Toronto Lawyer Steve Skurka seen with Ja Rule
Any critical analysis of the Canadian perspective on cooperators and informants must begin with the Supreme Court of Canada's decision in R. v. Vetrovec.1 Vetrovec was a case where the appellants had been convicted at trial on a charge of conspiracy to traffic in heroin. The trial judge had warned the jury of the danger of convicting on the basis of the uncorroborated evidence of an accomplice who testified for the prosecution. 2 In rejecting any rigid formulation that would lead to an automatic warning and a requirement for corroboration for accomplice testimony, the Supreme Court of Canada chose instead to fashion a flexible rule that could accommodate the particular circumstances of each case. The true purpose of the warning when given was to avoid the risk of conviction based on unreliable evidence.3
At the outset, it must be noted that the Supreme Court expressly rejected any suggestion of precluding these witnesses from testifying. Rather, the emphasis was on simplifying the issues arising from their testimony for the jury.4 The Court reinforced the point that it is the credibility of accomplice witnesses which should be corroborated and not evidence confirming that the accused is guilty. The Court writes:
All that can be established is that the testimony of some accomplices may be untrustworthy. But this can be said of many other categories of witness. There is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy. To construct a universal rule singling out accomplices, then, is to foster upon this branch of the law of evidence a blind and empty formalism. Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an 'accomplice' no warning is necessary.5
The trial judge had to first evaluate the apparent trustworthiness of the accomplice. The Court gave recognition to essentially two categories of accomplices, the genuinely motivated and the self-interested. It was only the latter category that would require any special instruction by the trial judge. 6 Little guidance was provided by the Court as to how such a fundamental assessment could be made. Was it purely on a subjective analysis of the witness or could the trial judge rely on common experience to dictate the status of the accomplice?
The Supreme Court of Canada did attempt to offer some helpful guidance for trial judges who were prepared to give a special instruction by offering the following:
Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness. There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support. The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. This may entail some illustration from the evidence . . . documentary or testimonial, which might be drawn upon by the juror in confirmation of the witness's testimony or some important part thereof. I do not wish to be taken as saying that such illustration must be carried to exhaustion.
However, there is, in some circumstances, particularly in lengthy trials, the need for helpful direction on the question of sifting the evidence where guilt or innocence might, and probably will, turn on the acceptance or rejection, belief or disbelief, of the evidence of one or more witnesses. 7
This clear and sharp warning, which became known as a 'Vetrovec warning,' was broadened in future cases to encompass any prosecution witness who was deemed to be untrustworthy. It was immaterial whether the witness was an accomplice, informant co-operator, or any category of witness. Equally, while the Supreme Court of Canada in Vetrovec emphasized that the ultimate decision as to whether a clear, sharp warning about accepting a witness's credibility would be left to the discretion of the trial judge, it was subsequently recognized by the Court that the circumstances may be such that a warning must be given.8 In June of 1996, the Ontario government issued a commission to examine a miscarriage of justice involving a young man, Guy Paul Morin, who had been wrongfully convicted for the murder of his nine year old neighbour in the town of Queensville, Ontario.9
Some ten years after his arrest, sophisticated DNA evidence had exonerated Mr. Morin completely. That finding brought a concession from senior Crown counsel and later the Attorney General of Ontario of his innocence, with an apology to Mr. Morin for the lengthy ordeal both he and his family had unfortunately undergone. In addition to calling a public inquiry, the government of Ontario ordered compensation to be paid to Mr. Morin and his family.10
It was clear that jailhouse informant testimony had played a pivotal role at Mr. Morin's trial which had resulted in his conviction. Such testimony related to a purported confession to the murder, made by Mr. Morin to a fellow inmate at the jail, Robert Dean May. The confession was allegedly heard by a second inmate in an adjoining cell who also testified at the trial.11 The Commissioner who presided over the Morin Inquiry, Fred Kaufman (a former Justice of the Quebec Court of Appeal), made some clear findings of fact about the credibility of the two jailhouse informants. He found them to be wholly unreliable and motivated in their testimony by self-interest.12 They were, in the Commissioner's words, predisposed, by character and psychological make-up, to lie and 'were as likely to lie as to tell the truth, depending upon where their perceived self-interest lay.'13 Given the acknowledged difficulty of the defence to disprove their claims to a confession by Mr. Morin, it was a 'ready recipe for disaster.'14
