and therefore, though I by no means say the case is impossible, I will venture to assert that it much more rarely happens that an accomplice accuses an innocent man through malice, than that an unimpeachable witness accuses an innocent man through mistake.
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Finally, it has been suggested that an accomplice is not to be believed since he is a self-confessed criminal and is 'morally guilty'. This argument is easily rejected. First, we accept the testimony of other criminals without automatically requiring a warning as to their credit. Second, the 'moral guilt' of an accomplice must vary with the nature of the crime involved. One who is guilty of an assault may be thought to be more trustworthy than an incorrigible counterfeiter. Yet the present law makes no distinction between them. Once a witness is classified as an accomplice, his testimony is automatically regarded as suspect.
None of these arguments can justify a fixed and invariable rule regarding all accomplices. All that can be established is that the testimony of some accomplices may be untrustworthy. But this can be said of many other categories of witness. There is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy. To construct a universal rule singling out accomplices, then, is to fasten upon this branch of the law of evidence a blind and empty formalism. Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an 'accomplice' no warning is necessary.
The "common sense" approach was originally followed in England. In Trial of William Davidson and Richard Tidd for High Treason (1820), 33 How. St. Tr. 1338 Baron Garrow instructed the jury as follows, at p. 1483:
... you are to look to the circumstances, to see whether there are such a number of important facts confirmed as to give you reason to be persuaded that the main body of the story is correct; ... you are, each of you, to ask yourselves this question ... Do I, upon the whole, feel
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convinced in my conscience, that this evidence is true, and such as I may safely act upon?
This common sense approach to the matter was eventually discarded, however, in favour of the more technical view of Lord Reading in Baskerville. Corroboration became a certain sort of evidence, namely, evidence "which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it". "On this point little can be said save that it forms part of a conflict running through so much of the law of evidence between discretionary rules sensibly applied and rigid rules which though they may cause difficulties because of inflexibility at least constitute a bulwark against incompetence or prosecution-mindedness" (Heydon, supra, at p. 281).
There are at least three difficulties associated with the Baskerville definition. The first is that it tends to obscure and, indeed, confuse the reason behind the 'accomplice warning'. As noted, the reason for the warning is that the accomplice is potentially untrustworthy, and we therefore desire other evidence which will accredit his testimony. After Baskerville courts began to frame the issue in terms of whether the corroborative evidence conformed to Lord Reading's definition, and ignored the real issue, whether there was evidence that bolstered the credibility of the accomplice. The result was, in effect, that in due course 'corroboration' became virtually divorced from the issue of the credibility of the accomplice. Evidence which strengthened credibility was at the same time characterized as not corroborative 'in law'. Corroboration became a legal term of art, wholly unconnected with the original reason for the accomplice warning.
The second difficulty associated with Baskerville is related to the first. Once it is decided that corroboration is a legal term of art, the law in the area becomes increasingly complex and technical. It immediately becomes necessary for the trial
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judge to define for the jury the legal meaning of corroboration. Moreover, the issue of whether there is any evidence which may be corroborative, according to that definition, becomes a matter of law. The trial judge must therefore examine the evidence to determine that question. The next step is to require the trial judge to specify for the jury those items of evidence which, in his opinion, may be corroborative. The reason advanced for this is explained by Laidlaw J.A. in R. v. Kelso (1953), 105 C.C.C. 305 (Ont. C.A.), at p. 308:
When the learned trial Judges [sic] decides as a matter of law that there is evidence of a corroborative character that can be accepted by a jury, he knows the evidence upon which he has made his decision. Why should he not assist the jury by directing their attention to the evidence and thus enable them to proceed in their deliberations in a properly-guided way? Having particular regard to that fact, why should the jury be left to search at large through the evidence to discover, if they can, that part or parts of it which is or are known to the learned trial Judge? The danger of their finding what they should not find and the peril arising from such an error of convicting an innocent person is so great that, in my opinion, it cannot be said that the accused has had a satisfactory or fair trial when the case is left to the jury in that way. If the learned trial Judge is silent as to the evidence which in his opinion is of a corroborative character, the accused and his counsel are in effect deprived of the right to object to the decision of the learned trial Judge on a point of law. Moreover, a convicted person and his counsel are left in doubt as to whether the jury properly applied the principles of law and accepted only that piece or those pieces of the evidence that might properly be regarded as corroboration. Thus, neither counsel nor this Court can say whether a verdict of guilty is good or bad in law.
