ONTARIO COURT OF JUSTICE
DATE: 2024 03 25
COURT FILE No.: Halton Info #998 22 12103116
B E T W E E N :
HIS MAJESTY THE KING
— AND — DAVID EYONG-EYONG
Before: Justice Jennifer Campitelli
Heard on: March 14, 2024
Reasons for Judgment released on: March 25, 2024
Counsel:
Ms. S. Hamilton ................................................................................... counsel for the Crown
Mr. J. Gemmell ........................................... counsel for the accused David Eyong- Eyong
CAMPITELLI J.:
Endorsement
[1] David Eyong-Eyong faces one count on the information, which is before the court. That he:
(1) On or about the 16th day of November in the year 2022 in the Town of Halton Hills in the said Region, did commit an assault on David Gligic, contrary to section 266 of the Criminal Code of Canada.
[2] The applicant has brought an application wherein he seeks an order requiring the crown to call the following eyewitnesses:
(1) Jasmine Kanji;
(2) Ghimel Mateo;
(3) Bahram Nooshinravan; and
(4) Emmanuel Gyamfi.
[3] Alternatively, counsel for Mr. Eyong-Eyong submits I ought to call these witnesses, in an exercise of my discretion, and in light of my inherent jurisdiction to control the court’s process.
Grounding Legal Principles
[4] In R. v. Cook, [1997] 1 S.C.R. 1113 the Supreme Court provides helpful guidance in assessing applications of this nature. Particularly, at paragraphs 55 and 56:
55 In summary, I conclude that there is no duty upon the Crown to call witnesses nor a more specific duty to call the complainant or victim. Decisions on how to present the case against an accused must be left to the Crown’s discretion absent evidence that this discretion is being abused.
56 It has also been suggested in at least two decisions (R. v. Black (1990), 55 C.C.C. (3d) 421 (N.S.C.A.); R. v. Taylor (1970), 1 C.C.C. (2d) 321 (Man. C.A.)) that the Crown might wish to call witnesses with material evidence and simply make them available for cross-examination. I would certainly not go so far as to impose such a requirement, nor do I think that a trial judge should ever order the Crown to produce a witness. If the Crown wished to adopt such a procedure in a given case, however, this would, of course, be within the legitimate exercise of its discretionary authority.
[5] Moreover, the Supreme Court clarifies that the onus is on the applicant to establish, on a balance of probabilities, that an abuse of process has occurred: R. v. Cook, at para. 62.
[6] In R. v. Hillis, [2016] O.J. No. 818 at paragraph 34-35, Justice Pomerance found that she was able to intervene on a lower standard of review, holding the choice of witnesses was more of question of trial tactics than prosecutorial discretion.
[7] However, applications of this nature will always involve a fact specific analysis. To that end, it is important to note that Justice Pomerance found the decision to remove the witnesses from the crown’s witness list two days before jury selection was “motivated by the desire to exclude reliable exculpatory evidence from the Crown’s case”. There was a concern on that particular record that the crown’s strategy could adversely effect trial fairness: R. v. Hillis, at paragraphs 48 and 42 respectively.
[8] Finally, whether intervention occurs a standard of abuse of process or a lower standard of review, Justice Pomerance recognized that the remedy requested was reserved for exceptional circumstances: R. v. Hillis, at paragraph 48.
Position of the Parties
[9] The applicant argues that this is an exceptional circumstance, which warrants judicial intervention. It is the defence position that the circumstances need not rise to an abuse of process in order for the court to intervene, rather the applicant relies on R. v. Hillis and submits the court has an inherent jurisdiction to control its own process. This is a question of trial tactics rather than prosecutorial discretion. He stresses the failure of the crown to call eyewitnesses adversely impacts trial fairness and urges me to either order the crown to call the witnesses identified or call the evidence myself. To ground his position, the applicant stresses the lack of audio contained within video footage, which forms the crux of the crown’s case. He argues the eyewitnesses are present on the video and thus, have reliable evidence, which the crown is suppressing.
[10] The respondent very strongly opposes this application, arguing judicial intervention only occurs at a standard of abuse of process. The crown takes the position that R. v. Cook remains good law, and is binding upon me. Further, the crown submits the remedy requested by the applicant, ordering the crown to call eyewitness evidence, requires mandamus, which is outside of my jurisdiction. With a view to the applicant’s alternative submission, that I call the evidence myself, the respondent acknowledges the court’s ability to control its own process; however, takes the position this is not an appropriate record for me to exercise my discretion to that end. The crown stresses trial fairness is not impacted, as there is no basis for me to find the eyewitnesses named have material evidence to provide. Lastly, the respondent is prepared to produce the witnesses named, and has agreed to allow the respondent latitude with respect to leading through his examination of them.
Analysis
[11] In the result, I have determined the applicant has not met his onus, on any standard of review. I have also determined that this is not an exceptional circumstance, such that trial fairness is impacted. As such, I will leave the analysis with respect to whether this court would be acting within its jurisdiction, should it order the crown to call the eyewitnesses requested for another day. I have concluded, on this particular record, that such an order would not be appropriate, nor would it be appropriate for me to exercise my inherent discretion to control the court’s process and call the evidence myself.
[12] I do not disagree with the defence, that the eyewitnesses present may have material evidence to provide to the court. Particularly, absent any audio associated with the video evidence tendered by the crown. However, I find this evidentiary record is distinguishable from the record before Justice Pomerance in Hillis in the following ways:
(1) There is no evidence before me that the crown committed to calling this evidence, and then abruptly changed its mind on the eve of trial;
(2) I do not find the crown is motivated by a desire to exclude reliable evidence;
(3) Although I provided counsel for the applicant with an opportunity to demonstrate the anticipated materiality of the eyewitness evidence, he asks me to order the crown to call as a part of its case, I did not find he was able to create a foundation, similar to what was present in Hillis;
(4) The Crown on this record has agreed to produce the eyewitnesses and allow latitude with respect to the applicant leading them through their examination.
[13] Significantly, the defence will have an opportunity to call these eyewitnesses and examine them with latitude with respect to his examination. I will not be deprived of receiving this evidence, and I do not find the crown is trying to suppress it. I appreciate the need for the court to control its process and ensure trial fairness. However, this is not a record such that I feel judicial intervention, at any level, is necessary.
Conclusion
[14] The defence application is dismissed.
Released: March 25, 2024
Justice Jennifer Campitelli
