R. v. Brooks

R. v. Brooks Collection Decisions of the Court of Appeal Date 1998-09-30 Docket numbers C20075 Judges Labrosse, Jean-Marc; Weiler, Karen Merle Magnuson; Laskin, John Ivan Subject Criminal Decision Content Date: 19980930 Docket: C20075 COURT OF APPEAL FOR ONTARIO LABROSSE, WEILER and LASKIN JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Irwin Koziebrocki for the ) appellant Respondent ) ) -and- ) Lucy Cecchetto for the ) respondent FREDERICK ALEXANDER BROOKS ) ) Appellant ) ) Heard: May 27, 1998 WEILER J.A. (dissenting): OVERVIEW [1] The appellant was convicted of first degree murder pursuant to s. 231(5)(b) of the Criminal Code, that is, intending to cause the death of a human being while committing a sexual assault. The appellant seeks an order for a new trial and alleges that he did not receive a fair trial due to evidentiary errors made by the presiding judge and due to the inadequacy of the judge's charge to the jury. The appellant also alleges that a non-suit ought to have been directed with respect to the charge of first degree murder on the basis that a finding that the victim died while she was being sexually assaulted was unreasonable. For the reasons which follow, I have concluded that the appeal should be dismissed. After outlining the facts, I will briefly deal with the evidentiary issues raised by the appellant and then embark on a more detailed consideration of the alleged deficiencies in the judge's charge to the jury. I will give particular consideration to the omission from the charge of any clear sharp warning in the charge that it would be dangerous to convict on the evidence of two in-custody witnesses who testified at the appellant's trial. Finally, I will deal with the appellant's request for an acquittal on the charge of first degree murder. I. OUTLINE OF THE FACTS [2] At 10:30 p.m. on December 13, 1992, nineteen-month-old Samantha Johnings stirred in her sleep when her aunt, who was visiting the apartment, peeked in on her. At about 11:00 a.m. the next day, Samantha was found dead in her crib by her mother, Norma Jean. She had been murdered. Her left eye was swollen shut and she had three bruises on her head caused by blunt force trauma. She died of acute brain injury. She also had blood and vomit on her. Samantha's genital area had bruising and redness, which was inconsistent with a diaper rash but consistent with a rubbing-like action or the use of a blunt object, even a finger. Six sperm were found near the opening of the child's vagina and sperm was also detected in the anus. [3] The only persons who had access to Samantha overnight were her mother and the appellant. He had begun living with Samantha's mother at the end of October and was not the father of Samantha, or of her newborn baby, Anthony. The appellant was charged with Samantha's murder after his grey track pants were found and seized on January 27, 1993. Analysis revealed that the blood stains on the appellant's grey track pants were the same blood type as that of Samantha, and DNA testing indicated that the frequency of that profile in Caucasians is one in eighty million. The track pants also had semen on them and a juice substance, similar to what was found in Samantha's bottle, was found on the crotch area of the pants. [4] The appellant testified at his trial and denied any wrongdoing. The Crown's case included evidence from Norma Jean, forensic evidence, statements made by the appellant to the police, and the evidence of two in-custody witnesses. II. EVIDENTIARY ISSUES (1) Charter of Rights, s. 8 -- Unreasonable search and seizure -- Exclusion of evidence, s. 24(2) -- Admissibility of appellant's track pants discovered during warrantless search of appellant's apartment [5] The issue is whether the seizure of the track pants was reasonable and whether the admission of the track pants into evidence brought the administration of justice into disrepute. The appellant was not the lessee of the apartment and he did not have a key to it. He and Norma Jean never returned to the apartment after the morning in December when Samantha was found murdered. On January 7,1993, the appellant was arrested on other charges. The appellant's family was allowed entry into the apartment to remove his goods. On January 21, 1993, Norma Jean told the police that the appellant had been wearing grey track pants when he went to bed but that, when she came into their bedroom at 4 a.m. with the newborn, Anthony, she noticed that the appellant was no longer wearing the grey track pants, but black ones. Norma Jean's mother, Margaret Johnings, and her mother's partner, Charles Furry, were present at this time. On January 27, Charles Furry and Margaret Johnings were in the apartment cleaning it out as Norma Jean wished to surrender the lease. They discovered the grey track pants in a closet in the bedroom in a heap of dirty clothes on the floor. They called the police. The police attended at the apartment and seized the track pants. [6] Any expectation of privacy which the appellant had with respect to the apartment ended when his family removed his belongings. Accordingly, the seizure of the track pants would not have been in breach of the appellant's s. 8 rights. Assuming that there was a breach of the appellant's s. 8 rights, the administration of justice was not brought into disrepute by the admission into evidence of the track pants. The evidence was not conscripted evidence from the appellant. It was not evidence derived from another breach of the appellant's Charter rights. It was real evidence. There is no suggestion that the police believed they were acting illegally in receiving the trackpants from Margaret Johnings and Charles Furry. I would dismiss this ground of appeal. (2) Admissibility of evidence relating to an experiment done by a police officer at his own home with one of the trial exhibits [7] The appellant testified that a circular injury, the size of a cigarette butt, to the child's buttocks was caused by a funnel while she was playing in the bathtub. During the course of the trial, Sergeant Harild decided on his own to take the funnel home and to perform an experiment with it with a view to discrediting the appellant's evidence on this point. He tossed the funnel into a tub filled with, first, two inches, then three inches, and then four inches of water, and recorded the number of times that the funnel ended right side up and narrow end up. [8] The trial judge asked the appellant's counsel whether there was any objection to the admissibility of the evidence and defence counsel indicated he had none. The trial judge appropriately instructed the jury to disregard Sergeant Harild's evidence. [9] Having regard to the instruction to the jury, and given the medical evidence that the child's injury to her buttocks was inconsistent with having been caused by a funnel, the admission of the evidence concerning the experiment done by Officer Harild occasioned no substantial wrong or miscarriage of justice. I would dismiss this ground of appeal. (3) Whether the appellant's Corbett application ought to have been allowed -- in particular, whether the appellant's conviction for assault should have been deleted and whether the trial judge erred in allowing the Crown to file the record as an exhibit [10] Shortly before his arrest on the charge of murdering Samantha, the appellant was arrested and subsequently convicted on one charge of assault not related to this case. The appellant's record, including the conviction for assault, was placed in evidence. The trial judge told the jury that they could take the appellant's record into account when considering the credibility and weight of his evidence. He also told the jury, "The accused is being tried for this offence and this offence only, and you must not treat his criminal record as indicative that the accused is, or is likely to be, that kind of person who would be disposed to commit this type of offence." [11] The strategy of the defence was to show that the other person present in the apartment at the time Samantha died, namely Samantha's mother, could have committed the murder. Evidence was led that, at times, the mother had inappropriately disciplined Samantha. The mother denied causing Samantha's injuries. The criminal record of the Crown's in-custody witnesses was also before the jury. [12] The decision whether or not to give a Corbett warning is a discretionary one. Deference should be paid to that discretion and, unless it is unreasonable, it should not be set aside. Having regard to the strategy of the defence, to the fact that the conviction for assault was for a much less serious offence than the charge against the appellant, and to the criminal record of the Crown's in-custody witnesses before the jury, the jury may have been misled if the appellant's criminal record, including the conviction for assault, had not been placed in evidence. The trial judge did not err in the exercise of his discretion. III. ALLEGED INADEQUACIES IN THE CHARGE (1) Absence of a Vetrovec warning [13] Counsel at trial did not request that the judge warn the jury of the danger of convicting on the evidence of the in- custody witnesses in the discussion preceding the judge's charge, nor did he object to its omission afterwards. In these circumstances, if the judge has otherwise properly instructed the jury on how to assess the witnesses' credibility, the failure to give a Vetrovec warning will result in reversible error only if that instruction was essential to a fair trial. In R. v. Glasgow (1996), 110 C.C.C. (3d) 57 (Ont. C.A.) Doherty J.A. stated on behalf of the Court at p. 60: The trial judge alerted the jury to the importance of the assessment of the credibility of these two witnesses and spent some time detailing the manner in which that assessment should be made. He was not asked to give, and did not give a "Vetrovec" warning. It is well established that a trial judge has a discretion as to whether to give a "Vetrovec" warning. An appellate court must show deference when reviewing the exercise of that discretion. If a trial judge was not asked to give the warning, it is difficult to understand how the trial judge can be said to have erred in the exercise of his or her discretion. A full "Vetrovec" instruction, even as modified in R. v. Bevan1 (1993), 82 C.C.C. (3d) 310 (S.C.C.), can benefit both the Crown and the defence. Where counsel for the accused is satisfied that issues pertaining to a witness's credibility have been fully and fairly put to the jury without resort to a "Vetrovec" instruction, I would hold that the failure to give the "Vetrovec" warning resulted in reversible error only if satisfied that the instruction was essential to a fair trial. In other words, I would place the onus on the appellant to show that the circumstances at trial so compelled a "Vetrovec" warning that the trial judge effectively had no discretion and was compelled to give the "Vetrovec" warning. As I am not satisfied that this was such a case, I would not give effect to this ground of appeal. Where the circumstances of the case are such that the trial judge effectively had no choice but to give a Vetrovec caution, it is inappropriate to apply the curative provison in s. 686(1)(b)(iii) and a new trial must be ordered: R. v. Bevan (1993), 82 C.C.C. (3d) 310 (S.C.C.). [14] The decision in R. v. White and Cote (1996), 108 C.C.C. (3d) 1 at 31-32 (Ont. C.A.), is also helpful. First, it reaffirms that the content and wording of a Vetrovec warning as well as the decision itself of whether or not to give the warning are matters within the discretion of the trial judge. Whether or not to give a Vetrovec warning is a highly fact dependent decision, and is not dependent on any precise formula. In R. v. White and Cote, supra, the trial judge reviewed the unsavoury witness' extensive criminal record for the jury. The trial judge also told the jury "He (Corner) is not a witness of the most reputable character. Because of that I want to tell you that you should look at his evidence with great caution and circumspection" (emphasis in original). He did not also instruct the jury that "it may be appropriate to act upon it only to the extent that it was supported by confirming, independent evidence." His failure to give this instruction was the major complaint pertaining to this ground of appeal. In his charge, the trial judge also referred to four pieces of evidence which were capable of supporting the testimony of the unsavoury witness. The Court of Appeal stated that had the trial judge gone further and instructed the jury as requested it would have been open to him to refer to even more pieces of evidence that tended to support Corner's credibility and the Court then proceeded to list them. In all of the circumstances, the Court held that the warning was adequate and the trial judge had not erred. The Supreme Court of Canada also considered and dismissed the appeal pertaining to the reliability of Corner's evidence. See: R. v. White, a judgment of the Supreme Court of Canada, released July 9, 1998. [15] Secondly, R. v. White and Cote illustrates that in considering whether, and to what