Since the judge's instructions on this issue involve questions of law, numerous technical appeals are taken on the issue of whether a particular item of evidence is 'capable' of constituting corroboration. The body of case law is so complex that it has in turn produced a massive periodical literature (see bibliography in Wakeling, Corroboration in Canadian Law (1977), at pp. 149-51). Moreover, the cases are difficult to reconcile. The Law Reform Commission of Canada has described the case law in the area as full of "subtleties,
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variations, inconsistencies, and great complexities" (Study Paper 11, supra, at p. 7). The result is that what was originally a simple, common sense proposition — an accomplice's testimony should be viewed with caution — becomes transformed into a difficult and highly technical area of law. Whether this "enormous superstructure" (to use the description of the Law Reform Commission) has any meaningful relationship with the task performed by the jury is unknown.
The third and perhaps most serious difficulty associated with the Baskerville definition is that the definition itself seems unsound in principle. Prior to the judgment of Lord Reading, there had been controversy over whether corroborative evidence must implicate the accused, or whether it was sufficient if it simply strengthened the credibility of the accomplice. Lord Reading settled the controversy in favour of the former view.
With great respect, on principle Lord Reading's approach seems perhaps over-cautious. The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. This is because, as Wigmore said, the matter of credibility is an entire thing, not a separable one:
. . whatever restores our trust in him personally restores it as a whole; if we find that he is desiring and intending to tell a true story, we shall believe one part of his story as well as another; whenever, then, by any means, that trust is restored, our object is accomplished, and it cannot matter whether the efficient circumstance related to the accused's identity or to any other matter. The important thing is, not how our trust is restored, but whether it is restored at all [Vol. VII, para. 2059, at p. 424].
The point can be illustrated with the following simple example. The accomplice, "A", testifies against the accused "B" and "C". There is evidence implicating "B" in the crime, but no evidence implicating "C". Nevertheless, since the
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supporting evidence relates to a vital issue in the case (the guilt of one of the accused) it bolsters the credibility of "A" and increases the probability that he is telling the truth. We therefore believe his story and convict both "B" and "C".
Such a situation arose in Murphy and Butt v. The Queen, supra. The complainant alleged that she had been raped by the two appellants. Murphy admitted intercourse but alleged that it was with the complainant's consent, while Butt denied intercourse altogether. The principal issue was whether the complainant's distraught condition was corroboration of her testimony against Butt as well as against Murphy. The difficulty was that in and of itself, the hysterical condition merely tended to rebut the suggestion of intercourse with consent. This implicated the accused Murphy, who had admitted intercourse but alleged consent. But considered in isolation, the hysterical condition did not directly implicate the accused Butt, who denied intercourse altogether. How then, could the hysterical condition corroborate the complainant's testimony as against Butt?
The majority of the Court emphasized that what was required was confirmation of a material particular of the evidence of the complainant. Once such confirmation was supplied, her testimony was rendered credible as a whole. Mr. Justice Spence, speaking for the majority, put the matter in this way at p. 615:
It is a material particular of that evidence which must be corroborated. There is no requirement that the whole of her evidence be corroborated. Were that the requirement, there would be no need for even the evidence of the complainant. The so-called corroborative evidence would be sufficient for a conviction.
Mr. Justice Spence did not contend that the corroborative evidence implicated the accused Butt. Rather, in a carefully worded conclusion, Spence J. noted at p. 616 that the corroborative evidence confirmed the complainant's story implicating each of the accused:
It is all of that evidence plus the complainant's distraught condition upon which the Crown relies as corroboration of not only Murphy's but Butt's rape of the
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complainant. The jury were entitled to consider all of that evidence and to come to the conclusion that that evidence with its rather unusual outline of events does corroborate the evidence of the complainant. It was that evidence which the learned trial judge left to the jury as evidence which they might find corroborative of the complainant's testimony.
