Court Information

Court File No.: Not specified

Date: 2016-03-30

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jeffrey White

Before: Justice Paul M. Taylor

Heard on: October 5, 6, 8, December 6, 2015 and March 10, 2016

Reasons for Judgment released: March 30, 2016

Counsel

J. C. Healy — counsel for the Crown

S. Von Achten — counsel for the defendant Jeffrey White

Judgment

Taylor, J.:

Introduction

[1] On October 5, 2015, Jeffrey White appeared before me for trial. He was charged with a number of firearms and drug offences after members of the Toronto Police executed a search warrant at 765 Midland Avenue. Counsel both advised that they would be proceeding by way of an "Agreed Statement of Facts" (A.S.F.) and that no witnesses would be called. There was a brief discussion on the record concerning the statement, and I pointed out the need for precision. At my suggestion, counsel retired to attempt to work things out. The next day Counsel returned with a statement and indicated that after it was filed they would proceed with argument, no witnesses would be called. I raised some concerns with counsel in particular how much time Mr. White was spending at 765 Midland. After reflecting Ms. Von Achten and her client agreed that he was sleeping over at 765 Midland 10% of the time, either in a backroom or in the bedroom in the basement (with the snakes), (emphasis added). Ms. Von Achten agreed that the amended statement (Exhibit 1(a)) was tendered pursuant to Section 655 of the Criminal Code, and there was no need to prove its contents. The Crown then closed its case; the Defence filed a number of photographs on consent and then closed its case. The Defence never suggested that it wished to call evidence. Both Counsel stressed the only issue for me to decide was the issue of possession, had the Crown proven beyond a reasonable doubt that Jeffrey White had the requisite knowledge, consent and control over the items seized at 765 Midland?

[2] Mr. Healy stressed in his submissions that one of the firearms - a MAC 11 Cobray 9mm fully automatic - had been found in plain view "on speaker on floor in back room main floor", and according to the A.S.F., where Mr. White occasionally slept. After he concluded his submissions, Ms. Von Achten asserted that the firearm was not in plain view, (as set out in the A.S.F.), but rather it was on the floor behind the speaker. I immediately interjected and asked how this had occurred, how the A.S.F. had been agreed to with this discrepancy. Ms. Von Achten took the position that she was aware that in one of the officer's notes the location was set out as on the floor. She said she did not want to make an issue of the matter as she viewed it as a typographical error. It is difficult to fathom how the difference between on top, in plain view as agreed and behind could be seen as a typographical error. In any event, Ms. Von Achten and her client should not have agreed to the A.S.F. when they had knowledge of the confusion.

[3] Faced with this confusion, I initially asked the parties to try to work out the issue and to possibly amend the A.S.F. When the trial resumed on October 6, Crown Counsel Mr. Healy advised that his position was that the gun was on the floor but in plain view. Ms. Von Achten as she was entitled to declined to accept this amendment. Faced with this factual impasse, I ruled that the only fair way to deal with the impasse was to allow evidence to be called on this narrow issue.

[4] When we resumed on the 8th of October, Ms. Von Achten argued that if evidence was to be called it changed the context of what was being admitted. She asked for a mistrial or alternatively that the trial be turned into a preliminary hearing and committed to the Superior Court for trial. She said what was occurring was flawed and a "proper trial" should occur. She then indicated that she wished to call a number of witnesses including the Accused, his mother and his sister. It was also suggested that Mr. White's ex-girlfriend was a potential witness. Mr. Healy countered that if witnesses were to be called he would seek to cross-examine Mr. White on an alleged previous incident of discreditable conduct.

[5] The trial was adjourned until December 6, 2015 to allow Counsel to file materials in support of the applications. Ms. Von Achten filed materials which on the surface of them appear to resile from the A.S.F., she disagrees that there is any conflict. The issues are now: can the trial proceed or must a mistrial be declared, is there a resiling from the A.S.F., and can Ms. Von Achten continue to act?

[6] Ms. Von Achten has asserted there is no incompatibly between the A.S.F. and the evidence which she wishes to call, and sees no impediment to her continuing as counsel. Mr. Healy has argued there are fundamental and material differences between the A.S.F. and the new position of the Defence. The result he says is that a mistrial must be declared. He takes the position that Ms. Von Achten is in a conflict and cannot continue.

The Agreed Statement of Facts and the "Anticipated Evidence"

[7] In her written submissions with respect to the Crown's application to cross-examine on the alleged discreditable conduct, Ms. Von Achten included a number of assertions under the category of "anticipated evidence". She asserts there is no contradiction between the "anticipated evidence" and the A.S.F. I disagree. The assertions are material and totally inconsistent with the A.S.F. The two documents cannot be seen as compatible. I will illustrate how I came to this conclusion by comparing the documents.

