COURT FILE NO.: 11-3244
DATE: 2012/09/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JEREMY WILLIAM HALL
Dirk Derstine and Stephanie Di Giuseppe for the Applicant
Applicant
- and -
HER MAJESTY THE QUEEN
Craig Fraser and Stephen O’Brien for the Crown, Respondent
Respondent
HEARD: September 14, 2012
GLITHERO J.
(Non Publication: Pursuant to s. 517(1) and s. 520(9) an order has been made directing that the evidence taken, the information given, the representations made and these reasons shall not be published in any document, or broadcast or transmitted in any way before such time as Mr. Hall’s trial has ended.)
RULING ON REVIEW OF S. 516(2) – NON-COMMUNICATION ORDER
[1] Mr. Hall seeks an order removing Carol-Anne Eaton from the list of persons with whom he is prohibited from having contact, pursuant to an order made under s. 516(2) of the Criminal Code of Canada on October 1, 2010.
[2] On that date, Mr. Hall appeared before Justice of the Peace Ignasio on a charge of first degree murder and was ordered to be detained in custody pursuant to s. 515(11). That order made available the provisions of s. 516(2) which empowers the Justice of the Peace to order that the accused abstain from communication directly or indirectly with any victim, witness or others identified in the order, except in accordance with any stipulated conditions.
[3] On that date, Crown counsel sought the non-communication order in respect of a number of people, one of whom was Carol-Anne Eaton, who was identified as a person who had provided information with respect to these charges and as a material witness.
[4] Section 522 deals with judicial interim release in respect of persons charges with offences listed in s. 469, which includes murder. It requires that Superior Court judges deal with the issue of bail in respect of those offences. Subsection (2.1) empowers the Superior Court judge to make an order prohibiting communication with any victim, witness or other persons except in accordance with specified conditions. It essentially mirrors s. 516(2).
[5] Mr. Hall and Carol-Anne Eaton (“Eaton”) have been in a common-law relationship for approximately 14 years and have 3 children, ages 12, 7 and 6. The evidence before me indicates that they have lived together, with the children, during those portions of their relationship when the applicant has been out of custody. A review of his record would suggest that he has been in custody for approximately 6 years of that 14 year period.
Summary of the First Degree Murder
[6] It is alleged that the applicant and Jason Lusted kidnapped and murdered Billy Mason on or about February 24, 2006. The allegation is that Mr. Mason was kidnapped at gunpoint in his apartment and taken to a farmer’s field outside of Hamilton where he was shot to death. The Crown alleges that the two men then returned to the field several days later, collected the victim’s body, took it to the applicant’s farm, and incinerated the body.
[7] Mr. Hall was arrested on or about October 1, 2010, and charged with the first degree murder. Mr. Lusted was charged with accessory after the fact to the murder.
[8] Lusted pleaded guilty. He then testified at Mr. Hall’s preliminary hearing. His evidence was that Hall pointed a sawed-off shotgun at Mr. Mason and ordered him to accompany he and Lusted. He testified that Mr. Hall executed Mr. Mason by firing the shotgun into his torso, and then ordered Lusted to hide the murder weapon, which was done. His evidence continued that 4 days later they returned to the murder scene, wrapped the body in plastic, and drove the body by truck to Mr. Hall’s farm. There Mr. Hall directed Lusted to build a fire, following which the two of them spent 4 or 5 hours burning the body, then swept up the ashes and put them in animal feedbags.
Eaton’s Involvement as a Witness
[9] Ms. Eaton initially approached the police as a result of her belief that she was becoming too deeply involved in a plot by Mr. Hall to murder two witnesses to another offence, and because she felt she needed police protection. She went to the police on August 26, 2010, at a point in time when Mr. Hall had yet to be arrested.
[10] On that date she gave a sworn, videotaped statement. In this statement she advised the police that the police had previously come to speak with her about the murder of Billy Mason, which is the murder in question in this case. She indicated that she advised the accused of the police visit, when he was in custody, whereupon the accused directed her to dig up some guns he had buried and to place the guns in a storage locker. She said the Mr. Hall told her that someone else would approach her to get the guns. She became concerned because of fear that this person would use the guns to shoot her, as Mr. Hall knew that she had information about the Mason murder. She also expressed concern that she was to play a part in getting the guns to an individual who was then to murder Tony Yaworski and Angelo Salciccioli. The former had reported to the police that Hall had threatened him with a gun. The latter had witnessed the incident. Rather than allowing Mr. Hall’s plan to proceed further, Eaton approached the police and led them to the guns.
[11] That same day, August 26, 2010, Eaton gave the police another sworn videotaped statement. This one involved her knowledge of Mr. Hall’s involvement in the murder of Billy Mason, which had occurred in 2006. In this statement she detailed her knowledge of Mr. Hall’s role in the murder, his admission that he shot Mason, and provided police with information about the disposal of the body.
