CITATION: R. v. Hall 2015 ONSC 3483
COURT FILE NO.: 4052/13
DATE: 2015/05/29
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 15 & 19, 2015
THE HONOURABLE JUSTICE J. R. HENDERSON
RULING REGARDING S.715(1)
[1] The Crown brings this application under s.715(1) of the Criminal Code of Canada to admit into evidence at this trial, without further proof, the testimony given at the preliminary hearing by a Crown witness, Steve Coelho (“Coelho”).
[2] Jeremy Hall (“Hall”) is charged with the second degree murder of Kelvin Sawa (“Sawa”). The incident that gives rise to the charge occurred while Hall, Sawa, and Coelho were all inmates who were incarcerated on 2-Wing at the Niagara Detention Centre (“NDC”). It is the Crown’s theory that Hall directed other inmates on 2-Wing to harass, assault, and/or threaten Sawa to the point where Sawa hanged himself with a noose in his cell.
[3] In support of this application the Crown relies upon s.715(1)(d) which permits this court to admit at trial evidence that was given by a witness at the preliminary hearing if that witness “is absent from Canada”.
[4] Defence counsel accepts that Coelho gave evidence at the preliminary hearing and that the preliminary hearing was held in the presence of the accused. Defence counsel contests the Crown’s application on two grounds:
That the Crown is unable to prove the statutory requirements of s. 715(1) as the Crown is unable to prove that Coelho is absent from Canada; and
That even if this court finds that the Crown has proved the statutory requirements of the section, this court should exercise its discretion to not admit Coelho’s testimony at the preliminary hearing as it would operate unfairly to the accused.
Is Coelho Absent from Canada?
[5] I accept that the onus is on the Crown in this application to prove on a balance of probabilities that there are facts “from which it can be inferred reasonably that the person … is absent from Canada”.
[6] On this application I heard the evidence of Sgt. Dan Savoie, the officer who was in charge of communicating with the Crown’s witnesses and preparing those witnesses for trial.
[7] Defence counsel takes the position that the evidence of Sgt. Savoie as to the whereabouts of Coelho is hearsay evidence; that the hearsay evidence comes primarily from an unreliable source, namely Coelho; and that this court should not rely upon this evidence. Accordingly, defence counsel submits that the Crown is unable to prove this statutory requirement of the section.
[8] In my view Sgt. Savoie properly started to assemble the Crown’s witnesses for trial in a timely manner. Specifically, he arranged for the service of subpoenas on the Crown’s witnesses early in March 2015.
[9] The subpoena for Coelho was served at Coelho’s address in Toronto, Ontario. I note that Coelho had previously successfully been served at this same address with a subpoena to attend at the preliminary hearing. On March 2, 2015 the process server served Coelho’s subpoena on Coelho’s father who lives at the same address.
[10] On the next day, March 3, 2015, Coelho telephoned the Niagara Regional Police station and spoke with another police officer. He left a message with that officer that he was in the U.S.A., and he gave that officer a cell phone number to pass along to Sgt. Savoie. He also told that officer that he would be returning to Toronto by the end of the month.
[11] Thereafter, Sgt. Savoie had several telephone conversations with Coelho, with Coelho’s mother in Toronto, and with Coelho’s girlfriend. I note that it was later determined that the cell phone number initially provided by Coelho was in fact the cell phone number of his girlfriend, and that both Coelho and his girlfriend told Sgt. Savoie that both Coelho and his girlfriend were in the U.S.A.
[12] In each telephone conversation Sgt. Savoie received information that Coelho continued to be in the U.S.A., not Canada. There was never any suggestion in any conversation with Sgt. Savoie that Coelho was in Canada, although there were certainly suggestions that Coelho would be returning to Canada.
[13] Although all of the evidence as to Coelho’s whereabouts is hearsay evidence, I find that absence from Canada can only realistically be proved by hearsay evidence. Inevitably, the court must consider hearsay evidence for the purpose of determining whether a witness is not present.
[14] The question then becomes whether there are enough badges of trustworthiness that would permit this court to rely on the hearsay evidence. In this case, defence counsel correctly points out that Coelho is not necessarily a trustworthy character. Moreover, the story about when he would be returning to Canada kept changing. That being said, there is a certain consistency in all of the information given to Sgt. Savoie that Coelho was, and remains, out of Canada. That information came, not just from Coelho, but from his girlfriend, and his mother.
