This week’s top three summaries: R v Rosbergen, 2026 BCCA 314: Vetrovec #caution, R v Rashid, 2026 BCCA 364: NCRMD rejected, R v MM, 2026 ONCA 617: excessive #intervention

R v Rosbergen, 2026 BCCA 314

[July 23, 2026] Vetrovec Caution: The Warning must be of Extreme Caution, the Greatest Care, Unsafe or Dangerous [Reasons by Fleming J.A. with Mayer and MacNaughton JJ.A. concurring]

AUTHOR’S NOTE: A proper Vetrovec warning must provide the jury with a sufficiently sharp caution about the danger of relying on the evidence of an unsavoury witness. Language such as “extreme caution,” “the greatest care,” “unsafe,” or “dangerous” may convey the necessary warning; merely telling the jury to be “cautious about accepting” the evidence may be insufficient. The instruction must also explain how the particular frailties of the witness—including their criminal background and material inconsistencies—should inform the jury’s assessment of the evidence. Finally, where the initial Vetrovec warning is insufficiently sharp, simply repeating the witness’s evidence elsewhere in the charge, without reinforcing the caution, risks diluting the warning and defeating its intended purpose.

Introduction

[1] Following a trial by judge and jury, the appellant, Adrianus Rosbergen, was convicted of the second-degree murder of Allen Skedden. He received the mandatory sentence of life in prison, with no parole eligibility for 12 years.

[2] Mr. Skedden was reported missing on February 21, 2017. His body was found by the Fraser River in Richmond on March 2, 2017.

[3] The Crown’s case was based on circumstantial evidence and the testimony of a Vetrovec witness, Richard Anderson. The Crown also relied on recorded statements the appellant made to police.

Issue One: Misstatements About the Evidence

[90] The appellant identifies the most significant misstatement as “suffocation is likely”, but it cannot be determined by autopsy alone, at para. 109(k). It is clear from the transcript of his evidence that Dr. Morin did not say suffocation was likely, and it was inaccurate to summarize what he did say about suffocation in this way. Throughout his evidence, Dr. Morin was steadfast in his view that a cause of death could not be determined. At most, he indicated suffocation was a possibility. While the Crown suggests this misstatement is minor, based in part on its characterization of the rest of the summary as accurate, there is an obvious and significant difference between what is meant by “likely” and “possible” as degrees of likelihood, and a pathologist’s opinion that a cause of death is “likely” as opposed to “possible”. In my view, “likely” indicates a firm conclusion or an opinion about cause of death held with a fairly high degree of certainty. In contrast an opinion that a cause of death is “possible” indicates no level of certainty beyond it could or might be a cause, among other options.

[112] Satisfied a reversible error is made out by the material misstatement, I nonetheless turn to the second issue, because as I see it, the Vetrovec instruction reinforces my conclusion.

Issue Two: Was there an Error in the Vetrovec Instruction?

[113] The appellant argues that considered as a cumulative error, the Vetrovec instruction was inadequate and incomplete because it did not serve the central purpose of such an instruction—to alert the jury to the danger of relying on the unsupported evidence of a dishonest and unsavoury witness like Mr. Anderson.

[114] The instruction in the Final Charge read:

Testimony of Mr. Anderson

[114] I am now going to give you a special warning about the testimony of Mr. Anderson.

[115] You must assess the credibility of Mr. Anderson taking into account the things I told you earlier about the credibility of witnesses. In addition, you must be cautious about accepting the evidence of Mr. Anderson because he has a lengthy criminal record, which was reviewed with him under crossexamination. The record of his convictions was entered as Exhibit 34. Mr. Anderson also agreed that he drove his car in 2017 while he was prohibited, although he was not charged with that. He admitted that in his life he had lied to the police a lot.

[116] Mr. Anderson was arrested in connection with the death of Mr. Skedden, and you must consider whether he had a motive to lie to avoid prosecution.