[8] Paragraph 4 of the A.S.F. reads:

"Whites government cheques (in the amount of $100 and $30 respectively) were mailed to 765 Midland Ave. days before the search warrant was executed; they were placed (by his mother) alongside his driver's license and OHIP card on the speaker on (sic) the back room on the main floor; note no government checks were discovered or seized by TPS during the search. Police further seized WHITE'S birth certificate, SIN card and "Status" card from a drawer in the front room on the main floor."

[9] The Reply "Anticipated Evidence" paragraphs 3 and 4 reads:

"It is anticipated that White's mother will testify that she looked after White's identification, because he tended to lose items, such as his Indian Status Card, and it is anticipated that White's mother will testify that where the police said they found the identification evidence on the ground floor was not where she had placed it. She is anticipated to state that a cheque had arrived for White; that she had left the cheque and identification in the front porch area for him to pick up so he could cash the cheque."

Ms. Von Achten's latest position is: that the last sentence in the A.S.F. is inaccurate. Only the driver's license and OHIP card were seized. Paragraph 4 in the Reply is inaccurate. Neither the driver's license or OHIP card was found in the front porch area, and the placement of the cheques by the mother as set out in the A.S.F. is now confirmed. The location of Mr. White's personal property is evidence from which inferences may be drawn on the pivotal issues of knowledge, consent, and control. On the surface, the Defence appears to have now returned to its initial position in the A.S.F.

[10] Paragraph 3 of the A.S.F. reads:

"…while White did not sleep over often at 765 Midland, when he did, it was either on the couch in the back room on the main floor or in the bedroom in the basement (with the snakes)".

Paragraph 6 of the Anticipated Evidence reads:

"It is anticipated that evidence will be given by White, his mother and sisters that White could not sleep in the basement when the snakes were in there because it was too hot. The heat had to be maintained at a high level to ensure the survival of the snakes", (emphasis added).

The Defence maintains there is no conflict. The latest position is that the "Anticipated Evidence" is merely a clarification. With respect, the position is untenable, there is a direct contradiction between sleeping in a room with the snakes and this being an impossibility. Where Mr. White slept is material evidence from which an inference could be drawn as to his knowledge, consent and control of the various items seized by the police.

[11] Paragraph 1 of the A.S.F. reads:

"… he resided overnight with her (Ms. Smith-Harding the Accused' girlfriend) 90% of the time, the other 10% of the evenings White remained overnight at 765 Midland".

The "Anticipated Evidence" paragraph 7 reads:

"It is anticipated that evidence will be given by White, his mother and sisters that after White moved out he returned only to feed the snakes and for family events", (emphasis added).

The latest position is that there is no conflict between the statements. The Defence's present position is that there is no dispute that White used the basement bedroom and that he did occasionally stay over. The percentage of time Mr. White remained overnight at 765 Midland was specifically canvassed at the time the A.S.F. was filed. Ms. Von Achten reflected and then agreed to the percentages. The Defence then resiled, now modifies. It is settled law that an agreed statement of fact must be clear and unambiguous, as Justice Frankel of the British Columbia Court of Appeal wrote in R. v. Asp, [2011] B.C.J. No. 2075 at paragraph 40:

"40 There are aspects of the agreed facts that are not as clear as they could have been. It goes without saying, that when facts are not in dispute an agreed statement of facts (or an admission of facts) can greatly assist in moving a matter forward in an efficient and effective way. However, attention needs to be paid to how such documents are drafted. In that regard, it would be helpful if counsel kept in mind the following statement in McWilliams' Canadian Criminal Evidence, Vol. 2, 4th ed., loose-leaf (updated August 2011), (Toronto, Ont.: Canada Law Book), at s. 22:50:

An admission of fact should be clear, unambiguous, precise and unequivocal before acceptance by the court. Failure to adhere to this principle will inevitably engender confusion and prove disruptive to the unfolding of the proceedings. The parties ought to be encouraged to "condescend to particularity". [Footnotes omitted.]"

This issue of where Mr. White slept at 765 Midland and how often is now in a shambles. The A.S.F. agrees that firearms were found in a "Nike" bag under the bed in the basement bedroom, other firearms were found in a bedside table. Other firearms, according to the A.S.F., were found in plain view in the back room. How often and where Mr. White slept over at 765 Midland are potentially critical pieces of evidence.