[15] Therefore, based on Sgt. Savoie’s testimony, I find that on a balance of probabilities there is sufficient evidence from which this court can reasonably infer that Coelho is absent from Canada. Therefore, I find that the Crown has proved the statutory requirements of s.715(1)(d).
Should the Court Exercise its Discretion to Exclude the Evidence?
[16] Section 715(1) states that evidence given at the preliminary hearing that satisfies the requirements of that section “may be admitted” as evidence at the trial. Thus, the trial judge has a discretion regarding the admissibility of that evidence. In that respect, I rely upon the decisions in R. v. Potvin, 1989 (SCC), [1989] 1 S.C.R. 525 and R. v. Saleh, 2013 ONCA 742. Both decisions provide some guidelines for the use of this discretion.
[17] In the Potvin case Wilson J. wrote at para. 34:
“… In my view there are two main types of mischief at which the discretion might be aimed. First, the discretion could be aimed at situations in which there has been unfairness in the manner in which the evidence was obtained…”
And at para. 35:
“A different concern at which the discretion might have been aimed is the effect of the admission of the previously taken evidence on the fairness of the trial itself. This concern flows from the principle of the law of evidence that evidence may be excluded if it is highly prejudicial to the accused and of only modest probative value: see Noor Mohamed v. The King, 1949 (UK JCPC), [1949] A.C. 182 (P.C.), at p. 192; R. v. Wray, supra, at p. 295: Morris v. The Queen, 1983 (SCC), [1983] 2 S.C.R. 190, at p. 201…”
And at para. 37:
“… 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.”
[18] In the Saleh case Watt J. wrote at para. 77:
“Among the relevant factors a trial judge might consider in deciding whether to exclude preliminary inquiry evidence that would otherwise qualify for admission under s.715(1) is the crucial nature of the evidence itself: Michaud, at para. 26. Equally relevant is the crucial nature of the credibility of the witness whose evidence is tendered for admission: R. v. Tourangeau (1994), 1994 (SK CA), 128 Sask. R. 101 (C.A.), at para. 18; and R. v. Castanheira, [1996] O.J. No. 3006 (C.A.), at para. 2.)”
[19] I accept that there is always some prejudice to an accused if the transcript of a Crown witness’s testimony at a preliminary hearing is admitted as evidence at the trial. That is, I am aware that even though the witness may have been cross-examined at the preliminary hearing, cross-examination at the preliminary hearing is usually not for the same purpose as cross-examination at a trial.
[20] Moreover, the evidence against the accused may change as time passes between the preliminary hearing and the trial, and the essential facts of the case often change over that period of time. Thus, I accept that cross-examination at trial is often very different than cross-examination at the preliminary hearing.
[21] This inherent prejudice against the accused is usually remedied by a warning from the trial judge to the jury that the jury should be cautious about accepting the testimony of a witness that is read in from a transcript of the preliminary hearing where that witness is not produced for cross-examination at trial.
[22] That being said, in my view, the prejudice to Hall in this case goes far beyond the usual case. In the present case the effectiveness of the cross-examination of the inmate witnesses is critical to the accused’s defence of the charge against him, and the degree to which the Crown witnesses withstand the cross-examination is critical to the success of the prosecution of this case.
[23] The Crown’s case against Hall was based upon an incident that occurred at 2-Wing between approximately 1:00 p.m. and 2:15 p.m. on August 15, 2011. During the course of this incident Hall was rarely on the 2-Wing range in Sawa’s presence. Therefore, the Crown’s case against Hall rests upon the testimony of the other inmates who were on the range, including Coelho.
[24] Fortunately, the events that occurred on the 2-Wing range were captured by a video surveillance camera. The video recording from that camera has been filed as an exhibit at this trial, and has been used extensively at this trial.
[25] Coelho and four other inmates on the 2-Wing range testified at the preliminary hearing. At this trial, those four inmates have all testified in person. Further, Cale Rose (“Rose”), a former co-accused in this case, and an inmate on the 2-Wing range, has also testified. Rose, of course, did not testify at the preliminary hearing, but Rose gave a video recorded statement to a police officer approximately six weeks before attending to testify at the trial.
[26] In the case of each of these five inmate witnesses, defence counsel cross-examined the inmate at this trial by referring to portions of the surveillance video recording. In each case defence counsel had considerable success proving contradictions between the inmate’s testimony at trial and the events recorded on the video recording. Some of those contradictions were minor, but others were very significant.
