Tuesday, September 27, 2011

R. v. Khan, 2011 BCCA 382

In R. v. Khan, the Court of Appeal for British Columbia commented on the obligations of counsel and trial judge in the context of a Vetrovec warning and on the evidentiary burden associated with a third-party suspect defence.

In R. v. Khela, the Supreme Court of Canada held that, in a case where the testimony of unsavoury witnesses necessitates a Vetrovec warning, Crown and defence counsel must provide the jury with examples of evidence which can, or cannot, be considered confirmatory of the tainted witness’s testimony. Justice Frankel added that counsel have a responsibility to be correct in these submissions. If evidence is mischaracterized by counsel, the trial judge has a responsibility to correct that error in his instruction to the jury. The Court further considered that, where an unsavoury witness reports to police that he has been asked to participate in a crime, and that crime later occurs, evidence that the crime did in fact occur is capable of bolstering the witness’s credibility.

The Court also held that, in raising a third-party suspect defence, the accused does not have to show evidence of the third party’s opportunity, motive, or propensity to commit the crime in order for the defence to raise a reasonable doubt in the mind of a properly instructed jury.

September 27, 2011
Link to Decision

Zarya Cynader & Mary Phan
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