Can a trial judge provide a Vetrovec warning for a sexual assault complainant? A series of appellate-level decisions confirms that section 274 of the Criminal Code does not prohibit trial judges from commenting on the evidence of sexual assault complainants and that trial judges have the discretion to provide a Vetrovec-like review of their testimony, albeit with two important qualifications.
In Vetrovec v The Queen,  1 SCR 811 at 831-32, the Honourable Justice Dickson (as he was then) held that judges may warn and instruct juries on the frailties of evidence provided by unsavoury witnesses:
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 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...
Subsequent Supreme Court of Canada jurisprudence has produced the following framework for analysis - (1) the Vetrovec warning and (2) the Bevan counter-instruction.
It is important to note that Vetrovec warnings may be given for any prosecution witness, including complainants. In R v Patrick (2005), 202 CCC (3d) 209 at 219 (Ont CA), the Honourable Justice Laskin held that:
I believe Dickson J.'s judgment in Vetrovec itself indicated that no category of witness is exempt from being the subject of a Vetrovec warning. Although giving a Vetrovec warning for the evidence of a complainant or a victim is perhaps unusual, the principles that underlie the warning do not distinguish between complainants or victims and other witnesses.
There are two issues that the judge must determine with respect to Vetrovec warnings - (a) whether to give the warning (the "Brooks framework") and (b) what to include in the warning (the "Sauvé / Khela framework").
The first issue is whether to give the warning. In R v Bevan,  2 SCR 599 at 614, the Honourable Justice Major held that Vetrovec warnings are typically discretionary, but may be mandatory in certain circumstances:
While under Vetrovec a caution to the jury is a matter of the trial judge's discretion and is not required in all cases involving testimony of accomplices or accessories after the fact, there are some cases in which the circumstances may be such that a Vetrovec caution must be given.
In R v Brooks, 2000 SCC 11 at para 79, Justice Major held that judges should use a two-part framework to determine whether to exercise their discretion to provide a Vetrovec warning or to determine whether a Vetrovec warning is mandatory in the circumstances:
... two main factors are relevant in deciding whether a Vetrovec warning is necessary: the witness's credibility, and the importance of the witness's testimony to the Crown's case. No specific threshold need be met on either factor before a warning becomes necessary. Instead, where the witness is absolutely essential to the Crown's case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems,. a warning may be necessary even if the Crown's case is a strong one without the witness's evidence. In short, the factors should not be looked to independently of one another but in combination.
The second issue is what to include in the warning. In R v Khela, 2009 SCC 4 at para 37, the Honourable Justice Fish held that where a judge exercises their discretion to provide a warning or where a warning is mandatory, the judge should use a four-part framework to craft an appropriate warning.
Independence: "The attribute of independence defines the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth."
Materiality: "...when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence."
In R v Bevan, supra, at 612-13, Justice Major held that judges have the discretion to provide a counter-instruction to juries that identifies evidence that is capable of confirming or corroborating the evidence that is the subject of the Vetrovec warning:
I do not interpret Dickson J.'s reasons for judgment in Vetrovec to have established a rule that if a warning is given regarding a particular witness, the trial judge must in all cases go on to point out in detail evidence which is capable of corroborating that witness' testimony. While an instruction of that nature may be made in tandem with a Vetrovec warning, Dickson J. did not intend this to be a requirement in all cases...
While it is usually a corollary of the Vetrovec warning that the trial judge make some reference to evidence that the jury may consider supportive of the impugned evidence, in some cases part or all of the supporting evidence may be extremely prejudicial to the accused, such that to draw the jury's attention to that evidence in tandem with a Vetrovec warning could in some circumstances be unfair to the accused.
I do not agree that the only remedy for this problem lies in not giving a Vetrovec warning. Instead, the appropriate remedy in those circumstances lies with the discretion of the trial judge to decide in the particular case (perhaps following argument) if a Vetrovec warning is to be given, and, if so, whether it should or should not be accompanied by a direction as to what other specific evidence the jury might conclude is supportive of the impugned evidence.
The trial judge's decision on this type of question is similar in principle to the decisions often made by trial judges as to whether to admit cogent but prejudicial evidence. Where that kind of issue arises, the trial judge decides whether the probative value of the evidence outweighs its prejudicial effect.
The common law rule in Vetrovec is subject to inconsistent statutory rules. In Vetrovec, supra, at 832, Justice Dickson held that "[t]he statutory requirements would, of course, be controlling in cases coming under any of those sections" (i.e. statutory corroboration requirements).
The common law rule in Vetrovec is partially inconsistent with section 274 of the Criminal Code, RSC 1985, c C-46, stipulates that "[i]f an accused is charged with [a sexual offence], no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration."
The relationship between the common law rule in Vetrovec and section 274 must be understood in light of the development of the rules of sexual assault corroboration:
The relationship between the Vetrovec common law rule and section 274 of the Criminal Code was recently raised at the Ontario Court of Appeal in the R v Wiebe (2005), 205 CCC (3d) 326 at 331-32 (Ont CA) endorsement, but the Court declined to decide the issue:
As we are of the view that the complainant did not qualify as an "unsavoury witness", we find it unnecessary to consider the Crown's argument that the charge sought by the appellant [i.e. a Vetrovec warning] would directly contravene s. 274 of the Criminal Code, which expressly prohibits the trial judge form directing a jury to look for corroboration in sexual assault cases.
However, several appellate-level authorities – including the Ontario Court of Appeal – have already found that judges maintain the discretion to provide a Vetrovec-like warning about unsavoury sexual assault complainants:
On the whole, these cases confirm that section 274 has the effect of eliminating two parts of the Vetrovec framework outlined above: