Court File and Parties

Court of Appeal No. C58922

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

NICHELLE ROWE-BOOTHE and GARFIELD BOOTHE

R E A S O N S F O R R U L I N G (Severance Application)

BEFORE THE HONOURABLE JUSTICE DAWSON

On March 10, 2014, at BRAMPTON, Ontario

APPEARANCES:

B. McGuire K. Slate Counsel for the Crown

B. Ross Counsel for Nichelle Rowe-Boothe

J. Rosen Counsel for Garfield Boothe

SUPERIOR COURT OF JUSTICE

TABLE OF CONTENTS

REASONS FOR RULING PAGE 1

Transcript Ordered: June 30, 2014 [received by reporter – July 26, 2014] Transcript Completed: August 14, 2014 Date Counsel Notified:

MONDAY, MARCH 10, 2014

R E A S O N S F O R R U L I N G

DAWSON J. (Orally)

Application for Severance by Garfield Boothe

Garfield Boothe and Nichelle Rowe-Boothe are charged with the murder of Shakeil Boothe, Garfield’s 10-year-old son. The accused are husband and wife and Nichelle Rowe-Boothe has been described as Shakeil’s stepmother. The two accused are also the parents of an infant named Ja’den, who was living with them in their rented family home at the time of Shakeil’s death. Shakeil was found dead in the home on the afternoon of May 27, 2011 after Garfield Boothe called 911. The evidence suggests that Shakeil likely died sometime on the morning of May 26, 2011 and that there was considerable delay in reporting this matter to the authorities.

Dr. Michael Pollanen conducted a post-mortem examination of Shakeil. He testified that Shakeil had been subjected to repetitive physical abuse over a prolonged period of time. Shakeil had certain pattern injuries to various parts of his body. He was also malnourished. He suffered from both skin infections to wounds on his legs and from bacterial pneumonia. However, Dr. Pollanen testified that there were likely more recent traumatic events of a different nature that were the immediate cause of Shakeil’s death.

If only one of the accused was responsible for the earlier ongoing abuse, it seems relatively clear that the other accused knew about that abuse and failed to take steps to protect Shakeil from further foreseeable bodily harm. Those earlier injuries may have contributed to Shakeil’s death. However, an important issue remains as to who was involved in the traumatic injuries Shakeil sustained shortly before his death, and whether either of the accused had the intent required for murder.

An Overview of the Evidence

The evidence against each of the accused is somewhat different in nature. Nichelle Rowe-Boothe spoke to the police by telephone in a call which was partially recorded, and she also participated in a series of interviews conducted by a Children’s Aid Society worker. Her statements contain admissions that she was aware of the ongoing abuse of Shakeil by Garfield. She also eventually told the CAS worker, Kathleen Williams, that Garfield chained Shakeil to his bed and that two to three weeks prior to Shakeil’s death Garfield had stepped on Shakeil’s chest. Dr. Pollanen described extensive bleeding below the skin in the chest area that may have been caused in that manner and which may have caused death on its own.

While Nichelle’s statements constitute significant evidence against her, they are not admissible against Garfield. The jury has been repeatedly instructed of this with considerable emphasis.

Nichelle’s statements also contain allegations that Garfield was violent, abusive and controlling towards her. While this evidence is admissible in her defence it is inadmissible against Garfield. The jury has been advised that evidence of Garfield’s bad character or disposition for violence cannot be used in determining whether his guilt has been proven beyond a reasonable doubt.

The only direct evidence that Garfield assaulted or abused Shakeil comes from Felicia Chambers, who is Nichelle’s mother. Felicia Chambers resided in the home for a period of time during the months of September and October 2010 while assisting Nichelle surrounding the birth of Ja’den. Ja'den was born on September 24, 2010.

Ms. Chambers testified that on one occasion she saw Garfield slap Shakeil on the back and tell him to go to his bedroom. She described observing her daughter Nichelle intervening to prevent Garfield from whipping Shakeil with a belt. She also testified that on October 18, 2010 she observed Garfield chaining Shakeil to his bed. She told Garfield that he could not do that and that he would get in trouble with the police. She said Garfield removed the chain.