The Morin Inquiry heard systemic evidence relating to jailhouse informant evidence from Canada, Great Britain, Australia, and the United States. Particular attention was paid to the notorious Los Angeles experience which led to a 1989-90 Grand Jury report documenting years of rampant abuses by jailhouse informants in Los Angeles County.15 As described by one seasoned prosecutor involved with the review of the debacle, it was a time when the 'inmates were running the asylum'.16
Clear recognition was voiced by the Commissioner in his final report that a number of miscarriages of justice were founded, at least in part, by the patently false, self-interested evidence given by jailhouse informants.17 The Commissioner's report contained a series of bold and enlightened recommendations with respect to the use of jailhouse informant evidence. These included a recommendation to recognize 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.18 Confirmation of the in-custody informer's proposed evidence is defined 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.'19
The Commissioner suggested that jailhouse informants should require a special caution by the trial judge virtually in every case where the evidence is contested. The Vetrovec warning should emphasize that jailhouse informants are almost invariably motivated by self-interest and that historically such evidence has been shown to be untruthful and to produce miscarriages of justice.20
For the benefit of the prosecutor, the report catalogued a comprehensive set of factors to consider in assessing the reliability of a jailhouse informant. As summarized below, they are:
a) the extent to which the statement is confirmed;
b) the specificity of the alleged statement as opposed to a general statement that A admitted killing B;
c) the extent to which the statement contains details only known to the perpetrator;
d) the extent to which the details of the statement could otherwise reasonably be accessed by the in-custody informer;
e) the informer's general character as evidenced by his or her criminal record or any psychiatric profile;
f) any request for benefits or special treatment made by the informer and any promises made by a person in authority;
g) whether the informer has given reliable information to the authorities in the past;
h) whether the informer has previously claimed to have received statements while in custody;
i) whether the informer has testified on behalf of the Crown or defence in other proceedings and the results of those proceedings;
j) whether the informer made some record of the words allegedly spoken by the accused and when it was made; and
k) the circumstances under which the informer's statement was made, whether it was made under oath and whether nonleading questions were used by the police.21
The Report clearly identified and advocated against the dangers associated with relying upon the evidence provided by a jailhouse informant. The overriding interest of the state in convicting those who were guilty of serious criminal offences was identified in juxtaposition to the dangers of this dubious evidence.
The Report went on to stipulate that the Ministry should follow guidelines which would limit the use of informers.22 While the Kaufman Report concludes that evidence proffered by an in-custody informer cannot be rejected outright, it remains open to the trial judge to be highly suspect of such evidence, to the extent that a trial judge ought to determine whether the reliability of the information is sufficient to even justify its reception as evidence.23 The Supreme Court of Canada has not proceeded in this fashion. Rather, the Court in R. v. Brooks,24 concluded that an accused person is not entitled to a trial that excludes the evidence of jailhouse informers, only to have that testimony invariably accompanied by a warning.25
The Inquiry also led to new policies on jailhouse informants implemented by the Ministry of the Attorney General. By way of example, the Ministry adopted into its Policy Manual, with some modification, the Kaufman Report's aforementioned recommended list of factors to be considered in assessing an informant's reliability.26 The most important policy initiative which had been adopted by the Los Angeles District Attorney's Office and recommended in the Kaufman Report was the creation of a committee of senior prosecutors which vets the use of jailhouse informants by Ontario prosecutors in individual cases.27
By November 1998, the Committee had reviewed nine cases, all of which were homicides.28 In seven out of the nine cases considered, the Committee determined that the jailhouse informant(s) should not be used. In two of these cases, the result was the withdrawal or stay of the charges.29 In pondering its decision, the Committee is prepared to consider in all cases any additional information provided by defence counsel which may adversely impact upon an informant's reliability.30
Subsequent to the Report being made public, a series of cases emerged that helped to illustrate the pitfalls and complexities associated with the use of jailhouse informers. The following description of events in R. v. Babinski31 from the Ontario Court of Appeal, following the use of a jailhouse informer in one case, illustrates the typical problems and fears associated with such witnesses:
L. had a criminal lifestyle and had offered to supply information to the police on a variety of matters. In particular, the proposed fresh evidence discloses that L. offered to testify against a fellow inmate about a murder of a police officer in Quebec.
