Her Majesty the Queen v. Terri-Anne May Arnold, Kassandra Lee Arsenault and Robin Alexander Maness, 2014 ONSC 2706

COURT FILE NO.: 1646/12

DATE: 20140430

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TERRI-ANNE MAY ARNOLD, KASSANDRA LEE ARSENAULT and ROBIN ALEXANDER MANESS

ANIKO COUGHLAN, for the Crown

TERRY BRANDON, for the Terri-Anne May Arnold

KENNETH MARLEY, for Kassandra Lee Arsenault

LAURA JOY, for Robin Alexander Maness

HEARD: April 22, 23, 24 and 25, 2014

DESOTTI, J.

A. The Facts

[1] The three accused are charged with a number of offences as follows:

KASSANDRA LEE ARSENAULT, ROBIN ALEXANDER MANESS AND TERRI-ANNE MAY ARNOLD STAND CHARGED:-

1. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did break and enter a certain place, to wit: a dwelling house, situated at 1103 Lakeshore Road, #202, Sarnia and did commit therein the indictable offence of robbery with a firearm, contrary to Section 348(1)(b) of the Criminal Code of Canada.

KASSANDRA LEE ARSENAULT, ROBIN ALEXANDER MANESS AND TERRI-ANNE MAY ARNOLD STAND FURTHER CHARGED:-

2. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did while armed with a weapon, namely a rifle, steal from Melissa Anne Thomas, currency and other personal items, and thereby commit robbery, contrary to Section 344(a) of the Criminal Code of Canada.

KASSANDRA LEE ARSENAULT, ROBIN ALEXANDER MANESS AND TERRI-ANNE MAY ARNOLD STAND FURTHER CHARGED:-

3. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did without lawful authority forcibly confine Melissa Anne Thomas against her will, contrary to Section 279(2) of the Criminal Code of Canada.

TERRI-ANNE MAY ARNOLD STANDS FURTHER CHARGED:-

4. That on or about the 24th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did commit an assault on Melissa Anne Thomas, contrary to Section 266 of the Criminal Code of Canada.

TERRI-ANNE MAY ARNOLD STANDS FURTHER CHARGED:-

5. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did commit mischief by willfully damaging without legal justification or excuse and without colour of right, property, to wit: the door of 1103 Lakeshore Road, Unit #202, Sarnia, ON, the property of Steeves and Rozema, the value of which exceeded $5000.00, contrary to Section 430(3)(a) of the Criminal Code of Canada.

ROBIN ALEXANDER MANESS STANDS FURTHER CHARGED:-

6. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to Section 110 of the Criminal Code of Canada, contrary to Section 117.01(1) of the Criminal Code of Canada.

ROBIN ALEXANDER MANESS STANDS FURTHER CHARGED:-

7. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to Section 109 of the Criminal Code of Canada, contrary to Section 117.01(1) of the Criminal Code of Canada.

ROBIN ALEXANDER MANESS STANDS FURTHER CHARGED:-

8. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to Section 109 of the Criminal Code of Canada, contrary to Section 117.01(1) of the Criminal Code of Canada.

ROBIN ALEXANDER MANESS STANDS FURTHER CHARGED:-

9. That between the 24^th day of January and the 26^th day of January in the year 2012, inclusive, at the City of Sarnia, in the Province of Ontario, did while being bound by a probation order made by the Ontario Court of Justice on March 8, 2010, fail without reasonable excuse to comply with such order, to wit: keep the peace and be of good behaviour, contrary to Section 733.1(1) of the Criminal Code of Canada.

ROBIN ALEXANDER MANESS STANDS FURTHER CHARGED:-

10. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did have in his possession a weapon, to wit: a rifle, for a purpose dangerous to the public peace, contrary to Section 88 of the Criminal Code of Canada.

ROBIN ALEXANDER MANESS STANDS FURTHER CHARGED:-

11. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did possess a firearm, to wit: a rifle, without being the holder of a license under which he may possess it, contrary to Section 91(1) of the Criminal Code of Canada.

ROBIN ALEXANDER MANESS STANDS FURTHER CHARGED:-

12. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did possess a firearm, to wit: a rifle, knowing that he was not the holder of a license under which he may possess it, contrary to Section 92(1) of the Criminal Code of Canada.

ROBIN ALEXANDER MANESS STANDS FURTHER CHARGED:-

13. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did without lawful excuse point a firearm, to wit: a rifle, at Melissa Anne Thomas, contrary to Section 87 of the Criminal Code of Canada.

ROBIN ALEXANDER MANESS STANDS FURTHER CHARGED:-

14. That on or about the 25^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did commit mischief by willfully damage without legal justification or excuse and without colour of right property, to wit: the door of 1103 Lakeshore Road, Unit #202, Sarnia, ON, the property of Steeves and Rozema, the value of which exceeded five thousand dollars, contrary to Section 430(3)(a) of the Criminal Code of Canada.

