COURT FILE NO.: 09-30325

DATE: 2012/10/30

ONTARIO

SUPERIOR COURT OF JUSTICE

PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

TOBY LITTLE OTTER LAND

Accused

David Elhadad and Carl Lem, for the Crown

Anne London Weinstein and Neil Weinstein, for the Accused

HEARD: October 22, 2012

MID-TRIAL RULING #3 REGARDING

CROSS-EXAMINATION OF CARL ST-CYR

AITKEN j.

Nature of the Application

[1] Dominic Doyon was killed in his apartment on May 4, 2009. The only people present at the time were Mr. Doyon, Toby Land, and Carl St-Cyr. Mr. Land turned himself in to the police the same night and admitted his participation in Mr. Doyon’s death. Mr. St-Cyr was arrested by the police when he returned later the same night to the apartment. Initially, he denied any knowledge of the incident. Subsequently, during his first formal interview with the police, Mr. St-Cyr acknowledged limited involvement in Mr. Doyon’s death.

[2] Both Mr. Land and Mr. St-Cyr were charged on the same indictment with second degree murder. On September 16, 2011, Mr. St-Cyr pled guilty to manslaughter. On January 27, 2012, an Agreed Statement of Facts was filed at the time of the sentencing hearing. On April 12, 2012, Mr. St-Cyr was sentenced to 7.5 years in prison. With two for one credit for pre-trial custody, amounting to 5.5 years, Mr. St-Cyr was sentenced to an additional two years in custody plus probation.

[3] At the commencement of this trial, Mr. Land pled guilty to manslaughter. The Crown would not accept this plea. The trial has proceeded on the second degree murder charge.

[4] In his opening address, Crown counsel advised the jurors that they may be hearing an account of the events of the night in question from Carl St-Cyr. In fact, Mr. St-Cyr was brought to court at the commencement of the trial and remanded to a later date. The court and Defence counsel were advised during the trial that the Crown would be calling Mr. St-Cyr on the morning of Friday, October 12, 2012. When court opened that morning, Crown counsel advised that an error had been made at the Regional Detention Centre. Instead of the Regional Detention Centre keeping Mr. St-Cyr until his testimony had been completed, they had returned him to the institution where he is incarcerated, and no arrangements had been made for him to be delivered to the Ottawa Court House on the morning of October 12^th^. The trial was adjourned to Monday, October 15^th^, because Crown counsel did not have any other witnesses lined up that day. With the consent of all counsel, I advised the jury as to what had happened and why we would not be sitting that day. When everyone left court that morning, everyone anticipated we would be hearing from Mr. St-Cyr on Monday morning. On Sunday, Crown counsel advised by email that the Crown had decided not to call Mr. St-Cyr as a witness.

[5] The following week, Defence counsel advised the court that they would be calling Mr. St-Cyr as a defence witness but that they wanted the opportunity to cross-examine him. The Crown took the position that, before Defence counsel should be permitted to cross-examine Mr. St-Cyr, they should first try to refresh his memory from his earlier statements. If that did not work to elicit the sought-after evidence, they should seek permission to cross-examine him on previous inconsistent statements under s. 9(2) or, after a finding of adversity, s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. The final option would be to seek a ruling that Mr. St-Cyr was hostile, thereby opening up the possibility of his being cross-examined at large. It was my view that, in the circumstances of this case, following this normal course would be inadequate to do justice and to afford Mr. Land the opportunity to make full answer and defence.

[6] The motion was argued on October 22, 2012 and I provided my ruling the following day, with reasons to follow. These are those reasons.

Background Circumstances

[7] Apartment 512 at 380 Murray Street was originally leased by Mr. Doyon. In December 2008, Mr. Doyon invited Mr. St-Cyr, whom he had not previously known, to move in with him. The arrangement was that Mr. Doyon would sleep in the living room on a pull-out sofa and Mr. St-Cyr would sleep in the bedroom. In Mr. St-Cyr’s statement to the police, he stated that he and Mr. Doyon quickly became good friends.

[8] Mr. St-Cyr and Mr. Land have been good friends for approximately 12 years. Sometime in the early months of 2009, Mr. St-Cyr invited Mr. Land to move into the apartment and help out with expenses. It was at that time that Mr. Land first met Mr. Doyon. Initially, they seemed to get along; however, according to the statement of Mr. Land, he had trouble liking and trusting Mr. Doyon, and he disapproved of his spending time with young girls. According to the statement of Mr. St-Cyr, Mr. Doyon and Mr. Land hated each other and, for that reason, Mr. Land did not spend much time at the apartment.

