New & Notable: Unsavoury witnesses come in different shapes and sizes too

Zacky Deleon, Michael Allen and Jamie Restrepo were all convicted of first-degree murder.  The murder involved the execution style killing of Mauricio Castro.  The Crown's theory was that Restrepo was the leader of a drug network that owed approximately $1 million to Castro.  Restrepo arranged for the murder of Castro, Allen was the shooter and Deleon was involved in the enterprise.
During the trial the Crown relied upon, inter alia, three witnesses: Jorge Restrepo (Jamie's brother); Jorge Acosta (alleged to be the get away driver); and Ronny Khananisho (connected Restrepo to Allen).
On appeal the appellants took issue with the Vetrovec warnings; the Court of Appeal dismissed the appeals: 2011 ONCA 752.
In dismissing the appeal the court addressed the argument that the trial judge erred in not providing Vetrovec warnings for all three of these witnesses and also for comparing the witnesses and giving varying levels of warnings.  While the court noted that it would be preferable not to use comparisons it concluded there was no error in the charge:
In this case, we can see no error in the continuum adopted by the trial judge in his treatment of the three main Crown witnesses.  The warning about Acosta was very strong indeed.  The appellants do not challenge it.  The warning about Restrepo was milder but encompassed all four elements of the standard Vetrovec warning.  The absence of a warning about Khananisho was justified by his very peripheral role in the murder enterprise (he provided Allen’s phone number to the Restrepo network and attended a meeting with Allen during which Deleon spoke to Jaime Restrepo) and the absence of a history of lying or other dishonest behaviour.  In our view, it may be preferable to give discrete Vetrovec warnings that do not specifically involve a comparison – particularly in the positive terms employed by the trial judge.  However, given the nature and extent of the trial judge’s references to the unsavoury characteristics of these witnesses, the jury would clearly understand that they had to examine their evidence with caution [para 7].
The court also addressed the argument that the trial judge erred in his handling of the confirmatory evidence.  In dismissing this ground the court noted that simply because evidence was not disputed did not mean it could not be confirmatory.  The court offered the following passage from R v Kehler, 2004 SCC 11 at paras 15-16 in support:
The appellant wrongly equates “relevant” with “disputed”.  Mr. Greenwood’s detailed account of the robbery, though undisputed, was no less “relevant” to the offences charged than his implication of the appellant in their commission.  And while confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, it hardly follows that the confirmatory evidence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged.
As the appellant himself concedes, it is clear from Vetrovec, supra, that independent evidence, to be considered confirmatory, does not have to implicate the accused.  There is no separate rule in this regard for cases where the only evidence of the accused’s participation in the offence is that of a tainted witness. [Emphasis in original.]
DG Mack