Court Information

Ontario Court of Justice

Date: 2020-06-10

Toronto Region

Parties

Between:

Her Majesty the Queen

— and —

Amari Buchanan

Judicial Officer and Counsel

Before: Justice L. Feldman

Heard on: May 29, 2020

Reasons for Judgment released on: June 10, 2020

Counsel:

• S. Orlando — counsel for the Crown
• C. Rosemond, M. Salih — counsel for the accused Amari Buchanan

Reasons for Judgment

FELDMAN J.:

[1] Amari Buchanan is before me on a Code s. 523(2) review of his detention order on charges of Criminal Harassment, Procuring, Receive Financial Benefit, Trafficking in Persons by Recruiting, Threaten Bodily Harm, Wound Animal, and Fail to Comply with Probation.

[2] Unrepresented at trial, Mr. Buchanan had the benefit of Amicus Curiae who was appointed by this court. When the trial was put over to be continued, I was advised that the defendant wished to bring an s. 520 bail review in the SCO.

[3] I appointed a different Amicus to prepare the materials and assist the defendant before that court. It is mandatory that an affidavit in support of the application be filed. In the affidavit, Mr. Buchanan deposed that during a certain 13-day period, despite the risk of COVID-19 spread, he was housed in his cell with one or two inmates, asserted no doubt to advantage his position on the question of release.

[4] Amicus filed the affidavit with the trial coordinator in the SCO and provided a copy to the Crown, Ms. Orlando, in anticipation of a date being set for a hearing. The Superior Court declined jurisdiction. Section 523(2) directs that the review be held in the Ontario Court of Justice.

[5] In this court, Ms. Orlando provided a report from the Toronto East Detention Centre indicating that during the above 13-day time frame the defendant was the sole occupant of his cell. She says this permits the inference that Mr. Buchanan intended to mislead the SCO, an inference she says suggests he is untrustworthy and less likely to follow the terms of a release order. She says the affidavit is material evidence and that it would be unfair to the prosecution to exclude it.

[6] Although the affidavit was already in the possession of the Crown, Mr. Rosemond also gave a copy to her in this court, he says, as a result of a clerical error. He wishes to have it withdrawn. I accept his statement to this court that his error was inadvertent and that he did not intend to file or rely on the affidavit during this proceeding.

[7] Mr. Rosemond submits that it would be unfair to allow the Crown to file the affidavit. He says this is a compelled statement filed in a court without jurisdiction to hear the matter so that there is no public record of its sworn contents. He asks that I exercise my discretion to prohibit the Crown from filing the affidavit.

[8] Ms. Orlando submits that this is evidence that was intended to be used to mislead the court and therefore relevant to show the defendant was prepared to lie to achieve his ends. She seeks only to cross-examine Mr. Buchanan in relation to paragraph 4 in which he deposes to the number of inmates purportedly sharing his cell. She says there should be no immunity from lying in an affidavit, even if compelled and filed in the wrong court.

[9] I have discretion to exclude this evidence if I conclude it would be unfair in the circumstances to admit it. In Brunczlik, Casey Hill J. was of the view that the court had discretion to exclude otherwise admissible evidence when to do otherwise would undermine a defendant's fair trial interests. In that case, the Crown sought to use Mr. Brunczlik's admissions to a Crown psychiatrist to prove identity, when their purpose was to address psychiatric issues. Justice Hill felt it would be unfair to admit those statements for the reason sought by the Crown.

[10] Mr. Buchanan does not come to this court with the proverbial clean ethical hands. On the available information, it can be inferred he intended to mislead. He abused his oath. At the same time, the compelled affidavit was filed in relation to a proceeding without jurisdiction for which no date was set and that was sent back to this court. Counsel withdraws the affidavit filed here by mistake.

[11] This is a close case. There is perceived unfairness in the circumstances. But it is open to be inferred that Mr. Buchanan intended to commit a fraud on the Superior Court. That is a materially relevant fact in issue. In my view, it is evidence of a kind that tends to minimize any sense of unfairness that might otherwise arise from the consequences of the mistake in choosing the wrong forum for the review. As noted, there should be no immunity for lying under oath.

[12] The Crown may file the affidavit under s. 518 but is restricted to cross-examining the defendant about the contents of paragraph 4, should he testify.

Released: June 10, 2020

Signed: Justice L. Feldman