Analysis: The Applicable Principles

[12] In her written submissions, Ms. Von Achten wrote: "An Agreed Statement of Fact does not constitute conclusive proof of the facts stated therein at trial", and "an Agreed Statement of Facts is not accepted without question to be facts of absolute precision. Instead, an Agreed Statement of Facts must still be scrutinized by the trial judge, who must assess credibility and reliability of the said Statement before it is accepted for the truth of its contents. This is so, because the Agreed Statement of Facts is hearsay evidence." In the course of oral argument, Ms. Von Achten conceded that her position was an inaccurate assertion of the law. Her earlier position is completely incorrect. The law is exactly opposite to her earlier stated position. She agreed that Justice Hill's statement in R. v. Baksh, [2005] O.J. No. 2971 at para. 84 is an accurate statement of the law:

"84 An admission validly made in the context of s. 655 of the Code is an acknowledgement that some fact alleged by the prosecution is true. Such an admission dispenses with proof of that fact by testimony or ordinary exhibit and the accused is not entitled to set up competing contradictory evidence in an attempt to disprove the judicial or formal admission. In other words, the formal admission is conclusive of the admitted fact. Assuming that parties in a criminal trial, as occurred in the earlier trial, can agree to waive the necessity of testimonial proof on certain matters in issue by jointly tendering an agreed statement of facts going beyond the narrow scope of s. 655 of the Code, such a statement, in my view, also amounts to a solemn, formal or judicial admission and is conclusive against contradiction by both parties." (Emphasis added).

[13] Ms. Von Achten also sought to rely on the Supreme Court of Canada's decision in R. v. Youvarajah, [2013] S.C.C. 41. Youvarajah, supra, is legally distinguishable. The issue as framed by Karakatsanis J., at paragraph 1 was:

"1 The issue in this appeal is whether a co-accused's prior inconsistent statement, implicating the appellant in a murder, was sufficiently reliable to be considered by a jury for the truth of its contents."

Justice Karakatsanis ultimately found at paragraph 69:

"69 The circumstances identified by the trial judge raise significant concerns about the threshold reliability of the portions of the ASF upon which the Crown sought to rely at the appellant's trial, all of which minimized D.S.'s involvement in the murder. D.S. endorsed the ASF as part of a plea bargain for second degree murder and a sentence in youth court. In these circumstances, there was motivation to shift responsibility to his co-accused. D.S. was also assured that he would not have to make any further statements to police and he testified at the appellant's trial that this was one of the reasons that he had accepted the plea agreement. D.S. further testified that he agreed to some facts in the ASF that he said he did not or could not know and that he did not understand everything that he read before agreeing to the statement's contents. Those portions of the ASF that shifted responsibility for the murder to the appellant are inherently unreliable."

[14] There is a fundamental difference between a co-accused' out-of-court statement being accepted for the truth of its contents and a formal admission by an accused. As Justice Sopinka wrote in R. v. Evans (1983), 85 C.C.C. (3d) 97 (S.C.C.), at paragraph 24:

"24 The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, "[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath" (Morgan, "Basic Problems of Evidence" (1963), pp. 265-66, quoted in McCormick on Evidence, supra, at p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases."

In any event, Mr. White's formal admission pursuant to Section 655 of the Criminal Code cannot be analogized to an out-of-court statement, his admission was made in court, and with the assistance of counsel.

[15] Notwithstanding her concession, Ms. Von Achten has continued to assert that a trial judge can somehow weigh or access the credibility of an agreed statement of facts. This position was referred to by the Ontario Court of Appeal as being an impossible position in R. v. Coburn, [1982] O.J. No. 41 at para 13:

"13 This case emphasizes that although Agreed Statements of Facts are often useful, they should only be used where the facts are clearly agreed upon. When it became apparent that this was not the case, and that there was a conflict between the appellant's evidence on the one hand, and the Agreed Statement of Facts on the other, the trial judge should have required the Crown to call evidence on the points in issue. The trial judge, however, attempted to perform an impossible task, namely to decide between what was set forth in the Agreed Statement of Facts and the viva voce evidence of the appellant. The trial judge in effect set out to determine the question of credibility of the appellant without hearing Inspector Yorkston and weighing in turn his credibility. (emphasis added)."

[16] Initially the Defence placed some reliance on the British Columbia Court of Appeals decision in R. v. Crate, [2011] B.C.J. No. 2372 for the proposition that an Agreed Statement of Facts could somehow be weighed assessed or rejected. The Court of Appeal clearly rejected this suggestion, at paragraph 69 they wrote:

"69 Mr. Germa argues that the trial judge could not in law reject the agreed statement of facts because it is conclusive proof of the facts stated therein. The flawed assumption implicit in Mr. Germa's analysis is that the agreed statement of facts, if accepted, constitutes conclusive proof of his alibi defence. Of course, it does not. The trial judge did not reject the agreed statement of facts. Rather, he rejected Mr. Germa's alibi that he could not have committed these offences around midnight because he was between 2.5 and 4.2 km away approximately 15 minutes later."