KASSANDRA LEE ARSENAULT STANDS FURTHER CHARGED:-

15. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did while being bound by a probation order made by the Ontario Court of Justice on June 21, 2011, fail without reasonable excuse to comply with such order, to wit: keep the peace and be of good behaviour, contrary to Section 733.1(1) of the Criminal Code of Canada.

KASSANDRA LEE ARSENAULT STANDS FURTHER CHARGED:-

16. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did have in her possession a firearm while she was prohibited from doing so by reason of an order made pursuant to Section 109 of the Criminal Code, contrary to Section 117.01(1) of the Criminal Code of Canada.

KASSANDRA LEE ARSENAULT STANDS FURTHER CHARGED:-

17. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did possess a firearm, to wit: a rifle, without being the holder of a license under which she may possess it, contrary to Section 91(1) of the Criminal Code of Canada.

KASSANDRA LEE ARSENAULT STANDS FURTHER CHARGED:-

18. That on or about the 24^th day of January in the year 2012, at the City of Sarnia, in the Province of Ontario, did have in her possession a weapon, to wit: a rifle, for the purpose dangerous to the public, contrary to Section 88 of the Criminal Code of Canada.

[2] All three accused have plead not guilty with respect to all these counts. Counsel on behalf of the accused sought a trial in the Superior Court with a judge and jury.

[3] All parties indicated that there would be one Crown witness with the only real Exhibits that would be tendered would be the record of the complainant and a set of photographs that displayed damage to the complainant, Melissa Thomas’ apartment front door, although when the damage was sustained was not able to be confirmed by any other independent means.

[4] The jury panel were advised on the Tuesday morning of the jury selection that all counsel had indicated that because there was only to be one witness, that they were all confident that the trial would be concluded by Friday. The jury was selected; the three accused were placed in the hands of the jury; I gave opening instructions on Tuesday afternoon; the Crown made a brief opening statement; and the principle Crown witness was sworn in to give her testimony.

[5] The complainant then was directed by the Crown to review her lengthy criminal record of drug abuse, use, and the crimes that were occasioned as a result of this usage over some number of years in the City of Sarnia. We also learned that she suffered ongoing seizures about twice a week and was taking medication for these seizures. Additionally, we learned that on a daily basis she was undergoing serious treatment with methadone at a local clinic to combat her addiction to Oxycontin and that for this trial she indicated that she was sober.

[6] Wednesday began with the completion of her criminal record and then just as quickly “the wheels came off this trial’. The complainant, Melissa Thomas, indicated that she could not remember what she said at the preliminary hearing, what she had said in a sworn video statement, or in any other written statements. She could not even remember what appeared to be her own likeness that she observed in the sworn video statement in 2012.

[7] In short, neither the written statement of January 25^th, 2012, nor the January 26^th, 2012, DVD video statement made under oath, nor a July 17^th, 2012, written statement, nor the preliminary hearing of July 26^th, 2012, nor the August 14^th, 2012 preliminary hearing were acknowledged, by this central Crown witness, as events that she remembered.

[8] The Crown then sought to introduce the preliminary hearing transcript pursuant to a R. v. Khan Application or under the principle exception to the hearsay rule and submitted that similar to a s. 715 Application, the preliminary hearing transcript satisfied the two prong test of necessity and reliability. Defence counsel vigorously resisted this Application and sought a declaration that in light of their collective narrow cross-examination at the preliminary hearing where the complainant’s credibility was only marginally attacked that it would be unfair to allow the Crown to proceed in this fashion before a jury.

[9] Significantly, one counsel, acting for Ms. Arnold, was not even present at the preliminary hearing and instead had Mr. Marley act as her agent. Counsel for Mr. Maness sent a junior to this preliminary hearing, who in turn asked only a very few questions.

[10] Mr. Marley, who did conduct some cross-examination of Ms. Thomas, pointed out that since a preliminary hearing is not about credibility and since the threshold is so small to warrant a committal before a Superior Court, that it is manifestly unfair to rely and place an audio recording before a jury with respect to the evidence of this only Crown witness.

[11] To put an even greater emphasis on this point, he went on to indicate that in some jurisdictions, the preliminary hearing judge is not even present during the taking of the evidence! However, he then pointed out that even his cross-examination of the complainant was abbreviated as he did not want to reveal all of the evidence that he might place before the complainant, nor did he desire to vigorously point out some significant credibility issues to her as they would not be germane to the determination of a committal by the preliminary hearing judge.

[12] I noted for example, since I now had to review the preliminary hearing transcript, that the complainant, Ms. Thomas, was questioned about her involvement in a robbery the day before at Ms. Arnold’s residence, one of the accused before the Court. She did not acknowledge that she was involved with the robbery but she did indicate that she was aware that Ms. Arnold had been robbed and that Ms. Arnold was blaming her.

