



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kanagalingam, 2014 ONCA 727

DATE: 20141022

DOCKET: C54541

Laskin, Cronk and Blair
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nirmalarasan Kanagalingam

Appellant

Ian R. Smith and Amy Ohler, for the appellant

Tracy Kozlowski, for the respondent

Heard: June 18, 2014 and June 19, 2014

On appeal from the conviction entered on July 13, 2011
    and the sentence imposed on September 9, 2011 by Justice Myrna L. Lack of the Superior
    Court of Justice, sitting with a jury.

R.A. Blair J.A.:

Overview

[1]

The appellant and four other men were charged with a series of offences arising
    out of a fraudulent credit and debit card scheme.  The four other men pled
    guilty to various offences relating to the scheme, and did so based on agreed
    statements of fact that implicated the appellant in the criminal activities.

[2]

The appellant, on the other hand, pled not guilty.  After a 17-day jury
    trial, he was convicted of multiple counts of fraud, conspiracy to commit
    fraud, fraudulent use and possession of credit card data, and participating in
    the activities of a criminal organization involved in debit card fraud.  He was
    acquitted on a charge of directing others to commit an offence while being a
    member of a criminal organization.  The trial judge sentenced him to a total of
    6 years imprisonment and ordered him to pay restitution in the amount of
    $50,000.

[3]

At trial, the Crowns case rested primarily on the testimony of the
    former co-accused.  Inconveniently, however, each of them recanted portions of the
    agreed statements of fact upon which their earlier pleas had been based, as
    well as portions of other prior statements implicating the appellant.  In two
    cases the recanted statements were made during testimony given at the
    appellants preliminary inquiry.

[4]

Crown counsel accordingly applied to have the relevant portions of the agreed
    statements of fact and the other statements  including excerpts from the
    guilty pleas and preliminary inquiry transcripts  admitted into evidence for
    the truth of their contents, relying upon the principles set out in
R. v. B.
    (K.G.)
, [1993] 1 S.C.R. 740.  The trial judge admitted them and the jurors
    acceptance of their contents undoubtedly played a central role in their
    decision to convict.

[5]

The appellant contests both his conviction and sentence.  On the
    conviction appeal, his first major ground of appeal focuses on the admission of
    three of the agreed statements of fact.  The appellant argues that the former
    co-accuseds powerful motives to lie in order to obtain lenient sentences, the
    withdrawal of other charges and, in some cases, benefits to family members,
    undermined the threshold admissibility of the statements.  He submits that the
    trial judge erred in admitting them.

[6]

A second ground on the conviction appeal arises out of the
Vetrovec
warning
[1]
given by the trial judge to the jury cautioning them about the risks of relying
    on the evidence of the former co-accused who were all unsavoury witnesses.  The
    appellant submits the warning was inadequate.

[7]

For the reasons that follow, I would allow the appeal and order a new
    trial.  While I am not persuaded that the trial judge erred in admitting what I
    will refer to as the 
K.G.B.
statements, I agree with the appellant
    that the
Vetrovec
warning was inadequate to serve its intended purpose
    in the circumstances.  As a result, it is unnecessary to deal with the sentence
    appeal.

Facts

[8]

The details of the fraudulent conspiracy are not important.  In
    substance, it involved the theft of banking information from debit card PIN
    pads at various retail stores.  This was accomplished by co-opting a cashier at
    the targeted outlet, who would turn a blind eye while a member of the organization
    removed the PIN pad from the debit machine and replaced it with a decoy.  The
    PIN pad was then taken to another site and altered to enable the organization
    to steal data from subsequent uses of the PIN pad.  The original now-altered
    PIN pad would then be returned and reinstalled at the retail outlet.  A member
    of the organization would return to the store some days or weeks later to recover
    the data using a handheld electronic device such as a smartphone.  The stolen
    data was then used to produce counterfeit debit or credit cards that were, in
    turn, used to withdraw funds from the targeted accounts by way of automated
    teller machines (ATMs).