The Court clearly found that notwithstanding the Trial Judge's acceptance of the agreed statement of fact, as they were required to do, the evidentiary effect was another matter.

The Principles Applied

[17] Mr. White with the assistance of counsel formally admitted certain facts at the outset of this trial. The admissions were on the face of them voluntarily made and are binding on him. Notwithstanding the assertions of his counsel that there are no conflicts between the A.S.F. and the new position in my view he now wishes to resile or qualify his previous admissions. Normally when an accused seeks to withdraw an admission or a guilty plea there is an assertion that a mistake has occurred, or that the accused was denied the effective assistance of counsel. Neither of these issues has been raised at this time. The position of the defence is that there are no conflicts and in any event, I can somehow assess the credibility of the Agreed Statement of Facts.

[18] In my view, neither position is tenable. There are real and material conflicts between the A.S.F. and the present defence position. It is equally clear that I cannot weigh the A.S.F. It is binding.

[19] What is the effect of what the defence seeks to do? Practically the trial has been reduced to a shambles. It has effectively been turned upside down. If I allow the defence to call the evidence, presumably the Crown can call evidence in reply, a complete reversal of the normal procedure. The Crown will call its evidence after the Defence. I could start afresh and have the Crown call its case and proceed more or less as normal. There is, however, a more fundamental issue. It is clear that when Mr. White testifies, (and Ms. Von Achten suggests he will), the Crown can if it chooses can cross-examine Mr. White on his admissions as Justice Hill wrote in Baksh, supra at paragraph 119:

"119 Admission of the Agreed Statement in this subsequent trial, as ordinary admissions, is supported by the persuasive reasoning of the guiding jurisprudence and in particular that relating to guilty pleas and superceded civil pleadings. At trial, the prosecution may, if it sees fit to do so, introduce, for their truth, the accused's admissions from the Agreed Statement. The admissions, however, are no longer conclusive and may be explained, attacked or otherwise countered by the defence as with any other non-judicial admission."

[20] Presumably Mr. White will have some explanation, because he must explain or otherwise qualify his earlier admissions. One of the practical problems with any explanation is that his admissions were made in open court with the assistance of counsel and with time to reflect. Ms. Von Achten agreed in oral argument that he had reviewed the A.S.F. before it was filed. Such admissions are presumptively valid, as the Ontario Court of Appeal wrote in a brief endorsement, (in the context of a guilty plea), in R. v. Eastmond, [2001] O.J. No. 4353 at paragraph 6:

"6 A guilty plea entered in open court, particularly by an accused represented by counsel, is presumed to be a valid plea. An accused seeking to set aside that plea bears the onus of demonstrating that the plea is not valid. There is nothing in the record of the proceedings in which the plea was entered that raises any concern about the validity of the plea, or which would have necessitated that the trial judge make some specific inquiries of the appellant personally to satisfy himself that the plea was valid. The facts read in by the Crown were straightforward, simple and fully supported the allegation. The accused pleaded guilty personally and was represented by experienced counsel who acknowledged in open court the correctness of the facts referred to by the Crown."

[21] Should Mr. White testify and it is almost inevitable that he must, Ms. Von Achten will be faced with a series of irremedial conflicts. She will face the conflict between her duty to the Court and her client. She has presented the Court with an Agreed Statement of Fact which is at best ambiguous if not totally flawed. She is in personal conflict with her client. At one point in oral argument, Ms. Von Achten suggested that she may have been in error in having her client agree to the A.S.F. and that she may have misunderstood that the A.S.F. encompassed documents beyond exhibits 1 and 1(a). If accepted by the trier of fact this potentially blunts the effect of the A.S.F. As Ms. Von Achten conceded the ultimate decision to testify is Mr. White's, how can she effectively advise him on whether to testify when her actions are part of the calculus. She will potentially become a witness either to support the client, or at the behest of the Crown, against him. It is axiomatic that counsel cannot appear as a witness and act in the same case (see Rule 5.2-1 Rules of Professional Conduct, Law Society of Upper Canada). She cannot continue to act. Removal of counsel is not something that a Court should undertake without a real evidentiary basis. In my view such a basis exists here, and removal of counsel is the only way to protect the integrity of the trial process.

[22] The only option to insure a fair trial is to declare a mistrial, start afresh with new counsel for Mr. White.

Released: March 30, 2016

Signed: "Justice Paul M. Taylor"