At the moment all other evidence against Garfield Boothe is circumstantial. However, it is not yet known whether Nichelle Rowe-Boothe will testify.

The Events Leading to this Application

On Tuesday, March 4, 2014, Mr. Brian Ross, counsel for Nichelle Rowe-Boothe, told the court in the absence of the jury that he had come into possession of “an object” which had clear relevance to the case. He advised that he had consulted with senior counsel and with the Law Society of Upper Canada. As a result of his consultations he believed he had three choices, as outlined in R. v. Murray (2000), 48 O.R. (3d) 544 (S.C.J.) at para. 124. He must:

(a) immediately turn the object over to the prosecution, either directly or anonymously;

(b) deposit it with the trial judge, or;

(c) disclose its existence to the prosecution and prepare to do battle to retain it.

Mr. Ross chose to turn the object over to me as the trial judge.

I was provided with a sealed envelope which I opened in my chambers. Inside I found a DVD which contained three photographs. Copies of the photographs that were produced by a colour printer were also enclosed. The photographs depicted a young boy chained by his ankle to a bed. The chain was a silver metal chain and not the white plastic chain that is already an exhibit in this trial and which has Shakeil’s blood on it. The chain was padlocked to the boy’s ankle and padlocked to the bed. While the boy in the photographs appears to be Shakeil, this cannot be determined with certainty from the photographs because the upper body and head of the boy in the photographs is covered by a blanket. The boy’s lower legs are bare and have injuries. The photos were clearly taken in Shakeil’s bedroom.

I advised Mr. Ross that I would hear any arguments he wished to make as to why I should not order these items disclosed to all counsel. After a recess, Mr. Ross advised me that he could not think of any such argument. Consequently, the envelope was provided to counsel in court and all counsel viewed the photographs. I then ordered that the DVD, which had been made a lettered exhibit, should be released to the Crown for testing by the police. Continuity of the exhibit was to be maintained and it was to be returned to the court as soon as possible. I should say that when I handed the envelope down from the dais it was my intention that the contents would be disclosed to all trial participants irrespective of the Crown’s ultimate position on the use of this evidence.

Mr. Ross advised the court that he was not in possession of the device used to take the photographs. I do not have a transcript of Mr. Ross’s remarks. However, he indicated that he did not wish to, or did not think that he could be required to, disclose how the items had come into his possession. He advised that the disc was simply the depository of the photographs. He used the example of burning a DVD of photographs transmitted by email as an example, without stating that that was what had occurred in this case.

On Thursday, March 6, 2014 Crown counsel provided the court with a report from the Technological Crimes Unit of the Peel Regional Police. The police have determined that the photographs were taken with a particular model of a Kodak digital camera and that the settings of the camera as specified by the manufacturer could be identified in the images. Therefore, it is unlikely that the images have been manipulated although that cannot be completely ruled out.

Crown counsel also produced an email from Dr. Pollanen indicating that in his opinion the images are consistent with Shakeil in various ways and that the injuries seen on the legs are similar to those that he observed on Shakeil’s legs. While he cannot state so to a certainty, he believes the images are consistent with the boy in the photographs being Shakeil.

The photographs were clearly taken in Shakeil’s bedroom. The evidence overall tends to negative any after-the-fact opportunity for these photographs to have been staged using another child.

After reviewing the relevant case authorities on the admissibility of photographs, all counsel agreed that these photographs are admissible because there is sufficient circumstantial evidence of their authenticity to permit them to go before the jury.

As the Crown’s case is not yet closed, the Crown wishes to tender the photographs in evidence. The Crown proposes to recall Felicia Chambers, and to briefly recall Dr. Michael Pollanen. The photographs will be placed before the jury through these witnesses, together with evidence or an agreed statement of fact about how the photographs came to our attention.

The Application

Mr. Rosen, on behalf of Garfield Boothe, first indicated he would seek a mistrial. However, at the commencement of argument, Mr. Rosen said he was moving for severance rather than a mistrial as the authorities indicate that a mistrial is a last resort.

