ONTARIO
SUPERIOR COURT OF JUSTICE
FILE NO.: CR-12-40000440-0000
DATE: 20130326
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
LILIANA PATRICIA ACEVEDO
Sharna Reid, for the Crown
Chris O’Connor, for the Accused
HEARD: March 11, 2013
G.R. Strathy J.
[1] The accused was charged with robbery while armed with a firearm. The case was tried with a jury. At the end of the Crown’s case, the accused elected to call no evidence. Counsel made their closing addresses the next day, a Friday, and court adjourned to the following Monday for jury instructions. That morning, defence counsel applied to re-open the case and to adduce further evidence. After hearing and considering the submissions of counsel, I dismissed the motion, with reasons to follow. These are my reasons.
Background
[2] The Crown’s case was that on June 13, 2010, the accused, Liliana Acevedo, a young woman about 22 years old, had lured the complainant to a motel, with the promise of sex, in order to set him up to be robbed. Shortly after they went into the room, three men entered the room, duct-taped the complainant’s hands and mouth, threatened him with what appeared to be a gun, and drove him off in a car where he was beaten, threatened and coerced into providing his bank cards and PIN numbers. The robbers ultimately obtained $900 from his bank accounts and took his wallet and cell phone. They then drove him to his home, where they obtained additional banking information. Fortunately he was able to escape.
[3] The complainant testified that he was about 51 years old and had known the accused for seven months. They had met at a bar, where she worked as a waitress. They developed a friendship and he gave her some money to help with her young child. He also bought her $650 worth of furniture. They went out for dinner and drinks from time to time, but their relationship was friendly and not intimate.
[4] On the evening in question, the accused telephoned the complainant and suggested they meet for drinks and dinner. They met at a bar, where they had drinks. She suggested that they should have sex. The complainant was surprised by this proposal, because their relationship had been purely platonic, but readily agreed and suggested they go to his home. She proposed a motel on Highway 7. She said that she had been there and it had TV and music in the room. He said that he had a TV at his house, but she wanted to go to the motel and he was not about to make an issue of it.
[5] They took a taxi to the motel. A video camera at the motel recorded them checking in at around 1:15 a.m. on June 14, 2010. The accused can be observed with her cell phone in her hand, apparently reading or texting. The complainant said that this was not unusual, as she was always texting. The Crown’s theory was that she was texting the robbers, informing them of the room number.
[6] They went to the motel room. The complainant said that he locked the door. He went immediately to the bathroom. The Crown’s theory was that while he was in the bathroom, the accused unlocked the door so that the robbers could gain entry. After the complainant used the bathroom, he and the accused spent a few minutes trying to get the TV to work. At that point, the three men came into the room, threw the complainant onto the bed, and proceeded to duct tape and beat him, allegedly holding a gun to his head. The complainant said that he did not see the accused again that evening.
[7] Crown counsel asked the complainant whether he saw the accused again that day. He said “No”. The Crown asked, “Did you see her any time after the motel?” He answered “No.” The Crown asked, “Did you hear from her?” He answered “No”. He said that some time more than a year later, in 2012, he saw her in a bar, but they did not speak.
[8] In cross-examination, the complainant was referred to his evidence that he had not seen the accused since the incident and that she had not called him. Defence counsel suggested that the next day, the accused had left a “sticky note” on his door, asking him to call her. He denied this suggestion. Defence counsel then suggested that when he saw the complainant in the bar in 2012, he approached her and said that if she slept with him, he would help her get off this charge. The complainant denied that.
[9] The Crown’s case was completed on Wednesday, March 6, 2013. At the request of defence counsel, the matter was put over to the following day. On Thursday, March 7, defence counsel stated, in the presence of the jury, that the defence did not intend to call evidence. The matter was put over to Friday, March 8, for the closing addresses of counsel.