[12] She advised the police of Mr. Hall’s request that she dispose of certain fire remains, which she had done, and she later took the police to the location where she had dumped those remains. They have been examined and are consistent with Eaton’s account to the police, although they have not been directly identified as being the remains of Mr. Mason.
[13] On these occasions, Eaton advised the police that during her relationship with Mr. Hall, he had assaulted her several times such as to have broken some ribs, broken her nose, blackened her eye and caused one of her eardrums to burst. She expressed fear of Mr. Hall in terms of retribution from him as a result of her cooperation with the police. She asked the police to relocate her through the OPP witness relocation program.
[14] As a result of the fears expressed by Eaton to the police, and at her request, she was in fact relocated approximately a month later. Thereafter, the arrest of Mr. Hall proceeded.
Other Alleged Offences
[15] Mr. Hall is charged with counseling the murder of those two witnesses, Tony Yaworski and Angelo Salciccioli. The preliminary hearing in that matter was scheduled to commence September 17, 2012. Dwayne Utman is the person Mr. Hall allegedly counselled to murder those two individuals, the first of whom is the alleged victim and would testify as a witness to the assault with a weapon, and the second is a witness for the Crown in respect of the assault allegation.
[16] Dwayne Utman is one of the persons with whom the applicant was ordered not to communicate pursuant to the s. 516(2) order imposed October 1, 2010. There is evidence that on February 4, 2012, another person called Utman’s girlfriend, spoke briefly with her and then asked to speak to Utman. When the girlfriend passed the phone to Utman, it was then Mr. Hall who was on the telephone. He questioned Utman as to why Utman was assisting the police and why he was testifying against him. He advised Utman that Utman knew what the consequences of assisting the police would be. Utman knows of Mr. Hall’s past and took this as an act of intimidation to dissuade him from testifying. Utman went to the police. Mr. Hall stands charged with intimidating a justice participant as a result.
[17] Two weeks after the incident where Mr. Hall is alleged to have pointed the firearm at Yaworski, there is evidence that he called Yaworski and offered him $20,000 to drop the charges. A few months later, Mr. Hall left a telephone message on Yaworski’s parents’ phone indicating that “Yaworski is dead and wouldn’t make it to court to testify”.
[18] Mr. Hall stands charged with another murder alleged to have occurred in St. Catharines, and that matter is scheduled to proceed to preliminary hearing in October 2012.
[19] Eaton also gave the police sworn information of a plan by Mr. Hall to kill Jason Lusted by enlisting Junior Huard to do the killing. Huard has given the same information to the police and has testified to the same effect at the preliminary hearing.
Eaton’s Position with Respect to the s. 516(2) Order
[20] Eaton has filed an affidavit and given vive voce evidence on the Application. She testifies that Mr. Hall has been involved in the life of the children. She also agrees, however, that during his present incarceration she sought and obtained an order for sole custody of the three children. While this would seem to suggest an absence of closeness between them, she claims that the order was to avoid difficulties when crossing the border into the United States, as proof of sole custody facilitates entry of the children into that country.
[21] Eaton has testified that she and the applicant now wish to marry. Her evidence is that they have not married previously because neither were religious. Despite the s. 516(2) non-communication order, Eaton has testified that she and the applicant are in communication by telephone virtually daily and have been ever since the order was made. Her evidence is that she does not feel threatened by the applicant and she testified that he has not intimidated her or threatened her in respect of this case.
[22] Although she initially testified she did not know whether she would be a witness in respect of this case, she then agreed that she had, in fact, been subpoenaed to give evidence. Her position is that she does not want to give evidence for the Crown. She claims that she does not know whether or not a marriage to the applicant would mean that she would not have to testify for the Crown.
[23] In my assessment, Ms. Eaton seemed very nervous, apprehensive, unsure of herself and evasive when asked the questions about her appreciation that a marriage would mean that she would not have to testify at trial.
[24] In her evidence, she does not indicate that the recent wish to marry is the result of any new religious commitment by either she or Mr. Hall or both. Rather, she says, it is so that she would be able to visit him.
[25] While she testifies that she has no longer has any fear of Mr. Hall nor feels intimidated by him, this is clearly at odds with what she told the police in August of 2010.