extent, a Vetrovec warning should have been given, a factor that is appropriate to take into consideration is whether it would have been open to the trial judge to refer to various pieces of evidence to support the credibility of the unsavoury witness. In taking this factor into consideration the court is, in effect, balancing and weighing the value to the accused of the warning against the prejudicial effect of a review of the confirmatory evidence that supports the credibility of the unsavoury witness. The court undertakes this balancing process to assist itself in deciding whether the accused had a fair trial. [16] The recent report of the Kaufman Commission with respect to the wrongful conviction of Guy Paul Morin warns us of the need for special caution before relying on the evidence of persons in custody. The report makes it clear that, historically, the evidence of persons in custody against accused persons has produced miscarriages of justice. The report presents a comprehensive set of recommendations for police, Crown attorneys and judges with respect to the gathering and use of evidence of persons in custody. The report emphasizes the need to analyze the strengths and weaknesses of the case for the Crown before an in-custody informant's evidence is used and states that it will never be in the public interest to initiate or continue a prosecution based only on the unconfirmed evidence of an in-custody informer. Confirmation of the in-custody informer's proposed evidence is defined at p. 605 as "credible evidence or information, available to the Crown, independent of the in- custody informer, which significantly supports the position that the inculpatory aspects of the proposed evidence were not fabricated. One in-custody informer does not provide confirmation for another." [Emphasis in original.] The report also lists matters for Crown counsel to take into account in assessing the reliability of an in-custody informer including: (1) the extent to which the statement is confirmed; (2) the specificity of the alleged statement as opposed to a general statement that A admitted killing B; (3) the extent to which the statement contains details known only to the perpetrator; (4) the extent to which the details of the statement could otherwise reasonably be accessed by the in-custody informer; (5) the informer's general character as evidenced by his or her criminal record or any psychiatric profile; (6) any request for benefits or special treatment made by the informer and any promises made by a person in authority; (7) whether the informer has given reliable information to the authorities in the past; (8) whether the informer has previously claimed to have received statements while in custody; (9) whether the informer has testified on behalf of the Crown or defence in other court proceedings and the results in those proceedings; (10) whether the informer made some record of the words allegedly spoken by the accused and when it was made; and (11) the circumstances under which the informer's statement was made, whether it was made under oath and whether non-leading questions were used by the police. [17] Having regard to the existing jurisprudence and to the Kaufman report, it is appropriate to analyze the evidence of the in-custody witnesses using the following broad groupings: (1) The strengths of the Crown's case, apart from the evidence of the in-custody witnesses -- that is, whether the evidence of the in-custody witnesses was the main evidence for the Crown, crucial or essential to the Crown's case; (2) The circumstances affecting the credibility of the witnesses; (3) The circumstances respecting the absence of warning: whether competent counsel at trial refrained from asking for a Vetrovec warning; whether it would have been open to the trial judge to draw to the attention of the jury other confirmatory evidence if the warning had been given; (4) Whether the jury would have been able to assess the evidence of the unsavoury witnesses properly in the absence of a Vetrovec warning having regard to: (a)Whether the trial judge otherwise alerted the jury to the importance of assessing the credibility of the unsavoury witnesses; (b)Whether the evidence of the unsavoury witnesses contains prior inconsistent statements; if so, the adequacy of any instruction relating to prior inconsistent statements; (c)Whether the trial judge reviewed the evidence of the witnesses in such a manner that the jury would be alert to the frailties of their evidence. Before commencing the analysis in accordance with these factors, a summary of the evidence of the in-custody witnesses is in order. [18] The in-custody witness, King, testified that while he and the appellant were in the Hamilton-Wentworth Detention Centre some time in May 1993, he had some conversations in which the appellant volunteered to him that, on occasion, he had slapped his girlfriend's baby, and that the baby's mother had hit the baby a couple of times but they were not hard smacks. The appellant also told King that his girlfriend lived in Centre Apartments and that the baby had died in her crib. King told the appellant, in order to gain his confidence, that he and Balogh knew some bikers and that both of them had bikers in their families. Balogh, the other in-custody witness for the Crown, testified that he was present during the conversation about bikers. Balogh also testified that the appellant said he had friends who owned a company in Grimsby, and who had money and were going to help him "get his girlfriend knocked off," or help him to get out of jail, one or the other. Balogh testified that the appellant said that he was at his girlfriend's place with the baby; it was crying and he tried spanking it because he was angry, and he accidentally killed the baby by hitting it on the head. King's evidence was to the same effect. King testified that the appellant also told him that the baby started choking but he could not remember what happened after that. In response to a question, Balogh said that the appellant did not say he was alone with the baby, just that he was babysitting and "you're usually alone when you're babysitting." Balogh recalled that the appellant had also mentioned the apartments behind the Centre Mall, that the age of the child was nineteen months, and that his girlfriend's name was Norma. Initially, Balogh did not want to get involved. Then he discussed the matter with his girlfriend and approached King and told him it would be immoral if somebody did not get involved if they heard something like that. He and King made some notes on the same piece of paper, perhaps a day later. The next day he was taken to court and he did not see King after that. King said he made notes of his conversations with the appellant shortly after they took place. He showed them to the police, but when he was transferred to the penitentiary he destroyed the notes as he did not want them to be found in his cell and be known as a "rat". The strength of the Crown's case without the evidence of the in-custody witnesses. [19] The primary witness for the Crown was Norma Jean. She testified that around 12:00 to 12:30 a.m., the newborn, Anthony, developed gas and began to cry continuously. She was walking up and down the hallway in an attempt to soothe him. At 2:00 a.m., she saw the appellant wrapping Samantha in a green comforter as she walked past Samantha's bedroom, while attempting to soothe Anthony. She did not check on Samantha at this time. She continued to try to soothe the newborn, and finally both she and the newborn fell asleep on the couch. Around 4:00 a.m., she awoke and went to bed. She saw the appellant in bed and noticed he had changed out of the grey track pants he had been wearing. He was now wearing a pair of black track pants. Around 11:00 a.m. the next morning, she discovered Samantha dead. She was wrapped in the comforter. On discovering Samantha, the mother screamed and attempted in vain to revive Samantha. She called 911 and police and ambulance attendants arrived. [20] Constable Bennet arrived in response to the 911 call. He observed the appellant wearing a black cap, black T-shirt and black track pants with a grey design. [21] Dr. Rao, a forensic pathologist, testified that Samantha had multiple bruises scattered around the body surface. In addition to a bruise on her left cheek and bruising on the left side of her face, she had bruises over and around the forehead region. Although Samantha had fallen off a chair and struck her head on December 12, Dr. Rao testified that this injury was unlikely to have caused her death. The fall alone did not explain the injuries to the other parts of the scalp, especially on the top of the head and on the side of the head. The injury on the cheek could have been caused if the child had fallen. There was also bruising over the back of the top of the shoulder, the hip region and on the left shoulder. [22] Ms. Johnston, the biologist from the Centre for Forensic Sciences, testified that on the comforter in which Samantha had been found wrapped there were two areas where semen was identified. This was the largest amount of sperm in a single location. That semen was consistent with coming from an "O" secretor individual, similar to 38% of the Ontario male population. The appellant is an "O" secretor. It is not possible to put a time interval on how long semen could have been on clothing. Ms. Johnston would not expect it to survive a washing. The DNA of both the appellant and Norma Jean was found on the comforter. The appellant said that he and Norma Jean sometimes had sex on the green comforter and that it was usually on Norma's bed. [23] In his statements to the police, the appellant confirmed that he had wrapped Samantha in a blanket at 2:00 a.m. In his testimony at trial, the appellant admitted telling the police that he had covered Samantha but said that the answer was a slip-up. He denied ever checking on Samantha at 2:00 a.m. At trial, the appellant said that on the evening of December 13, the green comforter was on Norma Jean's bed and he believed she had put it on Samantha as her room was cold. [24] Samantha also had a bruise on either side of the opening for the urethra where urine is passed. It was in the form of a band. The appellant said he had not seen marks close to Samantha's vaginal area previously and said he had no idea what they could be from. Dr. Rao felt the mark was consistent with a finger-smudging mark. DNA testing of the sample of semen from the area near Samantha's genital area did not match the DNA profile of any male. The explanation from the DNA expert, Pamela Newall, was that the sample had somehow become contaminated and an explanation was proffered as to how this could have happened. Ms. Newall found no DNA, other than that from Samantha, on the anal swab. She stated that one of the reasons for this could have been the small quantity of semen or its poor quality. DNA does not survive well in bacterial action such as is commonly found in faeces. It appeared from Samantha's diaper that she had defecated. During the day in question, the appellant was the only male present with Samantha. While it is possible for sperm to survive as long as six days, Samantha had been bathed earlier that morning and the expert evidence suggested that sperm would not survive well in areas with a lot of bacteria and moisture. Samantha was still in diapers. The expert evidence also indicated that the presence of semen in the anus and vagina of Samantha were not attributable to the poor hygiene or housekeeping in the apartment. The sexual relations of the appellant and Norma Jean and the poor housekeeping in the apartment accounted for the semen on various articles in the bedroom, but this could not account for the presence of semen in Samantha's vagina or anus. [25] The appellant testified in his own defence and admitted to wearing grey track pants during the night in question. He used them for pyjamas. He testified that he had gotten Samantha's blood on his pants when he was helping to try to revive her. He said that the police officer at the scene had allowed him to change his track pants before going to the station and the appellant had thrown them into a pile of dirty laundry. Constable Bennett said the appellant was not wearing grey track pants when he arrived at the apartment, that the appellant at no time asked to change his pants, and that he had been transported to the police station in the same pants he was wearing when the officer arrived. Before us, counsel for the appellant submitted that Constable Bennett may have been mistaken in his recollection as to the appellant not asking to change his track pants as he had no note of the request in his book. If the appellant did not ask to change his pants, the police officer could not make a note of something which did not happen. The track pants contained the accused's semen, Samantha's blood type, and a juice substance similar to what was found in Samantha's bottle in the crib. Ms. Lang, a forensic chemist at the Centre for Forensic Sciences, examined a reddish brown stain at the upper left leg crotch area of the appellant's grey