[13] There were many, many opportunities to cross-examine this witness about certain obvious ‘sink holes’ of evidentiary concerns. Bluntly put, there was no need to complete this type of detailed credibility scrutiny through cross-examination. This type of vigorous cross-examination could await the trial before a jury of twelve men and women.

[14] For example, the complainant indicated that she had little sleep during the two days prior to the break-in at her apartment; as well, she had used twice the normal dosage of crystal methamphetamine during the day before the alleged break-in; and she had injected herself intravenously with Oxycontin. Without stating the obvious, all of these ‘functioning liabilities’ would be fodder for serious cross-examination at trial. The potential of defence counsel significantly questioning her memory of this evening or the reliability of any of her testimony alleging the offences against the accused before the Court, would be squarely put before the trier of facts.

[15] Additionally, she indicated, in examination-in-chief, in response to a question at page 19 as follows:

Q. Did you see anything in anybody’s hands when they were now in your home?

A. They didn’t come in with anything in their hands. They left with stuff.

[16] She continued at page 26 in response to a question as follows:

Q. Okay and when did you first notice the gun?

A. Right away.

[17] The significant criminal record of the complainant, Melissa Thomas and her acknowledgment of her awareness of a robbery at one of the accused’s residence (the accused, Arnold) all without one instance of any confirming evidence of her testimony would be front and centre before this jury. Even her rent money that was supposedly stolen by the three accused in an amount in excess of $1,100.00 was open to severe scrutiny as she had indicated at the preliminary hearing that these monies were paid to her by her previous property manager who was the same property manager at her new apartment.

[18] This begs the question, why would this same property manager not merely transfer these monies to the owner of this different rental property? Why would she be given this separate cheque or monies and why would she then have this cash on hand and not in a bank or safe location? Finally, on this obvious but perplexing issue, why would she need these funds on hand to pay her rent when she indicated that she had been living in this apartment for the last “four weeks”? Wouldn’t she have been required to pay these monies up front before she moved into this new apartment?

[19] This point is even more confusing because she indicated to Mr. Marley in cross-examination at the preliminary hearing that she owed rental monies for the last 18 days of December but she was clearly in this apartment on January 24^th, 2012, the day of the alleged break-in. Finally, was it merely coincidental that she had in her possession such a large sum of money on January 24^th, 2012, the day before she said she was to provide a rental payment to her landlord and the day after the allegation that the accused, Arnold, had been robbed?

[20] What is most unfortunate and perplexing is that at no time did either the Crown or the police check out this rental issue. There is no evidence that disclosure on this point was ever made to counsel for the accused but more telling, if neither the Crown nor the police thought that this evidence might, at the very least, confirm one aspect of the complainant’s version of events, then, conversely, is it because they believed it to be false or was it actually false?

[21] All of these evidentiary and credibility problems are easily seen by a cursory read of the preliminary hearing transcript. However, what is also evident is that with respect to certain charges, there is no evidence upon which a properly instructed jury could convict. In other words, as in R. v. Rowbotham, the judge would be required to enter a verdict of not guilty by virtue of a directed verdict (see the Crown’s submission as to the suggested verdict).

B. Analysis

[22] Before I proceed further in this review, I would be remiss if I did not indicate that as a sitting Superior Court Judge in the Southwest for the past 18 years and as well, the Administrative Judge for Sarnia, I am most aware that all three defence counsel were most experienced counsel and are involved in many, many criminal trials in the Southwest, more particularly, Windsor, Sarnia and Chatham. I do not make that observation to conclude that this reality would or should make them more likely to drive ‘trucks’ down and through the evidence of this prime Crown witness, but only to point out that at this preliminary hearing the ‘trucks’ were left in the garage.

[23] Ironically, the more experienced that counsel may be, at a preliminary hearing, the more likely it is that they do not vigorously test the credibility of the witnesses called by the Crown out of a real concern that any obvious inconsistencies, weaknesses in memories, or statements that are clearly false or inaccurate will be corrected by the time this same witness testifies at trial, or that a preliminary hearing judge will question the necessity of such time consuming and unnecessary cross-examination.

[24] While it is true that many Courts have indicated that the intervention of a judge at a preliminary hearing during cross-examination of a witness may constitute a negative inference with respect to the reliability of the witness’ evidence, the stark and obvious reality is that this result seldom happens because most counsel are quite aware of limitations during cross-examination of a witness at a preliminary hearing. (I would probably exempt sexual assault or historical sexual assaults preliminary hearings from this notation)

[25] In short, excepting some clairvoyance on the part of defence counsel concerning the subsequent failed memory of a prime Crown witness and thus the potential for a Khan or a s. 715 Application by the Crown, no defence counsel would ever anticipate that a limited cross-examination might create a significant and serious unfairness to an offender or offenders before a jury. This reality becomes even more acutely unfair when these same counsel are unable to cross-examine this witness at trial and for legitimate and well considered reasons had chosen a judge and jury trial specifically to place before the jury a plethora of credibility issues occasioned by this same Crown prime witness.