[26] On this Application I heard the evidence Detective Mark Loader, one of the officers who initially interviewed Ms. Eaton and who remained in contact with her for a period of time thereafter. He confirmed what he perceived to be her obvious fears towards Mr. Hall, as enunciated to the police on August 26, 2010. He remained in contact with her thereafter. On March 17, 2011, he met with Eaton in respect of a letter that she had written to Hall which was intercepted by the police. While the letter indicates she had been tricked by the police into making a statement, she advised Detective Loader that she said that in the letter only so that the accused would not know that she was, in fact, cooperating with the police, and she supported that by pointing out that the return address on her letter was a fictional address, deliberately inserted by her so that he would not know where she had been relocated. She reiterated her continuing fear of Mr. Hall. She reiterated what she had told the police earlier with respect to the plans to kill the two men and with respect to the murder of Mr. Mason, and she reaffirmed that what she had told the police was true.
[27] On August 17, 2011, he had further contact with Eaton and again she reiterated her fear of Mr. Hall and concern that he would somehow get out of custody and come after her. She reiterated these concerns on September 22, 2011, advising Detective Loader that she was terrified that somehow he would get out of custody and kill her for having given information to the police.
[28] Intercepted conversations between Ms. Eaton and others, aside from the police, confirm fear on her behalf and reveal efforts by the accused to have her change her evidence. On September 22, 2011, she told an acquaintance that she was concerned about getting a knock on the door as there are people getting out of the penitentiary every day that owe him favors. On October 9, 2011, she told an acquaintance that the applicant wanted her to testify that all her previous evidence was fabricated, but she confirmed that in fact it was not.
The Position of the Applicant
[29] The applicant submits that he and Ms. Eaton are being kept apart unfairly as a result of the s. 516(2) order, and that this places a tremendous stress and strain on their relationship and on their family life, and has impacted negatively on the wellbeing of the children.
[30] On behalf of the applicant it is submitted that our Canadian courts must act in such a way as to respect and foster the “autonomy and integrity” of the family unit. A myriad of authorities are cited, including Canadian jurisprudence, international human rights proclamations, international conventions, and United Nations instruments. I choose not to recite these authorities in any detail at all as it is my respectful view that no authority is needed to support the principles being advanced. There is no doubt that in our Canadian society the respect for and the value of both the institution of marriage and the integrity of the family unit are beyond question.
[31] It is submitted that it would be inappropriate for this court to refuse to vary the order, as that is said to deny the applicant and Ms. Eaton the right to marry, and accordingly the court would be acting so as to deny the importance and the protection afforded to the institutions of marriage and the importance of the family unit.
[32] The applicant further submits that Ms. Eaton would neither be competent nor compellable to testify for the Crown even as Mr. Hall’s common-law spouse. Accordingly, it is argued that there is no need for her inclusion in a s. 516(2) order. The argument continues that if the non-contact order was varied, and they married, the common law spousal privilege rule would prevent her from testifying, so, again, there would be no reason to continue to include her in a s. 516(2) order. The applicant submits that “creating noncontact orders for the sole purpose of preventing the marriage of two consenting adults is not a proper exercise of s. 516(2) of the Criminal Code”.
[33] The applicant relies on R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, particularly at paragraphs 45 and 46, where the Court ruled that the spousal privilege rule applies to all married couples, regardless of whether they married before or after the swearing of the indictment and whether or not part of the purpose of the marriage was to take advantage of the spousal privilege rule and thereby preclude testimony before a court. The applicant relies on the decision in R. v. Masterson, 2009 36305 (ON SC), [2009] O.J. No. 2941, where the Court read the term “common-law spouse” into s. 4 of the Canada Evidence Act, and thereby expanded the scope of the rule.
The Position of the Crown
[34] The Crown argues that the purpose of such a non-contact order is to prevent an accused person from communicating with witnesses so as to avoid any undue influence or intimidation of them. To that I would add, to protect them from harm or death. The Crown argues that the intended effect of the section is to protect the repute of the administration of justice and to ensure a fair trial on the merits by having available all the relevant evidence.
[35] The Crown position continues that the accused is a violent, dangerous criminal, with a history and propensity for intimidating and threatening witnesses. The Crown submits that Ms. Eaton is an important Crown witness and, from the perspective of societal interests, deserves the same protection as other witnesses as afforded by s. 516(2) orders and that the societal interest in fair trials requires the continued inclusion of her in the impugned order.
[36] The Crown alleges that the relevant time for a court to determine whether or not there exists a common-law marriage between the accused and Ms. Eaton is at the time of her testimony and not what has been the case in the past.
[37] The Crown relies on authorities which stand for the proposition that s. 4 of the Canada Evidence Act applies only to legally married spouses: R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654; R. v. Edelenbos, 2004 875 (ON CA), [2004] O.J. No. 2810 (Ont. C.A.); R. v. Nguyen, [2010] O.J. No. 6184 (S.C.J.).
Discussion
[38] Much of the argument before me has centered on the effect or lack of effect of a marriage as between Mr. Hall and Ms. Eaton. That issue is, of course, not before me. The competence and compellability of Ms. Eaton as a witness at Mr. Hall’s trial will be a matter for the trial judge.