sweat pants. The chemical analysis performed on the stain confirmed the colour, physical appearance and chemistry to be similar to that of the red liquid juice in the baby bottle. [26] Following the declaration of Samantha's death at the hospital, Norma Jean was brought home by two police detectives in order to change her clothes as she was dressed only in a nightgown. En route, Norma Jean told the detectives that the appellant had whispered to her that he was "sorry for what he had done." At trial, Norma Jean said that the appellant told her he was sorry and that he did this three times. She did not know and could not remember what, if anything, she had said to the detectives. The appellant admitted that when Norma Jean came back from the hospital, he said that he was sorry. His reasoning was for the loss of Samantha. [27] The appellant admitted having a conversation with King in which King had said that he knew some bikers. The appellant testifed that it was King who had asked him if he wanted to get his girlfriend bumped off, and said that he had told him that he had enough problems. He stopped talking to King as he had heard that King was a troublemaker. The appellant testified that Balogh told him it would cost the appellant $500 to have it done and that, following this conversation, he avoided King and Balogh. The appellant denied telling them he had hit the child on the head to stop her from crying. He said that King told him it had been Balogh's idea to testify against him. [28] The evidence of King and Balogh was important to the Crown's case because it was direct evidence that implicated the appellant. The evidence that the appellant told Norma Jean that he was sorry for what he had done was also direct evidence of an admission of guilt, depending on the jury's view of whether or not this statement was made and what interpretation they placed on it. There was, however, credible circumstantial evidence independent of the evidence of King and Balogh, which significantly supported the Crown's position that the appellant had commited the crime with which he was charged. Apart from opportunity, there was no evidence that Samantha's mother inflicted the injuries on her. While there was evidence that Norma Jean had slapped Samantha inappropriately on some occasions, the evidence of all the witnesses, was, however, that she loved Samantha and that Samantha was well nourished and well cared for. In addition, the Crown relied on the testimony of Norma Jean which placed the appellant with the baby at 2:00 a.m., the physical evidence consisting of the track pants, and the forensic evidence concerning the presence of sperm in Samantha's vagina and anus when considered with the fact that the appellant was the only male who had access to Samantha on the day before she was murdered. There were also the contradictory statements of the appellant concerning whether he had covered the baby with a comforter. Having regard to this evidence, the evidence of King and Balogh, while very important evidence, was not crucial or essential to the Crown's case in the sense that the Crown's case did not turn on the acceptance or rejection of King and Balogh's evidence. Circumstances affecting credibility or reliability of the in-custody witnesses. [29] The facts that the baby's mother's name was Norma, that she was the appellant's girlfriend, that they lived in the apartment building near the Centre, and that the mother was going to testify against the appellant, were accurate. The evidence of King and Balogh that the appellant hit Samantha on the head when he was looking after her was confirmed by the forensic evidence as to the location of the injuries. The evidence that the appellant would hit Samantha when she cried was confirmed by the evidence of a witness that, on one occasion, when Samantha was crying, the appellant had picked her up and thrown her a metre against the wooden base of a sofa. The evidence that Samantha was crying on the night she was murdered was also confirmed by Norma Jean. The evidence that Samantha had choked finds some confirmation in the vomit found on her face. King's evidence that the appellant said he was alone, babysitting Samantha, when he killed her was in conflict with Norma Jean's evidence. Balogh, however, testified that the appellant did not say that he was alone but had said he was babysitting, and he thought from this that the appellant was alone. [30] The evidence of King and Balogh was not simply a statement to the effect that the appellant had said, "I killed the baby." The allegations contained details as to the location of the injuries, prior hitting of Samantha by the appellant, the detail that the mother also hit the child on some occasions to discipline her, that Samantha was always crying, that she was crying the night she died and that she had choked. [31] The perpetrator would know the motive for killing the baby. The evidence that the appellant spanked Samantha because she was crying, that the appellant had lost his temper and hit her on the head and that all movement stopped after this, was indicative of the motive for the killing. The evidence given by King and Balogh implicated the appellant in an unlawful act of homicide or second degree murder and not first degree murder. It made no mention of any sexual assault which was the basis of the conviction for first degree murder. The evidence of King and Balogh, therefore, cut both ways to some extent. [32] It is not possible to say to what extent the evidence of King and Balogh may have been gleaned from other sources such as a newspaper, since the newspaper article on which they were cross-examined was not put into evidence. While prisoners do have access to newspapers, they must be ordered and paid for by them. Newspapers are shared by prisoners but King and Balogh denied reading them. There is no evidence that details, such as the appellant's admission of prior hitting and the mother slapping Samantha on occasion, or of Samantha choking, were in the newspaper. [33] King testified that he had been convicted, but not yet sentenced, at the time he had his conversations with the appellant. He was 26 years of age and his criminal record contained about 17 convictions for break-and-entry. King told police that on a prior occasion when he was in jail, a jailmate, who was an old friend from school and who was charged with kidnapping and killing a school teacher, had confessed to King. King made a deal with the police for a sentence of 18 months instead of going to the penitentiary in return for testifying at his friend's trial. In return for testifying at the appellant's trial, King sought to avoid going to the penitentiary for his most recent break-and-enter, despite his lengthy record, but was told by the police officer he spoke to that he had no control over the sentence. King, in fact, was sentenced to a penitentiary term of three years before he testified. King said that his evidence did not help him to gain his release because "the C-36 Bill states that a first-time federal offender with no violence is at least guaranteed for a full parole direct, which is an accelerated parole release." The police officer testified at King's parole hearing because there was some suggestion he had a propensity for violence, and the officer could testify that this was not part of King's record and, from his dealings with him, King did not have a propensity for violence. King was not granted a full parole; he was on directed parole and in a half-way house. [34] Balogh testified that the reason he was testifying against the appellant was because his father was a violent man and "it really ate at me." In cross-examination, Balogh testified he had had an unhappy childhood. He had a physically abusive father, and his mother died while he was young. He had been in five foster homes and four group homes and frequently ran away. When he was fifteen, he was in a London Psychiatric hospital and he ran away; when he was eighteen, he attempted suicide on two occasions. In 1987 and 1988 he was in the regional psychiatric unit at Kingston Penitentiary because he had again tried to commit suicide. In 1989 he suffered from depression. He had tried numerous medications, including anti- psychotic drugs. He had formerly been an avid user of alcohol and drugs such as LSD. On one occasion, he had had an assessment for fitness to stand trial but had not been found to be unfit. Balogh continued to be in psychiatric care. [35] Balogh admitted that he had approached the police on three prior occasions with information. He had not been called to testify on any of those occasions. One occasion was when a man was talking openly in the police van about the murder of a woman whom Balogh had known from working at a restaurant. The person did not seem to him to be all there mentally and had committed suicide. On another occasion, Balogh admitted he gave the police information about an individual named John Walker. On a third occasion, Balogh was living in a house with a Crown witness named Fowler. Balogh thought that Fowler was in a conspiracy with a particular police officer to frame the accused and he had gone to the police about it. [36] Balogh's criminal record consisted of convictions for theft over $200; break, entry and theft; possession of stolen property; mischief to private property; taking an automobile without the consent of the owner; dangerous driving; numerous failures to appear for trial, and failures to comply with probation; a conviction for being unlawfully at large; and a Narcotics Act offence for which he received a consecutive sentence of seven days on another sentence. [37] The factors mentioned in the Kaufman report as being important in assessing the credibility of an in-custody witness were placed in evidence before the jury. Competent counsel at trial did not request that the trial judge give a Vetrovec warning. [38] If a warning had been requested, it would have been open to the trial judge to bring to the attention of the jury the evidence capable of confirming the evidence of King and Balogh, such as the presence of semen in Samantha's anus and vagina and the evidence of Norma Jean that the accused was with Samantha at 2:00 a.m. on the night she died. These pieces of evidence were highly probative and were not obtained in a manner which was unfair to the accused. Nor can it be said that there would have been no tactical advantage to be gained by the defence in not requesting a warning. One such tactical advantage would be that if the jury had been satisfied beyond a reasonable doubt that the appellant was responsible for Samantha's death, the evidence of King and Balogh left open the possibility of convicting the appellant of a lesser offence than first degree murder. Was the jury able to properly assess the evidence of the unsavoury witnesses? (a)Did the trial judge alert the jury to the importance of assessing the credibility of King and Balogh? [39] The trial judge reviewed Balogh's history of mental instability in his review of the evidence. He stated in part: It was brought out that at the age of 15, the witness ends up in the London Psychiatric Centre; that at 18 years of age he had two attempted suicides. In '87 and '88 while at Kingston Penitentiary, he attempted to hang himself. [40] The trial judge related the criminal records of King and Balogh and then stated: We have also had in this trial witnesses who have a criminal record. You will recall the testimony of Mr. Balogh and Mr. King. Both of these witnesses admitted that they had a record and once again you may take their record into account when considering the credibility and weight of their evidence. It is for you to decide what significance, if any, you will attach to their records when you size them up as witnesses.