[9] In their statements to the police, both Mr. St-Cyr and Mr. Land acknowledged that Mr. St-Cyr had been in a physical altercation with Mr. Doyon prior to May 4, 2009. In his statement to the police, Mr. Land acknowledged that he, as well, had been in a physical fight with Mr. Doyon prior to the night of his death.

[10] At the time of Mr. Doyon’s death, Mr. Land and Mr. St-Cyr were the only other people in the apartment. In the hours leading up to Mr. Doyon’s death, both had been drinking heavily as they hung out in the bedroom, playing on the computer and speaking on the telephone, while Mr. Doyon hung out in the living room. It is only Mr. Land and Mr. St-Cyr who can say what happened immediately before, at the time of, and immediately following Mr. Doyon’s death.

Statements to the Police

[11] In his statement to the police, Mr. Land admitted that he had gone into the living room and had confronted Mr. Doyon about having a sexual relationship with a child, insulting him and calling him names. Mr. Doyon had responded by pulling out a sword. Mr. Land had a hammer in his hand that he had picked up from the coffee table for protection. Mr. Land hit Mr. Doyon repeatedly with the hammer and stabbed him twice with the sword that he had managed to take from Mr. Doyon. Mr. Land said that Mr. St-Cyr had come out of the bedroom as the fight was happening and had hit Mr. Doyon over the head with his crutches. When Mr. St-Cyr and Mr. Land later left the apartment, Mr. St-Cyr left the crutches behind. Mr. Land thought that Mr. St-Cyr was leaving behind evidence of his participation in the attack in an effort to deflect attention away from Mr. Land.

[12] In his statement to the police, Mr. St-Cyr said that, when he was in the bedroom, he had heard what he thought was a fight between Mr. Land and Mr. Doyon. He had taken a crutch from his bedroom, had gone into the living room, and had started to hit Mr. Doyon over the head with it. When it broke, he had returned to the bedroom for the other crutch and had returned to the living room and continued to beat Mr. Doyon with it. Mr. St-Cyr denied that he had ever used the sword on Mr. Doyon. He said that he had seen Mr. Land hitting Mr. Doyon with the hammer and using the sword.

[13] In the Agreed Statement of Facts that Mr. St-Cyr signed and submitted when he pled guilty to manslaughter and subsequently was sentenced for that offence, Mr. St-Cyr stated that, when he had gone into the living room with his crutch, he had observed Mr. Land repeatedly hitting Mr. Doyon’s body with the hammer. Mr. Doyon was sitting up on the couch and was trying to protect himself from the hammer blows. Mr. St-Cyr jumped in and hit Mr. Doyon across the head with his aluminum crutch. It shattered. Mr. St-Cyr ran back to the bedroom and grabbed the second crutch and resumed hitting Mr. Doyon. That crutch also shattered. At this time, Mr. Land was continuing to strike Mr. Doyon in the area of his knees. Mr. St-Cyr then saw Mr. Land with a sword in one hand and a sheath in his other hand. He claimed that he saw Mr. Land stabbing Mr. Doyon with the sword, although he did not note specifically where Mr. Land was stabbing Mr. Doyon. At another point, he noted that Mr. Doyon was face down on the couch while Mr. Land was standing over him, stabbing him with the sword.

Anticipated Evidence of Mr. Land

[14] Mr. Land is advancing two reasons why he should not be found guilty of murder. First, the Crown cannot prove that he had the necessary mental state at the time he wrongfully caused Mr. Doyon’s death to make the homicide murder and not manslaughter. Second, the Crown cannot prove that Mr. Land was not provoked by Mr. Doyon.

[15] As one factor tending to prove that Mr. Land did have the necessary mental state for murder, the Crown seeks to prove that it was Mr. Land, and not Mr. St-Cyr, who stabbed Mr. Doyon. From statements Mr. Land has made to Dr. Julian Gojer, the forensic psychiatrist retained by the Defence to provide opinion evidence as to factors influencing Mr. Land’s mental state at the time Mr. Doyon was killed, it can be anticipated that Mr. Land will testify that it was Mr. St-Cyr, and not Mr. Land, who used the sword on Mr. Doyon. He will testify that, when he was first interviewed by the police, he lied when he said that it was him, and not Mr. St-Cyr, who had stabbed Mr. Doyon. He did that to protect Mr. St-Cyr who was his friend and who is the father of two children. Mr. Land felt responsible for Mr. Doyon’s death because it had been Mr. Land, not Mr. St-Cyr, who had first confronted Mr. Doyon in the living room about Mr. Doyon being a paedophile.