[9]

An attempted debit card fraud at a Sunoco gas station in Whitby 
    unsuccessful because the cashier tipped off the police  and successful frauds
    carried out at Guess Jeans retail stores in Woodbridge and at the Yorkdale Mall
    formed the basis for the charges against the appellant and his co-accused.  Those
    involved in the conspiracy netted proceeds of approximately half a million
    dollars.

[10]

For
    the following particulars I rely principally on the appellants recitation of
    the facts, which was accepted in substance by counsel for the Crown.

[11]

The
    appellant is alleged to have been the handyman in the organization, that is,
    the person responsible for the alteration of the PIN pads that enabled the data
    to be collected surreptitiously.

[12]

The
    co-accused who pled guilty played other roles.  While the details of the scheme
    are not important for purposes of the appeal, the particulars of the guilty
    pleas and the agreed statements of fact on which they were based are.

[13]

Kajenthiran
    Vijayakumar and Vigitharan Selvaraj participated in the attempted fraud at the
    Whitby Sunoco station.  Vijayakumars role was to recruit a cashier to
    participate in the endeavour.  He also worked generally as a runner for
    Selvaraj.  A runner picks up the counterfeit cards on which the stolen credit
    card or debit card data has been imprinted, takes them to an ATM, and uses them
    to withdraw money from the victims accounts.  Selvarajs role was to steal the
    PIN pad; he went to the Sunoco station on the night of the attempted fraud,
    switched the decoy pad for the real PIN pad, and returned the stolen pad to a
    hotel where he handed it over to a person he understood to be responsible for
    altering the pads.

[14]

Mithun
    Indrakumaran recruited the Guess Jeans cashier at the Yorkdale Mall.  He also
    delivered the PIN pad to another man, Arthick Antonito, who took it away for
    alteration and then returned it to Indrakumaran to have it exchanged for the
    decoy.  Aruncumar Ravindran recruited the cashier at the Guess Jeans store in
    Woodbridge.  He delivered stolen PIN pads to Antonito too.

[15]

Vijayakumar,
    Selvaraj, Indrakumaran and Ravindran each pled guilty based on agreed
    statements of fact prepared by their lawyers in consultation with each other.  Selvaraj,
    Indrakumaran and Ravindran confirmed the truth of those statements under oath
    at the time of their guilty pleas.  Vijayakumar gave an earlier videotaped
    statement to the police based on his agreed statement of fact, under oath and
    in the presence of his then counsel.  Indrakumaran and Ravindran testified at
    the appellants preliminary inquiry.

[16]

In
    each case, the statements implicated the appellant in the crimes.  Vijayakumar
    placed the appellant in the hotel room where the PIN pads were altered and the
    arrests were made.  Selvaraj said that he gave the stolen Sunoco PIN pad to the
    appellant whom he knew was the person responsible for altering the PIN pads,
    and that the members of the organization who worked under the appellant would
    act as runners.  Indrakumarans agreed statement of fact stated that he and
    Ravindran reported to the appellant, that he delivered stolen PIN pads to the
    appellant, that the appellant told them he was able to alter commercial credit
    and debit PIN pads electronically, and that monies collected from the frauds
    would be returned to the appellant.  At the preliminary inquiry, Indrakumaran
    described a meeting at a restaurant attended by Antonito (the man to whom the
    Guess Jeans PIN pads had been delivered), Ravindran, the appellant and himself,
    and said that the appellant was the person who gave out the codes to unlock the
    safes containing the counterfeit cards.  Ravindrans statements connected the
    appellant with Antonito as well.

[17]

At
    trial, however, the stories were different.

[18]

Vijayakumar
    denied the appellant was in the room at the hotel and refused to adopt other
    portions of his video statement implicating the appellant.  He said he lied to
    the police because his lawyer told him that the only way he would get a deal on
    sentencing was to say the appellant had been in the hotel room.