I must mention that severance was previously discussed in this case. Mr. Rosen advised me at the beginning of the trial that he was aware of the potential for a severance application but had determined not to bring one because he felt it was unlikely to succeed. At that point, any severance application would have been on the basis that Nichelle Rowe-Boothe’s statements contained evidence that was inadmissible against Garfield Boothe.

When it appeared that the Crown’s case was about to close, I asked counsel if they could tell me what their intentions were. At that point, Mr. Rosen advised me that he anticipated that Nichelle Rowe-Boothe would not testify and that he would proceed to call his client. Consequently, no further consideration was being given to severance on the basis of the inadmissibility of Nichelle’s statements against Garfield. This must be kept in mind in understanding the severance application that I am now called upon to decide.

In the circumstances of this case the photographs represent evidence against both accused. However, there is another aspect to the matter that leads to the current application.

Felicia Chambers was called as a Crown witness on February 11. She was cross-examined on February 13 and 14, 2014. She was extensively cross-examined by Mr. Rosen. A central theme of the cross-examination, repeatedly put forward by Mr. Rosen and denied by Felicia Chambers, was that she was conspiring with her daughter to shift the blame for what happened to Shakeil onto Garfield Boothe. It has been apparent from the outset of this trial that this is a case in which the accused are blaming each other. In other words, each is advancing a “cutthroat” defence.

Felicia Chambers testified that she was residing in Jamaica in 2010. She came to Canada on August 26, 2010 to assist Nichelle with the birth of Ja'den. Ja'den was born on September 24, 2010. Ms. Chambers testified that she stayed at her daughter’s home from September 9, 2010 until approximately October 4, 2010. She then went to Toronto and Montreal before returning to the home on October 17, 2010. She stayed there until October 22, 2010. After that she remained in Canada but resided elsewhere. She visited the home on December 8, 2010 for Ja'den’s Christening and again on December 26, 2010 for Christmas dinner. She returned to Jamaica on December 28, 2010.

I have already explained that Felicia Chambers testified that she saw Garfield assault Shakeil on one occasion and chain him to the bed on another. She also testified about the nature of the relationship between Garfield and her daughter. She described a lack of affection, said that Garfield was controlling and demanding, and that her daughter was afraid of him. She said Nichelle spent most of her time at home in her room with the door closed. She testified that Garfield spent considerable time in his home office smoking marijuana and drinking. She also testified that Shakeil was terrified of his father and that he told her that his father was beating him.

Felicia Chambers testified that she stayed in touch with her daughter by telephone after returning to Jamaica on December 28, 2010.

During her examination in-chief Crown counsel showed Felicia Chambers the white plastic chain which has Shakeil’s blood on it. She said that was not the chain she saw. The one she saw was a silver metal link chain.

Felicia Chambers returned to Canada on June 22, 2011 after learning of Shakeil’s death and the arrest of her daughter. Ja'den was in the care of the CAS. The CAS was conducting an investigation to determine where Ja'den should be placed. Both sides of the family were interested in taking Ja'den. The CAS investigation was being conducted primarily by Kathleen Williams. Williams testified that she needed to determine what happened to Shakeil in order to assist in determining whether Nichelle was a fit parent and to help with her recommendation as to where Ja'den should be placed.

Mr. Rosen cross-examined Felicia Chambers to show that although she claimed to have information that Garfield was abusing both Shakeil and her daughter, she did not go to the police. In fact, she refused to give the police a statement or attend for an interview. She was subpoenaed to the preliminary inquiry but did not meet with Crown counsel before she was called as witness. Mr. Rosen suggested that in the circumstances this behaviour was inconsistent with what would be expected of someone who had information of the nature she claimed to possess. Ms. Chambers said that she had been advised by her daughter’s lawyer not to speak to anyone. However, it is clear that she did speak to some people.

