ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 754/10
DATE: 2013 04 26
B E T W E E N:
HER MAJESTY THE QUEEN
A. S. Fenton, for the Applicant
Applicant
- and -
MIKE LEONARD RUTIGLIANO and BARRY PIERSON
O. Wigderson, for the Respondents
Respondents
HEARD: April 24, 2013
RULING
HILL J.
THE APPLICATION
[1] The Crown applies for leave to provide to a prosecution witness, currently under cross-examination, transcripts of her earlier testimony from some months ago, in order to refresh her memory prior to resumption of the interrupted cross-examination.
[2] The defendants resist the application.
BACKGROUND
[3] Ontario Provincial Police Constable Donna Winter is a Crown witness in what has become an extended pre-trial motion phase primarily on account of ongoing disclosure.
[4] Constable Winter testified in-chief on September 27, 2012 and in cross-examination on November 20-1, 23, 26-7 and December 3-5, 2012. The cross-examination remains incomplete and, in light of additional disclosure, is expected to continue for some time. The entirety of the witness’ evidence to date has been transcribed.
[5] The officer was the assistant file coordinator. She was instrumental in the prosecution disclosure process. The constable has voluminous notes made in the course of her duties in this case.
[6] Constable Winter has had no discussions with the prosecution team since December, 2012 although limited email contact has occurred between the Crown and the witness, with leave of the court and on disclosure to the respondents, limited to additional disclosure initiatives.
[7] The witness will be called back to the witness stand on Monday, May 13 for her cross-examination to recommence.
POSITIONS OF THE PARTIES
[8] On behalf of the Crown, Mr. Fenton submitted that:
(1) There is no legal impediment to allowing the application - it is a matter of discretion.
(2) Because of the unusual gap of over 5 months in completing Constable Winter’s cross-examination, and given the detailed nature of her evidence involving events over a prolonged period, as well as numerous documents, communications, dates, etc., fairness to the witness recommends access for her to transcripts of her prior testimony as she prepares to resume the witness stand. Giving evidence should not devolve to a memory test.
(3) The witness would be entitled to refresh her memory in advance of May 13th from her notes and preliminary inquiry evidence. Her trial testimony is simply another statement. The witness’ credibility should not be falsely impugned by apparent lack of recall as to what she said, for example, on her third or fourth last day of testifying, when it is the abnormal passage of time which has caused the recall deficiency.
(4) Allowing the constable to refresh her memory from the transcripts of her prior 8 days of testimony would also advance trial efficiency. Upcoming cross-examination questions will inevitably reach back to subject matter already canvassed in some measure and waiting for a witness in the witness stand to read to herself pages of a transcript of earlier evidence to refresh memory will be wasteful of court time.
(5) Access to the transcripts of the prior evidence does not amount to improper coaching. There could not reasonably be an assertion of real prejudice on the part of the defence. Should the court form the view, during future testimony, that the witness’ access to the transcripts was other than for legitimate memory refreshing that could properly be taken into account in assessing the weight and credibility of aspects of the constable’s evidence.
[9] On behalf of the respondents, Mr. Wigderson argued the following:
(1) A party who called a witness cannot provide transcripts of earlier evidence in the same trial to the witness when under cross-examination without breaching Rule 4.04(d) of the Rules of Professional Conduct of the Law Society of Upper Canada:
(d) during cross-examination by an opposing legal practitioner, the witness’s own lawyer ought not to have any conversation with the witness about the witness’s evidence or any issue in the proceeding.
(2) There is no legitimate forensic purpose served by permitting Constable Winter to access the relevant transcripts. The constable has hundreds of pages of notes as to her actions during the investigation. This is her true aide memoire if she needs to refresh her memory in responding to questions.
(3) Constable Winter’s credibility is a critical issue. The defence position is that she behaved dishonestly, actively tried to suppress evidence, and has sought to implicate Crown counsel in breaches of disclosure obligations. The witness should not be afforded the opportunity of planning the completion of her cross-examination by studying earlier transcribed questions and responses relating to previous and unfinished areas of cross-examination.
(4) To the extent that the defence position is, in part, that Constable Winter is unable “to keep her story straight” because she has engaged in providing untrue evidence, that attack on the witness’ credibility should not be impaired by allowing the witness to rehearse from the transcripts. The court would, of course, be entitled to forgive what it finds to be genuine lack of recall on the witness’ part should she express a lack of recall relating to any aspect of her 2012 testimony.
(5) The prospect of improving trial efficiency through giving the witness the relevant transcripts is immeasurable and uncertain.
ANALYSIS
[10] Both parties acknowledged that despite their research no case or authority on point could be found.
[11] I accept that the issue is one of first instance.
[12] Assuming that an email from Crown counsel to Constable Winter attaching electronic copies of the days of prior testimony could be characterized as “a conversation” “about the witness’ evidence or any issue in the proceeding” within the meaning of Rule 4.04(d), the application here is for leave of the court to do so and accordingly is squarely within the contemplation of the text of the Rule considering its preamble, “[s]ubject to the direction of the tribunal”.
[13] Resolution of the application is dependent upon an exercise of judicial discretion having regard to trial fairness and efficient case management. Trial fairness takes account of not only the fair trial interests of the respondents but also the public interest in fairness to the prosecution and its witnesses. Case management considerations include fair justice effectively administered without unnecessary confusion or delay.
[14] It has become apparent that Constable Winter’s credibility is critical to evidentiary development of the defence theory of police involvement in constitutional transgressions respecting the respondents’ Charter rights.
[15] While, in the experience of the court, five months is on its face an atypical gap in a cross-examination, providing transcripts to Constable Winter inviting reading of that material may not be essential to her recall of committed positions in her prior testimony. To some degree the application to have the witness refresh her memory before resuming cross-examination is both speculative and premature. Largely on the basis of the passage of time, the nature of the witness’ evidence, and the real prospect of a revisiting of earlier subjects already addressed in cross-examination, the application presumes the potential for pervasive lack of recall on the part of the witness.
[16] Given the constable’s notes as well as emails and other relevant documents as the predominant source of tracking her activities, it cannot be said that it is likely that the witness will be unable to recall her prior evidence. Put differently, while the exercise might well be helpful to the witness and the flow of the continued proceedings, it is by no means clear that it is sufficiently necessary to support the application.
[17] In these circumstances, the safer course is to maintain the status quo. Should Constable Winter express a lack of recall respecting an earlier exchange with counsel, she will be permitted to refresh her memory from a relevant transcript.
[18] The court will of course be in a position having regard to any number of matters including the clarity and fairness of counsel’s questioning, the passage of time, and the nature of the detail at hand, to assess, if necessary, whether any expressed lack of recall is genuine, or feigned in the sense of an instance of an artificial attempt to simply check on the last version committed to.
[19] In addition, counsel will be held to a standard of fairness in closing submissions in dealing with instances of lack recall by Constable Winter, such as they may be.
CONCLUSION
[20] The application is dismissed.
HILL J.
DATE: April 26, 2013
COURT FILE NO.: CRIMJ(P) 754/10
DATE: 2013 04 26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. MIKE LEONARD RUTIGLIANO and BARRY PIERSON
BEFORE: HILL J.
COUNSEL: S. Fenton, for the Crown
O. Wigderson for the Respondents
RULING
HILL J.
DATE: April 26, 2013