[19]

Selvaraj
    testified at trial that he did not know the name of the person to whom he had
    given the PIN pad.  The appellants name had been given to him later.  He
    explained that he had not reviewed the agreed statement of fact carefully
    before the plea, but just wanted to get out of jail (he had served 500 days of
    pre-trial custody).  His lawyer read him the facts and told him it had been
    created by Vijayakumars lawyer and that Vijayakumar was pleading guilty the
    same day to the same facts.  He thought that if he did not accept the facts his
    guilty plea would not proceed.

[20]

In
    spite of his detailed agreed statement of fact fingering the appellant,
    Indrakumaran testified at trial that he had never met the appellant, although
    he had seen him once at a Tim Hortons  but did not speak with him  when he
    had met with Antonito to pick up money after a run.  With respect to his preliminary
    inquiry evidence about a restaurant meeting with the appellant and others,
    Indrakumaran maintained his only encounter with the appellant was at the Tim
    Hortons.  Nor did he really know that the appellant was the person who gave
    out the codes to unlock the safes containing the counterfeit cards; he just
    assumed the person above Antonito in the organization did so. He was no longer
    sure that person was the appellant.

[21]

Indrakumaran
    also testified that he felt pressured to plead guilty.  His brother had been
    charged with obstructing police in connection with a pre-trial breach of bail
    by Indrakumaran and faced the estreatment of $105,000 posted for Indrakumarans
    pre-trial release.  The charges against the brother and the bail estreatment
    were withdrawn following the guilty plea.  Indrakumaran, too, agreed under oath
    at the time of the guilty plea that the contents of the agreed statement of
    fact were true.  He explained at trial, however, that his lawyer had told him certain
    things had to be contained in the statement for the Crown to agree to a deal.  While
    he knew there was someone above Antonito in the organization, he simply
    figured on the basis of persistent police questioning and having seen the
    appellant at Tim Hortons that that person was the appellant.

[22]

Each
    former co-accused profited considerably from their guilty pleas and the agreed
    statements of fact and pre-trial statements underlying them.

[23]

Vijayakumar
    received a suspended sentence after pleading guilty to conspiracy to commit
    fraud over $5,000, attempt to commit fraud over $5,000, theft under $5,000 and
    possession of property obtained by crime under $5,000.  Several charges 
    including participating in a criminal organization  were withdrawn.  He had a
    prior criminal record for robbery and failing to comply with bail.

[24]

Selvaraj
    had served 500 days of pre-sentence custody and was sentenced to a further 18
    months imprisonment.  On his guilty plea a number of charges were withdrawn. 
    He did not have a prior criminal record, but had received a conditional
    discharge.

[25]

As
    noted above, both Indrakumaran and his family benefited considerably from his
    guilty plea to five counts of fraud over $5,000.  The Crown withdrew 41 other
    charges, including conspiracy to commit an indictable offence and committing an
    offence for the benefit of a criminal organization.  The Crown also withdrew
    the obstruction of police charge against his brother and abandoned the
    application to estreat the $105,000 posted for his bail by his brother and a
    family friend.  On a joint submission, Indrakumaran received a conditional
    sentence.

[26]

Ravindran
    pled guilty to five counts of fraud on the same day as Indrakumarans plea and
    based on a very similar agreed statement of fact.  He had also been in breach
    of his bail conditions and was in custody at the time of his plea.  On a joint
    submission, he agreed to forfeit $35,000 found in a safety deposit box and
    received a conditional sentence.

Analysis

[27]

I
    turn first to the
K.G.B.
statements.


The
K.G.B.
Statements

[28]

As
    I have said, a new trial is necessary based on the
Vetrovec
ground of
    appeal.  Strictly speaking, therefore, it is not necessary to deal with the
    admissibility of the
K.G.B.
statements.  In the event of a new trial,
    however, it may be useful to do so.

[29]

The
    appellant attacks the trial judges decision to admit three of the agreed
    statements of fact for purposes of threshold reliability  those of Selvaraj,
    Indrakumaran and Ravindran.
[2]
In my view, she did not err in doing so.