Mr. Rosen also established that Ms. Chambers met on a number of occasions with Kathleen Williams of the CAS. Despite the advice she said she received from her daughter’s lawyer, she decided to speak with Ms. Williams. Yet, in her initial contacts she did not provide Ms. Williams with the information she claims she had in order to help her daughter. Ms. Chambers agreed with Mr. Rosen’s suggestion that she was deliberately withholding information at that time.

On August 4, 2011 Williams asked Chambers if she had ever seen Garfield hit Shakeil. Chambers said she had not. She explained this in her testimony by saying that to her hitting meant beating and that because she had never seen Garfield beating Shakeil she answered as she did.

On another occasion Williams asked Chambers if Chambers had told her everything. Williams told Chambers she thought it was odd that Chambers had not seen anything since she was living in the home. Chambers maintained at that time that she had not seen any violence in the home.

Felicia Chambers eventually told Williams that she had seen Garfield chain Shakeil to the bed and that Nichelle had told her that Garfield had “stepped into Shakeil’s chest”. Mr. Rosen suggested to Felicia Chambers that she had been speaking with her daughter and that the two of them were feeding this information to Kathleen Williams in order to shift the blame to Garfield in the knowledge that the information provided to Williams would probably come to the attention of the police.

Similar suggestions were made to Kathleen Williams in her cross-examination with respect to Nichelle knowing that she was speaking “for the record” when she spoke to Kathleen Williams.

Towards the end of his cross-examination Mr. Rosen turned to the chain. Ms. Chambers agreed that on September 19, 2012, which was after she testified at the preliminary inquiry, two police officers spoke to her in a police car. They showed her the white plastic chain or photographs of it. She told the officers, “Hell no, that’s not the chain.”

Mr. Rosen forcefully suggested to Ms. Chambers that when she was shown the white chain with Shakeil’s blood on it she “must have freaked” because she recognized it as the one her daughter had used to chain up Shakeil. This was put to Ms. Chambers without any evidence in the record to support it. That does not mean that Mr. Rosen did not have a good faith basis for the suggestion. His client may have provided him with certain information or he may have information from other sources.

Ms. Chambers vehemently denied Mr. Rosen’s suggestion that her daughter used the white chain on Shakeil. However, Mr. Rosen continued to put the suggestion forcefully to her. Ms Chambers said she told the police that the white chain was not the chain she saw in the house. She again said the chain she saw was not plastic but a linked iron chain.

The photographs found on the DVD show a silver linked metal chain. I am told that Felicia Chambers has been shown the photographs and has identified the chain depicted in the photographs as the one she observed. However, she denies any knowledge of the photographs and says that she has never seen them before.

Mr. Rosen’s Arguments in Support of Severance

Mr. Rosen submits that had he known about the photographs his entire approach to the cross-examination of Felicia Chambers would have been different. He submits that he would not have alleged that Ms. Chambers conspired with her daughter. He submits that he would have restricted his position to alleging that Nichelle was acting on her own to manipulate the evidence and shift the blame to Garfield.

Mr. Rosen further submits that permitting the Crown to lead this evidence will have the effect of rehabilitating Felicia Chambers’ evidence generally as her rehabilitation concerning the chain is bound to spill over to her other evidence in the minds of the jury, thus elevating her credibility overall. Mr. Rosen submits that this will flow through to the benefit of Nichelle’s credibility in circumstances where much of what she has said in out-of-court statements is inadmissible against his client.

Mr. Rosen combines these submissions with an overarching submission that the provision of these photographs to Mr. Ross must have been orchestrated by Nichelle Rowe-Boothe. He submits that she is unfairly manipulating the system. She has suppressed this evidence until the Crown’s case is almost closed. It is submitted that this manipulation results in fundamental unfairness to Garfield Boothe and reflects negatively on the integrity of the administration of justice.

Analysis

Applications for severance of accused persons are governed by s. 591(3) of the Criminal Code. The court has a discretion which must be judicially exercised. Severance may be granted where the court is satisfied that the interests of justice so require. This often requires the balancing of a number of competing interests.

At this stage of the proceedings, and on the record as it now stands, I am not persuaded that the interests of justice require severance. This is of course subject to change as the case proceeds.

