ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-3349
DATE: 2012/02/29

BETWEEN:

HER MAJESTY THE QUEEN – and – GEORGE EDWARD KENNY and CHARLIE MANASSERI Defendants

Dallas Mack and Jason Neubauer, Crown Counsel

Jeffrey Schroeder, counsel for the accused, George Edward Kenny
Paul Lewandowski, for the accused, Charlie Manasseri

HEARD: February 2 and 6, 2012 (Ottawa)

RULINGS ON THE FOLLOWING APPLICATIONS:

A. sTAY OF PROCEEDINGS

B. SECtION 9(2) cANADA EVIDENCE ACT

C. ADMISSIBILITY OF ASSOCIATION EVIDENCE

PARFETT J.

[ 1 ] Applications relating to three matters were heard at different times during the trial, but released as a package. The rulings on those matters are set out below.

A. RULING ON APPLICATION FOR A STAY OF PROCEEDINGS

[ 2 ] The Accused, Mr. George Kenny, requests a stay of proceedings or alternatively the exclusion of the evidence of a Crown witness – Mr. Michael Gil. In the event that neither of those remedies is ordered, Mr. Kenny requests that Mr. Gil be prevented from testifying concerning the identity of the assailant he saw strike the deceased, Brian Fudge. The basis for seeking the stay of proceedings is the alleged wrong-doing of the Crown and police in their dealings with Mr. Gil.

Background

[ 3 ] On December 31, 2004, the victim in this matter, Brian Fudge, was celebrating New Year’s Eve at Le Skratch Bar on Merivale Road in Ottawa. There was an altercation inside the bar and Fudge was allegedly assaulted by the co-Accused, Charlie Manasseri. After the altercation, Fudge was escorted outside the bar. As Fudge and his friend, Dan Narraway were standing outside the bar at the bottom of some stairs, a second assailant alleged to be George Kenny came up and struck both Fudge and Narraway. Narraway was injured and Fudge was rendered unconscious. He never regained consciousness and died on January 2, 2005.

[ 4 ] The backdrop to this case is the fact that some witnesses have been reluctant to cooperate with police. Perhaps as a consequence of the time that has passed, the testimony of some of these witnesses has evolved. One such witness is Michael Gil.

Sequence of Events

[ 5 ] Mr. Gil was first interviewed by police under oath and on videotape on January 5, 2005. He indicated that he was not present outside the bar when Fudge and Narraway were attacked and that he had seen nothing of consequence occur inside the bar either. He indicated that he did not even see Fudge and Narraway being escorted out of the bar even though he was working coat check that night and would have been in a position to at least see that event. He told the officer at that time that he had only had one or two drinks and was not drunk. He confirmed that he was a smoker, but stated that he only smoked inside that night. When pressed by the officer, he indicated that if he was outside that he had no recollection of it and he insisted that it was very unlikely. The officer questioning him at that time told Gil that another witness put him outside and talking with the second assailant just before the second assault. Gil continued to deny that he was outside.

[ 6 ] He was next interviewed by police on June 1, 2007, shortly after the conclusion of the preliminary inquiry in this matter. By that time, the police had learned a number of things concerning Mr. Gil. First, they learned from other witnesses that Gil was saying that he had seen George Kenny strike someone at the base of the stairs outside the bar. Second, they learned that Gil was urging witnesses not to reveal to police that he (Gil) had been outside the bar and finally, they understood that Gil was not pleased that a number of employees from the bar had talked to police. In addition, Leanne Campbell had testified at the preliminary inquiry and had indicated that she was outside the bar with Gil when he was approached by someone who clearly knew him and who asked if “he could go finish him off”. According to Campbell, Gil replied in the affirmative. Following that conversation, the man had gone down the stairs. He apparently returned a short time later and stated, while laughing, that ‘it only took one punch.’

[ 7 ] When police interviewed Gil on videotape on June 1, 2007, they told him that they did not believe him when he said that he had not been outside the bar. They advised him that they might have to consider a criminal investigation. The interview is fairly lengthy and in it, Gil essentially states that he was too drunk to recall anything, that he did not recall being outside, and that he did not know any of the people involved.

[ 8 ] The next interview occurred on December 15, 2011. That interview was not recorded. However, extensive notes were taken by the officer who was present. Both Crown counsel were also present. In this interview, both the Crown and the officer state unequivocally that they do not believe that Gil had told the truth in his previous two statements. He is repeatedly urged to tell the truth, and is advised that other witnesses have placed him at the scene. It is also suggested to him that he might want to look up the definition of perjury on the Internet. Gil suggests that he is being ‘blindsided’ and on one occasion says he would like to get some advice. He is told that the best advice he could receive is to tell the truth. He repeats on several occasions that he no longer knows what the truth is. Ultimately, he sticks to his story that he cannot recall anything and that he was very drunk. He denies knowing George Kenny and states that he would not be able to recognize him.