[30]

I
    agree with the trial judges conclusion that the appellants objections
    conflate threshold reliability and ultimate reliability.  While there were many
    questions to be resolved in terms of the ultimate reliability of the witnesses
    statements implicating the appellant  something to which I will return in the
Vetrovec
portion of these reasons  those questions were for the jury to resolve.  The
    trial judge had an ample basis on which to conclude that there were sufficient indicators
    of threshold reliability for purposes of admissibility, in my view.

[31]

There
    are generally speaking two ways of satisfying threshold reliability: either the
    trier of fact has a sufficient basis on which to assess the hearsay statements
    truth and accuracy, using substitutes for the typical adversarial process
    (procedural reliability), or the circumstances in which the statement was made provide
    guarantees that the statement is reliable or trustworthy (substantive
    reliability):
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at
    paras. 62-63;
R. v. Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at
    para. 30.

[32]

In
K.G.B.
, at pp. 795-96, the Supreme Court of Canada recognized three
    indicators of threshold reliability that would generally justify the admission
    of a statement: (i) the statement is made under oath or affirmation following a
    warning on the significance of the oath and the availability of sanctions for
    giving a false statement; (ii) the statement is videotaped in its entirety; and
    (iii) the opposing party has a full opportunity to cross-examine the witness
    respecting the statement.  These three indicators provide a means by which the
    trier of fact can test the hearsay statement.

[33]

Here,
    Selvaraj, Indrakumaran and Ravindran

were each represented by counsel who assisted in the preparation of the
    statements.  Each reviewed their respective statements with counsel prior to
    their guilty plea hearing.  Each testified under oath, affirmation or a promise
    to tell the truth at their guilty pleas that the contents of their agreed
    statement of fact were true.  They did not simply state themselves, or through
    counsel, that the facts were substantially true; indeed, Indrakumaran and
    Ravindran testified that they were completely accurate, 100 per cent.  The
    judge hearing their guilty pleas accepted, based on their assurances, that the
    pleas were voluntary, and on their testimony, that they were founded on
    evidence that was true and accurate.  Finally, they were available for
    cross-examination not only (in the case of Indrakumaran and Ravindran) at the
    appellants preliminary inquiry but  most significantly  at the appellants
    trial, where their conflicting evidence and their explanations for changing
    their testimony could be tested.  There was little need, therefore, for the
    taking of the statements to have been videotaped.

[34]

In
    short, the threshold reliability requirement [was] met on the basis that the
    trier of fact [had] a sufficient basis to assess the statements truth and
    accuracy and there was therefore no need to inquire further [at that stage]
    into the likely truth of the statement:

Khelawon
, at para. 92.

[35]

The
    appellant submits, however, that even where the
K.G.B.
indicators of
    reliability are present the trial judge retains a residual discretion to refuse
    to admit the impugned evidence.  He argues that the trial judge erred here in
    failing to exercise that discretion given the circumstances rendering the
    agreed statements of fact inherently unreliable  the strong motivations to
    lie in order to obtain the benefit of favourable sentences and other
    advantages.  I do not agree.

[36]

The
    trial judge has a residual
discretion
.  The appellants argument is
    tantamount, however, to saying that he or she
must
exercise that
    discretion to exclude a prior statement at the threshold reliability stage
    where the trier of fact has sufficient means to test the evidence, but the
    circumstances under which the statement was made undermine the veracity of the
    indicia of reliability:
K.G.B.
, at p. 801.  This proposition is the
    antithesis of discretion, and I do not read
K.G.B.
and its progeny as
    going that far.

[37]

As
K.G.B.
indicates, the residual discretion concept evolved out of the
    notion that
K.G.B.

statements were prone to the same kinds of
    frailties that gave rise to the rule relating to confessions.  That rule is
    designed to ensure that the statement is made voluntarily and not by way of
    inducement or other improper factors that would tend to bring the
    administration of justice into disrepute: see
K.G.B.
, at pp. 801-2.