Police Tactics During Interviews of Mr. Land and Mr. St-Cyr

[16] Mr. Land and Mr. St-Cyr were handled very differently by the experienced police officers tasked with interviewing them. Mr. Land was encouraged to take complete responsibility for Mr. Doyon’s death, and to leave Mr. St-Cyr out of it. Considerable moral pressure was exerted on Mr. Land in this regard. In contrast, Mr. St-Cyr was told at the beginning of his interview that the police knew that Mr. Land had wielded the sword and the hammer and that, by the time Mr. St-Cyr came out of his bedroom, Mr. Doyon already had a hole in his head. Mr. St-Cyr was given the clear message that what the police were seeking from him was confirmation of what Mr. Land had done and why he had done it.

[17] Detective Gordon’s interview with Mr. Land started at approximately 5:30 p.m. on the afternoon of May 5, 2009. Detective McIntosh, who would go on to interview Mr. St-Cyr, observed the first part of Mr. Land’s interview. Detective McIntosh started his interview with Mr. St-Cyr at approximately 7:40 p.m. It is clear that many of the suggestions he made to Mr. St-Cyr had come from what he had heard while observing Mr. Land’s interview.

[18] The number of leading questions put to Mr. St-Cyr during the course of his interview is really quite troubling. Detective McIntosh provided the following information to Mr. St-Cyr without getting him to tell his own version of events before he was told what Mr. Land had said:

"Toby has indicated that ... that you came out and struck the victim with an aluminum crutch." (page 8)
"You had to ... you actually witnessed it. That’s gotta be ... I mean I can’t even put that into words how that must’ve been for you. You know, to come out of the bedroom and see your ... your friend with a hole in his head." (page 12)
"... like I know you didn’t strike him with the hammer." (page 12)
"... I know you didn’t stab him with the sword. I know you didn’t do that." (page 12)
"but I do know you did hit him with the crutch." (page 12)
"Were you scared." (page 12)
"... tell me how you felt when you walked out and you saw that? Like what went through your mind? Fear? Anger?" (page 13)
[In response to Mr. St-Cyr saying that he really didn’t know what happened the previous night] "What do you mean by that? Like because you didn’t witness it or you were drunk ..." (page 14)
[In response to Mr. St-Cyr then saying that he did not witness all of it and he was drunk] "...I believe you when you say that because that is the truth. You just told me the truth. You did not witness the initial attack. That is true." (page 14)
"Now that we’ve spoke to Toby and he’s told us everything and been a man and been honest and up front about everything, even to the point of running away from you when you got out of the cab so that you wouldn’t take the fall for him because he said you were gonna try and take the fall for him. ‘Cause when you were in the apartment and you hit the victim with the crutch, you told Toby to get the fuck outta here because his fingerprints would be everywhere. I mean and that’s ... that’s an admirable thing to do for one man for another. I don’t understand why ... why you would do that?" (page 16)
"There was always tension between Toby and Dominic about this young girl thing, right?" (page 17)

[19] It was only after all of this had been given to Mr. St-Cyr that he started to open up and talk about what had happened the previous evening. The leading questions did not stop, however. The following are further examples:

"So then you strike him and then what’s Toby doing while you do that? Still hitting him with the hammer or ..." (page 39)
[After Mr. St-Cyr had said that he had not seen exactly where Mr. Land had stabbed him but had seen Mr. Land make a stabbing motion] "So where was Dominic when you saw Toby stab him?" (page 41)
After Mr. St-Cyr had been asked if the sword was out of its sheath when Mr. St-Cyr saw Mr. Land with it and Mr. St-Cyr had stated: "He had one sheath in his hand and ...", Detective McIntosh completed the sentence: "and the sword in the other." (page 43)
"And when you came out you had said earlier that Dominic was already bleeding from the head. Is that correct? I don’t want to put words in your mouth" to which Mr. St-Cyr correctly responded ... "I don’t think I said that." (page 75)
"So when you first come out Dominic’s sitting in the couch like this sort of ... trying to protect himself from the hammer." (page 76) [Mr. St-Cyr had not previously stated that Mr. Doyon was trying to protect himself from the hammer. He had stated: "... he was like kind of sitting up going like this towards Toby and I came from behind but when I struck him it was on the side." (page 76)

[20] The different approaches the police officers took with Mr. Land and Mr. St-Cyr during their respective interviews could have a profound effect on Mr. Land’s ability to make full answer and defence to the charge of second degree murder. These two interviews provide a window into how wrongful convictions could come about. In this case, Mr. Land, like Mr. St-Cyr, pled guilty to manslaughter. No one is suggesting that his conviction on that count would be wrongful. What the court must ensure, however, is that a conviction for second degree murder, if that were the jury’s decision, would not be wrongful.

