ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-R2166
DATE: 2013/03/11
B E T W E E N:
HER MAJESTY THE QUEEN
Bruce Lee-Shanock, for Her Majesty the Queen
Applicant
- and -
YOUSEF HADI AILAN and HUSSEIN ALKASSEM WANE
Cedric Nahum, for the Accused Yousef Ailan
Jessica Adley, for the Accused Hussein Wane
Accused/Defendant
HEARD: March 11, 2013
RULING
JAMES J.
[1] Counsel for Hussein Wane has requested leave to comment on the failure of Crown counsel to call Cst. Carissa Beck as a witness for the prosecution. The inference sometimes arising from the decision not to call a police witness who has relevant evidence to provide, namely, the witness would likely have given evidence unfavourable to the Crown, is not available to the defence in this case because Cst. Beck was called as a defence witness and she testified regarding her observations about the degree of impairment of the complainant. A request to draw an inference invites a certain amount of speculation. Here there is no need to speculate; the defence has obtained the evidence it sought.
[2] Instead, counsel for Mr. Wane proposes to include the following in her closing statement:
It is unfortunate that the Crown decided not to call the police officer who had the most dealings with the complainant at the scene, and the most information to provide about his behavior and demeanor.
When thinking of the cross examination done by my friend I would ask you to consider Detective Wagner’s own testimony that Constable Beck is a very thorough and capable officer.
[3] It is well settled that counsel are entitled to conduct the trial and organize the presentation of evidence as they see fit. This includes the decision whether to call a particular witness of not. Rarely should this exercise of discretion attract comment from anyone. In my view, the first paragraph of the proposed submission does nothing to advance the position of the defence. The defence has obtained the evidence it wanted. This is a much different situation than the facts that were before the court in R. v. Jolivet 2000 SCC 29, 144 C.C.C. (3d) 97 (S.C.C.). There the defence was prevented from commenting on a missing witness the Crown had represented would be called.
[4] The first paragraph of the proposed submission in this case is focused on Crown counsel rather than Crown counsel’s case. Just as the general rule prevents comment by opposing counsel respecting the Crown’s selection of witnesses, it is also improper for counsel to attempt to explain why a certain witness was not called.
[5] I acknowledge that for some observers who are engaged in the trial process the proposed submission may well fall within acceptable parameters of advocacy but in my view it is unnecessary and unhelpful. Submissions that have a personal component rather than focusing on the issues should not to be encouraged unless there are cogent reasons for doing so.
[6] I view the second paragraph of the proposed submissions on a much different footing. Having elected not to call Cst. Beck, Crown counsel was left with the unenviable task of cross-examining the police officer in an effort to minimize the impact of the observations elicited by the defence. The comment is focused on the evidence. I see nothing improper in the submission.
[7] In closing, I would like to express the view that the practice of providing advance notice of potentially controversial submissions contained in closing addresses to the jury, and to seek rulings where appropriate, is to be encouraged.
Mr. Justice Martin James
DATE RELEASED: March 11, 2013
COURT FILE NO.: 10-R2166
DATE: 2013/03/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
YOUSEF HADI AILAN and HUSSEIN ALKASSEM WANE
Accused/Defendants
RULING
James J.
DATE RELEASED: March 11, 2013