R. v. Hall 2015 ONSC 3452
COURT FILE NO.: 4052/13
DATE: May 29, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Applicant
– and –
Jeremy Hall
Accused/Respondent
Graeme Leach and Andrew Brown, for the Applicant
Dirk Derstine and
Stephanie DiGiuseppe, for the Accused/Respondent
HEARD: May 14, 2015
THE HONOURABLE JUSTICE J. R. HENDERSON
DECISION REGARDING S.9(2)
[1] This my decision on the Crown’s application pursuant to s.9(2) of the Canada Evidence Act, R.S.C. 1985, c C-5, to cross-examine a Crown witness, Cale Rose (“Rose”), on a videotaped statement that Rose provided to a police officer on March 19, 2015.
[2] By way of background I note that Jeremy Hall (“Hall”) and Rose were co-accused in the alleged second degree murder of Kelvin Sawa (“Sawa”). The incident that gives rise to the charge occurred on August 15, 2011 while Rose, Hall and Sawa were all inmates at the 2-Wing maximum security area at the Niagara Detention Centre (“NDC”).
[3] The charge against Rose was resolved by way of a plea agreement. As part of the plea agreement, Rose agreed to provide the Crown prosecutor with a videotaped statement that detailed Hall’s involvement in the incident, and Rose agreed to testify at this trial of the charge against Hall.
[4] Consequently, Rose provided the videotaped statement to Officer Magistrale on March 19, 2015. Before Rose provided this statement he was cautioned about the importance of telling the truth, and he swore an oath to tell the truth.
[5] Thereafter, Rose appeared on March 27, 2015 before a Superior Court Justice and entered a plea of guilty to the offence of manslaughter with respect to this incident. On that date in open court he confirmed under oath that the statement he had provided to Officer Magistrale was the truth.
[6] The second degree murder charge against Hall proceeded to trial commencing April 7, 2015. On May 13, 2015 Rose was called as a Crown witness at the trial, and was examined by the Crown prosecutor in direct examination. Prior to completing direct examination of Rose, the Crown prosecutor brought this application under s.9(2) of the Canada Evidence Act.
[7] Section 9(2) of the Canada Evidence Act reads as follows:
“Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.”
[8] I have already delivered an oral ruling wherein I found that part of Rose’s testimony in court was inconsistent with the videotaped statement given to Officer Magistrale. Further, there is no dispute that the statement was actually provided and recorded by way of a video recording. On a voir dire, Rose was questioned and cross-examined with respect to the circumstances surrounding his making the statement. Therefore, the first six steps for this type of application as set out in the case of R. v. Milgaard (1971), 1971 792 (SK CA), 2 C.C.C. (2d) 206, have been met.
[9] Counsel for the Crown and counsel for the accused now take opposing positions as to whether the Crown should be granted leave to cross-examine Rose on the inconsistent portion of the videotaped statement.
Analysis
[10] The test for granting leave to allow a lawyer to cross-examine his/her own witness pursuant to s.9(2) is summarized in the Ontario Court of Appeal decision in R. v. Carpenter (No.2) (1982), 1982 3308 (ON CA), 1 C.C.C. (3d) 149. At p. 155 of Carpenter (No.2) Grange J.A. wrote as follows:
… I do not, of course, mean that cross-examination should automatically have been permitted. The subsection is clearly permissive and the trial judge might well have refused permission in view of the circumstances of the taking of the statements and his opinion of its reliability. The test as put by Porter C.J.O. in Wawanessa Mutual Insurance Co. v. Hanes, 1961 28 (ON CA), [1961] O.R. 495 at p. 508 is whether “the ends of justice would be best attained by admitting it. The section does not contemplate the indiscriminate admission of statements of this kind”.
[11] Therefore, in my view I must consider the circumstances under which the videotaped statement was taken along with the reliability of the videotaped statement, and then determine whether “the ends of justice would be best attained by admitting it”.
[12] Counsel for the accused in this application raises a number of concerns about the reliability of the statement. The most compelling of those concerns relates to the voluntariness of the statement. It was submitted that Rose, as a co-accused in a murder proceeding, was under immense pressure to make a plea agreement with the Crown. Through counsel, Rose had been attempting to resolve the matter with the Crown for some time. Eventually, the Crown agreed to accept Rose’s plea to the lesser offence of manslaughter and agreed to a more lenient sentence than had previously been offered, on condition that Rose provide evidence of certain specific facts that would assist the Crown in its case against Hall. Under these circumstances defence counsel submits that the pressure on Rose to provide the evidence requested by the Crown affects the voluntariness, and thus the reliability, of the statement.
[13] Further, defence counsel also submits that if the videotaped statement is shown to Rose in the courtroom it is not likely that Rose would resile from what he said in the statement out of fear of possible repercussions. Rose has previously been informed that there would be negative sanctions if he were found to be untruthful with respect to the information he provided in the statement.
[14] Still further, defence counsel correctly submits that there is a logical error in the videotaped statement itself as what Rose appears to say in the statement with respect to the guards entering the range could not possibly have occurred in light of the surveillance recording that the court has already viewed.
[15] In my view all of these concerns can adequately be dealt with by cross-examination of Rose. That cross-examination, if the application were allowed, would first be conducted by the Crown prosecutor, and then by defence counsel. If there are questions about the reliability of the statement, the pressure Rose was under, Rose’s fear of sanctions, or the logistics of the statement, it is appropriate and acceptable for both sides to cross-examine Rose on those matters.
[16] In my view, the videotaped statement itself is a very reliable record of Rose’s evidence. It was provided in circumstances that suggest, prima facie, that Rose was well aware that it was important for him to be truthful. Specific arrangements were made through Rose’s lawyer for Rose to attend at the police station to provide the statement. Further, the video taping of the statement is an accurate method of recording Rose’s evidence.
[17] I accept that there was pressure on Rose to make a deal with the Crown. That pressure came primarily from the fact that Rose was charged with second degree murder and was facing a life sentence if convicted. The pressure of facing a stiff penalty is not pressure that would render a statement involuntary.
[18] Defence counsel did raise some other issues such as the fact that the videotaped statement was not contemporaneous with the event; the fact that the contradictions between Rose’s testimony in court and his videotaped statement were not stark; and the fact that Rose may choose not to adopt his videotaped statement. In my view those submissions are all accurate, but they are not concerns that would cause this court to deny leave to cross-examine him.
[19] Ultimately, I accept a statement made by Smith P.J. in the case of R. v. K.(R.J.), 2001 CarswellMan 215, which statement was adopted by the court in R. v. C.L.S., 2011 MBQB 12, 266 C.C.C. (3d) 360, as follows:
“When it is established that a witness made a prior inconsistent statement with the testimony given in court, particularly on matters related to the central issues relevant to the proceeding, it will usually be in the interests of justice to permit cross-examination under Section 9(2) … It is unsettling when a witness tells one account in court and then apparently another outside court. It raises obvious concerns and question about the veracity of the witness’ testimony. These concerns are best addressed by permitting cross-examination.”
[20] For all of these reasons I grant leave under s.9(2) of the Canada Evidence Act for the Crown prosecutor to cross-examine its own witness, Cale Rose, on a portion of his videotaped statement.
Henderson, J.
Released: May 29, 2015
R. v. Hall 2015 ONSC 3452
COURT FILE NO.: 4052/13
DATE: May 29, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Applicant
– and –
Jeremy Hall
Accused/Respondent
decision regarding s.9(2)
Henderson, J.
Released: May 29, 2015