[27] Coelho is in the same position as the other inmates who have testified in person. That is, he has given evidence that was recorded previously in this proceeding, but he has not viewed the surveillance video recording, and he has never been cross-examined on the surveillance video recording.
[28] Counsel for the Crown has submitted that the accused had the opportunity to cross-examine Coelho on the video recording at the preliminary hearing, but for tactical reasons chose not to do so. Section 715(1) specifically states that the evidence may be admitted “unless the accused did not have full opportunity to cross-examine the witness”. The Crown submits that the accused did have the opportunity, but chose not to take it.
[29] In my view, this court must accept that the purpose of a preliminary hearing is different than the purpose of a trial. Cross-examination at a preliminary hearing is often done primarily for the purpose of obtaining full disclosure, as opposed to the purpose of discrediting the witness. It would be unusual for a defence counsel to mount a full out attack on the credibility of a Crown witness at the preliminary hearing. Rather, if credibility is an issue, defence counsel at the preliminary hearing would likely try to obtain the witness’s full and complete testimony for the purpose of comparing it to other evidence so that credibility could be challenged in full at a later date.
[30] The tactic of defence counsel in this case was to not cross-examine any of the inmates at the preliminary hearing on the surveillance video recording. Rather, defence counsel chose to cross-examine those inmates on the video recording at trial, with considerable success. To permit Coelho’s evidence to bolster the Crown’s case without putting Coelho through the same credibility test, solely because Coelho has left Canada, seems plainly unfair to the accused.
[31] Also, I have taken into account the fact that there are inconsistencies in Coelho’s evidence, both internally and externally when compared to other evidence.
[32] For example, at the preliminary hearing Coelho testified that he heard Sawa’s last words before he succumbed, although he changed his evidence during the course of the preliminary hearing. This is contradicted by Coelho’s statement given to police officers a few days after the incident in which Coelho said that he did not hear what Sawa said. Furthermore, at this trial this court heard Adam O’Leary (“O’Leary”) testify that he was the only person inside the cell with Sawa, and O’Leary heard Sawa’s last words. This may mean that Coelho’s evidence with respect to Sawa’s last words is in fact hearsay evidence.
[33] Also, at the preliminary hearing Coelho testified that Hall was in the day room when Sawa went into his cell, and that Coelho directed Sawa into his cell. This is an impossibility. The video recording shows that Hall was on the range, and standing in front of Sawa, when Hall motioned Sawa to go into his cell. As a result, the video recording shows that Sawa got up from the table and walked, followed by Hall, into his cell.
[34] Further, it appears from the video recording that Coelho put his arm out of cell no. 10 and dangled something white in front of Sawa. At the preliminary hearing Coelho denied that he had ever dangled anything out of cell no. 10.
[35] Still further, at the preliminary hearing Coelho testified that he was not in the day room when the rope was given to Rose, but the evidence of the video recording tends to show that Coelho was in the day room at the relevant time.
[36] There were other inconsistencies, but the aforementioned inconsistencies are the most significant ones. In my view Coelho’s reaction and demeanour when he is confronted in cross-examination with these inconsistencies could be extremely important in the jury’s assessment of his credibility.
[37] In addition, there is some evidence inconsistent with Coelho’s testimony at the preliminary hearing that has only been recently obtained. Therefore, defence counsel has never had an opportunity to cross-examine Coelho on this new evidence.
[38] For example, Rose testified that Coelho was in the day room when the rope was given to Rose, and that evidence only became available after Rose gave a videotaped statement to police officers approximately six weeks ago.
[39] Along the same lines, in Rose’s recent statement to police Rose said that Coelho participated in harassing Sawa by grabbing Sawa through the bars of the cell and attempting to bang Sawa’s head against the bars. At the preliminary hearing Coelho denied any such participation in harassing Sawa.
[40] Still further, O’Leary testified at this trial and stated that Coelho was very much involved in harassing Sawa. He said that Coelho told O’Leary to beat up Sawa once he was inside the cell, and if O’Leary did so then Coelho would ensure that O’Leary could have the top bunk in the cell instead of sleeping on the floor.
[41] In my view, to allow the jury to hear Coelho’s testimony at the preliminary hearing, yet never let the jury hear Coelho’s reaction to these new pieces of evidence would undermine the jury’s ability to assess his credibility.