[117] Mr. Anderson admitted that he drinks every day. He agreed alcohol has affected his memory somewhat, although he testified that he does remember serious issues, like the matters before the court.

[118] You should consider whether Mr. Anderson’s testimony is confirmed by other evidence in deciding whether the Crown has proven Mr. Rosbergen’s guilt beyond a reasonable doubt

[119] You should look for independent evidence tending to show that Mr. Anderson’s testimony implicating Mr. Rosbergen is true. By “independent”, I mean from a source unconnected to Mr. Anderson.

[120] However, if you find Mr. Anderson’s testimony is trustworthy, you may rely on it even if it is not confirmed by other evidence.

[121] I now want to illustrate the kind of evidence from this case that you might find confirmatory by giving some examples. I emphasize that these are only examples. You may not find the evidence I am about to mention helpful in confirming Mr. Anderson’s testimony or you might find confirmation in other evidence I do not mention. It is up to you to decide. Some of the evidence you could consider is: the evidence of Mr. Westman and Ms. Steeves as to when Mr. Anderson came to Mr. Skedden’s house, the evidence of Mr. Rosbergen that he dropped Mr. Anderson off at the farm on February 21, 2017, and the evidence found at the River Road property including the bucket, sponge, wet cargo trailer, duct tape, and Mr. Skedden’s clothing, and the evidence of Mr. Skedden’s blood on Mr. Anderson’s clothing found at the farm on the burn pile.

Analysis

[115] In Khela, the Court endorsed a principled framework for Vetrovec instructions that includes four elements:

 Draw the attention of the jury to the testimonial evidence requiring special scrutiny;

 Explain why this evidence is subject to special scrutiny;

 Caution the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied the evidence is true; and

 In determining the veracity of the suspect evidence, direct the jury to look for evidence from another source tending to show the untrustworthy witness is telling the truth as to the guilt of the accused.

While Khela also provided there is no prescribed formula and the content of a Vetrovec instruction is a matter of judicial discretion that is owed deference on appeal, the decision endorsed the need for a “clear, sharp warning”: at paras. 13, 34, 37–38.

[116] The Crown says the instruction in the Final Charge adequately addressed all four of the Khela elements. On a functional and deferential standard of review, the Crown argues the instruction cannot be said to have failed to serve the intended purpose of a Vetrovec warning.

[117] Focusing on the first element and the second element most of all, the appellant relies on the suggested Vetrovec warnings in CRIMJI and Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015) as going well beyond the instruction in this case.

[118] The CRIMJI instruction reads in part:

I will now give you a special warning about the testimony of [the witness]. II. CAUTION [§57.2]

2. You will recall that I told you earlier about the credibility of witnesses. You should consider the things I told you when you decide whether or not you believe [the witness’s] evidence. In addition, however, I warn you that you should be extremely cautious in accepting [the witness’s] testimony. It is (unsafe/dangerous) for you to rely on [the witness’s] evidence alone.

This is because:

Explain reason for questionable credibility…

[Emphasis added.]

[119] The Watts instruction similarly refers to approaching the Vetrovec witness’s testimony with the greatest care and caution and highlights the danger involved in relying on it if not confirmed by other evidence. Addressing the second element, the Watts instruction also indicates the trial judge should identify the characteristics of the witness that bring their evidence into serious question.

[120] The appellant contrasts the model instructions with the judge’s measured language and the limited nature of the warning directed at the second element. Rather than urging “extreme caution” or “the greatest care”, or instructing the jury it was “unsafe or dangerous” to accept Mr. Anderson’s unconfirmed testimony, the instruction was confined to “you must be cautious about accepting” it. The explanation that followed was “because he has a lengthy criminal record which was reviewed with him under cross-examination”.[Emphasis by PJM]

[121] The judge also referred to Mr. Anderson’s testimony, agreeing he drove while prohibited, “although he was not charged with that”, and lied to police a lot, as well as his arrest in connection to Mr. Skedden’s death, which required the jurors to consider whether he had a motive to lie to avoid prosecution.