C. The Dilemma and Analysis

[26] The three accused had been placed in the hands of a jury and thus short of a mistrial, which none of the defence counsel had indicated was even contemplated or if contemplated was available for my consideration, I had to determine whether the preliminary hearing audio recording could or should be placed before the jury. More importantly, if my determination was in the affirmative, what mid-trial instructions and final instructions during my charge were appropriate in these most unusual circumstances?

[27] I also considered in addition to a mistrial, whether a stay of proceeding would be another possibility or could I consider a motion for a directed verdict, which would thus take the matter from the jury with respect to some counts. Finally, the accused, Robin Maness, an aboriginal offender, had been in pre-trial custody since February 12^th, 2012 on these and other charges and thus any delay would constitute an unnecessary hardship on this accused. As well, the accused Terri-Anne Arnold was under medical care and was taking anti-anxiety medication that caused her to be quite teary during the time she spent in the courtroom.

[28] Since cross-examination did not take place with respect to the video recording or the written statements, I ruled that the jury could not and would not have these statements as part of their consideration (see R. v. Conway, a decision of the Ontario Court of Appeal). In reviewing the many decisions before me, I became convinced, perhaps wrongly, that the preliminary hearing recording should be considered as evidence before the trier of facts.

[29] I will only refer to three decisions that considered the use of a preliminary hearing transcript. However, I have reviewed in some detail all of the decisions that were provided to me or for which I researched on the matter.

[30] The first decision that I reviewed, is that of the Superior Court of Ontario in R. v. Beah, before Justice Strathy. The charges were sexual assault and the complainant refused to return to Canada from Sierra Leone to give evidence.

[31] The Court reviewed the Supreme Court of Canada decision in R. v. Potvin and once again affirmed the proposition that it is the opportunity of the accused to fully cross-examine a witness that is the right and not whether he fully exercised this right that is in issue. Nevertheless, Justice Wilson and Justice Strathy both accepted and acknowledged at paragraph [15] that “the Court has residual discretion to exclude the evidence where its admission would result in unfairness at the trial.”

[32] Furthermore, in Potvin, Justice Wilson also indicated at paragraph [37] as follows:

The protection of the accused from unfairness rather than the admission of probative evidence “without too much regard for the fairness of the adjudicative process” (see Clarkson, at p. 393) should be the focus of the trial judge’s concern.

[33] In addition, Justice Strathy granted the defence request that the complainant’s KGB statement and the video recording would be admitted, which then gave defence counsel an opportunity to argue that there were inconsistencies between the complainant’s previous statement and her evidence at the preliminary.

[34] In the case of R. v. Saleh, Justice Watt affirms that when a judge considers an application under s. 715 of the Criminal Code to present evidence at a preliminary hearing before a jury, the role of the judge is to be that of a gatekeeper as reflected in his statement of principle at paragraph [94], “to ensure that only relevant, material, and admissible evidence gets before the jury.”

[35] In this case, Justice Watt was particularly concerned that there was information obtained after one of the accused had testified at a preliminary hearing, which would have had a significant impact on trial fairness. In the end result, the preliminary hearing transcript was not allowed to be presented to the jury.

[36] Before leaving that decision, there is interesting obiter concerning an accused’s re-election of his mode of trial, which has some significance with respect to my decision to allow all defence counsel to re-elect to have the trial proceed without a jury (judge alone) and absent the consent of the Attorney General under s. 473 (1) of the Criminal Code.

[37] Justice Watt states at paragraph [95] as follows:

I would not interfere with the trial judge’s decision not to order that the trial proceed without a jury despite the absence of the Attorney General’s consent under s. 473 (1) of the Criminal Code. Even assuming such an order were available based upon trial fairness considerations when s. 715 (1) is invoked, no principled reason would support a less rigorous standard than that applicable when issue arise otherwise. And on this record, in my respectful view, the appellant has not met that standard.

[38] I will have more to say about my reasons in allowing a re-election at the conclusion of my analysis of allowing the preliminary hearing audio recording to be presented by the Crown as evidence before me sitting as a judge alone.

[39] The third decision that has some significant on the facts before me in this trial, is the decision of the Ontario Court of Appeal in R. v. Li. The trial judge allowed a preliminary hearing transcript with respect to the evidence of one of the witnesses who was not prepared to return to Canada from Malaysia, pursuant to s. 715(1) of the Criminal Code.