[ 9 ] On January 17, 2012, one day after this trial commenced, Gil called the Crown attorney’s office and left a message for one of the Crown attorneys. In that message, he indicates that he wants to meet with them because some things concerning the night of January 1, 2005 are coming back to him. That day an officer met with him at his home and recorded an interview in which Gil acknowledges that he was outside the bar with Campbell when a man he recognized as a regular at the bar and who he now knows is George Kenny went by him and asked ‘Can I go finish this?’ Kenny then went down the stairs and Gil saw him throw one punch towards someone Gil knew had earlier been ejected from the bar. Gil explains his change of story by saying that he is older, married and a law-abiding citizen, and that at the time he did not want to get involved because these people are not ‘the best people on the planet’. This statement was disclosed to defence shortly after.

Arguments and Analysis

[ 10 ] Defence takes issue with several aspects of this situation. He argues that the December interview with Gil was a late attempt by the Crown to get more evidence in relation to his client and that they exceeded their professional mandate when they:

1. told Gil they did not believe him;
2. threatened Gil with criminal prosecution;
3. pressured him to change his story; and
4. tainted Gil’s evidence by telling him what other witnesses said.

[ 11 ] The focus of defence counsel’s concern was the December 15, 2011 interview, although he also pointed to the June 1, 2007 interview as a further indication of inappropriate actions by the police. He contends that in doing the above, the police and Crown have violated the fundamental principles of justice underlying the community’s sense of fair play and decency, and created an abuse of process that can only be remedied with a stay of proceedings or the exclusion of Gil’s testimony.

[ 12 ] The Crown states that defence has the onus of demonstrating on a balance of probabilities that the actions of the police and Crown in interviewing Gil amount to an abuse of process, and that defence has failed to meet that onus. He argues that if a stay of proceedings is the appropriate remedy then that can only be determined at the end of the Crown’s case and that in the meantime Gil should testify. In addition, Crown argues that exclusion of Gil’s testimony is not an appropriate response in these circumstances.

Timing of Application

[ 13 ] With respect to the timing issue, I agree with Crown counsel that generally speaking a stay application is heard at the end of the Crown’s case [1]. However, a stay of proceedings is not the only remedy available where abuse of process has been demonstrated. Another option is the exclusion of testimony, which has been requested here. In my view, the issue must be determined now. Given the nature of defence counsel’s argument, I will not be in any better position to assess whether an abuse of process has occurred than I am now. Therefore, I will deal with this application now.

Abuse of process

[ 14 ] The issue in this application is whether the actions of the police and Crown attorneys with respect to the interview process of Michael Gil amounts to an abuse of process and if so, what the appropriate remedy is.

[ 15 ] An abuse of process may be found where it is established: 1) that the proceedings are vexatious; and 2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. [2] The onus is on the applicant to demonstrate that an abuse of process has occurred.

[ 16 ] In the context of dealings with witnesses, there are not many cases on point. The most well-known however, is R. c. Xenos [3]. In that case, an insurance company, with the assistance of the police, offered to pay a witness in return for testimony that led to a conviction. The trial judge found that there was an abuse of process, but declined to order a stay of proceedings. Instead, he ordered the exclusion of that witness’ testimony. The Quebec Court of Appeal upheld the trial judge’s decision.

[ 17 ] In R. v. Lepore [4], the trial judge dismissed a defence application to stay the prosecution where the Crown attorney had told an alibi witness to tell the truth failing which, he would be prosecuted for perjury. The court noted, “the crown attorney has a right and possibly a duty to admonish a witness to be truthful when testifying. His remarks did not constitute an infringement of the accused’s s. 7 Charter rights.” [5]

[ 18 ] For the following reasons, I cannot find that the actions of the police and Crown attorneys were vexatious or violated the fundamental principles of justice underlying the community’s sense of fair play and decency.

1. Telling a witness that he is not believed

[ 19 ] At the outset, I must state that the fact that a witness has changed his testimony cannot in and of itself amount to an abuse of process. Witnesses can, do and are always free, to change their testimony, although, in some circumstances, the result may be a criminal prosecution. The issue is whether the police and Crown’s dealings with this witness amounts to an abuse of process.

[ 20 ] In this case, police had received information that not only was Gil in a position to observe what occurred, but also that Gil was admitting to other people that in fact he had seen the assault and knew who had done it. They had a sound basis for the conclusion that Gil was not being truthful with the authorities. This is not to suggest that Gil was necessarily lying. Rather, the conflicting stories provided a reasonable basis for the police’s belief. In telling Gil that they did not believe him, Crown and police were not doing so merely to get him to change his story to conform to other witnesses. They were doing so in the reasonably held belief that he was not telling the truth. As part of their obligation as surrogate ministers of justice, Crown counsel have a duty to ensure that the conduct of a trial is fair and that, as far as is possible, the truth is revealed. In these circumstances, I cannot find that it was improper of the Crown attorneys to tell the witness that they did not believe he was telling the truth.