[Emphasis added.] Immediately after this, the trial judge stated: Credibility and weight of the evidence are entirely for you. If you have a reasonable doubt as to the accuracy of the evidence or the weight to be given to such evidence, you must give the benefit of that doubt to the accused and not to the Crown. This is an important part of a criminal trial and I repeat this for you. Credibility and weight of evidence are entirely for you, the jury. If you have a reasonable doubt as to the accuracy of the evidence or the weight to give to such evidence, you must give the benefit of that doubt to the accused and not to the Crown. [Emphasis added.] After telling the jury that," a reasonable doubt as to the accuracy of the evidence or the weight to be given to such evidence" must be given to the accused the trial judge then stated "Now some general principles." [41] The trial judge explained the presumption of innocence and reasonable doubt. In explaining the principle of reasonable doubt the trial judge stated: You must be satisfied of the guilt of the accused on a totality of the evidence beyond a reasonable doubt. ... I mean a real doubt, an honest and sensible doubt. If you have a doubt, you must give the benefit of that doubt to the accused and find the accused not guilty as charged. [42] It is significant that in this portion of the charge the trial judge did not use the phrase, "reasonable doubt as to the accuracy of the evidence or the weight to be given to such evidence." [43] Read as a whole, the trial judge told the jury that they could use the criminal record of King and Balogh in assessing the credibility and weight to be given to their evidence. If they were not satisfied "beyond a reasonable doubt as to the accuracy of the evidence or the weight to be given to such evidence" they were to give the benefit of that doubt to the accused. At this time the trial judge was not explaining general principles. In his subsequent explanation of the general principle of reasonable doubt the trial judge only spoke of a reasonable doubt on the totality of the evidence. [44] The effect of the trial judge's comments was to isolate the evidence of King and Balogh for the jury and to focus their minds on it. In telling the jury that the criminal records of King and Balogh were relevant to the "weight of their evidence", when sizing them up as witnesses and immediately after telling them that if they had a reasonable doubt as to the "accuracy of the evidence or the weight to be given to such evidence" they had to give the benefit of the doubt to the accused, the trial judge gave the jury the equivalent value of a caution.2 (b)Did the in-custody witnesses make prior inconsistent statements? [45] The evidence of King and Balogh appears to have been consistent; there was no recantation. (c)Did the trial judge review the evidence of the witnesses in such a manner that the jury would be alert to the frailties of their evidence? [46] The major frailty with Balogh's evidence was his psychiatric history, and the trial judge referred to this in his review of the evidence. In reviewing King's evidence, the trial judge reminded the jury that he had attempted to get a lighter sentence for his evidence and his admission that he was a "rat". Coupled with the trial judge's favourable instruction on credibility given earlier, the jury would have been alert to the major frailties of the evidence of the in- custody witnesses. [47] In summary, the absence of any request for a warning by counsel, and the deference which must be shown to the trial judge's decision not to give a warning, require this court to review whether a Vetrovec warning was essential for a fair trial. The Crown's case was a strong one apart from the evidence of King and Balogh. The factors that were important in assessing the credibility of the evidence of an in-custody witness, namely, independent confirmation of the witnesses' evidence by other pieces of circumstantial evidence, richness of detail concerning the circumstances of the alleged event, as opposed to a simple allegation of a bald admission by the appellant, the consistency of the evidence between King and Balogh, the frailty of their evidence, such as Balogh's history of mental instability and the fact that King had tried to obtain a lighter sentence, were all placed in evidence before the jury. Competent counsel at trial refrained from asking for a Vetrovec warning; if a warning had been requested it would have been open to the trial judge to draw to the attention of the jury other pieces of confirmatory evidence, including the presence of semen in Samantha's anus and vagina and the evidence of Norma Jean that the appellant was with her at 2 a.m. on the night she died. In his charge, the trial judge alerted the jury to the main frailties in the evidence of the in-custody witnesses by reviewing Balogh's psychiatric history, King's attempt to get a lighter sentence and their criminal records. To the extent that the judge's charge directed the members of the jury hat the criminal record of King and Balogh could be used to assess these witnesses' credibility and immediately afterwards directed the jury that they must give the benefit of any doubt respecting the accuracy of evidence to the accused, I am satisfied that the essential values contained in a caution were conveyed to the jury. The jury would have been able to assess the evidence of King and Balogh properly. The absence of a traditional Vetrovec warning did not result in an unfair trial for the appellant. [48] A related ground of appeal raised by the appellant, but not pressed in argument, was whether the jury ought to have been cautioned about relying on the mother's evidence, having regard to the evidence that she too abused the deceased. Again, no warning was requested and no objection was taken to the fact that no Vetrovec warning was given in relation to her evidence. Norma Jean was not a person of disreputable character. There was no basis on which to give a Vetrovec warning about her evidence. (2) Consciousness of Guilt [49] The Crown asked for a charge on consciousness of guilt concerning lies by the accused; the defence objected. The trial judge limited his instruction to false statements made by the accused, e.g., concerning the funnel in the bathtub and changing his track pants. The trial judge never told the jury what use could be made of the statements if they did find that the statements were evidence of consciousness of guilt. The trial judge's charge also made it clear that only those lies which showed an attempt by the appellant to conceal his participation amounted to consciousness of guilt, that the jury could not find consciousness of guilt simply by rejecting the appellant's evidence, but that they must be satisfied that there had been a deliberate falsehood by the appellant in an effort to conceal his identity or role in the commission of the crime. After the charge, there was no objection to the manner in which the matter had been left to the jury. The trial judge's charge did not go far enough to occasion any error or, if it did, there was no substantial wrong or miscarriage of justice. (3) Alleged failure to relate evidence to the position of the defence [50] Early in his charge, the trial judge told the jury that the appellant's defence was that he had not committed the crime. He discussed the two types of evidence which the jury had heard in the case, namely direct and circumstantial evidence, and told the jury that before basing a verdict of guilty on circumstantial evidence they must be satisfied beyond a reasonable doubt that the guilt of the accused was the only reasonable inference to be drawn from the proven facts. [51] He told the jury that the opinion evidence of the expert witnesses who had testified was not binding upon them and that the opinion of the experts had to be based on proven facts. He also told the jury that they should consider whether the expert witness appeared to have been fair or whether he or she had shown bias in favour of the party who had called the expert. In reviewing the report of Dr. Rao, who had done the autopsy on Samantha, the trial judge mentioned that the range she attached to the time between the head trauma and death was from zero hours to a day. He also mentioned that Dr. Rao had said that the brain swelling could result from a cumulative effect of a series of blows. Her vagina had not been penetrated by a male penis. In reviewing the expert evidence of Anne Johnston, the trial judge reminded the jury that she had said that, in a mature female, the sperm could remain alive and have some integrity within five to six days of intercourse. In his reference to the evidence of Pamela Newall, he told the jury that she could not include or exclude anyone respecting the sperm on the vaginal swab. [52] The trial judge noted that the question of motive had been raised in the trial by both the defence and the Crown. In relation to the evidence of Bobbie-Jo, Norma Jean's sister, the trial judge said she testified she saw the accused interacting with Samantha and saw nothing adverse in his behaviour nor did she see Norma Jean doing anything inappropriate. Bobbie-Jo was impressed that the accused took an interest in Samantha, that he was good with her. She also testified that Samantha threw temper tantrums, flailed and banged her head on the floor at times. Other witnesses testified as to a fall by Samantha on the previous day in which she had banged her head, but stated that she was up and playing within minutes afterwards so they had not considered it serious. The trial judge told the jury that Margaret Johnings testified that on December 11th the accused brought Samantha to her apartment when Norma-Jean had slapped Samantha, and that Norma-Jean had called her and said, "I love Samantha; I slapped her." [53] The trial judge reviewed Norma Jean's evidence concerning the December 11th incident in which she admitted that she had hit Samantha because Samantha had hit the newborn baby and then called her mother. He also stated that she admitted that on one occasion she had thrown Samantha into the stroller when she was upset and that on another occasion she had hit Samantha when there was some difficulty with getting on her boots. As well, she threw water in Samantha's face on one occasion when she was having a tantrum. In relation to Adam France, the trial judge told the jury that he had said Norma Jean was aggressive, would lose her cool, punch other guys in the face, and that she also cut one man's lip; that the doctor advised Norma Jean to go to parenting sessions but she had been angry at the suggestion. In relation to the evidence of Phil George, an officer from the London OPP, the trial judge reminded the jury that he had testified that Norma Jean had told the police she could be a liar and had gotten used to lying by covering for her father who had abused her. The trial judge also reminded the jury that she had said to the ambulance attendant, when he arrived, "Did I hurt my baby? Did I kill my baby?" In relation to the evidence of the accused's mother, Melanie Brooks, the trial judge stated that she testified that she was on the phone with the accused on the night of December 14, and that he telephoned shortly after 2:00, when Tony was crying. She said she heard Norma-Jean yelling in the background, "I can't handle this any more" and she heard a thud. Mrs. Brooks' boyfriend confirmed that a call had been made to her by the accused at about 2:15 am. The trial judge also reviewed the accused's evidence in relation to Norma Jean which was that Norma-Jean was good with Samantha except when she smacked her on the bum, a hard swing, not too often, at the most maybe once or twice a week. [54] In relation to the oral statements alleged to have been made by the appellant to the police, the trial judge told the jury that if there was anything in the statement which tended to exonerate the accused they must give it careful consideration. He reviewed the accused's evidence at trial concerning his request to the police officer to change his grey track pants before going to the police station, the accused's denial of doing anything at any time to hurt Samantha, including doing anything sexually. The trial judge also mentioned that the appellant said he was a very deep sleeper and had not heard anything after going to sleep. [55] In reviewing the evidence of Tracy Clarke, a neighbour, the trial judge told the jury that when she saw Norma Jean the morning after Samantha's death she offered to take care of baby Anthony and that when she came to get him the accused did not look scared. The trial judge mentioned that Mr. Bennett of the fire department testified that the accused was calm when he spoke to him on arriving at the apartment. The accused seemed alert at the time but fell asleep an hour later. [56] In the judge's recharge, the jury was instructed that in order to convict they must find, beyond a reasonable doubt, that the appellant struck the deceased, intending to kill her, or to cause her bodily harm that he knew was likely to cause death, and that he did so while committing a sexual assault. [57] The only two persons who could have committed the murder were the appellant and Norma Jean. The trial judge's charge made it clear to the jury that if they could not determine who caused the injuries, they must acquit. In giving general instructions, followed by a review of the evidence of the witnesses in the order in which they were called, the trial judge minimized the contradictions between the appellant's statement to the police that he had been up with Samantha at 2:00 a.m., his evidence at trial that he had slept through the night, and the evidence of the appellant's mother that he had called her at 2:00 a.m. Another factor to consider is that defence counsel did not object to the charge on the basis that the trial judge had not related the position of the defence to the evidence at trial. Having regard to the charge in its entirety, the judge's charge to the jury was adequate. The jury could not have been under any misapprehension as to the position of the defence and the judge's review of the evidence detailed the evidence in support of that position. The jury understood the issues and what they had to do in order to convict the appellant. See: R. v. Mullins Johnson (W.) (1996), 97 O.A.C. 212. (4) Reasonable doubt [58] The trial judge told the jury that reasonable doubt must be based on the