[122] The appellant contends the jury should have been told to evaluate Mr. Anderson’s testimony more stringently because it was the linchpin of the Crown’s case, and he was the quintessential Vetrovec witness.

[123] Recognizing the discretionary nature of a Vetrovec instruction, I agree with the appellant that the instruction did not adequately explain why it was unsafe or dangerous—based on the evidence pointing to a serious history of dishonesty and untrustworthiness—to accept Mr. Anderson’s (unconfirmed) inculpatory evidence. Although the Vetrovec instruction touched on each of the elements of the Khela framework, reviewed functionally and contextually, it offered insufficient guidance as to how the characteristics of dishonesty and untrustworthiness ought to inform the jury’s assessment of Mr. Anderson’s credibility and the need to question his unconfirmed testimony.[Emphasis by PJM]

[124] The import of Mr. Anderson’s criminal record was not simply that he had one, or that it was extensive. Instead, the jury needed to appreciate that the nature of the multitude of convictions pointed to a significant and lengthy history of untrustworthiness.

[125] Further, aspects of Mr. Anderson’s evidence in cross-examination, in my view, raised acute concerns about ongoing untrustworthiness, underscoring the need for a sharper warning. For example, his admission to driving while prohibited, whether or not he was charged, demonstrated he was prepared to engage in illegal conduct that put others at risk. Other examples include a number of his responses when confronted with inconsistencies between his testimony and what he said and did not say to police, as well as his testimony at the preliminary inquiry. Often highly evasive, his responses also included implausible denials and explanations.

[128] There is only one instruction that dealt with potential frailties in Mr. Anderson’s evidence. Situated immediately after the Vetrovec instruction, “Prior inconsistent statements of a witness – cross examination”, provided a brief instruction about confining the use of Mr. Anderson’s out of court statement to assessing his credibility. The one example included in the instruction is tempered. It refers to defence counsel arguing there was an inconsistency between Mr. Anderson’s testimony agreeing he was fired from his job and his out-of-court statement that he quit his job. The instruction went on to state that Mr. Anderson “gave an explanation at trial for this apparent inconsistency”.

[129] That leaves the references to Mr. Anderson’s inculpatory evidence in the Final Charge. Leaving aside the confession instructions, they are found in the instruction regarding evidence of the appellant’s after-the-fact conduct, and framed as evidence the jury can consider, in three of the specific instructions regarding second-degree murder: 1) whether the appellant committed the alleged unlawful acts of beating and binding, 2) whether those acts caused Mr. Skedden’s death, and 3) the place of Mr. Skedden’s death. Although properly included, repeating the inculpatory parts of Mr. Anderson’s testimony, given the content of the warning, may have contributed to the Vetrovec instruction falling short of meeting its intended purpose.

[130] Ultimately, I accept the Vetrovec instruction has a cumulative or compounding effect on the substantial prejudice that flows from the misstatement about “suffocation is likely” being available as confirmatory evidence. Appreciating the jurors were told to consider whether his testimony was confirmed by other evidence, without the material misstatement, there was limited evidence that would confirm the appellant was the perpetrator of the alleged killing of Mr. Skedden or that he was killed by the unlawful act of binding. Just as importantly, the jury was also correctly told, that if they found Mr. Anderson’s testimony trustworthy, they were free to rely on it unconfirmed. The jury’s assessment of Mr. Anderson’s credibility was, then, a significant if not critical issue in determining whether the Crown had proven the appellant’s guilt. Appropriately directed to the judge’s instructions on assessing credibility generally, the suggested factors included there referred to the most relevant factors—reasonableness, inconsistency and contradiction, very briefly. Based on the Vetrovec instruction and the Final Charge as a whole, the jury may very well not have appreciated it was necessary to assess Mr. Anderson’s credibility with particular care, or how to engage in a particularly careful assessment.