The first thing I must mention is the context in which the application is brought. This is a joint trial of a parent and a guardian who had the care of a young child who was physically abused and maltreated over a period of at least 9 to 10 months resulting in his death. The accused are blaming each other. Cross-examination in the trial so far shows that cutthroat defence strategies are being employed by each accused. In circumstances such as these, there is a considerable body of case law which emphasizes the desirability of having one jury deal with the case. As stated by Doherty J.A. on behalf of the Court of Appeal in R. v. Suzack (2000), 141 C.C.C. (3d) 449, at para. 88:

“Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best tested through a process which requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely that either jury will hear the complete story.”

The court indicated that the general rule is that there will be a joint trial in such cases unless it appears that an injustice to one accused will result from the attempts to reconcile the respective rights of the co-accused.

Here I would observe that the unfairness alleged does not arise from attempts to reconcile the respective rights of the co-accused. Severance on that basis was considered by counsel earlier in the trial and has not been pursued. The prejudice which gives rise to this application is said to flow from an unfair manipulation of the system which has resulted in the production of evidence which counsel claims would have affected his tactical approach to an important witness if it had been known.

First, I observe that I do not have evidence before me to establish that Nichelle Rowe-Boothe is behind the recent production. While that might be so, it has not been established on this application. Other persons who support her may be behind it. There are a number of possibilities.

Mr. Rosen has suggested that if his client were prosecuted in a separate proceeding he could compel Mr. Ross to testify and this might uncover evidence to substantiate his claim that Nichelle is behind the production, supporting his claim that she is improperly manipulating the system. While this is a possibility it is speculative. If Mr. Ross were compelled to testify, he would be required to tell us about non-privileged information in his possession. That information might suggest that further inquiries are legitimate in pursuit of Mr. Rosen’s theory, or it might quickly lead to a dead end. As I say, this is speculative as I have no evidence on the point.

In view of this submission I asked all counsel if we should proceed by allowing Mr. Ross to retain other counsel to represent his client on this voir dire so that Mr. Ross could testify on the voir dire in the absence of the jury. That might develop some evidence in support of Mr. Rosen’s submission on this point. While highly undesirable, there is authority for the proposition that in some circumstances counsel may be required to testify while remaining counsel in the case: see R. v. Baxter, [1975] O.J. No. 1053 (C.A.), per Martin J.A. at para. 74. There was no enthusiasm for this approach.

Consequently, although I have suspicions, I am unable to make a finding that Nichelle Rowe-Boothe orchestrated the disclosure of the photographs. Mr. Ross advised me that he does not wish to say anything about the circumstances in which he received the DVD or the photographs out of concern that anything he says will be used in some way to his client’s detriment given the cutthroat nature of the defences.

Second, I agree with the Crown’s submission that the accused have attacked each other and that it is not surprising that they, or persons who support them, might do something to assist one accused in defending against the attack launched by the other. This is a natural and expected response to the cutthroat tactics which have been consciously adopted. Accused persons must be permitted to defend against attacks on their position that originate from their co-accused. Given that co-accused do not have disclosure obligations to each other, whether there is fundamental unfairness must be evaluated on a different standard than in a case where the Crown has failed to honour it’s well-established and constitutionally enforceable disclosure obligations.

While the rights of each accused to a fair trial must be balanced and protected in a joint trial, as stated in Suzack, at para. 111:

“An accused’s right to a fair trial does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone.”

If Garfield Boothe was on a trial alone and his counsel attacked Felicia Chambers as was done here, it is doubtful the Crown would be able to use photographs discovered well into the trial and not previously disclosed to rebut that attack and shore up Felicia Chambers’ credibility. Here, however, the photographs have made their appearance after one accused attacked the other. In the context of a joint trial, that is not necessarily unfair. Rather, it is the sort of thing that might be expected to occur when one accused attacks the other. In the circumstances, fairness requires that the jury have this evidence to properly evaluate Felicia Chambers’ credibility and to help the jury arrive at the truth of what happened.