[38]

The
    proposition that there is a rule excluding admission of a witness statement
    where the witness may be motivated to lie and to implicate another person is
    counter-intuitive to the notion of discretion, and has been rejected by this
    Court in
R. v. Hamilton
, 2011 ONCA 399, 271 C.C.C. (3d) 208, leave to
    appeal to S.C.C. refused, [2011] S.C.C.A. No. 547, [2012] S.C.C.A. No. 46,
    [2012] S.C.C.A. No. 151, [2012] S.C.C.A. No. 166.  There, the Court noted, at
    para. 145, that just as the question of admission should not be treated as a
    mechanical exercise, neither in our view, should the question of exclusion. 
    The
per se
rule suggested by the appellants runs precisely that risk 
    and we reject it for that reason.

[39]

In
    response, the appellant relies heavily on the recent decision of the Supreme
    Court of Canada in
Youvarajah
, and there are similarities with that
    case, to be sure  it involved a guilty plea by one accused based on an agreed
    statement of fact implicating another accused that was recanted at the trial of
    the second accused.

[40]

Youvarajah
    and D.S. were charged with first degree murder.  The Crowns theory was that
    Youvarajah had planned the murder and provided the weapon to D.S. (a young
    offender) to shoot the victim.  D.S. pled guilty to second degree murder on the
    basis of the agreed statement of fact.  At Youvarajahs trial, D.S. denied the
    facts in the statement implicating Youvarajah in the murder.  He invoked
    solicitor-client privilege and refused to testify further on these matters,
    precluding cross-examination on his reasons for recanting.

[41]

The
    Crown applied to have D.S.s statement admitted on
K.G.B.
grounds, but
    the trial judge rejected the application.  In the course of her reasons
    delivered on behalf of the majority, Karakatsanis J. expressed serious
    reservations about the reliability of a statement made by one accomplice
    implicating another, where the statement may be motivated by self-interest. 
    Her observations included the comment  relied upon by the appellant, and found
    at para. 62  that statements by a co-accused or accomplice are recognized as
    inherently unreliable.

[42]

At
    the end of the day, however, the basis for upholding the trial judges decision
    was that the reliability of D.S.s statements could not be adequately tested at
    trial.  As Karakatsanis J. stated, at paras. 64 and 71-72:

The administration of justice would not be enhanced in
    permitting admissions made by a co-accused in his own interest, as part of a
    plea bargain for a conviction of a lesser crime and favourable sentence, to be
    used against a co-accused,
in circumstances where the reliability of the
    statements cannot be adequately tested.



In light of these difficulties,
only a full and complete
    opportunity to cross-examine would have provided a genuine basis on which to
    assess the reliability of D.S.s statements.
His invocation of
    solicitor-client privilege, however, would preclude a full opportunity to
    cross-examine him.

The trial judge did not err in finding that
the jury would
    not have the tools to assess or test the truthfulness
of the exculpatory
    portions of the [agreed statement of fact]. [Emphasis added.]

[43]

D.S.
    asserted solicitor-client privilege, thus severely limiting cross-examination
    on his decision to plead guilty and his reasons for implicating Youvarajah.  In
    addition, D.S.s agreed statement of fact had not been videotaped and there was
    therefore no opportunity to observe his demeanour. There was similarly no
    opportunity to test his choice of words because Crown counsel drafted the
    statement with input from defence counsel.

[44]

Here,
    the fact that the statements of Messrs. Selvaraj, Indrakumaran and Ravindran
    were not videotaped is of less importance, as is the inability to test their
    choice of words in the agreed statements of fact.  They all testified as to the
    truth of their statements under oath, affirmation or a promise to tell the
    truth.  They were all available for cross-examination to test their choice of
    words.  At least one judge  the judge taking the guilty pleas  had not
    expressed any concern about their demeanour and was satisfied as to the voluntariness
    of the pleas and their statements.  The fact that the statements had been
    crafted with the assistance of their counsel is at least one circumstance
    providing some indication of threshold reliability.