evidence. R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) states that a reasonable doubt may be based upon the evidence or lack of evidence. At the time of the appellant's trial in 1994, the standard jury instruction concerning reasonable doubt, which the trial judge gave, did not contain reference to a reasonable doubt based upon lack of evidence. Read fairly and as a whole, the charge did not preclude the jury from determining whether the Crown had proven its case beyond a reasonable doubt. See R. v. Arsenault, [1997] O.J. No.3977, leave to appeal to the Supreme Court of Canada denied, April 2, 1998. (5) The elements of murder and manslaughter [59] It is conceded that the trial judge did not charge the jury correctly when he charged them initially. He omitted to include the intent for murder. In response to a request by both the Crown and the defence who agreed what the instruction should be, the trial judge correctly charged the jury in his recharge. The recharge cured the defect in the charge. (6) The alleged failure to properly instruct the jury that they must find a sexual assault had occurred before considering first degree murder [60] In his recharge, the trial judge made it clear that the only way the jury could convict the appellant of first degree murder was if he inflicted the injuries, intending to kill the child, while committing a sexual assault. IV. FAILURE TO DIRECT A NON-SUIT WITH RESPECT TO FIRST DEGREE MURDER -- WHETHER A FINDING THAT DEATH OCCURRED WHILE COMMITTING A SEXUAL ASSAULT WAS UNREASONABLE [61] Having regard to the presence of semen in the child's vagina and anus, the evidence found on the appellant's track pants, the forensic evidence concerning the order in which the injuries occurred, as well as the evidence concerning the appellant's alleged admission to Norma Jean, there was a prima facie case of sexual assault committed by the appellant. OVERALL [62] Considering the grounds raised by the appellant cumulatively, I would conclude that the appellant received a fair trial. [63] For the reasons I have given, I would dismiss the appeal. LASKIN J.A.: [64] My colleague Weiler J.A. has written persuasive reasons dismissing this appeal. I disagree with her on only one issue, the failure of the trial judge to warn the jury about the danger of accepting the evidence of the two jailhouse informants, Stephen Balogh and Albert King. However, I consider this issue to be decisive of this appeal. In my opinion the failure of the trial judge to warn the jury about the evidence of these two informants was an error in law that deprived the appellant of a fair trial. [65] Before discussing this main issue I will deal briefly with the other grounds of appeal raised by the appellant. In my view, none of these other grounds has enough merit to amount to a reversible error. 1. The Search and Seizure of the Appellant's Grey Track Pants [66] We did not call on the Crown on this issue. The appellant submits that the trial judge erred by admitting into evidence Mr. Brooks' grey track pants and the forensic tests performed on those pants. The trial judge ruled that the search and seizure of the track pants violated the appellant's rights under s.8 of the Charter, but that admitting the pants and test results into evidence would not bring the administration of justice into disrepute. In my opinion the trial judge erred in finding a violation of s.8. [67] I agree with Weiler J.A. that when the police seized his track pants, the appellant no longer had a reasonable expectation of privacy in the apartment. By the time the police seized the pants seven weeks after Samantha's death, the appellant no longer lived at the apartment. He had left shortly after Samantha died and never returned. His family had been allowed into the apartment to remove his belongings. The appellant was not a lessee of the apartment and he did not even have a key to it. Norma Jean Johnings had given the key to her mother and her mother's common law spouse Charles Furry. They controlled the apartment and they voluntarily gave the track pants to the police. Whatever expectation of privacy the appellant had in the apartment had ended by the time the police obtained the track pants. Therefore no violation of s.8 occurred. This ground of appeal fails. 2. Detective Sergeant Harild's Experiment [68] At trial the Crown led evidence to show that a small circular red mark on Samantha's buttock was caused by a cigarette burn inflicted by the appellant. The appellant claims that the mark was caused when Samantha fell on a red toy funnel while playing in the bathtub. In an attempt to show that the appellant was lying, the investigating officer Detective Sergeant Harild took the funnel home and performed a crude experiment with it. He filled his bathtub with different levels of water, threw the funnel into the water and recorded how the funnel landed. Detective Harild testified about the results of his experiment without objection from defence counsel. [69] On appeal the appellant submits that the trial judge erred in admitting the evidence. I agree that the results of Detective Sergeant Harild's experiment should not have been admitted. He did not have the required scientific training to give this evidence and the evidence itself was of dubious relevance. See R. v. Mohan (1994), 89 C.C.C. (3d) 402 (S.C.C.). But the error was harmless for two reasons. First, the trial judge instructed the jury to ignore the evidence. The trial judge properly told the jury "I must instruct you to pay no attention to what Sergeant Harild said in this regard because he was not qualified as an expert in order to conduct these types of experiments and it is of no relevance for the purposes of your deliberation." Second, the medical evidence at trial showed that the mark was likely caused by a cigarette burn. Indeed the medical evidence dismissed the possibility of a funnel having caused or aggravated the lesion. I would not give effect to this ground of appeal. 3. The Corbett Application [70] At trial the appellant brought a "Corbett application" to exclude his criminal record because of its likely prejudicial effect on the jury. See R. v. Corbett (1988), 41 C.C.C. (3d) 385 (S.C.C.). The appellant had a youth record consisting of convictions for break, enter and theft and theft under and an adult record consisting of convictions for theft under, fraud, breach of probation, failure to comply with a recognizance and assault. The trial judge denied the Corbett application, ruling that the appellant could be examined on his entire criminal record. [71] The appellant challenges this ruling, arguing that the trial judge should have edited out the youth record and the conviction for assault. I think it would have been preferable had the trial judge excised the appellant's conviction for assault but I would not interfere with his refusal to do so. [72] Two main considerations support editing the appellant's record for assault. First, acts of violence such as assault have less bearing on a person's credibility than do acts of dishonesty such as fraud or theft. Second, a court should be wary of admitting evidence of an accused's conviction for a similar crime in order to avoid the possibility that the jury might convict because of the accused's disposition to commit such crimes. One consideration weighing against editing the appellant's record is that at trial he attacked the credibility of several Crown witnesses. But this consideration is rooted in the concern that the jury might be misled into thinking that the appellant is of reputable character, unlike the witnesses whose credibility he attacks. Excising the assault conviction would not raise this concern because the appellant's record of recent convictions for crimes of dishonesty would be left intact. [73] Nonetheless, although I think that the trial judge should have excised the appellant's assault conviction I would not interfere with his ruling. A trial judge has broad discretion on a Corbett application and I am not persuaded that Yates J. exercised his discretion unreasonably. 4. No Vetrovec Warning About Norma Jean Johnings' Evidence [74] The appellant submits that the trial judge erred because he failed to warn the jury of the risk of convicting him on the evidence of Norma Jean Johnings. In other words, the appellant argues that the trial judge should have given a Vetrovec warning concerning Ms. Johnings' evidence, although such a warning was not requested at trial. In my opinion this ground of appeal has no merit. Ms. Johnings was not an unsavoury witness and at trial she did not finger the appellant as the culprit. 5. The Charge on Consciousness of Guilt [75] The appellant submits that the trial judge erred by instructing the jury that they should infer the appellant's consciousness of guilt if he deliberately made false statements. Instead, the appellant argues, the trial judge should have directed the jury that evidence of the appellant's false statements could only be used by them to determine whether on the whole of the evidence the Crown had proved its case. [76] I find no merit in this submission. The trial judge's charge on consciousness of guilt was brief. He did not tell the jury that they "should" infer a consciousness of guilt if they found the appellant had made a false statement, only that they "may" do so. He told the jury that a deliberate false statement was only one factor to consider in deciding the appellant's guilt or innocence. Indeed, he accurately instructed the jury that any false statement "has to be considered by you in light of all the other proven facts in deciding the question of guilt or innocence," and that "not every false statement is evidence of a consciousness of guilt." 6. The Charge on Reasonable Doubt [77] In charging the jury on reasonable doubt the trial judge told them that "the reasonable doubt must be based on the evidence of this case." The appellant argues this instruction was wrong because the trial judge did not tell the jury that the lack of evidence or the failure of the prosecution to present sufficient evidence may also raise a reasonable doubt. The appellant, of course, relies on the Supreme Court's judgment in R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.), delivered three years after the jury was charged in this case. [78] In Lifchus, Cory J. said at p.12 that a jury should be instructed that "a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence." The trial judge's charge did not conform to the suggested instruction in Lifchus but, in my view, his failure to explain that a reasonable doubt might be based on the lack of evidence does not amount to a reversible error. The trial judge told the jury not to speculate and, unlike the jury in Lifchus, this jury could not have misapprehended the applicable burden and standard of proof. The trial judge's charge on reasonable doubt has been widely used in this province and has been found acceptable by this court even in the wake of Lifchus. See, for example, R. v. Arsenault, [1997] O.J. No.3977, application for leave to appeal dismissed April 2, 1998, Regina v. Atkinson, [1997] O.J. No. 4788, Regina v. Marquardt (1998), 37 O.R. (3d) 321, R. v. Ransley, [1998] O.J. No.1287. To amount to reversible error something more is needed than the trial judge's failure to refer to "the lack of evidence." I would not give effect to this ground of appeal. 7. The Instruction on Murder and Manslaughter [79] The trial judge instructed the jury on first degree murder, second degree murder and manslaughter. The appellant complains that the instruction on murder was wrong and that the instruction on manslaughter was confusing. [80] In his main charge the trial judge forgot to tell the jury about the intent needed for first and second degree murder. In this case the intent was the same because the Crown relied on s.231(5)(b) of the Code, which makes a murder, though not planned and deliberate, first degree murder if it is committed during a sexual assault. At the end of his charge both counsel told the trial judge that he had left out any reference to the intent for murder. The trial judge then recharged the jury on the required intent for first and second degree murder. His recharge was accurate and, in my view, cured the error in the main charge. [81] When the trial judge first charged the jury on manslaughter, he read from a "Commentary", which drew a distinction between "voluntary" and "involuntary" manslaughter. This distinction is unknown to our criminal law, and in making it, the trial judge may well have confused the jury. Later in his charge, however, he instructed the jury correctly on manslaughter without any reference to the distinction he had made earlier. This later instruction overcame any confusion in the trial judge's earlier discussion of manslaughter. I would not give effect to this ground of appeal. 