In my view, the learned trial judge was correct in his conclusion that that evidence was capable of corroborating the complainant's story implicating each of the accused. [Emphasis added.)
Mr. Justice Spence's approach was to look for evidence which confirmed the story of the complainant. Once the story was confirmed, the complainant could be believed and the accused convicted. Implicit in this approach, it seems to me, is a recognition of the inadequacy of the Baskerville definition of corroboration. Evidence implicating the accused is a possible but not a necessary element for corroboration. Here, even though there was no evidence implicating Butt, there was evidence confirming the story of the complainant and thus it was safe to convict. The important question, as Wigmore pointed out, is not how our trust is restored, but whether it is restored at all.
In my view, a return to the earlier common law approach, to the earlier "common sense" approach has already been foreshadowed in our law. In Warkentin et al. v. The Queen, supra, Mr. Justice de Grandpré spoke of corroboration in these terms, at p. 374:
Corroboration is not a word of art. It is a matter of common sense. In recent years, this Court has repeatedly refused to give a narrow legalistic reading of that word and to impose upon trial judges artificial restraints in their instructions to juries or to themselves.
Later, he observed at p. 377:
This treatment of corroboration as a matter of common sense, the purpose of which is to ensure that no conviction will be entered if there is a reasonable doubt as to the guilt, is not restricted to Canada. It is sufficient for my purpose to refer to two recent decisions of the
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House of Lords, namely Director of Public Prosecutions v. Hester, and Director of Public Prosecutions v. Kilbourne. From the holding of this last case, I extract two sentences:
The word "corroboration" had no special technical meaning; by itself it meant no more than evidence tending to confirm other evidence. No distinction could, therefore, be drawn between evidence which could be used as corroboration and evidence which might help the jury to determine the truth of the matter. [Emphasis added.]
It is, I think, unfortunate that the word "corroboration" ever became part of the legal lexicon. It is not a word of common parlance. When explained to juries it is given a technical definition, the exact content of which is still a matter giving rise to difference of opinion among jurists. As Lord Diplock observed in Director of Public Prosecutions v. Hester, supra, at p. 1071, the ordinary sense in which the verb "corroborate" is used in the English language is the equivalent of "confirmed" and, at p. 1073:
What is looked for under the common law rule is confirmation from some other source that the suspect witness is telling the truth in some part of his story which goes to show that the accused committed the offence with which he is charged.
With respect, I would adopt also this further language of Lord Diplock, at p. 1075:
My Lords, to incorporate in the summing-up a general disquisition on the law of corroboration in the sort of language used by lawyers, may make the summing-up immune to appeal on a point of law, but it is calculated to confuse a jury of laymen and, if it does not pass so far over their heads that when they reach the jury room they simply rely on their native common sense, may, I believe, as respects the weight to be attached to evidence requiring corroboration, have the contrary effect to a sensible warning couched in ordinary language directed to the facts of the particular case.
I agree with Lord Diplock that the nature of the summing up upon the concept of corroboration and the respective functions of judge and jury is likely to be unintelligible to the ordinary layman.
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In Director of Public Prosecutions v. Kilbourne, supra, Lord Hailsham of St. Marylebone L.C. spoke in like vein, at p. 447:
I agree with the opinions expressed in this House in Director of Public Prosecutions v. Hester that it is wrong for a judge to confuse the jury with a general if a learned disquisition on the law. His summing-up should be tailor-made to suit the circumstances of the particular case. The word 'corroboration' is not a technical term of art, but a dictionary word bearing its ordinary meaning; since it is slightly unusual in common speech the actual word need not be used, and in fact it may be better not to use it. Where it is used it needs to be explained.
As did Lord Reid at p. 456:
There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating the particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.
These words of Lord Reid were repeated with approval by Lord Hailsham in Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.).
This Court has in the past declared its willingness to depart from its own prior decisions as well as decisions of the Privy Council and the House of Lords (Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; A.V.G. Management Science Lid. v. Barwell Developments Ltd., [1979] 2 S.C.R. 43). The present case is an appropriate occasion to exercise this discretion. The law of corroboration is unduly and unnecessarily complex and technical.