[39] I am also of the view that the issue of whether or not Mr. Hall and Ms. Eaton should be permitted to marry, and whether a refusal to let them do so constitutes an affront to Canadian and international values, is again not the decision I am required to make. The issue before me is whether or not there is justification at law for the inclusion of Ms. Eaton in the s. 516(2) order, or in a s. 522(2.1) order. If it is appropriate, as a matter of law, to continue her inclusion of her in that order, then its effect on the wellbeing of her relationship with Mr. Hall, or his relationship with the children, or her competence and compellability to testify are all matters for others to consider.
[40] In my opinion, the most significant factor having a detrimental effect, at least notionally, on the relationship between Ms. Eaton and Mr. Hall is the fact that he is incarcerated. His incarceration is by operation of law. He has not applied for bail. Insofar as the order prohibits him from communicating from her, short of actually spending time with her, it is common ground that he has repeatedly defied the order and speaks to her whenever and as often as he is able to reach her.
[41] Both sides suggest a lack of clean hands on the part of the other. The applicant claims the Crown is inconsistent in seeking to uphold the order when it has knowledge that the accused has repeatedly flaunted the order by having regular telephone contact with Ms. Eaton. The defence position is that it is inconsistent to seek to uphold an order which you know is being routinely and continually disobeyed. The Crown, on the other hand, cites as yet another reason for being concerned that the accused will intimidate or threaten witnesses this fact that he has shown such scorn for the s. 516(2) order, in that he has ignored it from the outset. In some respects, these respective positions amount to a draw. Given all the problems Mr. Hall has within our criminal law system, it may well be that any charge of breaching the order is of little or no consequence. Similarly, it might equally be said that it is hardly worth the state’s efforts to try and enforce compliance with the order as it appears the contacts are being intercepted and monitored and that Mr. Hall is essentially impervious from penalty.
[42] I accept that the purpose of a s. 516(2) order is as summarized in the Crown’s materials and repeated earlier.
[43] I take into account the following circumstances:
• It is Ms. Eaton who sought the protection of the police and relocation by them;
• It is Ms. Eaton who brought to the attention of the authorities her fear of the accused;
• It is Ms. Eaton who has voiced her concern to the authorities that the applicant will seek retribution against her by reason of her cooperation with the authorities;
• It is Ms. Eaton who continued to express these concerns for over a year after her first approach to the police;
• It is Ms. Eaton who, on the telephone, indicated to another that Mr. Hall was suggesting that she testify that her information to the police was all a fabrication;
• There is evidence that Mr. Hall threatened two witnesses who are prepared to give evidence against him on a charge of assault with a weapon, and that he went so far as to counsel their murder;
• There evidence that Mr. Hall has counseled the murder of another witness, being the person he is alleged to have enlisted to murder the previously mentioned witnesses;
• There is evidence he planned to have his accomplice on the murder of Billy Mason, Mr. Lusted, murdered in circumstances where Lusted was a key witness against him; and
• Mr. Hall has a significant criminal record with 39 convictions between November 1988 and August 2006 which include 8 assault charges, one of which was with a weapon, 2 escapes, a robbery with violence, and a possession of a prohibited weapon.
[44] In my opinion, the Crown position that Ms. Eaton should continue as a named “no- contact” person in the order is a strong one, and indeed one supported by facts that are stronger than one would find in the vast majority of such cases. Her past and present relationship with Mr. Hall is somewhat of an offsetting factor. Given his antecedents, however, it is difficult to believe that Mr. Hall would not seek to influence the testimony of Ms. Eaton, should she prove competent and compellable against him.
[45] Should Ms. Eaton be found to be not competent or compellable to testify for the Crown at trial, it will be for the trial judge to consider the applicability of the Supreme Court of Canada indication in Hawkins, supra, to the effect that such unavailability satisfies the “necessity” aspect of the principled approach to what otherwise would be hearsay evidence.
[46] Insofar as the impugned order is said to deprive the applicant of a more normal association with his children, I note that it is the fact of his incarceration which primarily causes that, and I further note that his children do not appear to be included as persons with whom he has been ordered to have no contact pursuant to s. 516(2).
[47] For these reasons, the application is dismissed.
“C.S. Glithero”
Glithero J.
Released: September 25, 2012
COURT FILE NO.: 11-3244
DATE: 2012/09/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JEREMY WILLIAM HALL
Applicant
- and –
HER MAJESTY THE QUEEN
Respondent
RULING ON REVIEW OF S. 516(2) – NON-COMMUNICATION ORDER
Glithero J.
CSG//dm
Released: September 25, 2012