[40] Interestingly in this decision was the discussion of the need or discretion in a trial judge to give or not to give a Vetrovec warning. This exercise of discretion by the trial judge was not questioned by the Court.

[41] However, they did indicate with reference to the evidence and issues at the preliminary hearing, that it would have been better for the trial judge, in addition to indicating to the jury that issues of credibility are different at a preliminary hearing than what takes place at trials, if the Court also had indicated that there were tactical reasons why defence counsel may not attack the credibility of a witness at a preliminary hearing and thus the form of cross-examination that takes place may not be as extensive as at trial.

[42] Most significantly, the Court indicated that when the trial judge instructed the jury that counsel for the accused had a “full opportunity” to cross-examine at a preliminary hearing while technically true, that without further explanation, this constituted an error in his charge.

[43] Ultimately, I determined that the preliminary hearing transcript could be placed before the jury subject to the following cautionary mid-trial instructions, which would include a Vetrovec warning:

a) I would read Justice Watt’s Final 30 instructions with respect to ’Evidence Previously Given’ as follows:

1. Ms. Thomas testified at a preliminary hearing about what she alleged occurred to her at her apartment on January 24^th, 2012 occasioned by the actions of the three accused, but is not able or capable of remembering anything of what she said at the preliminary hearing and thus cannot testify here at the trial about what happened on January 24^th, 2012, except for her acknowledgement of her prior criminal record.

2. You may consider this audio recording of the preliminary hearing as evidence to help you decide this case.

3. It is for you to decide how much or little you believe of or rely upon this evidence. You may believe some, none or all of it. In making this decision, remember that you did not see or hear the witness testify, except to her criminal record. You may also wish to consider whether there is any real dispute about what the witness said in her testimony.

[44] In addition, I would have added the following cautionary instructions as follows:

1. Issues at a preliminary hearing are different than at a trial, including the issue of credibility of a witness. The determination of credibility of a witness is not a function of a judge at a preliminary hearing but the issue of credibility of a witness is often the central and deciding matter before a jury, at a judge and jury trial.

2. In light of this significant difference between a preliminary hearing and a jury trial where the credibility of a witness is not in issue, many counsel, including two of the counsel for the accused at this trial had either a junior counsel attend or had, in the case of Ms. Brandon for the accused, Ms. Arnold, Mr. Marley attend and act as her agent.

3. Because credibility is not in issue at a preliminary hearing, counsel (all counsel) are aware that significant cross-examination of a witness and the testing of her/his credibility is not normally a significant part of the preliminary hearing process.

4. At a preliminary hearing as opposed to a jury trial, defence counsel may be aware of a particular significant piece of evidence or many significant pieces of evidence that might seriously impact on the credibility of the witness. Rather than revealing this significant evidence at a preliminary hearing, where, as stated, credibility is not an issue, most competent counsel of which you have three before you, would not tactically reveal this evidence at a preliminary hearing. Thus, what you have heard at this preliminary hearing may not be the complete picture, or to put it another way, if this was a puzzle, there would or could be many, many pieces missing.

5. Finally, all three counsel have lost the opportunity to challenge in a vigorous and meaningful way the credibility of the only Crown witness at this trial. You have only the audio recording of this witness as she testified at the preliminary hearing. This is therefore a special instruction that has to do with her evidence. It is an instruction that you must keep foremost in your mind when you are considering how much or how little you will believe of or rely upon her evidence in making your decision in this case.

6. You have heard the evidence of Melissa Thomas at the preliminary hearing. We know from her evidence that she had little sleep just prior to the alleged events at her apartment; she had consumed twice the amount of crystal methamphetamine that she normally consumed and as well she had consume intravenously an Oxycontin pill; we know that she stated that she had money with her for her rent but we also know she had the same property manager; we also know that she had been living in the property since December 13^th, 2011 (18 days) but she claimed that the monies she had in her possession were monies she received from this same property manager the day before and were for her rent for the latter part of December and her last month’s rent; she was aware that one of the accused, Ms. Arnold, believed Ms. Thomas had robbed her at her residence; and that she had initially said to the Crown attorney that the three accused had entered the residence with nothing in their hands.

7. Common sense tells you that in light of these circumstances, there is good reason to look at Melissa Thomas’ evidence with the greatest care and caution. You are entitled to rely on Ms. Thomas’ evidence even if it is not confirmed by another witness or other evidence, but it is dangerous for you to do so. Accordingly, you should look for some confirmation of Ms. Thomas’ evidence from somebody or something other than Ms. Thomas before you rely upon her evidence in deciding whether Crown counsel has proven the case against the three accused, Terri-Anne May Arnold, Kassandra Lee Arsenault, and Robin Alexander Maness beyond a reasonable doubt. To be confirmatory, the testimony of another witness or witnesses or other evidence should help restore your faith in relevant parts of Ms. Thomas’ evidence.