[45]

Most
    significant, however, is the fact that all three witnesses were available for
    full cross-examination at the appellants trial.  They had each given an
    explanation for their statements and their guilty pleas and for their different
    testimony at trial.  Thus their respective stories could readily be tested.

[46]

These
    factors distinguish
Youvarajah
from the present appeal, in my view.  I
    do not understand
Youvarajah
to stand for the proposition that there
    is a
per se
rule
requiring
the exclusion of
K.G.B.
statements at the threshold stage where there are circumstances that may
    undermine the veracity of the indicia of reliability.  It is a matter of
    discretion, and each case must be determined in its own context.

[47]

It
    does not follow that because the trial judges discretion not to admit the
    statement in
Youvarajah
was upheld, that the trial judges exercise of
    discretion in the case at bar to admit the statements was in error.  Quite the
    contrary, in fact, for the reasons outlined above.  A trial judges
    determination of threshold reliability is entitled to deference, absent an
    error in principle:
Youvarajah
, at para. 31. Given the indicators of
    threshold reliability existing, it was appropriate for the trial judge to leave
    the statements, and the issue of their ultimate reliability, to the jury.

[48]

I
    would not give effect to this ground of appeal.

The
Vetrovec
Warning

[49]

Different
    considerations arise with respect to the
Vetrovec
warning, however.  In
    this context, the need to be concerned about ultimate reliability was very much
    in issue.

[50]

The
    former co-accused (now witnesses) who testified against the appellant had
    compelling motives to lie about his involvement, both in their agreed
    statements of fact and in their other pre-trial statements: they  and in the
    case of Mr. Indrakumaran, his family and a friend  stood to benefit handsomely
    from their guilty pleas.  Many charges were withdrawn (including, in Mr.
    Vijayakumars case, the serious charge of participating in a criminal
    organization).  The sentences received were, on balance, quiet lenient. Mr.
    Indrakumaran, his family, and a friend, dodged the loss of $105,000 to bail estreatment.

[51]

None
    of this was brought home to the jury in the context of the
Vetrovec
warning.

[52]

The
    purpose of a
Vetrovec

warning is to alert the jury to the
    danger of relying on the unsupported evidence of unsavoury witnesses and to
    explain the reasons for special scrutiny of their testimony:
R. v. Khela
,
    2009 SCC 4, [2009] 1 S.C.R. 104, at para. 11.

[53]

It
    is well settled that a trial judge has a considerable amount of discretion in
    crafting a
Vetrovec
caution to fit the circumstances, and that no
    particular language is mandatory for that purpose.  Appellate intervention is
    not warranted unless a cautionary instruction should have been given but was
    not, or the cautionary instruction that was given failed to serve its intended
    purpose:
Khela
, at para. 13.  Nonetheless, the courts have developed
    a principled framework to assist judges in constructing warnings appropriate
    to the circumstances.  As articulated by this Court in
R. v. Sauvé
(2004), 182 C.C.C. (3d) 321, leave to appeal to S.C.C. refused, [2005] 1 S.C.R.
    xv, at para. 82, and confirmed by the Supreme Court in
Khela
,
at para. 37, the four main foundation elements of such a caution require the
    trial judge, at a minimum, to:

a)

identify to the jury the
    witnesses whose evidence requires special scrutiny;

b)

explain the reasons
why
the evidence is subject to special scrutiny;

c)

caution the jurors about
    the dangers of convicting the accused on the unconfirmed evidence of the
    witness, although they are entitled to do so if they believe that the evidence
    of the witness is true; and

d)

advise the jurors
    that, in determining whether the suspect evidence is true, they should look for
    independent evidence tending to confirm that the untrustworthy witness is
    telling the truth as to the guilt of the accused.

[54]

In
    his careful submissions, Mr. Smith outlined a number of errors that he said resulted
    in the
Vetrovec
warning failing to fulfill its intended purpose here. 
    In my view, it is only necessary to deal with one of them.  I am persuaded by
    his first submission, namely, that the trial judge did not adequately explain
    the reasons why the testimony of the four formerly co-accused witnesses
    required special scrutiny, and that a new trial is therefore required.

