ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 328/12
DATE: 20130319
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NEDRICK THOMAS
Applicant
Ken Lockhart, for the Crown
Ehsan Ghebrai, for the Applicant
HEARD: March 4 and 5, 2013
b. p. o’marra j
ruling on adoption of statements by the accused
overview
[1] On June 2, 1996 Dennis Allen was shot by a man he had known for several years by the nickname “Governor”.
[2] Angelo Perruzza was a member of the Toronto Police Service from 1974 until his retirement in 2009. He worked in the neighbourhood where Nedrick Thomas lived for several years prior to 1996. On various unspecified occasions he heard Mr. Thomas acknowledge that he was known as “Shabba” and also “Governor”. On one unspecified occasion Mr. Thomas denied being known as “Governor”.
issues
Is there an evidential basis for the jury to find that Mr. Thomas adopted the nickname “Governor”?
If the Crown is permitted to call that evidence should the Defence be permitted to elicit the denial of the nickname?
the evidence
[3] In June of 1996 Dennis Allen told Detective Tim Gallant that he was shot by a man he knew as “Governor”. Officer Perruzza told Detective Gallant that he knew a man named Leslie Richards who went by that name. Mr. Allen was shown a photo array on June 3, 1996 that included Leslie Richards. Mr. Allen said the shooter was not among those photos.
[4] Officer Perruzza told Detective Gallant that the photo of Mr. Richards was old and that he did not look like that anymore.
[5] Leslie Richards was arrested and then released unconditionally. He told police that there was another man in the neighbourhood known as “Governor”. He also knew that person as “Shabba”.
[6] Detective Gallant then spoke to Officer Perruzza who told him that Nedrick Thomas was “Shabba”.
[7] On February 7, 2013 retired Officer Angelo Perruzza provided a video statement. He indicated as follows:
(1) In 1990 he and several officers were involved in community policing in the Jamestown area of Toronto. Nedrick Thomas was one of the persons he spoke to on a regular basis.
(2) In 1991 he was present for several undated conversations with others where Mr. Thomas acknowledged he was “Shabba”. The conversations were unremarkable.
(3) In 1993 Officer Perruzza arrested Mr. Thomas for various offences. Thereafter, Mr. Thomas was less willing to talk to him.
(4) In 1995 Officer Perruzza received information that Mr. Thomas was also known by the nickname “Governor”. On one unspecified and undated occasion Officer Perruzza referred to him as “Governor”. Mr. Thomas denied that nickname.
(5) In June of 1996 Detective Gallant contacted Officer Perruzza in regard to the shooting of Dennis Allen. The suspect was a male, black, approximately 25 years of age with the street name “Governor”. Officer Perruzza said he knew someone of that name in the area. That led to the arrest of Leslie Richards.
(6) Officer Perruzza had heard others in the community refer to Mr. Thomas as “Governor”.
[8] On March 6, 2013 retired Officer Perruzza provided a recorded telephone interview with trial counsel for the Crown and Defence. He indicated as follows:
(1) He had been present on many undated occasions when Mr. Thomas was referred to as “Shabba” and he acknowledged that name.
(2) On two or three undated occasions in 1993 to 1994 he was present when Mr. Thomas was referred to as “Governor” and he acknowledged that name.
(3) He had no contact with Mr. Thomas after 1996.
(4) He has no notes of his dealings with Mr. Thomas.
position of the parties
[9] The Crown submits the following:
(1) Retired Officer Perruzza was present on the 2 or 3 occasions when Mr. Thomas adopted the nickname “Governor”.
(2) The lack of notes and specificity go to weight rather than admissibility.
(3) The Defence should not be permitted to elicit in cross-examination of retired Officer Perruzza the alleged denial of the alias “Governor”. The Crown does not plan to lead this evidence and it is self serving for the Defence to do so.
[10] The Defence submits the following:
(1) The proferred evidence of retired Officer Perruzza is too vague and imprecise. It does not present an evidential basis for the alleged adoption of the nickname “Governor”.
(2) If retired Officer Perruzza is permitted to testify as to the alleged adoption of “Governor” the defence should be permitted to elicit the denial.
analysis
[11] Statements made in the presence of an accused are not admissible as proof of the facts contained in such statements unless the accused by his words, conduct, action or demeanour has assented to the truth of such statements.
R. v. Taggert [1999] O.J. No. 1273 (O.C.A.) at para. 8.
R. v. Pleich (1980) 1980 2852 (ON CA), 55 C.C.C. (2d) 13 (O.C.A.) at para. 68.
R. v. Dubois (1986) 1986 4683 (ON CA), 27 C.C.C. (3d) 325 (O.C.A.) at para. 47.
[12] Exculpatory out of court statements made by an accused are subject to a general exclusionary rule against hearsay. As a general rule an accused should not be free to make unsworn statements and compel admission through other witnesses and thus put his defence before the jury without being put on oath and subjected to cross-examination.
R. v. Rojas (2008) 2008 SCC 56, 236 C.C.C. (3d) 153 (S.C.C.) at para. 36.
[13] There is no closed list of circumstances or exceptions enabling the accused to introduce his post-arrest statements without the consent of the prosecution.
R. v. Burton [2008] O.J. No. 4044 (S.C.J.) at para. 10.
[14] The contentious evidence on this application involves alleged adoptions by Mr. Thomas of the nickname “Governor” well before the shooting occurred. Retired officer Perruzza claims to have been present when Mr. Thomas acknowledged that name by his words and conduct. The alleged denial of the name occurred in response to a direct question from the officer. That also occurred well before the shooting.
[15] The anticipated evidence is imprecise as to date and time. The conversation occurred in unremarkable circumstances. There is little or no detail as to who else was present for the alleged adoption by Mr. Thomas. There are no contemporaneous notes of the alleged incidents. These are factors that go to weight rather than admissibility.
[16] The ultimate determination as to whether Mr. Thomas adopted the nickname in the presence of retired Officer Perruzza is a matter for the jury. The Court will provide a mid-trial as well as a final instruction on how the jury should assess such evidence.
[17] In the particular circumstances the solitary denial is from the same cloth as the alleged adoptions. The Defence are entitled to elicit evidence of the alleged denial through Mr. Perruzza. The jury would be left with an incomplete and inaccurate picture on this important issue if the Defence were barred from doing so.
result
[18] The Crown may lead evidence of the alleged adoption by Mr. Thomas of the nickname “Governor”. If that evidence is tendered the Defence are entitled to elicit the alleged denial by Mr. Thomas in cross-examination.
B. P. O’Marra J.
Released: March 19, 2013
COURT FILE NO.: 328/12
DATE: 20130319
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NEDRICK THOMAS
Applicant
RULING ON ADOPTION OF STATEMENTS BY THE ACCUSED
B. P. O’Marra J.
Released: March 19, 2013