8. Ms. Thomas and the circumstances in which she testified might well make you wish that somebody or something else confirmed what Ms. Thomas said. You may believe Ms. Thomas’ testimony, however, if you find it trustworthy, even if no one or nothing else confirms it. When you consider it, however, keep in mind who gave the evidence and the circumstances under which Ms. Thomas testified. In this case, her evidence is before you by way of an audio recording from a preliminary hearing and not her live testimony at this trial.

D. The Re-election

[45] Before leaving the courtroom, after hearing the lamentations of defence counsel about the likelihood that I probably would allow the use of the audio recording of the preliminary hearing that contained the evidence of the complainant, I realized that a significant mid-trial instruction and caution would be necessary and required (see supra).

[46] Upon returning to the courtroom to advise counsel of my ruling on the use of the preliminary hearing transcript, I briefly ran through what mid-trial instructions and cautions I would provide the jury prior to their hearing of this audio recording. I then indicated that I would provide all counsel with a more complete written ruling when I placed the audio recording before the jury and that I would review again with them during my charge what I planned to say about the jury’s use of this preliminary hearing transcript. We then adjourned for lunch.

[47] During lunch, I was particularly concerned that the underlying rationale for counsel initially choosing to proceed by judge and jury had been unfairly circumvented by circumstances that they could never have envisioned when they first made their election of judge and jury. I reviewed the decision of R. v. L.E. of the Ontario Court of Appeal. This Appellate Court in turn referred to the Manitoba Court of Appeal decision in R. v. Ruston. As stated by Justice Finlayson at paragraph [30] as follows:

Ruston was a case where the accused wished to re-elect out of time to be tried by a jury. The Manitoba Court of Appeal was of the opinion that the decision of the Crown, well after the time to re-elect had passed, to rely upon certain similar facts evidence was such a substantial change in the case against the accused that he was entitled to count his 15 days under s. 561 (1) (c) from the date when he was notified of the change. In the result, said the court, “his re-election was made within the statutory time frame…” Accordingly, this case did not involve a review of Crown discretion but amounted to a finding that the accused was entitled to an informed decision when called upon to make an election or a re-election.

[48] Furthermore, Justice Finlayson went on to say at Paragraph [31] of the same decision as follows:

I recognize that a trial judge must have some flexibility in ensuring that the prosecution does not overreach when asserting Crown prerogatives. Without endorsing this particular decision on its facts, I have no concern about the Manitoba Court of Appeal in Ruston, supra, that the accused is entitled to make an informed election and should not be held rigidly to some time limits which are directed in large part to ensuring administrative efficiency. However, I reject the concept that the trial judge can substitute his discretion for that of the Crown and consent to a late re-election under s. 561 (1) (c) of the Code. In my opinion, based on the authority of Turpin, supra, a trial judge can only supplant or ignore the clear language of the Code when constitutional issues are engaged. The level of intervention in this case required a finding that the conduct of the Crown amounted to an abuse of process.

[49] As stated under the previous heading, the possibility existed to declare a mistrial and then reconstitute the trial immediately before me in order to avoid any further delay. The accused would then be put to a re-election before me and the audio recording from the preliminary hearing would constitute the evidence for the trial.

[50] The obvious concern in this scenario was that s. 561 of the Criminal Code still mandated the consent of the Crown,(which was not ultimately forthcoming). The solution, I considered, was to determine, as was done in Ruston that the operation of the section did not commence until after the three accused were informed that the memory of the complainant was impaired and that the preliminary hearing audio recording would constitute the evidence before the trial court sitting as a judge alone after the re-election.

[51] Instead of this approach, and since the three accused were already in the hands of the jury, albeit only for portion of evidence concerning the complainant’s criminal record, I contemplated seeking the consent of the Crown to a re-election by these three accused to a judge alone trial based on the stark reality that their constitutional rights were compromised under s. 7 of the Charter and more particularly the phrase “fundamental justice”. This concept enshrines both natural justice and the ability of all accused parties before a court to make an informed decision when they are entitled under our Criminal Code to exercise an election.

[52] The election by an accused to a trial before a judge and jury is fundamental to tenets and principles of procedural fairness. Conversely, the waiver of this right to a judge and jury and the election to proceed to trial with a judge alone can only be made in a situation where the accused, after discussion with their counsel, make an informed decision as to the judicial process they wish to invoke (see also s. 11 (f) of the Charter and the corollary right to waive a jury trial).