I would hold that there is no special category for "accomplices". An accomplice is to be treated like any other witness testifying at a criminal trial and the judge's conduct, if he chooses to give his opinion, is governed by the general rules.
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I would only like to add one or two observations concerning the proper practice to be followed in the trial court where as a matter of common sense something in the nature of confirmatory evidence should be found before the finder of fact relies upon the evidence of a witness whose testimony occupies a central position in the purported demonstration of guilt and yet may be suspect by reason of the witness being an accomplice or complainant or of disreputable character. There are great advantages to be gained by simplifying the instruction to juries on the question as to when a prudent juror will seek some confirmation of the story of such a witness, before concluding that the story is true and adopting it in the process of finding guilt in the accused as charged. It does not, however, always follow that the presiding justice may always simply turn the jury loose upon the evidence without any assisting analysis as to whether or not a prudent finder of fact can find confirmation somewhere in the mass of evidence of the evidence of a witness. Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness. There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support. The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. This may entail some illustration from the evidence of the particular case of the type of evidence, documentary or testimonial, which might be drawn upon by the juror in confirmation of the witness' testimony or some important part thereof. I do not wish to be taken as saying that such illustration must be carried to exhaustion. However, there is, in some circumstances, particularly in lengthy trials, the need for helpful direction on the question of sifting the evidence where guilt or innocence might, and probably will turn on the acceptance or rejection, belief or disbelief, of the
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evidence of one or more witnesses. All of this applies equally in the case of an accomplice, or a disreputable witness of demonstrated moral lack, as for example a witness with a record of perjury. All this takes one back to the beginning and that is the search for the impossible: a rule which embodies and codifies common sense in the realm of the process of determining guilt or innocence of an accused on the basis of a record which includes evidence from potentially unreliable sources such as an accomplice.
I would point out that my comments have been limited to situations in which corroboration is required as a matter of common law. The Criminal Code specifies a number of instances in which corroboration is required, and defines the nature of the corroboration which must be supplied. (See, for example, ss. 139 and 195). The statutory requirements would, of course, be controlling in cases coming under any of those sections.
II
I return to the facts of the present case. In light of my earlier comments, it would have been sufficient for the trial judge simply to have instructed the jury that they should view the testimony of Langvand with great caution, and that it would be wise to look for other supporting evidence before convicting the appellants. However, since the trial judge outlined for the jury items of evidence he considered capable of corroborating Langvand's testimony, it is necessary to examine this evidence to ensure that the appellants were not prejudiced by the instruction. The question that must be kept in mind is: does this supporting evidence strengthen our belief that Langvand is telling the truth?
The answer to this question can only be in the affirmative. Langvand had testified as to a trip to Hong Kong in 1975 for the purpose of purchasing and importing heroin. The supporting evidence strongly implicated the accused in illegal drug trafficking. As Mr. Justice Seaton noted in the Court below, the supporting evidence against Gaja would, considered alone, have been sufficient to
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support his conviction on the charge. As for the appellant Vetrovec, the material found in his apartment all pointed to his participation in illegal drug trafficking (see the evidence on this point of Sgt. Domansky, at trial). The items of evidence were, to use the phrase of Mr. Justice Seaton, "badges of membership in this conspiracy". All of this incriminating evidence, when considered together, strongly strengthens the belief that Langvand was telling the truth regarding the participation of Vetrovec and Gaja. It rebuts any suggestion that he is falsely implicating innocent individuals. The fact that this supporting evidence does not directly relate to the other overt acts testified to by Langvand is irrelevant. The evidence is capable of inducing a rational belief that Langvand is telling the truth and is for that reason corroborative. It seems to me that the point was covered in R. v. Bullyment (1979), 46 C.C.C. (2d) 429 (Ont. C.A.), and in my view that case was correctly decided.
In the result, the instructions by the trial judge did not prejudice the appellants. The appeals should be dismissed.
Appeals dismissed.
Solicitors for the appellant Vetrovec: Oliver, Waldock, Richardson, Vancouver.
Solicitor for the appellant Gaja: Robert J. Allan, Vancouver.
Solicitor for the respondent: L. Harris McDonald, Vancouver.