8. The Trial Judge's Refusal to Direct the Jury to Acquit on First Degree Murder [82] The appellant argues the Crown did not make out a prima facie case that he committed a sexual assault on Samantha. Therefore the appellant submits that the trial judge erred in failing to direct the jury to acquit on the charge of first degree murder. Although I have concerns about the strength of the Crown's case on first degree murder, like Weiler J.A., I do not think that the trial judge erred in refusing the motion for a directed verdict of acquittal. The medical evidence concerning the injuries to Samantha's genital areas, the presence of semen on her vagina and anus, the appellant's alleged admission to Norma Jean Johnings and the evidence on his track pants established a prima facie case of sexual assault. 9. The Failure to Relate the Evidence to the Position of the Defence [83] The trial judge instructed the jury on the position of the defence, which was a straight denial of wrongdoing. He also reviewed the evidence for the jury. What the trial judge did not do was relate the evidence to the issues in the case. The appellant submits that the trial judge's failure to do so deprived him of a fair trial. [84] An accused is entitled to a jury that understands how the evidence relates to the legal issues. Taschereau J. stated this fundamental principle nearly 50 years ago in Azoulay v. The Queen (1952), 104 (C.C.C.) 97 (S.C.C.) at 98: The rule which has been laid down, and consistently followed is that in a jury trial the presiding Judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them: ... [85] The Supreme Court recently reaffirmed this principle in R. v. Jacquard (1997), 113 C.C.C. (3d) 1 (S.C.C.). Lamer C.J.C., writing for the majority, observed at p.17: Moreover, I cannot emphasize enough that the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury. An accused is entitled to a jury that understands how the evidence relates to the legal issues. This demands a functional approach to the instructions that were given, not an idealized approach to those instructions that might have been given. [86] Similarly, Sopinka J. in dissent, said at p.28: Nothing is more important to a true verdict than ensuring that the jury understands how the evidence relates to the issues. This has always been and should continue to be an objective of the instructions to a jury and nothing should be said to undermine this objective. [87] In this case, the trial judge's jury charge did not comply with the Supreme Court's directive in Jacquard. Instead of instructing the jury on how the evidence related to the relevant issues, the trial judge merely read out a summary of the evidence of each witness in the order in which the witnesses testified. Generally this is a poor practice, which provides little assistance to the jury. [88] Nonetheless, as Lamer C.J.C. observed in Jacquard, at p.11: "[a]s long as an appellate court, when looking at the trial judge's charge to the jury as a whole, concludes that the jury was left with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper." I am satisfied that in this case the jury would have adequately understood how the evidence related to the relevant issues. The appellant denied committing the crime and alleged that someone else, likely Norma Jean Johnings, had done it. Although a mass of evidence was produced in support of and against the position of the Crown and the defence, the key issues remained fairly simple Thus, I think the jury would have understood how the evidence summarized by the trial judge related to these issues. Although I do not approve of the trial judge's charge, his failure to relate the evidence to the issues did not, in this case, deprive the appellant of a fair trial. [89] I now turn to the main ground of appeal. 10. The Failure of the Trial Judge to Give a Vetrovec Warning about the Evidence of the Two Jailhouse Informants, Balogh and King [90] I find it difficult to understand why neither the defence nor the Crown asked the trial judge to warn the jury about the risk of accepting the evidence of Balogh and King. Nonetheless, neither counsel asked for a Vetrovec warning and the trial judge did not give any warning. On appeal, however, the appellant submits that the trial judge was required to give a Vetrovec warning and that his failure to do so deprived the appellant of a fair trial. I agree with this submission. [91] Ordinarily, a trial judge has broad discretion whether to give a Vetrovec warning and an appellate court will not be quick to interfere with the exercise of that discretion. There are, however, cases where a Vetrovec warning is required. Major J. made this point in R. v. Bevan (1993), 82 C.C.C. (3d) 311 (S.C.C.) at 326-27, a case in which the court also held that the trial judge erred by failing to warn the jury about the evidence of two jailhouse informants. 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. The trial judge's discretion whether to give a Vetrovec warning should generally be given wide latitude by appellate courts. But in my respectful view, a Vetrovec caution was clearly required in this case with respect to the testimony of both Dietrich and Belmont. [92] Therefore, this court must first decide whether a warning was required. If it was, the trial judge erred in law in failing to give it even though counsel did not ask him to do so. If the warning was required, the second question is whether the failure to give it occasioned a substantial wrong or miscarriage of justice. These are distinct questions. My colleague Weiler J.A. has listed several considerations to be taken into account in deciding whether the failure to give a Vetrovec warning deprived the appellant of a fair trial. In my view, some of these considerations are relevant to whether a warning was required; others, however, are relevant only to whether to invoke the curative provision in s.686(1)(b)(iii) of the Criminal Code. [93] In deciding whether a warning is required two considerations are paramount: the credibility of the witness and the importance of the witness' evidence to the Crown's case. Other considerations such as the failure of defence counsel to request a warning, the strength of the Crown's case apart from the evidence of the witness, the existence of confirmatory evidence that would have been drawn to the jury's attention had the warning been given, and the ability of the jury to properly assess the evidence of the witness absent a warning, are all relevant to the application of 686(1)(b)(iii) of the Code. [94] This approach to the various considerations catalogued by Weiler J.A. finds support in Vetrovec v. The Queen (1982), 67 C.C.C. (2d) 1 (S.C.C.) and Bevan. In Vetrovec itself Dickson J. suggested that the need for a warning turned on the trial judge's view of the "credit of the witness" at p.11: 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. [95] In Bevan, Major J. gave examples of factors bearing on the "credit of the witness" C a lengthy criminal record, a strong motivation to lie and testifying for some perceived benefit such as release from prison, a discontinuation of charges or a cash payment C and he added that whether a warning was required also turned on whether the witness' evidence incriminated the accused and was crucial to the Crown's case, at p.327: Both of them had lengthy criminal records, had strong motivations to lie, and approached the police only when each perceived that some benefit C such as release from prison, a discontinuation of charges against them, or cash payments C could be obtained in exchange for their testimony. Both of them explicitly told the police at the time they came forward that they were seeking a "deal" in exchange for their evidence against the appellants. Moreover, the evidence of Belmont and Dietrich was incriminating to the appellants, and crucial to the Crown's case. [96] In "Developments in the Law of Evidence:1992-1993 Term" (1994) 5 Sup. Ct. L. Rev. (2d) 421 at 463, Marc Rosenberg (now my colleague Rosenberg J.A.) summarized the effect of Bevan: whether a warning is required depends on whether the court should suspect the credibility of the witness and how important the witness is to the Crown's case. The judge should first in an objective way determine whether there is reason to suspect the credibility of the witness according to the traditional means by which such determinations are made. This would include a review of the evidence to determine whether there are factors which have properly led the courts to be wary of accepting a witness's evidence. Factors might include involvement in criminal activities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trial judge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness's story be approached with caution. Second, the trial judge must assess the importance of the witness to the Crown's case. If the witness plays a relatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point, as where the witness plays a central role in proof of guilt, the warning is mandatory. I adopt this analysis. (a) Was a Warning Required? (i) The Credibility of King and Balogh [97] There were cogent reasons to suspect the credibility of both King and Balogh. King was only 26 years old when he testified at trial but he had already accumulated a long criminal record, almost entirely for crimes of dishonesty. He had two convictions as a young offender and amassed 19 convictions as an adult between 1988 and 1993. Of his 21 convictions 18 were for break and enter or theft. [98] When the appellant was tried, King was in the segregation unit of the Hamilton Wentworth Detention Centre facing a three- year sentence in the penitentiary. He did not want to go to the penitentiary and his testimony was motivated by his desire to obtain a lighter sentence. That this was his motivation is evident from the following exchange during his cross- examination. Q: In June of 1993 this was your first time that you were facing going down to the penitentiary system? A: Yes. Q: So you would have been pretty frightened? A: Yeah, I was a little scared. Q: And I take it that at that point you decided maybe you had better try and see if you could get some help again? A: Yes, I did think that. Q: So you, at that point, heard about Mr. Brooks being charged? A: Yes. Q: You knew that Mr. Brooks was charged with killing a baby? A: Yes. Q: I suppose you thought that if you could testify for the Crown in some way, that might help you out? A: Yes, but it didn't. [99] Weiler J.A. downplays this consideration by pointing out that King never did obtain any benefit from his testimony (even though two police officers testified for him at his parole board hearing). In my view, whether King ultimately obtained any benefit is not determinative. The court should be concerned with his motivation to lie. Unquestionably he had a strong motivation to lie. He was afraid to go to the penitentiary and he hoped he could avoid going there by testifying for the Crown. Moreover, he had reason to believe that his testimony would gain him a lighter sentence. Once before he had successfully made a deal with the authorities to avoid going to the penitentiary by testifying against a cellmate charged with murder. [100] The prospect of receiving a benefit gives any informant, whether in jail or not, a motivation to lie, or, at least to give inaccurate testimony. But living behind bars surely increases this motivation. This point is well expressed in Christopher Sherrin, "Jailhouse Informants, Part I: Problems With Their Use" (1997) 40 C.L.Q. 106 at 112: Obviously the strength of any motivations to fabricate evidence will vary with the conditions in which an informant lives. But even the nicest jail is still a jail, and I think it is trite to say that there are very few prisoners who would not actually desire an improvement of their living conditions, especially if it involved their release from custody. It is also true that basic human integrity and decency should act as deterrents to the intentional incrimination of an innocent individual, but one may seriously question the extent to which such moral qualms actually constricts the actions of informants. By definition, such individuals are currently in conflict with the law (which is why they are in prison), and many have been so in the past. As such, their character is open to question, if not obviously unsavoury. One might legitimately surmise that their willingness to put their own needs ahead of others on the "outside" (in committing the criminal conduct which led them to be incarcerated) will translate into a willingness to subjugate the needs of others on the "inside" (to receive a fair trial) to their own desires for improved living conditions, monetary rewards and the like. [101] Balogh, too, had a long criminal record, mainly for crimes of dishonesty. He was 32 when he testified and he had already accumulated 25 convictions between 1981 and 1993. His record included convictions for theft over, possession of stolen property, taking an automobile without the owner's consent and numerous convictions for break and enter and theft. [102] Balogh's motivation to fabricate was not as apparent as King's. Balogh claimed that he wanted to testify because his father was a violent man and "it really ate at [him]". But the sincerity of this claim is undermined by Balogh's own criminal lifestyle, a lifestyle which makes one hesitant to accept his professed "good citizen" intentions. Even if Balogh's claim could be credible, the recent Report of the Commission of Proceedings Involving Guy Paul Morin (1998) (the "Kaufman Report") teaches us to view such claims sceptically. The Kaufman Report refers with approval to the findings of the Report of the 1989-90 Los Angeles County Grand Jury Investigation of the Involvement of Jailhouse Informants in the Criminal Justice System in Los Angeles County, (1990) at p.563: Despite their benefit-oriented motivation, the informants did not always present themselves that way. The report states: Jailhouse informants want some benefit in return for providing testimony. The more sophisticated may attribute their willingness to testify for law enforcement to other motives, such as their repugnance towards the particular crime charged, a family member having been a victim of a similar occurrence, the lack of remorse shown by the defendant or other explanation to account for their assistance to law enforcement. Nevertheless, in the vast majority of cases, it is a benefit, real or perceived, for the informant or some third party that motivates the cooperation. [Emphasis added.] [103] The Kaufman Report then draws a parallel between the Los Angeles experience and the Morin case, noting that the two jailhouse informants in that case claimed their testimony was motivated by their repugnance towards Morin's alleged crime. The Commissioner, the Honourable Mr. Kaufman, did not accept their testimony (at p.563): Both Mr. May and Mr. X claimed that they were motivated to testify by their repugnance towards the crime with which Mr. Morin was charged. As noted earlier, I do not accept this testimony. Their presentation is reminiscent of the Los Angeles experience. Their attitude demonstrates that an informant's motive to lie may not be obvious C indeed, it may often be less conspicuous than that of a defendant. [104] Indeed, the Commissioner doubted the so called "good citizen" informer, concluding at p.604 of his Report that "most [in custody] informers wish to benefit for their contemplated participation as witnesses for the prosecution." Balogh's good citizen intentions are further placed in doubt by his admission that he had previously approached the police several times with information implicating other accused charged with murder. However, before this trial he had never been called to testify. [105] Moreover, even if Balogh might have been motivated by a loftier goal than self-interest, he had a long psychiatric history, which demonstrated mental instability and a skewed sense of reality. At 15, he was admitted to the London Psychiatric Hospital. At 18, he attempted suicide twice and was placed in St. Joseph's Hospital in Hamilton. In 1987, after trying to hang himself, he was placed in the Regional Psychiatric Unit of the Kingston Penitentiary. In 1989, a Crown attorney became concerned whether Balogh was fit to stand trial and arranged for him to be seen by a doctor. Balogh claimed to hear voices talking about him and appeared paranoid. He was ordered by the court to seek psychological counselling. Over the years he admitted to having quite a few clairvoyant experiences and he claimed that his premonitions often came true. He had taken medication for depression, which he did not like, and he admitted to having been an avid consumer of drugs C LSD and marihuana C and alcohol. [106] All of this evidence raises serious concerns about the credibility of King and Balogh and strongly suggests the need for a Vetrovec warning about the risk of relying on their evidence. (ii) The Importance of the Evidence of King and Balogh [107] With her usual candour Ms. Cecchetto for the Crown acknowledged both in her factum and in oral argument that the evidence of King and Balogh was "very important" to the Crown's case. Their evidence was virtually the only direct evidence implicating the appellant in the crime. [108] In June 1993, King, Balogh and the appellant were all imprisoned in the segregation unit of the Hamilton- Wentworth Detention Centre. Prisoners in the segregation unit were locked up 23 hours a day. King and Balogh shared a cell when they first spoke to the appellant. Before that conversation neither knew the appellant other than to say hello. To gain the appellant's trust King said that he and Balogh knew some bikers. The appellant said that he had family and friends who were bikers. [109] King testified that the appellant came to his cell door and talked to him through the grate at the bottom. According to King, the appellant said that he had slapped his girlfriend's baby. King claimed that in a second conversation the appellant said that he had slapped the baby on the head and that the baby's mother had also hit her child. The appellant hit the baby because she was always crying. According to King, the appellant admitted hitting the baby on the head while the baby's mother was out. Each time he hit the baby she would cry more and then the baby started choking. The appellant also said that he wanted to get the baby's mother because she was testifying against him. King told the police about his conversations with the appellant. [110] The day before he testified at the appellant's preliminary hearing, King was brought back to the detention centre and put in the same cell as the appellant. King testified that while they were alone in the cell the appellant warned King that he knew where King's mother lived and threatened that he would have someone set her house on fire if King testified. [111] Balogh testified that when he and King shared a cell he overheard King's conversations with the appellant. Balogh also testified that once he gained the appellant's trust, the appellant told him and King that while alone babysitting the baby, she started to cry, so he tried spanking her and lost his temper. The appellant then said that he hit the baby on the head and the baby stopped moving. Balogh claimed that he heard the appellant say that he was going to kill his girlfriend or have her knocked off. According to Balogh, the appellant seemed paranoid and withdrawn about his admission. [112] Balogh testified that after their conversations with the appellant, he and King sat down and pieced together some notes of what they remembered. They both wrote their notes on the same piece of paper. The notes were never produced. [113] The appellant denied virtually all of King's and Balogh's evidence. The appellant acknowledged that King started a conversation with him. King asked him if he had been removed from the floor at the detention centre and the appellant said no. King then said he knew some bikers and asked if the appellant wanted his girlfriend knocked off. Balogh said that it would cost $500. The appellant replied that he had enough problems. After this conversation he stopped talking to King and avoided both King and Balogh. He denied talking to either of them about hitting the baby on the head to stop her from crying. [114] The appellant agreed that just before his preliminary inquiry he was put in a holding cell with King. According to the appellant, King said he had nothing to do with going to the police and it was all Balogh's idea. The appellant denied threatening King's mother and said he didn't even know where she lived. [115] Despite the appellant's denials, the evidence of King and Balogh figured prominently in the prosecution's case. Their testimony provided direct evidence of the appellant's guilt. Although neither gave evidence about any sexual assault, they each testified that the appellant admitted to killing his baby. Thus their evidence, if accepted by the jury, was very incriminating. [116] Weiler J.A. points out that the evidence of King and Balogh, though very important, was not essential to the Crown's case. I accept that in this case, unlike in Bevan, the evidence of the two jailhouse informants was not essential in the sense that the case could have been prosecuted without their evidence. I do not think, however, that the need for a Vetrovec warning turns on whether the evidence of jailhouse informants is "essential" to the Crown's case or "very important" to the Crown's case. In either instance the concern is the same, to ensure that an accused is not convicted on unreliable evidence. That concern will be present when the evidence of informants plays a central role in the Crown's case. Deciding what evidence is central to the prosecution may be difficult in some cases. But it is not difficult to decide here, especially in the light of the Crown's admission that the evidence of King and Balogh was very important. To use the words of Marc Rosenberg, supra, their evidence played a central role in the proof of guilt. [117] Because there were cogent reasons to suspect the credibility of both King and Balogh and because their evidence was central to the Crown's case, in my opinion a Vetrovec warning was mandatory. [118] What underlies the need for a Vetrovec warning is the concern that without it a jury may not appreciate how unreliable jailhouse informant evidence can be. Without an appropriate caution jurors may be far too willing to accept the testimony of jailhouse informants at face value. There are several reasons why jurors may do so. These reasons are referred to in Christopher Sherrin's article, supra, at p.117- 18. [119] First, jurors may associate the informants with the prosecution and assume the Crown would only call witnesses who were truthful. Second, informants may make very good witnesses. Not only may they have experience testifying, they may have few scruples about perjuring themselves. They will be highly motivated to testify well, because of the potential rewards for doing so and they may be able to gather information about the accused that makes their evidence more plausible. Third, jurors may not be able to properly assess information relevant to the credibility of jailhouse informants' testimony. Jurors will likely be unfamiliar with the workings of the jail system and may find it hard to accept that informants can gather so much information about an accused or the alleged crime from sources other than conversations with the accused. Finally, an accused may find it difficult to refute informants' testimony. Usually no one else is present during a conversation between an informant and an accused. And informants often are practised witnesses with access to information that enables them to concoct a believable story for the jury. [120] The Kaufman Report amply documented the unreliability of jailhouse informant testimony and expressed concern that jurors would not appreciate the dangers of this evidence. The Report notes at p.638: "[t]he evidence at this Inquiry demonstrates the inherent unreliability of in-custody informer testimony, its contribution to miscarriages of justice and the substantial risk that the dangers may not be fully appreciated by the jury." In the light of the dangers associated with jailhouse informant evidence and its potential to mislead the jury, the Kaufman Report recommended at p.632 that such evidence be "presumptively inadmissible", and, at p.638, that when admitted "a cautionary instruction is virtually mandated." [121] These recommendations reflect the Kaufman Report's deep concern with the evidence of jailhouse informants. It is, however, unnecessary to adopt them to decide this appeal. In this case, for the reasons I have already given, the trial judge was required to warn the jury about the risk of accepting the evidence of King and Balogh. In short, a Vetrovec warning was mandatory and the failure to give such a warning amounted to an error in law. (b) The Application of s.686(1)(b)(iii) of the Criminal Code [122] To invoke s.686(1)(b)(iii) of the Code the Crown must show that there is no reasonable possibility a properly instructed jury would have reached a different verdict: see Bevan at p.328. I am not persuaded that the Crown has met this standard. I will briefly review the relevant considerations. (i) The Failure to Request a Warning [123] At trial, defence counsel did not request a Vetrovec warning. The Crown submits that this consideration weighs in favour of applying the curative provision. I do not agree that this consideration justifies the application of the curative provision in this case. [124] Undoubtedly in some cases defence counsel may not ask for a warning for tactical reasons. Defence counsel may be concerned that the trial judge will accompany the warning with a review of the evidence capable of confirming the testimony of the unsavoury witness. Thus defence counsel who requests a warning risks having the unsavoury witness's credibility bolstered and the inculpatory evidence against the accused repeated for the jury. Where defence counsel does not ask for a Vetrovec warning for these tactical reasons, an appellate court will be less likely to hold that the absence of a warning deprived the accused of a fair trial. In her judgment Weiler J.A. appears to rely on this reasoning. [125] On this record, however, I am not satisfied that the defence refrained from asking for a warning for tactical reasons. In this court counsel for the Crown