[10] In her address, Crown counsel asked the jury to find that Ms. Acevedo had aided in the commission of the robbery by luring the complainant to the motel room, texting the room number to the robbers and unlocking the door to facilitate their entry. She pointed out that the complainant testified that he had not heard the accused scream or say anything when the robbers entered and that there was no evidence that she was assaulted. No one at the motel came to the assistance of the complainant. She pointed out that the accused had no further contact with the complainant after that date.
[11] In his closing, defence counsel referred to his question to the complainant about the accused having left a “sticky note” after the incident and asked the jury to take a “hard look” at his denial.
[12] After the completion of the addresses of counsel, the jury was instructed to return on Monday, March 11, for final instructions. A pre-charge conference was held later in the afternoon of Friday, March 8, to review my instructions. It was agreed that court would be convened at 9:00 a.m. on March 11 to review the final version of the instructions with counsel.
The Application and Submissions of Counsel
[13] When court opened at 9:00 a.m. on Monday, March 11, defence counsel stated that he was applying for leave to re-open the case. He wanted to introduce the complainant’s cell phone records, which showed that later in the day of the robbery, there had been four very brief phone calls from the accused’s phone to the complainant’s phone. Each call had lasted between four and six seconds. Although it was acknowledged that the complainant’s phone had been stolen by the robbers, and he could not have answered it, the evidence was to be tendered to establish that the accused had, in fact, attempted to contact the complainant after the incident. This would refute the evidence that by failing to contact the complainant, the accused had demonstrated consciousness of guilt.
[14] Defence counsel submitted that the conduct of the accused after the fact had only become an issue in the trial after Crown counsel had raised it in her closing address to the jury. He said that while the subject of after-the-fact conduct evidence had been discussed at the pre-trial conference, there had been discussion of another matter (the accused having attempted to throw away her cell phone) but not this evidence. Defence counsel admitted that the complainant’s cell phone records were part of the Crown disclosure, and he had had the records for at least three months. However, he said that he did not have an opportunity to cross-examine the complainant on the records because the complainant had testified that he did not know the accused’s telephone number and would not have been able to identify the number shown in the records as that of the accused. I might note that the records indicate that between 6:30 p.m. and 11:30 p.m. on June 13, 2010, there were six calls from the number in question (the accused’s cell number) to the complainant’s cell number and a further six calls from the complainant’s number to the accused’s cell number. The complainant could have been referred to the timing of these calls, and the fact that he was either the originator or recipient of them, and would undoubtedly have testified that the timing of the calls coincided with his conversations with the accused about the arrangements for their meeting that evening.
[15] Defence counsel submitted that the evidence of the four phone calls could be easily introduced, if not by agreement of counsel then by calling the service provider, and that the completion of the trial would not be delayed. He submitted that the evidence was clearly relevant and that the jury would not have the full picture without that evidence. He said that the failure to introduce the evidence was not a tactical decision and was, if anything, through inadvertence. He suggested that if the evidence was not introduced, a mistrial should be declared.
[16] Crown counsel objected to the accused re-opening the case. She submitted that the evidence that the accused had failed to contact the complainant after the robbery was presumptively admissible and that if the defence had an issue with it, it should have objected at the time the evidence was adduced. Moreover, she noted that the defence challenged the complainant on his evidence, suggesting that there had in fact been contact by the accused through the “sticky note”. The defence had had the complainant’s telephone records for a considerable time, and could have put them to the complainant to show that there had been calls to his number from the same phone number that had called his phone earlier in the evening to set up the meeting at the bar.
[17] The Crown submitted that defence counsel had ample time to consider introducing the telephone records as part of the defence case, and chose not to do so. The defence had made closing submissions to the jury and had invited the jury to reject the complainant’s denial of the “sticky note”. The Crown had made its address to the jury based on all the evidence adduced and it would be unfair to permit the accused, having heard the Crown’s case and having responded to that case, to now adduce further evidence to meet the case. The Crown further submitted that it had made tactical decisions based on the actions or inaction of the defence and that if the evidence were to be admitted a mistrial might be requested.