[42] Moreover, Coelho is a person who could possibly have been charged with a criminal offence given his apparent involvement in the harassment of Sawa. Coelho’s statement to a police officer that was given a few days after this incident is completely exculpatory. He paints himself as a good person who was attempting to help Sawa while Sawa was being tormented by others. However, as the evidence has unfolded since that time, it appears that Coelho was in the thick of the harassment of Sawa.
[43] For example, the video recording shows Coelho is often present on the range and is often seen at Sawa’s cell door. Further, he is often seen in conversation with Rose, the former co-accused who has pleaded guilty to manslaughter for his involvement in this matter.
[44] More specifically, Rose testified in court that Coelho reached into the cell, grabbed Sawa, and attempted to bang Sawa’s head against the bars of the cell. In the video recording Coelho can be seen with his arms through the meal hatch of Sawa’s cell, reaching into the cell. O’Leary testified at the trial that it was Coelho who told him to punch and kick Sawa. If he did so, Coelho promised to reward him with the top bunk of the cell.
[45] Regarding the delivery of the noose to Sawa’s cell, in the video recording Rose can be seen delivering a noose into cell no. 10, and within seconds thereafter Rose and Coelho are seen together, apparently joking, with Coelho making a choking gesture with his hands.
[46] Further, there was evidence at the trial from O’Leary that Coelho had threatened Sawa while Coelho was still in the cell and Sawa was on the range. O’Leary testified that Coelho said, “When the cells crack I’m going to crack you”.
[47] Therefore, there is significant evidence that Coelho was one of the inmates who was harassing Sawa, despite Coelho’s statement to the contrary. I accept the submission that Coelho has motivation to deflect blame away from himself and onto both Rose and Hall. How that apparent motivation affects Coelho’s testimony should be tested by live cross-examination before the jury.
[48] In the Saleh case, the unavailable witness was Yegin who had testified at the preliminary hearing, but was not available to testify at the trial. The trial judge permitted Yegin’s testimony from the preliminary hearing to be read in at the trial under s.715(1). On appeal, the matter was sent back for a new trial because the court held that the trial judge had erred by admitting this evidence.
[49] At para. 91 Watt J. wrote,
“The evidence at issue came from a witness who was present at the shooting. He was charged with the same murder as the appellant. He had a substantial motive to assign blame to others; in particular, to the appellant … yet the jury never saw this witness (as a result of his own conduct), or viewed his cross-examination.”
[50] In my view in the present case Coelho is in much the same position as Yegin was in the Saleh case. Coelho has the motivation to assign blame to others in order to exculpate himself.
[51] Defence counsel also submitted that I should find that the Crown and/or the police officers in charge of assembling the witnesses could have been more diligent in their efforts to ensure that Coelho was made available to testify. It was suggested that the police officer in particular could have been more forceful with Coelho about returning to Canada, and that the officer should have considered the possibility of a video link. In my view, in these circumstances the Crown and the police officers did as much as could be expected. They were convinced that Coelho intended to return to Canada to testify until very recently, and when it was discovered that Coelho would not be returning, there was little that they could do about it.
[52] In summary, I find that Coelho’s evidence is important to both the Crown and the defence; that Coelho’s testimony at the preliminary is somewhat fragile because of both internal and external inconsistencies; and that Coelho has definite motivation to blame others for the death of Sawa. Still further, Coelho has never been cross-examined on the video surveillance recording, and has never been cross-examined with respect to new evidence that has arisen since the preliminary hearing was held. In my view to deprive Hall of the opportunity to cross-examine Coelho in light of all these factors would be extremely prejudicial to Hall.
[53] Finally, I have considered the probative value of Coelho’s evidence. I accept that Coelho is a significant witness for the Crown, but I do not accept that the Crown has no case without Coelho’s testimony.
[54] As I indicated earlier, the Crown’s case depends upon the evidence as to what occurred on the 2-Wing range in a 75-minute period. Coelho is but one of six inmate witnesses who have provided evidence in this regard. Coelho may have a certain perspective on what occurred on the range, but the Crown also has five other inmate witnesses who have their own perspectives.
[55] In my view the prejudicial effect of admitting Coelho’s testimony from the preliminary hearing into evidence far outweighs its probative value. The application under s.715(1) is dismissed.
Henderson, J.
Released: May 29, 2015
CITATION: R. v. Hall 2015 ONSC 3483
COURT FILE NO.: 4052/13
DATE: 2015/05/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Applicant
– and –
Jeremy Hall
Accused/Respondent
RULING REGARDING S.715(1)
Henderson, J.
Released: May 29, 2015