I also observe that there is nothing in the Crown’s case that suggests or anchors the type of “conspiracy attack” that was launched against Felicia Chambers. I asked Mr. Rosen if he could point me to anything of that nature but he was not able to do so. This situation is not like one in which late-breaking evidence undermines something in the Crown’s case which anchored the tactical decision to allege a conspiracy between Felicia Chambers and her daughter that has now been undermined by the late-breaking evidence.

Nothing has changed in the case to meet as presented by the Crown. The case was and is that Shakeil was chained to his bed as part of the abuse he suffered. He may well have been chained with different chains at different times. Felicia Chambers said in her testimony in-chief that the chain she saw was a silver metal chain and not the white plastic chain that is in evidence. She told the police on September 19, 2012 that the white chain was not the one she saw. That was disclosed by the Crown. None of that has changed. All that has changed is that a photograph is now available to support what she said even before she was attacked in cross-examination.

I have great difficulty in seeing how advance knowledge of the photographs of the chain would have changed counsel’s entire approach to the witness. It was and is highly relevant to Felicia Chambers’ credibility that she did not tell the police of the things she says she knew that could help her daughter. It is also relevant to her credibility that having decided, against legal advice, to talk to Kathleen Williams, she did not tell Williams of the abuse she saw during her initial meetings and went further and denied that she had seen any violence at all. It seems to me that such matters would have been developed during cross-examination in any event. The fact that Ms. Chambers claims that the chain she saw was silver metal and not white plastic does not impact these matters directly.

The situation here is not like that in R. v. Jacobsen, [2004] O.J. No. 4134 (S.C.J.) where a failure of Crown disclosure had the effect of undermining or destroying an accused’s substantive defence of alibi. Nor in my view, and particularly given the history of severance considerations by counsel in this case so far, is it nearly as extreme as the situation that arose in R. v. Figliola, 2011 ONCA 457.

The bottom line is I do not see what has occurred here as creating fundamental unfairness which impacts so adversely on Garfield Boothe’s ability to make full answer and defence that it overtakes society’s interest in a joint trial.

Defence counsel chose to pursue a tactic that is not rooted in the evidence. Perhaps he received bad information from his client. It appears that may have happened once before in relation to cross-examination of Shakeil’s biological mother, Kenesha McCree, in relation to whether there was a visa in Shakeil’s Jamaican passport that would permit Garfield to take Shakeil to visit his mother in the United States.

Whatever the source of the tactical decision, it has led by unknown means, to the production of photographs that tend to support one aspect of Felicia Chambers’ evidence about which she was attacked. No disclosure obligation has been violated.

Based on my assessment of the overall situation, I do not see the fundamental fairness of the trial being upset at this point. That could change depending upon a number of factors as the trial proceeds. I conclude severance is unwarranted at this time on the record as it now stands.

In reaching this conclusion, I understand that Mr. Rosen is concerned that his credibility with the jury may have been damaged. The jury will receive an explanation that makes it clear that the existence of these photographs was unknown to any counsel until they were produced mysteriously to Mr. Ross. I will do what I can to ensure that this is perfectly clear to the jury.

In reaching my decision I have taken into account a host of cases that were provided by counsel. As the trial is proceeding time is relatively short and it is impossible for me to make reference to all of the instructive portions of the cases I have drawn guidance from. Counsel made fulsome presentations operating under difficult time constraints in response to an unanticipated issue.

I do wish to note that there has been no impropriety in this case of the sort that arose in R. v. Pollock (2004), 187 C.C.C. (3d) 213 (C.A.). I also wish to indicate that I have taken into account the principles applicable to a Crown application to reopen a case or recall witnesses at what has been referred to as “the first stage” of a trial: see R. v. S.G.G., [1997] 2 S.C.R. 716. In her dissent in that case McLachlin J. (as she then was) provided many helpful comments about relevant factors to be taken into account. I observe that her dissent was in relation to the majority’s decision that prejudice can be presumed when the Crown seeks to reopen at the third stage of a trial where the defence is already underway. That is not the situation I am confronted with here.

The application for severance is dismissed without prejudice to renew it should circumstances change as the trial progresses.