did not suggest that it was a tactical decision. Moreover, I am not as persuaded as Weiler J.A. that a Vetrovec warning would likely have been followed by a review of the confirmatory evidence. Bevan at p.326 shows that the two do not necessarily go hand in hand. As Major J. said: 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. In this case if the trial judge had given a Vetrovec warning, it is unclear whether he would also have received for the jury the evidence capable of supporting the informants' testimony. [126] Even apart from tactical considerations, however, defence counsel's position at trial is relevant to s.686(1)(b)(iii). The failure to request a warning suggests that at least in counsel's view no warning was needed. But counsel's opinion, though relevant, is not determinative. This court must decide whether the lack of a warning deprived the accused of a fair trial. See R. v. Glasgow (1996), 110 C.C.C. (3d) 57 (Ont. C.A.). As Lamer C.J.C. observed in Jacquard at p.19: "... this court made it quite clear that defence counsel's failure to object to a jury charge is not determinative, at least in the context of the applicability of the Criminal Code's curative provision." The trial judge, not defence counsel, must take responsibility for the jury charge. And an appellate court must ensure that an accused's right to a fair trial is not jeopardized by the misjudgment or oversight of trial counsel. (ii) The Defence Fully Explored in Cross- Examination all the Factors that Impaired the Credibility of Balogh and King [127] The Crown contends that the application of s.686(1)(b)(iii) of the Code is supported by a second consideration: in his cross-examination defence counsel fully explored the factors that impaired the credibility of Balogh and King. This court's judgment in R. v. Nugent, [1992] O.J. No. 674, answers this contention. There is no doubt that the jury were aware of the theory of the defence that these witnesses were not to be believed. The cross-examinations the jury had witnessed and addresses, no doubt, made this graphically clear. But the importance of the [Vetrovec] instruction, of course, is that it is a statement of judicial experience that juries should, in a proper case, be made aware of. [Emphasis added] The effect on a jury of a trial judge's instruction is quite different from the effect of counsel's cross-examinations or closing address. (iii) The Evidence of Balogh was Proven Reliable [128] The Crown submits that many aspects of the testimony of Balogh and King were confirmed by other evidence led at trial and therefore their testimony was proven reliable. The Crown argues that even if the jury relied on the informants' evidence to convict the appellant, the lack of a Vetrovec warning did not cause a miscarriage of justice because their evidence was reliable. In her reasons Weiler J.A. adopts and expands on this argument. [129] I am not persuaded that the evidence of Balogh and King concerning the appellant's confession was shown to be sufficiently reliable to invoke the curative provision. The confirming details referred to by Weiler J.A. are not all equally probative. Many bear only tangentially on whether Balogh and King were truthful in testifying about the appellant's confession. As Marc Rosenberg, supra, notes at p. 461-2: ... it is rare that a witness's whole story is true or false. Thus confirming one part of it does not as a matter of common sense necessarily restore our trust in the witness and the story as a whole ... It is not to the point that some, perhaps many, of the details of the testimony can shown to be true. It is restoration of trust in the witness which is required. [130] Moreover, the courts should not too readily conclude that any apparently confirming details restore trust in the credibility of the jailhouse informants. Weiler J.A. discounts the possibility that the confirming details she relies on were acquired from an outside source, such as a newspaper. The Kaufman Report suggests that jailhouse informants have many ways of obtaining information about an accused and the alleged crime other than from conversations with the accused. Sherrin, supra, at p.113-14 summarizes some of the evidence before the Kaufman Inquiry: ... The fact that an informant is able to include information in a purported confession which only the police and perpetrator would ordinarily know is often hailed as a hallmark of the reliability of an informant's evidence; if the suspect had not confessed, how else could the informant have obtained the information? The Grand Jury found that "informants profess, and indeed have demonstrated, the astonishing ability to discover information about crime in order to concoct a confession by another inmate". Informants would gather the relevant information from law enforcement officials, the media, and the defendant himself (by coercion and bribery, if necessary). They would steal relevant documents (such as preliminary hearing transcripts) from the defendants's cell, and send friends and relatives to the defendant's court hearings. They would also impersonate public officials in order to obtain the information from legitimate officials. To further establish the credibility of their claims, they would sometimes arrange to be in the same place at the same time as the defendant in order to create a record of contact with the alleged confessor. ... [131] It seems to me that, in the context of s.686(1)(b)(iii) of the Code, an appellate court is in an uncomfortable position having to judge in hindsight the reliability of two admittedly unsavoury witnesses. To avoid an injustice it is far preferable that a jury, which saw and heard the unsavoury witnesses and was appropriately cautioned, decide whether and to what extent the testimony of these witnesses was substantiated by other evidence. (iv) The Trial Judge's Charge Enabled the Jury to Properly Assess the Evidence of Balogh and King [132] The Crown submits that though a warning should have been given, other instructions of the trial judge alerted the jury to the concerns about the credibility of Balogh and King and to the frailties of their evidence. Major J. answers this submission in Bevan at p.327: The trial judge was aware of the issue of credibility and made reference to factors that could specifically affect the credibility of Dietrich and Belmont, but she did not convey to the jury a clear sharp warning. The references made by the trial judge to the evidence of Dietrich and Belmont were made in the course of a seriatim review of the evidence given by all of the witnesses who testified at trial. The trial judge used much the same language in addressing the evidence of Dietrich and Belmont as she did in addressing the evidence of other witnesses, both individually and in a general sense. [T]he trial judge's charge to the jury lacked the clear and sharp warning required by Vetrovec to attract the attention of the jury to the risk of adopting, without more, the evidence of Dietrich and Belmont. [133] As in Bevan, the trial judge in this case did not deliver a clear sharp warning. Instead he referred briefly to the fact that Balogh and King had criminal records, which could be taken into account when assessing their credibility. He then reviewed the evidence of all the witnesses, including that of Balogh and King. He did not single out their evidence for special consideration and he did not draw to the jury's attention any factors apart from their records that might affect their credibility. In my opinion, the trial judge's charge did not cure the absence of a Vetrovec warning. (v) The Strength of the Crown's Case Aside from the Evidence of Balogh and King [134] An overwhelming case against the appellant aside from the evidence of Balogh and King might justify applying s.686(1)(b)(iii) of the Code. Their evidence directly implicated the appellant in Samantha's death. I do not think that the rest of the Crown's case pointed overwhelmingly to the appellant's guilt. Because I would order a new trial I will only briefly review some of the weaknesses in the Crown's case. [135] The Crown relied on Norma Jean Johnings' statement to the police that the appellant had said to her he "was sorry for what he had done." This statement lends itself to more than one interpretation. Moreover, this statement conflicted with Ms. Johnings' earlier statement in which she told the police only that the appellant had said "he was sorry." Moreover, the appellant explained that he was sorry for Norma Jean having lost a daughter, an explanation he maintained in his own statements to the police. [136] Norma Jean Johnings was the other likely suspect in the case. There was some evidence at trial that she might have killed Samantha. For example, there was evidence led at trial that she had previously hit and thrown Samantha on the floor. Also, when she was in the ambulance she said to the driver "Did I hurt my baby, did I kill my baby?" [137] The DNA testing did not support the Crown's position. Testing was done on a rectal swab and no DNA was found. Testing on a vaginal swab yielded Samantha's DNA, but not the appellant's. The vaginal swab was retested and produced the same result. The Centre for Forensic Sciences, which did the testing, raised the possibility that the sample was contaminated and in its final report stated that it could not say whose DNA was found on the swab. [138] A semen stain on the comforter was found to contain both the appellant's DNA and Norma Jean Johnings' DNA. This DNA evidence does not advance the Crown's case: it is only consistent with the appellant and Ms. Johnings having had sex on the comforter. Moreover, Samantha's DNA was not found in the comforter stain. [139] The evidence found on the appellant's track pants was incriminating only if the appellant was disbelieved. The appellant apparently did not try to hide his track pants. A picture taken during the investigation showed the pants on top of a pile of laundry. Moreover, the police talked to Norma Jean Johnings several times before she told them that the appellant had changed his track pants and when she did tell them, Detective Sergeant Harild agreed that she had "intense heat" on her. [140] I point to this evidence to show that the Crown's case against the appellant, excluding the evidence of Balogh and King, was not overwhelming. In my view, it was not strong enough to justify applying the curative provision. [141] Taken individually or collectively the considerations that I have reviewed do not warrant applying s.686(1)(b)(iii) of the Code. The lack of a Vetrovec warning was an error in law and, in my opinion, the Crown has not shown that if a warning had been given the verdict would necessarily have been the same. The jury may have treated the evidence of Balogh and King far more cautiously if a proper warning had been given. Conclusion [142] The trial judge's failure to give a Vetrovec warning deprived the appellant of a fair trial. Therefore, I would allow the appeal, quash the conviction for first degree murder and order a new trial. Released: September 30, 1998 _______________________________ 1 In R. v. Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.), the Supreme Court held that where the guilt or innocence of an accused might, and probably will, turn on the acceptance or rejection, belief or disbelief, of the evidence of an accomplice, or unsavoury witness of demonstrated moral lack, as, for example, a witness with a record for perjury, the trial judge should instruct the jury to view the evidence of the unsavoury witness with great caution, to look for other supporting evidence before convicting the accused, and to indicate to the jury the evidence capable of introducing a rational belief that the disreputable witness was telling the truth. In R. v. Bevan (1993), 82 C.C.C. (3d) 310 (S.C.C.), the Supreme Court modified the requirement that, when giving a Vetrovec warning, the trial judge must draw the jury's attention to evidence capable of supporting the evidence of the disreputable witness. On behalf of the majority, Major J. held at p. 326 that, in some cases, the supporting evidence might be extremely prejudicial to the accused and the appropriate remedy in those circumstances was for the trial judge to decide whether the probative value of the supporting evidence outweighed its prejudicial effect. If it did not, then the trial judge could still give a Vetrovec warning but, in exercising his discretion to do so, it was not essential for him to mention that particular piece of supporting evidence. 2 In R. v. Morin (1988), 44 C.C.C. (3d) 193 at 197 (S.C.C.) the trial judge in his charge to the jury, stated: If you have a reasonable doubt about any of the evidence you will give the benefit of the doubt to the accused with respect to such evidence Although the jury was also instructed to consider the evidence as a whole elsewhere in the charge, Sopinka J. held the jury would likely have concluded from this instruction that in respect of their fact-finding the accused was to be given the benefit of the doubt on individual protions of the evidence and the charge was in error in this regard.