COURT FILE NO.: CR-21-5249 DATE: 20231030 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – Kahli Johnson-Phillips Accused
Counsel: Bryan Pillon and Jayme Lesperance, for the Crown Michael A. Moon and Nicole DeBellefeuille, for the Accused
HEARD: October 24 – 27, 2023
RULING ON CROWN APPLICATION UNDER s. 9(1) OF THE CANADA EVIDENCE ACT
hebner j.
[1] Mr. Johnson-Phillips has been charged on a two-count indictment arising out of an incident that took place in the early morning hours of August 27, 2018 in downtown Windsor. Specifically, Mr. Johnson-Phillips is alleged to have committed first degree murder of Jason Pantlitz-Solomon and attempted murder of Camille Lufitha-Molema.
[2] What is before me now is an application brought by the Crown under s. 9(1) of the Canada Evidence Act seeking leave to cross-examine the Crown’s own witness, Keima Davis‑Baynes, on the areas where her evidence at trial is inconsistent with her statements to police, her evidence at the preliminary inquiry in this matter, and her evidence on a voir dire held in the case involving charges against her. The defence opposes the application. A voir dire was held before me to decide the application.
Overview
[3] The crown asserts that the accused, along with another unknown male and Keima Davis‑Baynes, drove in a white Nissan Altima from Mississauga to downtown Windsor the night of August 26, 2018, arriving in the early morning hours of August 27, 2018. The Crown asserts that the accused, and the other male left the vehicle, shot the two victims and returned to the vehicle. All three persons then drove back to Mississauga.
[4] The Peel Regional Police Service conducted a high risk take down of the Altima the evening of August 27, 2018, in Mississauga. Police saw a male flee from the vehicle. Ms. Davis-Baynes was seated in the front passenger seat of the Altima at the time of the takedown and was arrested. She was charged with various firearms offences arising from the firearm that was inside the Altima at the time of her arrest and obstructing a police officer for not providing her own name when asked.
[5] Ms. David-Baynes was cross-examined by Mr Moon on the voir dire.
Statement/Interviews
August 28, 2018
[6] Ms. Davis-Baynes was interviewed by Constable Anita Marziliano, a Peel Regional Police Officer, on August 28, 2018, approximately two hours and 45 minutes after she was arrested in the Nissan Altima. Ms. Davis-Baynes had spoken with duty counsel before the interview. Ms. Davis-Baynes was not under oath. The interview was audio and video recorded and played during the vior dire. A summary is marked as Exhibit Number 1B on the voir dire.
[7] Ms. Davis-Baynes did not provide any information in the interview. She refused to answer all questions.
[8] In her evidence on the voir dire Ms. Davis-Baynes said that, when she was in her cell, she told Officer Marziliano that the person who ran from the Nissan Altima was George. She did not give that information during the recorded interview.
August 30, 2018
[9] On August 30, 2018, Ms. Davis-Baynes was interviewed by Officer Chris Shaw of the Windsor Police Service. Officer Shaw traveled to Peel for the interview. The interview was audio/video recorded and played during the voir dire. Officer Shaw told Ms. Davis‑Baynes that she was not under arrest for any additional charges and that he wanted to talk to her about a shooting in downtown Windsor on August 27, 2018. Officer Shaw asked Ms. Davis‑Baynes to “just be honest”. Officer Shaw gave Ms. Davis Baynes a secondary caution explained in layman’s terms. Officer Shaw confirmed that Ms. Davis‑Baynes had received no promises or threats from a police officer or anyone in a position of authority.
[10] A transcript of the interview is marked Exhibit Number 2B on the voir dire.
[11] At pages 8-10 of the transcript, Ms. Davis-Baynes said she was with George at the time the Nissan Altima was taken down. She said, “I swear to you I just recently met this person. I’ve known this person for about a week and some.”
[12] At page 12, Officer Shaw asked Ms. Davis-Baynes, “So when’s the last time you physically have been in Windsor?” Her answer was “about two years”.