[55]

Although
    defence counsel requested a broader
Vetrovec
instruction, the trial
    judge indicated during pre-charge discussions that she would limit her
    instructions to the witnesses criminal records and status as fraudsters,
    although she would tell the jury to consider how they got before the court. 
    This she did, highlighting the considerable criminal antecedents of the former
    co-accused involving crimes of dishonesty.  But in telling the jury to
    consider how they got before the court, she limited herself to the general
    comment that they should keep in mind the circumstances under which the young
    [men] testified while providing no details in that regard.

[56]

In
    short  apart from appealing to common sense  the trial judge gave only one
    reason why the critical testimony of the former co-accused required special
    scrutiny: their criminal background as fraudsters.

[57]

But
    there was a lot more.  As the appellant argues, the
Vetrovec
instruction was completely silent with respect to a number of salient points
    underpinning the need to scrutinize very carefully the testimony of these
    witnesses  including, in particular, their evidence in the
K.G.B.
statements.  These points included:

·

most importantly, the fact that all four of the former co-accused
    were co-conspirators who each had a strong motivation to lie and to implicate
    the appellant in the scheme  their guilty pleas brought favourably lenient
    sentences, the withdrawal of many charges and other significant benefits;

·

the fact that all four gave evidence at trial that was
    inconsistent with their prior statements and, indeed, admitted at trial that
    they had lied under oath at their plea proceedings by stating that the facts
    implicating the appellant in their agreed statements of fact were true; and,

·

the admitted lies of Vijayakumar to the police and Ravindrans
    admission that he had lied while testifying at the preliminary inquiry.

[58]

I
    recognize, as this Court has said in
R. v. Zebedee
(2006), 81 O.R.
    (3d) 583, at paras. 93-95, that a trial judge is entitled to take a functional
    approach to the
Vetrovec
exercise and is not required to detail all
    the characteristics that cast doubt on the testimony of the unsavoury witness. 
    Nonetheless, the warning must provide sufficient detail to drive home why the
    evidence requires special scrutiny in the circumstances; otherwise it does not
    serve its intended purpose, in my opinion.  Here, there was more than one
    compelling reason underlying the need for scrutiny that should have been
    highlighted for the jury.

[59]

Ms.
    Kozlowski, for the Crown, relied heavily on this Courts decision in
Zebedee
. 
    There, the complainants  long-time users and purchasers of cocaine from some
    of the accused  received enforcement-type beatings for non-payment of drug
    debts.  The trial judge gave a
Vetrovec

warning highlighting
    the criminal backgrounds and lifestyle of the complainants but did not mention
    a number of other characteristics that could have cast doubt on the truth of
    the complainants evidence.  These included a benefit that one of the
    complainants and his girlfriend had received in connection with certain
    unrelated fraud charges and the fact that the same complainant was seeking to
    recover money from the Criminal Injuries Compensation Board as a result of the
    beatings.  The complainants had also made prior inconsistent statements.

[60]

On
    appeal, this Court concluded that, while the trial judge could have mentioned
    all these and other details, he was not obliged to do so.  The frailties  in
    addition to the complainants criminal antecedents  would have been
    self-evident to the jury and the jury, exercising its collective intelligence
    and common sense, would  have been alive to them [and] appreciated their
    significance (at para. 95).  As well, there was strong independent evidence
    confirming the complainants testimony and defence counsel had emphasized and
    re-emphasized all of the characteristics that called the complainants evidence
    into doubt, making it unnecessary for the trial judge to turn over the same
    factual ground that counsel had tilled and re-tilled (at para. 95).

[61]

But
    this case is not
Zebedee
.