[21] Assuming for a moment that it was not Mr. Land but was Mr. St-Cyr who used the sword on Mr. Doyon, how could Defence counsel ever get that information out of Mr. St-Cyr without having the opportunity to cross-examine him on the events of that evening?

[22] The Crown precluded the Defence from having the right to cross-examine Mr. St-Cyr by accepting his plea to manslaughter and then by deciding, at the last moment, not to call him as a Crown witness. There is no duty on the Crown to call any particular witness and, more specifically, to call a former co-accused (R. v. Cook, [1997] 1 S.C.R. 1113, at para. 55). As well, there is nothing wrong with the Crown accepting a lesser plea from a co-accused and proceeding to trial on the original charge with the other accused. But the result of these two decisions in this case is that Mr. Land has been denied the benefit of cross-examination of Mr. St-Cyr so as to challenge his evidence, and the Crown’s assertion, that Mr. Land used the sword on Mr. Doyon.

[23] Understandably, the Defence felt it had to call Mr. St-Cyr as its witness simply to get him before the court, in that he was the only other living person, aside from Mr. Land, who could speak to what happened on the night of May 4, 2009. However, the utility of calling Mr. St-Cyr as a witness would be minimal, if Defence counsel could not challenge him on his earlier statements. Under the rules of evidence, the ability to challenge one’s own witness is generally based on challenging them if they say something different in court than what they had said on a previous occasion. That is not the issue here. What Defence counsel wants to try to accomplish is to get Mr. St-Cyr to say something different in court than what he said in earlier statements. Therefore, focusing on previous statements made by Mr. St-Cyr will not help to advance Mr. Land’s defence.

[24] If Mr. St-Cyr were simply to repeat in court what he said in earlier statements, there would be no benefit gained from having him refresh his memory, and there would be no inconsistent statements to trigger the provisions of s. 9(2) of the Canada Evidence Act or to render helpful the provisions of s. 9(1) of that Act. As well, if Mr. St-Cyr were to testify in a polite and respectful fashion, it is unlikely that an application to have him declared a hostile witness would be granted.

[25] The only meaningful way for Defence counsel to challenge the evidence of Mr. St-Cyr as to who wielded the sword against Mr. Doyon is through cross-examination. That ability was removed through the Crown’s decision to accept Mr. St-Cyr’s guilty plea to manslaughter and then through the Crown’s decision not to call him as its witness. The significant impact these decisions have had on Mr. Land’s ability to make full answer and defence is further compounded by the nature of Detective McIntosh’s interview of Mr. St-Cyr where he essentially fed Mr. St-Cyr what he needed to say and what the police would accept as the truth. The purpose of Detective McIntosh’s interview with Mr. St-Cyr seemed to be to get confirmation of Mr. Land’s confession, rather than to get Mr. St-Cyr’s independent explanation of the events of that night.

[26] In these circumstances, I am left with no option but to grant Defence counsel the right to cross-examine Mr. St-Cyr, even though he is a defence witness. Not to allow this to happen would undermine Mr. Land’s right to a fair trial and his right to make full answer and defence.

[27] This same remedy was granted by Panet J. in R. v. Hankey, [2008] O.J. No. 5266 (Sup. Ct.) where a witness, whose evidence likely would have been helpful to the accused, resurfaced after a lengthy absence. Due to the witness’s mental health issues, his hostility toward the accused, and the inability of Defence counsel to interview him and prepare him to testify, Panet J. assessed that there was a high degree of unpredictability with respect to the evidence the witness might give at trial. He concluded that, given the importance of the evidence to the accused, it would be manifestly unjust for the accused to have to call the witness without knowledge of what he would say and without the means to control the evidence to be given. He decided that the interests of justice would be served if the accused had the right to cross-examine the witness. Although the circumstances are different in this case, the goal is the same – a fair trial. The best way to achieve that goal is by allowing Defence counsel to cross-examine Mr. St-Cyr.

Disposition

[28] It was for these reasons that, on October 23, 2012, I gave Defence counsel the right to cross-examine Mr. St-Cyr at large if the Defence called him as its witness.

Aitken J.

Released: October 30, 2012