The myriad of provably false statements by L. as to his motives for recanting and then resiling from the recantation suggest that L.'s trial evidence as to his motive for coming forward is untrue.32
In Brooks, however, the Supreme Court of Canada had the opportunity to consider the extent to which trial judges are required to caution the jury on the dangers in relying upon the testimony of jailhouse informants. The judgment of the Court followed the issuance of the Kaufman Report and made extensive references to its findings.33
In Brooks, the appellant had been convicted of first-degree murder in the death of a nineteen-month-old child which had been associated with a sexual assault. The prosecution at trial had relied on the evidence of two jailhouse informants who, as fellow inmates, had listened to the appellant confess to having killed the child to stop her crying. There was no reference to any sexual assault. Both jailhouse informants had lengthy criminal records for dishonesty. One had a history of substance abuse and a psychiatric history highlighted by suicide attempts, paranoia, deep depression, and a belief in clairvoyant ability. The other had unsuccessfully sought a lighter sentence in return for his testimony and had testified as an informant in a prior trial. Both informants had histories of offering to testify in criminal trials.34
In his charge to the jury, the trial judge failed to give a clear, sharp warning to the jury about the dangers of relying upon the informant's testimony. Defence counsel in the case had neither requested such a warning nor objected to the lack of a warning.35 In a divided decision that ultimately restored the convictions of the appellant, a separately constituted majority of the court held that it constituted an error for the trial judge not to have provided a Vetrovec warning.36 The two judgments of Judges Major and Binnie that formed the majority on this point are useful for their insight not only into jailhouse informants but more practically to all prosecution witnesses deserving of a special caution. The highlights of their respective judgments are noted, as follows:
a) 'It is not 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.'37
b) '[J]urors will not likely have the benefit of this 'experience' unless it is imported to them by the trial judge in the 'clear and sharp warning' contemplated by Vetrovec.'38
c) 'At a minimum, a proper Vetrovec warning must focus the jury's attention specifically on the inherently unreliable evidence. It should refer to the characteristics of the witness that bring the credibility of his or her evidence into serious question. It should plainly emphasize the dangers inherent in convicting an accused on the basis of such evidence unless confirmed by independent evidence.'39
d) 'The warning does not come without risk to the accused as it should also be accompanied by a reference to the evidence capable of providing independent confirmation of the unsavoury witness's testimony.'40
e) Where the witness is absolutely critical to the Crown's case, more moderate credibility problems will warrant a warning. 'Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown's case is a strong one with the witness's evidence.'41
f) '[J]ailhouse informant' is a term that conveniently captures a number of factors that are highly relevant to the need for caution. These include the facts that the jailhouse informant is already in the power of the state, is looking to better his or her situation in a jailhouse environment where bargaining power is otherwise hard to come by, and will often have a history of criminality. This is not to deny the possibility that a jailhouse can on occasion produce a trustworthy witness. The trigger for caution is not so much the label 'jailhouse informant' as it is the extent to which these underlying sources of potential unreliability are present in a particular case.'42
g) It is rare . . . that an alleged jailhouse confession would not be regarded as important evidence against an accused.'43 h) While recognizing the extreme dangers of relying on the use of 'jailhouse informers,' no special warning is called for because the proper Vetrovec warning suffices.44
These highlights were reinforced and expanded in subsequent decisions. In R. v. Krugel,45 the Ontario Court of Appeal held that credibility is a matter of fact to be left to the jury and the only issue which arises is whether the trial judge is obligated to caution the jury about the dangers of convicting an accused based on evidence tendered by an accomplice whose credibility has not been bolstered. Thus, evidence capable of being confirmatory is evidence that strengthens the belief that the suspect witness is telling the truth.46
While confirmatory evidence is, and ought to be, a crucial factor in determining whether or not to proceed with a prosecution based on information provided by a jailhouse informer, it may come back to haunt the accused at the time of the trial judge's charge to the jury. Defence counsel may wish to have a Vetrovec caution given to the jury in order to avoid undue weight being placed on such an unsavoury witness. On the other hand, the result may be that the trial judge not only warns of the dangers of convicting on uncorroborated evidence provided by a jailhouse informer, but goes further in pointing to corroborating evidence as well as calling attention to the impugned evidence.
In Babinski, Justice Rosenberg, writing on behalf of the majority, modified Vetrovec, saying that if a Vetrovec warning is given, the trial judge should make some reference to any evidence capable of supporting the unsavoury witness.47 This may be far more prejudicial to the accused than having no caution given to the jury at all. Ultimately, the decision to point to corroborating evidence remains with the trial judge.