Discussion
[18] There was no dispute that I had jurisdiction to permit the re-opening of the evidence after the parties had made their closing submissions and before a verdict had been rendered: see R. v. Hayward, 1993 14679 (ON CA), [1993] O.J. No. 2939 (C.A.) at para. 15, citing R. v. Lessard (1976), 1976 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.) and R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979. Those cases support the proposition that in judge alone cases, the judge’s jurisdiction extends to re-opening the case before sentence is passed. While it is not necessary to decide the issue here, I am prepared to assume that in jury trials, the judge has jurisdiction to allow the re-opening of the evidence at any time before the jury has rendered its verdict.
[19] The jurisdiction is, however, discretionary. In Lessard at para. 12, Martin J.A. said that the discretion to re-open the case in a judge alone trial, after the verdict and before sentence, “should only be exercised in exceptional circumstances and where its exercise is clearly called for.” While that observation does not apply to the case before me, a request to re-open the case after the jury has heard the closing arguments is an extraordinary request and requires the exercise of great caution.
[20] In every case, counsel on each side make a series of judgment calls and tactical decisions about what questions to ask a witness and what questions not to ask — what witnesses to call and what witnesses not to call. As the case unfolds, those tactics may be adjusted to account for shifts in the evidence and in the issues explored, or unexplored, by the other party. In a criminal case, the evidentiary foundation laid by examination and cross-examination of the Crown witnesses is a critical determinant in the decision of the accused about whether or not to call evidence. If evidence is not called, the accused has the significant tactical advantage of addressing the jury last, thereby answering the arguments of the Crown.
[21] To permit the defence to respond to the Crown’s arguments, then re-open the case to adduce evidence to cooper up the case to respond to any arguments it was unable to fully answer, would give the defence a huge advantage and would put the Crown in an unfair position.
[22] This is not to say that a Court could never permit the re-opening of the case before it has gone to the jury for deliberation. Terms could be imposed, including an opportunity for the Crown to adduce reply evidence, and further opportunity for argument. The jury could be given instructions about why the case was being re-opened and the need to consider the new evidence as part of the evidence as a whole and not to attach special importance to it. In spite of this, there would be a real risk that the jury would attach undue weight to the “new” evidence. There would also be a real risk of unfairness to the other party, who would not have had an opportunity to respond to the evidence in the ordinary course of the trial.
[23] In Hayward at paras. 17-19, Doherty J.A. suggested that the starting point on an application such as this is to determine whether the proposed evidence is relevant to a material issue in the case. If it is relevant, the judge must consider the potential prejudice to the other party in re-opening the evidence. Finally, the judge must consider the effect of permitting a re-opening of the evidence on the orderly and expeditious conduct of the trial.
[24] I would respectfully suggest two other factors that could bear consideration, depending on the circumstances. First, in addition to the relevance of the evidence, its probative value may be germane to the issue — the greater the probative value, the more it might affect the jury’s decision and the stronger the argument for its admission. In both Hayward and Lessard the probative value of the evidence was very high. Second, the reason for the failure to introduce the evidence in the normal course of the trial may be a factor — Doherty J.A. alluded to this in Hayward when he observed, at para. 20: “Certainly, an application to reopen the evidence based on nothing more than a desire to reverse an earlier tactical decision, perhaps because of some comment made during argument, could properly be refused as being detrimental to the orderly conduct of the trial proceedings” [emphasis added]. The reference to a comment made during argument is particularly applicable to this case.
[25] Here, the starting point is to examine the evidence the accused wishes to present if the case is re-opened. The evidence is telephone records that show four very brief phone calls to the complainant’s cell phone, from a number which is claimed to be the accused’s cell phone, during the morning, afternoon and evening of June 14, 2010. The duration of each call was between four and six seconds. The records do not disclose whether a connection was actually made to the complainant’s phone, whether the line was busy or went to voicemail, or the reason why the call was terminated.