Conclusion

[131] For these reasons, I conclude the primary ground of appeal is made out. The reversible error established by the judge’s material misstatements of Dr. Morin’s evidence is compounded by the effect of the inadequate Vetrovec instruction. I am not satisfied the jury was properly equipped to decide the case according to the law and the evidence.

R v Rashid, 2026 BCCA 364

[September 1,  2026] NCRMD in Murder: Rejection of Defence does not Displace Requirement for Mens Rea [Reasons by Winteringham J.A. with Fenlon and Horsman JJ.A. concurring]

AUTHOR’S NOTE: Murder is a specific-intent offence. The NCRMD inquiry into an accused’s capacity to form the requisite intent does not substitute for determining whether the accused actually formed that intent at the time of the offence. Where mental illness is present but the NCRMD defence is rejected, the trial judge must still consider the effect of that illness on the accused’s actual capacity to form the specific intent required for murder. Mental illness may prevent the formation of the intent to kill and thereby reduce liability from murder to manslaughter. A finding that the accused was capable of forming the requisite intent for the purposes of NCRMD does not establish that the accused in fact possessed that intent when the offence was committed.

Overview

[1] Yasin Jemal Rashid appeals his conviction for second degree murder of Kyle Gabriel, a fellow resident at a supportive facility for young adults with psychiatric health diagnoses. At trial, there was little doubt Mr. Rashid had stabbed Mr. Gabriel. There was also little doubt he was suffering from a mental disorder at the time of the offence. After receiving testimony from two psychiatrists, the trial judge rejected Mr. Rashid’s defence of not criminally responsible by reason of mental disorder (“NCRMD”). The specific question raised in this appeal is whether the trial judge erred by failing to consider the evidence of Mr. Rashid’s mental illness on the specific intent or mens rea required for second degree murder.

Issue 1: Did the trial judge err by failing to consider whether the intent required for murder had been proven beyond a reasonable doubt?

[75] Mr. Rashid submits the judge erred by failing to determine the question of mens rea after rejecting the NCRMD defence. The Crown submits the judge had no obligation to revisit the question of mens rea after rejecting the defence of NCRMD. The Crown says the fundamental problem with Mr. Rashid’s position is that it is inconsistent with the way he conducted his defence. The Crown contends the judge did not err by failing to revisit mens rea at the second stage of the proceedings because Mr. Rashid had conceded mens rea earlier. Mr. Rashid chose to bifurcate the proceedings, and as such, he is not permitted to undermine the verdict and to re-argue mens rea at the second stage of the trial. The Crown says in the absence of a claim of ineffective assistance of counsel, there is no basis for this Court to second-guess the strategic or tactical decisions made at trial.

[76] I find Mr. Rashid succeeds on the first ground of appeal for three reasons: (1) the purported admission at the first stage of trial was unclear; (2) as such, the trial judge was required to consider the question of whether the Crown had proven the specific intent required for murder beyond a reasonable doubt but he did not; and (3) this was not a minor error without consequence such that the curative proviso applies.

Question of specific intent

[95] Murder is a specific intent offence. Section 229 of the Criminal Code requires the trier of fact to be satisfied beyond a reasonable doubt that the accused either intended to cause death or intended to cause bodily harm that they knew was likely to cause death and was reckless as to whether death would result.

[96] In convicting Mr. Rashid of second degree murder, the judge rejected the NCRMD defence and then stated, “I am therefore bound to find him guilty of second degree murder”: RFJ at para. 82.

[97] Did the trial judge here err by conflating the capacity to form the requisite intent with the fact of intent? In my view, he did. When the trial judge rejected the NCRMD defence and then immediately concluded he was “bound” to convict Mr. Rashid of second degree murder, he missed an essential step. After the second stage of trial concluded, the bifurcated process should not have prohibited Mr. Rashid from asserting in his closing address, as he did, that the mens rea of the offence still had to be addressed. The judge was required to turn his mind to the issue of intent before reaching a verdict. At no point in the judge’s reasons does he address the intention to kill. The reasons address only whether Mr. Rashid had the capacity to form the intention to kill. The two are distinct.