2. Telling a witness that a criminal prosecution might occur

[ 21 ] Defence counsel characterised the statements made by police as ‘threats’ designed to induce Gil to change his story. The first time that the possibility of a criminal prosecution is raised is during the June 1, 2007 interview. The police advise Gil as follows:

DS: And...and I’ll be straight up with you, when we look at the overall picture we had concerns as well. Where we’re at right now from the evidence that we’ve had in court there’s been several issues raised that, uh, relating to the truthfulness of what you’ve provided us with. Uh, so I guess what we’re saying here today is we’d like to get everything clear what you provided us back then. The ...the next step, if we don’t do that, the next step that we’ll possibly will be looking at will be a criminal investigation so, uh...

[ 22 ] Later on in the interview, the possibility of a criminal investigation is raised again in the following exchange:

DS: We just want to get this clarified...

MG: Oh, that’s great. I’m not...

DS: ...before we get to the next step.

JS: You know...

DS: We don’t want...we don’t need to get to the next step is what we don’t...

JS: Yeah, we don’t feel we need to go to the next step. We’re just having you in here...

MG: I don’t know what the next step is.

JS: Well, as Sergeant Shea said our next step would be to...

DS: To probably...

JS: ...have a criminal investigation. Look into this matter. Because we’ve got some people or...

DS: Witnesses.

JS: ...witnesses telling us this story has gone on and you’re telling us this, And there’s two...there’s two different stories that have gone on, okay.

[ 23 ] The police never define what type of criminal investigation or for what purpose. There is no question that this was an unfortunate tack to take. However, the approach failed entirely to persuade Gil to change his story and does not amount to an abuse of process.

[ 24 ] Almost five years later, police again interview Gil. This time, the issue of perjury is raised. During the interview, the officer advises Gil that if he “wants to know what the courts’ thoughts are on providing the truth in court he should go on the Internet and look up perjury and see how the local courts deal with it”. Immediately, following this statement, Gil is again reminded that the authorities are seeking the truth. In circumstances where the authorities – in particular the Crown attorneys – were of the view that if Gil testified and stuck by his current story he would be lying, they were under an obligation to advise Gil of the possible penalties [6]. In my view, this comment did not amount to a threat and also did not amount to improper behaviour.

3. Pressuring a witness

[ 25 ] Defence argues that in repeatedly interviewing this witness, telling him that he was not believed, and constantly seeking that he change his story, the authorities were placing undue pressure on him and, in effect, creating an oppressive atmosphere that ultimately led to Gil changing his story.

[ 26 ] There is no question that during each interview, the police are pushing Gil to change his story. They do so in the context of telling him that they do not believe him, that they have other witnesses with different stories, and that they want him to tell the truth. In and of itself, there is nothing objectionable about this approach. If this approach were taken with an accused, it would not affect the admissibility of the statement. As has been noted more than once in the past, a criminal investigation is not a tea party. Moreover, the following factors completely undermine any suggestion of oppression:

• The interviews do not take place over a lengthy period of time;
• The witness goes about his business in between the various interviews;
• Two and a half years elapse between the first and second interviews; almost five years elapse between the second and third interviews; and a month elapses between the third and fourth interviews; and
• Gil initiates the fourth and final interview.

[ 27 ] Again, I cannot find that there has been any improper conduct.

4. Tainting the witness

[ 28 ] Police did advise Gil that they had information from other witnesses that conflicted with his own. However, they never advised him of the specifics of that information. Certainly, they never advised him of details that he could then use to tailor his own evidence. Even if they had, that fact would go to weight and not to admissibility. In Buric, the police deliberately and secretly provided a witness with interview notes and witness statements. The Court of Appeal found that the trial judge had erred in concluding that the evidence was inadmissible in these circumstances and held that it was a matter of weight. [7] I cannot find that the police tainted Gil’s evidence, and even if I am wrong, any tainting would go to weight not admissibility.

Conclusion

[ 29 ] Even if the Crown attorneys and the police exceeded their mandate in dealing with Gil, I would have difficulty coming to the conclusion that their behaviour induced Gil’s change of mind. Firstly, nearly five years had passed between the interview of June 1, 2007 and the final statement of Gil on January 17, 2012. It strains credulity to the breaking point to suggest that what was said to Gil five years ago caused him to change his testimony. The interview of December 15, 2011 is certainly much more proximate in time, but even it occurred a month before Gil, of his own volition, decided to contact the Crown attorneys. Again, it does not seem likely that what the police and Crown attorneys said at that interview caused Gil to change his mind. Gil told police why he had not wanted to be involved and why he changed his mind – nothing to do with what he was advised by police and the Crown attorneys and everything to do with the perceived character of the accused and Gil’s own developing maturity.

[ 30 ] In the circumstances, I do not find that the conduct of the police and Crown attorneys in dealing with Michael Gil amounts to an abuse of process. The application is dismissed.

(Decision continues with Sections B and C exactly as in the source.)