[26] I am satisfied that the evidence is relevant, because it could refute consciousness of guilt. As the Crown pointed out, however, this evidence would not refute the complainant’s evidence that he did not hear from the accused after the incident. His cell phone had been stolen by the robbers, so he would not have received any calls that the accused made after the night in question. The purpose of adducing the cell phone records would be as proof by the accused that she in fact did attempt to contact the complainant the next day, thereby refuting the “consciousness of guilt” and asserting “consciousness of innocence”.
[27] That said, if the accused had actually agreed to aid the robbers, as the Crown asserted, the phone calls, which were very brief, could simply have been an attempt by the accused to create a trail consistent with innocence. Thus, the evidence is as consistent with guilt as it is with innocence, and its probative value is relatively low.
[28] Turning to the issue of prejudice, the phone records could have been put to the complainant while he was in the witness box at the same time he was asked about the alleged “sticky note”. He would likely have replied that he did not know anything about the calls, because his cell phone had been stolen that night. Failing that, the evidence could have been introduced by the defence as part of its case, in which case the Crown would have had an opportunity to cross-examine someone from the telephone service provider to establish what the records actually mean. The Crown would also have had the opportunity to address the jury last. It is at least possible, as well, that if the evidence had been adduced by the defence, the Crown would have wanted to adduce other evidence, including the cell phone records of the accused, to establish what calls she made that evening and early morning.
[29] Before considering the third factor – the impact on the orderly and efficient conduct of the trial, I will consider the reason for the failure to introduce the evidence during the trial. This is not a case like Hayward, where defence counsel sought to call a key witness, who could not be found in court at the time, and defence counsel proceeded to rest the case and submissions began. Defence counsel made closing argument and the Crown was in the middle of argument, when the witness suddenly appeared. Defence counsel then applied to reopen the defence case. Nor is this case quite like Lessard¸ where defence counsel had apparently made a decision not to call his client based on his mental state. In this case, defence counsel says that he did not adduce this evidence because he did not consider that his client’s conduct after the fact was in issue and he only realized it was when the Crown made its closing argument.
[30] I do not accept this submission. To begin with, defence counsel did not make any objection at the end of the argument of counsel for the Crown. He did not submit that the Crown was raising an issue that had not been addressed in the evidence. He did not move to reopen the evidence. He made his own argument, in which he responded to the Crown’s submission on the point and invited the jury to reject the complainant’s denial of the “sticky note”.
[31] Equally important, the issue of the accused’s conduct after the fact was put squarely in issue when the Crown asked the complainant about whether he had any further contact with the accused. The negative answer was clearly directed to consciousness of guilt. Defence counsel challenged this directly by referring to the “sticky note” — the implication being that the complainant was lying when he said he did not hear from the accused after the incident. The defence knew the accused’s conduct was in issue. Defence counsel chose to play one card, the “sticky note”, but not the other.
[32] In my view, this was a deliberate tactical decision and not a result of inadvertence. Defence counsel was not rushed into a decision about whether or not to call evidence. At his request, after the completion of the Crown’s case, the matter was put over to the next day in order to permit him to take instructions from his client. The following morning, he elected to call no evidence. He even had a full day between that election and the commencement of closing argument to request that the evidence be re-opened.
[33] Defence counsel could not possibly have been surprised when the Crown raised the issue of after-the-fact conduct, in a very restrained way, I might add, in her closing. Not only was he not surprised, he responded to the argument.
[34] In this case, I concluded that permitting the defence to reverse a deliberate tactical decision, in the absence of any exceptional circumstances, would not only be prejudicial to the Crown, but would interfere with the orderly and efficient conduct of the trial. Had the probative value of the evidence been higher, or had there been a real risk that the jury could arrive at an unjust verdict if the evidence were not admitted, my decision could have been different.
[35] For these reasons, I declined to permit the defence to re-open the evidence.
G.R. Strathy J.
Released: March 26, 2012
COURT FILE NO.: 2013 ONSC 1736
DATE: 20130326
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
LILIANA PATRICIA ACEVEDO
reasons on motion for directed verdict
G.R. Strathy J.
Released: March 26, 2013