[13] At page 16, Ms. Davis-Baynes said that she met George through a girl named Nikki. Officer Shaw asked Ms. Davis-Baynes about the Nissan Altima and she said it was probably stolen. At page 19, Ms. Davis-Baynes said she did not know the owner of the car.
[14] At page 22, Officer Shaw said, “And not only was that gun in that car with you, you’re charged with it ‘cause George left you hanging.” Ms. Davis‑Baynes said “I didn't know... the gun is not mine”.
[15] At page 23, Officer Shaw told Ms. Davis-Baynes that it was important that she be honest with him about who the man is. Ms. Davis-Baynes said that she is being honest. She said she did not know this man on a personal level and knew him only as “George”. She said she heard Nikki call him “B”.
[16] On page 23-24, Officer Shaw asked for Nikki’s last name. Ms. Davis-Baynes said, “I couldn’t tell you”, and would not provide any contact information.
June 5, 2019
[17] On June 5, 2019, Officer Shaw interviewed Ms. Davis-Baynes for approximately 1½ hours starting at 9:20 p.m. The interview was audio/video recorded. Ms. Davis-Baynes was not under oath. By this point, Ms. Davis‑Baynes had been arrested by Windsor Police for murder and attempted murder. She had been transported from Peel to Windsor.
[18] Ms. Davis-Baynes generally denied all allegations and did not answer most questions. At page 21 of the transcript, Ms. Davis-Baynes denied that she had any repairs done to the Nissan Altima or that she took the Nissan Altima to Canadian Tire. At page 21-22, Ms. Davis-Baynes said that she was with George who ran from the car immediately prior to her arrest. At page 23, Ms. Davis-Baynes said that she was home with her sister at the time of the shooting and she was not in Windsor.
June 6, 2019
[19] On June 6, 2019, Officer Shaw interviewed Ms. Davis-Baynes. The interview was audio/video recorded. Ms. Davis-Baynes was not placed under oath.
[20] On this occasion, Ms. Davis-Baynes said that she was home at the time of the Windsor shooting. Officer Shaw confronted Ms. Davis-Baynes with information obtained from her cell phone indicating that she was not at home but rather was in Windsor at the time of the shooting. Following that exchange, Ms. Davis-Baynes provided virtually no answers to any questions.
July 10, 2019
[21] This interview, taken by Officer Shaw while Ms. Davis-Baynes was put under oath, has been played for the jury pursuant to my ruling dated October 19, 2023. In that interview, Ms. Davis-Baynes said that it was the accused, Kahli Johnson-Phillips, who accompanied her to downtown Windsor the night of August 26 and into the early morning hours of August 27, 2018. She also said that it was Mr. Johnson-Phillips who fled from the Altima when Peel Regional Police Service stopped the Altima on the evening of August 27, 2018 in Mississauga.
Testimony at the Preliminary Hearing, July 12 and 13, 2021
[22] Ms. Davis-Baynes testified at the preliminary hearing in this matter. She gave different evidence in cross-examination than she gave in her examination in‑chief.
[23] In her evidence in-chief, Ms. Davis-Baynes said that Kahli Johnson-Phillips is Blanco. She said that she was one of three people in the Nissan Altima when it travelled from Mississauga to Windsor, on August 26, 2018. She said that Blanco drove the car while she sat in the front passenger seat and the third person sat in the back seat. She said she did not know who the third person was. She said that the Altima was parked in downtown Windsor, Blanco and the other person got out of the car and, after less than an hour, Blanco and the other person got back into the car. Blanco then drove the car back to Mississauga.
[24] Ms. Davis-Baynes said that when she was arrested, Blanco was driving the car.
[25] In cross-examination, Ms. Davis-Baynes changed her evidence. In cross‑examination, Ms. Davis-Baynes said that Mr. Johnson-Phillips was not in the Nissan Altima in Windsor at the time of the shooting. She said it was a man named George. The only description she could provide was that he was of average height and a little darker than she was. Ms. Davis-Baynes said that it was George who ran from the car during the takedown in Peel the evening after the shooting.