[53] Furthermore, pursuant to s. 11 (d) of the Charter, to make full answer and defence (also s. 7 of the Charter), includes the right of the accused to have before him the full case that he is to meet before adducing whether he/she will even, for example, call a defence. As stated in R. v. Rose, a decision of the Supreme Court of Canada at paragraph [2] by Justice Binnie (in dissent in the result only) as follows:

In my view, an accused does have a constitutional right to answer whatever is put against him by the Crown, whether in evidence or in argument. He cannot fairly be expected to answer a closing address that has not yet been made. The appellant’s right to answer what was said to his prejudice by the Crown in its closing address was denied in this case by s. 651 of the Criminal Code, R.S.C. 1985, c, C-46, because of a prior decision of the defence to call witnesses for the defence. The right to call evidence and the right to answer the Crown’s attack are both fundamental rights and an accused cannot constitutionally be required to choose between them. In my view, the imposition of such an election by s. 651 and the consequent denial of the right to make full answer and defence violated both s. 7 and s. 11 of the Canadian Charter of Rights and Freedoms.

[54] The majority of the Supreme Court of Canada also indicated at paragraph [130] as follows:

The obligation of a trial judge to ensure that an accused’s right to a fair trial is preserved has been enshrined in s. 11 (d) of the Charter. However, the inherent jurisdiction of superior court judges to remedy procedural unfairness during a trial has always existed at common law.

[55] At paragraph [131], the Supreme Court goes on to state as follows:

By contrast, a judge always possesses an inherent jurisdiction to ensure that the trial is conducted fairly. Inherent jurisdiction cannot be circumvented by narrow or confining language.

[56] Similarly at the judge and jury trial before me, there was no possibility that defence counsel, in consultation with the three accused, could have foreseen that they would be facing a preliminary hearing audio record that reflected the testimony of a complainant that implicated the three accused in many serious offences that had not been challenged by two of the accused’s counsel and only peripherally by a third counsel.

[57] Most significantly, as the wails of counsel rose in the courtroom, none of the three counsel on behalf of the three accused would ever have elected to have a judge and jury trial if they had been live to the remote possibility of this memory loss by the central Crown witness. As stated supra, this choice of a judge and jury trial was made by counsel for the three accused for many reasons but principally the credibility of this complainant, even with a peripheral measure of cross-examination by Mr. Marley, was seriously compromised and there was not one shred of confirmatory evidence with respect to even one aspect of her testimony.

[58] Her significant criminal record, which reflected significant drug use; the lack of confirmatory evidence; her inconsistencies within the preliminary hearing audio record, including her statement that the three accused entered her residence without any object in their hands and then seemingly gave a different explanation at a later point in her testimony and her tale of lost rent monies; her potential motive to lie with respect to an allegation by one accused, Ms. Arnold, that she had been one of the perpetuators in a robbery; and the reality that she was under a significant conditional sentence that obviously would be seriously breached if she was implicated in any other criminal activity, all would be highlighted, magnified, scrutinized, and placed before a jury.

[59] While I determined that case law seemed to support the Crown’s position with respect to the use of the audio recording of the preliminary hearing, subject to my myriad of mid-trial instructions and cautions, the “full answer” contemplated under s. 11 (d) and principles of “fundamental justice” under s. 7, would mandate the ability of the accused to reassess their positions and accordingly their earlier election to have the matter proceed before a judge and jury.

[60] When I returned to the courtroom, I was confident that a re-election would reduce the concern of defence counsel, that a judge alone trial could, better assess any shortcomings in the testimony of the complainant, without any fear that potentially some prospective jurors might rely too heavily, even with appropriate instructions and cautions by the trial judge, on the audio recording, or reflect some sympathy towards her appearance of frailty as the complainant’s gave evidence before the jury concerning her extensive criminal record.

[61] Before I could even indicate this possible solution to the dilemma faced by Crown and defence counsel in these most unusual circumstances, defence counsel rose to suggest precisely this possible solution and compromise. Unfortunately, even with a break to consider her options, the Crown would not agree in allowing the accused to a re-election. When I asked the Crown for a reason, there was an inadequate response and then, as I expected, the indication that the Crown need not give a response since the section foreclosed a re-election at this stage of the proceeding.

[62] I commented that the only reason that I believed the Crown, in these most unusual circumstances, would not consent to a re-election was, that by logical inference, she believed that her chances were better of convictions with a jury than a judge alone trial. This refusal to consent by the Crown was not out of a belief that this was a Crown prerogative and thus, not open to any discretion, nor out of an appropriate adversarial position, but strictly speaking, the last hope for a successful prosecution.

[63] In my view and consistent with the Le decision of the Ontario Court of Appeal, the failing of the Crown to consent to a re-election, I consider to be an abuse of process. The dynamics of this trial changed 180 degrees after it was ascertained that the complainant had no memory of these past events that she testified to at the preliminary hearing. Even the Crown after the re-election, indicated that there would have to be directed verdicts with respect to counts #4, #13, and #14.

[64] I am not unaware that the three accused were all placed in the hands of a jury and absent extraordinary circumstances that as Justice L’Heureux-Dube stated in R. v. Power at p. 10 that it would “shock the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention”.

