ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17/13
DATE: 2013-09-25
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
Emily Roda, for the Crown
James Miglin, for the Defendant
HEARD: September 24, 2013
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION
MID-TRIAL RULING ON THE ADMISSIBILITY OF CERTAIN EVIDENCE REGARDING ALLEGED PHOTOGRAPHS
TAKEN OF P.E. BY MR. W.
CONLAN J.
[1] An issue has arisen during the cross-examination of P.E..
[2] The Defence wishes to question the witness about an alleged inconsistency between her evidence at trial and what she told the Officer in her August 2012 statement regarding photographs allegedly taken of her by the accused.
[3] The Crown does not dispute the Defence doing so. The Crown, however, wishes to re-examine the witness and elicit evidence on this issue of the photographs of what the witness said in her subsequent statement to the Officer in December 2012 and her testimony at the Preliminary Inquiry the following day.
[4] I have already provided reasons for my decision that any evidence obtained by the police in the execution of the search warrant in late November 2012 shall be excluded from the trial under subsection 24(2) of the Charter, including the photographs.
[5] There is a long line of jurisprudence in this country which interprets the meaning of these words in subsection 24(2): “evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter”.
[6] The decision of the Supreme Court of Canada in R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, for example, makes it clear that evidence to be excluded as a result of Charter-infringing state conduct is not necessarily limited to that which was most immediately obtained by the police. The Court ought also to consider excluding derivative evidence – evidence derived from that which was obtained by the police in violation of the Charter.
[7] In my view, that makes perfect sense. Otherwise, the remedy provided to the accused under subsection 24(2) may be gutted by the introduction of other evidence that would not have existed but for that which was illegally obtained.
[8] It is clear to me that the evidence from this witness regarding the photographs in her statement to the Officer and her testimony at the Preliminary Inquiry in December 2012 would not exist but for the witness being shown the photographs which I have ruled were obtained in violation of Mr. W.’s section 8 Charter right to be free from unreasonable search or seizure.
[9] Further, it is clear to me that the evidence from this witness in her statement to the Officer and her testimony at the Preliminary Inquiry in December 2012 is both proximate in time to the illegal search of Mr. W.’s phone and closely connected in subject matter to the illegally obtained photographs.
[10] I disagree with the Crown’s assertion that the jury will be left with an untrue impression if the Crown is not permitted to do what is proposed in re-examination of this witness. That may be the case if the Defence suggested that the witness had never before the trial described the photographs. The Defence shall limit its attack on this issue of the photographs to the alleged inconsistency or inconsistencies between the testimony at trial and the statement to the Officer in August 2012 and/or the handwritten note which has been mentioned in the evidence thus far.
[11] I disagree with the Crown’s assertion that the jury will be left with an erroneous impression if the Crown is not permitted to do what is proposed in re-examination of this witness. That is speculative. We do not know what the jury will conclude. In any event, I cannot cure that potential erroneous impression by allowing the Crown to do what has been proposed.
[12] I have reviewed the four decisions provided by the Crown: Fliss, Lyttle, Linklater and Butts. I find only the decision of the Supreme Court of Canada in R. v. Fliss, 2002 SCC 16, [2002] S.C.J. No. 15 to be of some assistance to me. The key finding in that case was that the Charter breach neither caused nor contributed to the accused’s statements to the officer and the evidence which the Crown sought to elicit in order to refresh the officer’s memory.
[13] That is not at all the case before me. Here, the Charter breach caused the evidence that the Crown seeks to elicit in re-examination of this witness.
[14] For the above reasons, I am of the opinion that it would be fundamentally unfair to allow the Crown to do what is proposed in re-examination of this witness. I rule that the Crown is not allowed to do so.
Conlan J.
Released: September 25, 2013
COURT FILE NO.: 17/13
DATE: 2013-09-25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
REASONS FOR dECISION
Conlan J.
Released: September 25, 2013