Jurisdictions across Canada now recognize that a number of factors contribute to the trial judge's decision regarding the trustworthiness of the informer and the corresponding need for a clear, sharp warning. These include the availability of confirmatory evidence and the importance of the informer's testimony to the Crown's case. According to the Newfoundland Court of Appeal in R. v. R.B.,48 the latter ought to be accorded great weight in determining whether fairness of process warrants cautioning the jury.49 Depending upon the conclusion reached by the trial judge in this regard, it is recognized that the circumstances may be such that a warning must be given.50
Many of the issues surrounding the use of unsavory informers were determined in the case of R. v. MacDonald,51 decided by the Nova Scotia Court of Appeal subsequent to Brooks. The Court held that where the case against the accused is solely or materially based on the evidence of jailhouse informants, a warning is probably required and, if not given, a new trial will likely be ordered.52 Arguably, much of the Kaufman Report analysis as well as the judgment of Brooks can be utilized to draw in common experience with other types of informants and cooperating witnesses. When their testimony is bartered for rewards and special advantages in the same manner as a jailhouse informant, a compelling argument can be advanced that a special warning should be triggered.
The tragedy of the miscarriage of justice which befell Guy Paul Morin stands as a warning to the practitioners and members of the criminal justice system to be extremely wary of evidence provided via jailhouse informers. If a further caution were necessary one need look no farther that R. v. McInnis,53 where it was shown that informers do know that they will receive a benefit as a result of providing information. This danger is exacerbated by police interaction with these people where the police do not constantly remain alive to the consequences of their actions. In McInnis, the trial judge concluded that the individual who presented himself as a jailhouse informer had commenced a mission on his own volition to use the accused as his means of obtaining freedom.54 The informer gathered information about a piece of evidence which he ascertained (via contacts with the police) was crucial and had discussions, albeit brief, with police about what would constitute sufficient information. Noting the dangers of the jailhouse informants, a judge of the Manitoba Queen's Bench commented on the facts from McInnis:
The informer, after having obtained some statements and information for the police, went to them in an attempt to make a deal. The police refused to make any deal until they knew the extent of the conversations with the accused. The police rejected certain preliminary comments by the informer, saying that they were insufficient. The evidence indicated that the informer saw using the accused and information he had as his ticket to freedom. Despite his expectation that he could make some deal with the police upon the delivery of valuable information, and even in a situation where he actively elicited information from the accused, the court found that the informer was not a state agent.55
Therein lies the need to heed the recommendations outlined in the Kaufman Report. If the police tell informers what the shortcomings of the information provided are, and what would be required to be satisfactory, the reality (absent any mala fides on the part of the police) is that jailhouse informers will be able to better tailor fabricated confessions to avoid immediate doubt on the part of the police. By the time a trial judge must decide whether or not to provide a Vetrovec caution, the accused has already endured a tremendous hardship (assuming the jailhouse confession was indeed fabricated). Where the information provided by the jailhouse informer is significant to the Crown's decision to proceed, such a hardship could be avoided by greater diligence on the part of the police.
A corollary of this argument is the manipulation by the authorities of the informer's vulnerable position. Although the informer has valuable information which provides leverage, the jailhouse informer, nonetheless, is in the custody of the state. An example of alleged coercion by the authorities is found in the United States of America v. Campbell.56 This occurred in the context of an extradition proceeding where a jailhouse informer provided evidence used at the hearing that ultimately determined that the requesting state was entitled to a warrant for committal in respect of certain counts. In addition to the affidavit setting out the fugitive's confession, the informer swore the following in a subsequent affidavit (both found to be admissible and a matter of weight):
After my sentencing I was presented with affidavits that I was told I had to sign. These affidavits were to be used in a different extradition request that concerned other Canadian citizens. It was made clear to me that my continued cooperation was required; if I did not sign the affidavits, my plea agreement would be revoked, and I would again be liable to up to imprisonment for life without parole, and if I were ever to return to Canada, once I arrived I would be facing further charges here. There would be no sentence reduction motion, because I would be re-sentenced on additional matters in addition to the original charges to which I had pleaded guilty.
My choice was to sign the affidavits in connection with that extradition request, or else face again the sentence of life imprisonment without parole. I was told by my counsel that I had no choice. I signed those affidavits.
It seems reasonably well-settled that in any jury trial in Canada where a jailhouse informant is called by the prosecution as a witness, a clear and sharp warning about concerns with respect to their reliability will invariably follow. However, this kind of evidence may simply be a vestige of the past and may rarely appear in a Canadian courtroom. It is in the area of co-operators and accomplices where the line between a reliable witness and a discredited witness may be blurred. Surely in any case where there is an aspect of tangible gain to the witness in coming forward, a compelling case can be made for a warning. Whether the law develops in this fashion still remains an unsolved question.