[98] As discussed, the admissions did not include proof of mens rea beyond a reasonable doubt; therefore, the judge needed to address whether the Crown had proven the specific intent to kill for a conviction on second degree murder.

[99] The cases are clear that evidence falling short of proving NCRMD may still be considered to negate mens rea. Swain provides (at 987):

… if such evidence of mental impairment is, in the view of the trier of fact, insufficient to meet the requirements of s. 16, the accused is still entitled to have such evidence considered with respect to the essential element of mens rea. This accords with the current practice wherein an accused has been able to deny the element of planning and deliberation or the specific intent required for murder despite the fact that s. 16 has not been satisfied …

[100] Similarly, Allard stated (at 401):

Clearly, on a charge of first degree murder, evidence of mental condition, even if it is adduced to support a defence of insanity, cannot be disregarded merely because the defence of insanity fails. Though insufficient to bring the accused within s. 16 of the Code, the evidence may yet be adequate to raise a reasonable doubt whether in fact he or she intended to commit murder.

[101] In Plewes, this Court cited Allard and R. v. Bailey (1996), 82 B.C.A.C. 105, 1996 CanLII 2524 (C.A.), among other cases, for the principle that evidence of mental disorder falling short of insanity should be considered in determining whether the accused had the requisite intent: Plewes at para. 21.

[102] It is not controversial that mental illness short of satisfying the NCRMD defence may nonetheless be considered when assessing the specific intent to kill. In Bailey, this Court reversed a conviction for second degree murder and ordered a new trial because the jury did not receive a satisfactory answer to whether mental disorder had an impact on the accused’s ability to form the required specific intent for murder. The Court held that “the appellant was entitled to a clear direction that the jury must consider mental condition on intent”: Bailey at para. 14.

[103] Recent appellate authorities also reinforce the need to consider the evidence of mental disorder on the issue of intent. For example, in R. v. Berry, 2022 BCCA 389, leave to appeal to SCC ref’d, 40567 (20 July 2023), this Court held that “evidence of a mental disorder, short of establishing the basis for a verdict of not criminally responsible on account of a mental disorder, is relevant to deciding between murder and manslaughter”: at para. 330, citing Reeves at paras. 17–20. The Ontario Court of Appeal in R. v. Spence, 2017 ONCA 619 allowed an appeal of a murder conviction on the basis that the jury instructions did not permit the jury to consider mental illness in its analysis of specific intent. The Court noted: “… outside of the s. 16 framework, evidence of mental illness is capable of undermining the mental element for murder in s. 229(a) (thereby reducing liability from second degree murder to manslaughter)”: Spence at para. 49. Recently, in R. v. Lawlor, 2023 SCC 34, the Supreme Court of Canada said this about evidence of an accused’s mental illness and its relevance to the issues of intent:

[4] As has been stated on many occasions, and we repeat here, courts need to be mindful of evidence of mental health where this is relevant to issues of criminal responsibility. This is especially so in instructing a jury to assist them in the proper use of such evidence.[Emphasis by PJM]

[104] In my view, the judge erred when he failed to consider intent. The judge found Mr. Rashid was “suffering from a mental disorder at the time of the offence” (RFJ at para. 60), there was “little doubt” he was mentally disordered at the time of the stabbing (RFJ at para. 3), and he was impaired to some degree by delusions (RFJ at para. 75). The judge’s ultimate conclusion that he was bound to convict Mr. Rashid of second degree murder because he had rejected the NCRMD defence was a conclusion reached in the absence of any consideration of specific intent or whether the lesser included offence of manslaughter was available. There was no analysis regarding the impact of his mental disorder on the issue of specific intent. The failure to consider mens rea constitutes a legal error.

[112] In my view, this is not an appropriate case for the application of the curative proviso. A new trial is warranted.

Disposition

121] In the result, I would allow the appeal, set aside the conviction for second degree murder, and order a new trial.