Voluntariness Voir Dire
[26] A voir dire was conducted in Ms. Davis-Baynes’ case, on March 28 and 29, 2023, before the Honorable Madam Justice Leitch. Here, Ms. Davis-Baynes said that it was Mr. Johnson-Phillips who came to Windsor with her on August 26 and 27, 2018. She said she was involved in a relationship with Mr. Johnson-Phillips. She said she came to Windsor with Mr. Johnson-Phillips and another man to “pick something up”. She said that when they arrived in Windsor, they parked across the street from a strip club. The men told her to wait in the car. The men left the car and, after about five minutes, came back running to the car.
[27] Ms. Davis-Baynes said that Mr. Johnson Phillips picked her up at Square One in Mississauga the evening after the shooting. Mr. Johnson-Phillips was in the car with her at the time of the takedown by Peel Regional Police. Mr. Johnson-Phillips ran from the car.
[28] At the voluntariness voir dire, Ms. Davis-Baynes was asked about the July 10, 2019 statement with Officer Shaw. She said that she was promised that the charges against her would be dropped and she, along with her family, would be placed in witness protection if she gave that statement.
[29] However, at the beginning of the July 10, 2019 statement, Officer Shaw asked Ms. Davis‑Baynes if anyone had threatened her if she did not give this statement or promised her something good if she did give this statement. Ms. Davis-Baynes said that she had not been promised anything.
[30] On the voir dire, Ms. Davis-Baynes said that when she told Officer Shaw she had not been promised anything, it was a lie. She said that other than that lie, she told the truth to Officer Shaw.
[31] When she was cross-examined by the Crown, Mr. White, on the August 30, 2018 statement, at page 105 of the transcript the following exchange took place:
Q: All right. I’m going to put to you that throughout this statement you’re asked, how are you introduced to George, and you say, “through Nikki”. A: Yes. Q: So it’s not just a situation where you identified some random person, George, but you actually had a whole story about George. You met George through Nikki. A: Because that’s how I met – that’s how I met him. Q: OK. A: Not George, but the person I was referring to as George. Q: Right. Well, what’s the person you were referring to as George? A: Blanco. Q: It was Blanco? A: Yes.
Trial Evidence
[32] Ms. Davis-Baynes testified at trial on October 16, 2023 and again on October 23, 2023, that she was with George on August 26 and 27, 2018 at the time of the shooting. She said that George picked her up and took her to Windsor. She said that George ran from the Altima at the time of the takedown. She said the last time she saw Mr. Johnson-Phillips was August 23, 2018, three days before the drive to Windsor.
Decision of Leitch J.
[33] In the voir dire in Ms. Davis Baynes’ trial, Leitch J. dealt with an application of the Crown for an order finding that five statements given by Ms. Davis‑Baynes to the police are voluntary. In a thorough decision Leitch J. said the following about each of the statements:
August 28, 2018 statement to Constable Anita Marziliano of the Peel Regional Police Service: Justice Leitch found that Ms. Davis-Baynes understood she had no obligation to answer the officer’s questions and was satisfied that the Crown had proven beyond a reasonable doubt that Ms. Davis-Baynes had made the statement voluntarily.
August 30, 2018 Statement to Officer Shaw: Justice Leitch accepted the evidence of Officer Shaw that at the time of this statement Ms. Davis-Baynes was not a suspect in relation to the Windsor shootings. The questions put to Ms. Davis‑Baynes were not pointed or consistent with the interrogation of a true suspect. Justice Leitch found that there was nothing unfair in how Ms. Davis‑Baynes was questioned. Justice Leitch was satisfied that the Crown had proven beyond a reasonable doubt that Ms. Davis-Baynes had made the statement voluntarily.