[65] Nevertheless, I am of the view that only a re-election that was requested by counsel for the three accused after they realized that the prime Crown witness had no ability to testify before the jury, would satisfy the ends of justice and uphold their Charter rights under s. 7 and 11.

E. Decision

[66] For all of the reasons expressed in the aforementioned rulings, I have a reasonable doubt with respect to the guilt of the three accused with respect to the remaining counts in the indictment. There will be a finding of not guilty on counts #1, #2, #3, #5, #6, #7, #8, #9, #10, #11, #12, #15, #16, #17 and #18.

[67] Finally, I would be remiss in not indicating in the clearest way, that the failure of the investigating forces and the Crown, who oversees the evidence or absence of evidence so gathered, to find not one shred of confirming evidence of these events described by the only Crown witness, makes the likely successful prosecution of these accused, even if there may be the strongest suspicion that they were involved in some nefarious conduct with the complainant, virtually impossible.

“Justice John Desotti”

THE HONOURABLE MR. JUSTICE J. DESOTTI

Released: April 30, 2014

CASES CONSIDERED

R v. Power, 89 C.C.C. (3d) 1; R v. Bird, 107 C.C.C. (3d) 186;

R. v McGregor, 134 C.C.C. (3d) 570; R. v Smith (B.C.C.A.),[1993] B.C.J. No. 1470, 31 B.C.A.C. 189, 20 W.B.C. (2d) 324; R. v Wills, [2014] O.J. No. 1069, 2014 ONCA 178; R v Li, [2012] O.J. No. 1989, 2012 ONCA 291, 257 C.R.R. (2d) 348, 292 O.A.C. 60, 284 C.C.C. (3d) 207, 101 W.C.B. (2d) 437; R. v Hawkins, [1996] S.C.J. No. 117, [1996] A.C.S. no. 117, [1996] 3 S.C.R. 1043; [1996] 3 R.C.S. 1043; 30 O.R. (3d) 641, 141 D.L.R. (4^th) 193, 204 N.R. 241, 96 O.A.C. 81, 111 C.C.C. (3d) 129; R. v Potvin, [1989] S.C.J. No. 24, [1989] A.C.S. no 24; [1989] 1 S.C.R. 525, [1989] 1 R.C.S. 525, 47 C.C.C. (3d) 193; R. v Beah, [2013] O.J. No. 1977, 2013 ONSC 2490; R. v Couture, [2007] S.C.J. No. 28, 2007 SCC 28, [2007] 2 S.C.R. 517, 280 D.L.R. (4^th) 577, 220 C.C.C. (3d) 289; R. v Downey, 1987 CarswellAlta 661; R v. Clarke, [1993] O.J. No. 1427, 82 C.C.C. (3d) 377, 20 W.C.B. (2d) 157; R. v Saleh, [2013] O.J. No. 5554, 2013 ONCA 742, 303 C.C.C. (3d) 431, 110 W.C.B. (2d) 721; R. v Beals, [2011] N.S.J. No. 231, 2011 NSCA 42, 302 N.S.R. (2d) 358, 277 C.C.C. (3d) 323, 95 W.C.B. (2d) 670; R. v Myers, [2003] O.J. No. 2772, [2003] O.T.C. 627; R. v Rogers, [2012] O.J. NO. 975, 2012 ONSC 1396; R. v. R.(A.J.), [1994] O.J. No. 2309, 20 O.R. (3d) 405, 74 O.A.C. 363, 94 C.C.C. (3d) 168, 25 W.C.B. (2d) 142; R.v. Ruston, 63 C.C.C. (3d) 419; Rowbotham v. The Queen, 90 C.C.C. (3d) 449; Rose v. The Queen, 129 C.C.C. (3d) 449; R. v. L.E. (Ont.C.A.), [1994] O.J. No. 2642, 75 O.A.C. 244, 94 C.C.C. (3d) 228, 25 W.C.B. (2d) 390; R. v. Conway, [1997] O.J. No. 5224, 36 O.R. (3d) 579, 106 O.A.C. 81, 121 C.C.C. (3d) 397, 13 C.R. (5^th) 139, 37 W.C.B. (2d) 71; R. v. Savoy, [2000] B.C.J. No. 551, 2000 BCSC 458, 45 W.C.B. (2d) 534; R. v. Malik, [2004] B.C.J. No. 456, 2004 BCSC 299, 26 B.C.L.R. (4^th) 320, 61 W.C.B. (2d) 171

COURT FILE NO.: 1646/12

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TERRI-ANNE MAY ARNOLD, KASSANDRA LEE ARSENAULT AND ROBIN ALEXANDER MANESS

REASONS FOR JUDGMENT

DESOTTI, J.

Released: April 30, 2014