[62]

For
    one thing, the independent evidence confirming the testimony of the
    complainants in
Zebedee
was quite compelling.  Here, while there was
    some evidence confirming the stories of the former co-accused, the confirmatory
    evidence tying the appellant to the crimes was not particularly strong.
[3]

[63]

More
    significantly, however, this case involves the jurys ability to assess the
    reliability of 
K.G.B.
statements, admitted into evidence for the
    truth of their contents and made or confirmed under oath or affirmation by
    co-conspirators in exchange for advantageous guilty pleas and other benefits.
Zebedee
did not.  The law has long recognized the enhanced untrustworthiness of such
    statements.  As stated above, the Supreme Court of Canada recently affirmed in
Youvarajah
,
    at para. 64 (albeit in the context of threshold reliability):

The administration of justice would not be enhanced in
    permitting admissions made by a co-accused in his own interest, as part of a
    plea bargain for a conviction of a lesser crime and favourable sentence, to be
    used against a co-accused, in circumstances where the reliability of the
    statements cannot be adequately tested.

[64]

Here,
    I have concluded that the statements met the test for threshold reliability,
    amongst other things, for the very reason that they could be adequately tested
    on cross-examination.  The inbuilt danger of their unreliability remained,
    however, and was an important factor in the assessment of ultimate
    reliability.  I am not persuaded that the legal nuances underlying that
    inherent unreliability would be self-evident and, therefore, that a lay jury
    exercising its common sense  however intelligent  would be able readily to
    appreciate the significance of factors bearing on the
K.G.B.
analysis for those purposes without careful legal guidance

[65]

The
    Crowns case against the appellant rested almost entirely on the testimony of these
    witnesses.  As mentioned above, because they recanted their earlier statements
    implicating the appellant, the jurors could only have convicted the appellant
    if they accepted some or all of those earlier
K.G.B.
statements.  Although
    I have concluded that the
K.G.B.
statements were admissible for
    purposes of threshold reliability, the question of their ultimate reliability
    was quite another matter.  Their assessment for that purpose warranted a
    healthy skepticism.

[66]

Making
    the witnesses dishonest history the focal point of the explanation why their
    testimony required careful scrutiny was not sufficient in these circumstances,
    in my opinion.  While that background undoubtedly provided a basis for
    disbelieving their testimony, the most compelling reason for mistrusting what
    they had said in their
K.G.B.
statements was their very strong
    motivation to lie by implicating the appellant in order to obtain the
    considerable benefits of their guilty pleas, as outlined above.

[67]

Respectfully,
    in my view, the trial judges failure to draw this to the jurys attention in
    the context of the
Vetrovec
caution rendered the caution inadequate to
    serve its intended purpose.

[68]

I
    do not think it is an answer to say defence counsel highlighted these details
    in closing or that the trial judge referred to them in her outline of the
    defence position.  It is one thing for defence counsel to make the arguments
    and for the trial judge to comment on those arguments; the jury accepts them as
    arguments.  It is another thing for the trial judge to place those frailties in
    the context of a warning about the danger of convicting on the unconfirmed
    evidence of an unsavoury witness.  In the circumstances of this case, it was
    the latter that was called for.

[69]

Nor
    do I think that these frailties in the
Vetrovec
caution can be
    overcome by application of the curative proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.
In view of what must have been the
    central nature of the recanted testimony in the jurys decision to convict, the
    error was not harmless or minor, nor was the case so overwhelming that a
    properly instructed jury would inevitably have convicted regardless of the
    error:
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53.

Disposition

[70]

For
    the foregoing reasons, I would allow the appeal and order a new trial.

Released: October 22, 2014
(J.L.)

R.A.
    Blair J.A.

I
    agree, John Laskin J.A.

I
    agree, E.A. Cronk J.A.





[1]

Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.



[2]
The threshold reliability of Vijayakumars prior videotaped statement was
    ultimately conceded by the defence at trial.



[3]
The appellant also attacked the
Vetrovec
warning on the basis that the
    trial judge had erred in telling the jurors how to look for confirmatory
    evidence and that she had erred in instructing them that they could use the
    evidence of one
Vetrovec
witness to confirm the evidence of another
    where there was evidence of collaboration.  For the reasons outlined above, I
    do not think it is necessary to address these grounds of attack.