June 5, 2019 statement to Officer Shaw: Justice Leitch found that Officer Shaw had ensured that the applicant had been given her rights to counsel and the primary caution. He confirmed that she had spoken with, and received advice from, her lawyer. Officer Shaw provided Ms. Davis-Baynes with the secondary caution. Justice Leitch found that Ms. Davis-Baynes understood she was not obliged to answer questions and had the right to remain silent. There were no threats, inducements, or oppressive conduct. Justice Leitch found that the Crown had proven beyond a reasonable doubt that Ms. Davis-Baynes had made the statement voluntarily.
June 6, 2019 statement to Officer Shaw: Justice Leitch found that Ms. Davis‑Baynes had been cautioned. She said, “There were no circumstances that raise any concern that this statement was not voluntary. It is clear that the applicant understood she did not have to answer questions.” Justice Leitch concluded that the Crown had proven beyond a reasonable doubt that the applicant had made the statement voluntarily.
July 10, 2019 statement: This is the statement that was played for the jury pursuant to my ruling, dated October 19, 2023. Ms. Davis-Baynes gave evidence that she gave this statement because she was offered a deal, the crux of which was that her charges would be withdrawn and she would be placed in witness protection. Justice Leitch heard evidence from Ms. Davis-Baynes’ lawyer at the time of this statement, Mr. Daniel Topp, who said that there were no such promises and there was no cooperation agreement. In her ruling, Justice Leitch said that she was satisfied that there was no deal, no co-operation agreement, and no promises made by the Crown before Ms. Davis Baynes gave her statement. She said, “There was no conduct of the state that served in any way to unfairly deprive the applicant of her free choice to speak to a person in authority.” Justice Leitch found that the evidence was clear that Ms. Davis‑Baynes was fully informed that she was not required to give the statement. Justice Leitch was satisfied that there were no promises made to Ms. Davis-Baynes. She said, “There was no police trickery of any nature.” Justice Leitch found that Ms. Davis-Baynes had an operating mind. Justice Leitch concluded that the Crown had proven beyond a reasonable doubt that the applicant gave the July 10, 2019 statement voluntarily.
Legal Principles
[34] The Crown seeks leave to cross-examine Ms. Davis-Baynes under s. 9(1) of the Canada Evidence Act. The Canada Evidence Act, s. 9, in its entirety reads as follows:
9 (1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.
[35] In R. v. Soobrian (1995), 96 C.C.C. (3d) 208, the Crown as part of its case called a witness named Williams. Williams had given a statement to the police that contained an account of the relevant events that assisted the Crown. At the preliminary inquiry, Williams testified as a defence witness and gave a different account of events, an account that assisted the defence. At trial, the Crown called Williams knowing that he would maintain the position he took at the preliminary inquiry. The trial judge gave the Crown permission to cross-examine under s. 9(2) of the Canada Evidence Act. The cross‑examination apparently went too far. The Court of Appeal said:
Williams’ evidence did not support the evidence of the complainant, or in any other way advance the Crown’s case. Williams’ cross-examination tended to show that he was not a credible witness, but that in itself had no relevance to the case. The true purport of Williams’ evidence, including his cross-examination by the Crown, was to show that the appellants were not credible because Williams was not. The trial judge should have made clear to the jury that there was no basis upon which they could use Williams’ evidence to support that conclusion.
[36] The court of appeal said that, given the cross-examination, “It was incumbent on the trial judge to instruct the jury that, in the absence of any evidence of collusion between Williams and the appellants, there was no basis upon which they could draw an inference adverse to the defence from the fact that Williams was a liar, if they were to so find.”
[37] The seminal case on the proper use of s. 9(1) is R. v. Figliola, 2011 ONCA 457 (Figliola 1). In that case, the accused and another person identified as Mr. Di Trapani were charged with first degree murder. The Crown alleged that the accused hired Mr. Di Trapani to kill her husband. A close friend of the accused, Ms. Teresa Pignatelli, was a Crown witness at trial. In statements to the police and at the preliminary hearing, Ms. Pignatelli had made a number of prior statements that were inconsistent with her testimony at trial. The trial judge concluded, after a voir dire, that Ms. Pignatelli had adopted a position in her testimony opposite to the Crown’s position. The Crown sought an order under section 9(1) declaring Ms. Pignatelli an adverse witness. The order was granted. The Crown did not seek, nor did the trial judge grant, an order declaring her a hostile witness. Even though Ms. Pignatelli was not declared a hostile witness, the Crown proceeded to cross-examine Ms. Pignatelli in a wide-ranging fashion with considerable success.
[38] At para. 50, the Court of Appeal said that “an adverse witness is one who is opposed in interest or unfavorable in the sense of opposite in position to the party calling that witness, whereas a hostile witness is one who demonstrates an antagonistic attitude or hostile mind toward the party calling him or her.” The Court of Appeal referenced the Supreme Court decision in R. v. Coffin, [1956] S.C.R. 191, where Kellock J. described a hostile witness as “one who does not give his or her evidence fairly and with a desire to tell the truth because of a hostile animus towards the prosecution.”
[39] In Figliola 1, the Crown was granted the right to cross-examine Ms. Pignatelli as an adverse witness under section 9(1). The Crown was not granted the right to cross-examine Ms. Pignatilli as a hostile witness. Nevertheless, the Crown embarked on a cross‑examination of the witness at large.
[40] At para. 61, the Court of Appeal said that “the ultimate effect of the cross‑examination was to create the various scenario that Soobrian envisages:
The effect of the cross-examination was to shred the credibility of the Crown’s own witness and to create a factual matrix in which the jury might well conclude that Ms. Pignatelli was not only a liar, but was a witness lying for the very purpose of covering up for the appellants wrongful deeds and that the appellants were therefore liars themselves, and guilty too.
[41] At para. 62, the Court of Appeal said that,
[F]ollowing the section 9(1) ruling, the Crown should have been restricted to cross-examining on the prior inconsistent statements and the circumstances surrounding them. Once the cross-examination evolved however, without any objection from defence counsel for either accused, the jury was in the same position as the jury in Soobrian. The jurors needed to understand clearly that if they found Ms. Pignatelli not to be credible, they could not use that finding to conclude that either or both of the appellants were not credible either. Nor could they use such a finding to so support a conclusion that either or both of the appellants were guilty.”
[42] The result in Figliola 1 was to order a new trial. At the second trial, (Figliola 2), Ms. Figliola was convicted again. The evidence heard on the first trial was substantially the same as the evidence heard on the retrial. The trial decision was appealed with the appellant alleging several errors, including errors in the treatment of the witness, Teresa Mascia, previously Teresa Pignatelli: see R. v. Figliola, 2018 ONCA 578.
[43] The appellant alleged, among other errors, that the trial judge should not have allowed the Crown to call Ms. Mascia as a witness; that the trial judge should not have allowed the Crown to cross-examine Ms. Mascia under s. 9(1). The appeal was dismissed. In its decision, at para. 52, the court of appeal said:
[52] Three propositions emerge from Soobrian and Figliola #1:
− If a witness has relevant evidence to give, the Crown may call that witness, even if the Crown expects that the witness will give evidence that is inconsistent with a prior statement made by the witness and the Crown anticipates bringing an application to cross-examine the witness under s. 9 of the Canada Evidence Act.
− A trial judge may refuse to permit cross-examination under s. 9(1), even if the technical requirements for a finding of adversity are met. The trial judge should not permit cross-examination if that cross-examination would undermine the fairness of the trial. Trial fairness will be undermined if there is a real risk that the jury, despite an appropriate limiting instruction, could misuse the cross-examination of the Crown witness in the manner described in Soobrian.
− If the Crown is allowed to cross-examine its own witness under s. 9, the trial judge should caution the jury that the cross-examination may be used in assessing that witness’ credibility, but that it cannot assist in assessing the credibility of the accused, or in proving the Crown’s case against the accused unless the witness adopts the prior statements as true or there is evidence of collusion between the witness and the accused.
[44] In the case at hand, the parties agree that Ms. Davis-Baynes is a witness adverse to the Crown. Ms. Davis Baynes is clearly adverse to the Crown within the meaning of that term set out in Figliola 1. Her evidence at trial is unfavourable and diametrically opposed to the Crown’s position. The issue is whether I should exercise my discretion to allow the Crown to cross-examine her on the inconsistencies in her statements.
[45] The Crown has identified three purposes for his cross-examination of Ms. Davis‑Baynes. They are:
- In her evidence, Ms. Davis Baynes said that the trial was her first opportunity to tell her side of the story. The Crown seeks to cross-examine to demonstrate that trial was not Ms. Davis Bayne's first opportunity.
- Ms. Davis-Baynes’ version of events has shifted many times, evolving from scant in detail to extensive in scope. Throughout the voluntariness voir dire before Justice Leitch in February and March of 2023, Ms. Davis-Baynes said that she told the truth in her July 10, 2019 statement that the accused was in the white Altima with her on August 27, 2018, and not another man named George. The Crown seeks to explore the reason for the change in Ms. Davis-Baynes’ version of events at this trial.
- In her trial evidence, Ms. Davis-Baynes said that she gave the evidence she did on July 10, 2019 because there was a deal between her lawyer and the Crown’s office whereby, if she gave the evidence as she related, charges against her would be withdrawn and she would be put in witness protection. The evidence of a deal suggests some culpability on the part of the Crown to illicit false evidence. The Crown asserts that he must directly confront that testimony in an effort to show that there was no deal and that there is no logical reason any such deal would motivate her to lie in her police statement.
[46] All of these purposes are valid. Ms. Davis-Baynes in her first police statements said the person with her at the time of the takedown was a man named George. She then said at her July 10, 2019 statement that the person with her was Mr. Johnson Phillips. She repeated that both in her evidence in-chief at the preliminary inquiry and in her evidence at her own voir dire this past spring. In cross-examination at the preliminary inquiry she agreed with Mr. Moon that the man was George. At trial, she reverted to evidence that the person with her was not Mr. Johnson-Phillips and was another man named George. In my view, the Crown must be permitted to cross-examine Ms. Davis-Baynes on these variations in an attempt to ensure that the jury is fully equipped to assess her credibility.
[47] The probative value to the cross-examination is very high. Ms. Davis-Baynes’ evidence may be pivotal. She is the only witness who can testify as to who was with her in Windsor at the time of the shooting. There are numerous inconsistencies in her statements that will need to be explored to assist the jury in determining what, if any, evidence given by Ms. Davis-Baynes they will accept.
[48] The prejudicial effect is the risk of the questioning falling into Soobrian territory, namely questioning that implicates the accused in the giving of false testimony. The risk is that the jury may conclude that the witness is lying for the very purpose of covering up for the accused and that the accused is therefore also a liar.
[49] In my view, if parameters or restrictions are put on the Crown’s cross‑examination, the risk is lessened. Moreover, the Crown must be limited to a cross-examination on the inconsistencies between Ms. Davis-Baynes’ various statements and her trial evidence and must not be permitted to cross-examine at large.
[50] The restrictions suggested by the crown are:
- The Crown cannot assert that Mr. Johnson-Phillips colluded with Ms. Davis-Baynes to give false evidence.
- The Crown cannot assert that Ms. Davis-Baynes is giving false evidence because she is afraid of Mr Johnson-Phillips.
- The Crown cannot suggest anything from the silence of Ms. Davis‑Baynes or her refusal to answer questions at her police interviews.
[51] I agree that these restrictions ought to be put in place.
Disposition
[52] The Crown may cross-examine Ms. Davis-Baynes on the inconsistencies between her evidence at trial and her evidence in her various statements, for the three purposes identified by the Crown and with the restrictions set out herein.
“original signed and released by Hebner J. ”
Pamela L. Hebner Justice
Released: October 30, 2023
COURT FILE NO.: CR-21-5249 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Kahli Johnson-Phillips Accused RULING ON CROWN APPLICATION UNDER s. 9(1) OF THE CANADA EVIDENCE ACT Hebner J. Released Orally and in Writing: October 30, 2023