SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-14-30000824

DATE: 20151109

RE: Regina v. Ramon Williams and Ad-Ham Khamis

BEFORE: E.M. Morgan J.

COUNSEL: Thomas Pittman, for the Crown

Sam Goldstein and Loui Dallas, for Ramon Williams

Royland Moriah, for Ad-Ham Khamis

HEARD: October 27-28, 2015

PRE-TRIAL APPLICATION UNDER SECTION 715(1) OF THE CRIMINAL CODE AND

PRINCIPLED EXCEPTION TO THE HEARSAY RULE

I. Background to the Application

[1] The Defendants are charged with the attempted murder of Daniel Fuller. Mr. Fuller was shot five times in the head and neck while sitting in his car. He managed to survive, although apparently with nerve damage resulting in hearing, vocal, mobility, and cognitive issues.

[2] Mr. Fuller appears to be the one and only person who can identify the shooter or shooters. He has been subpoenaed by the Crown as a key witness for trial.

[3] Unfortunately, Mr. Fuller is missing in action.

[4] On Tuesday, October 13, 2015, the day set for the opening of trial, counsel for the Crown advised me that Mr. Fuller was not in attendance in court, and requested an adjournment for two days in order to give the police a chance to locate him. I granted that adjournment, but Mr. Fuller could not be found.

[5] When the matter returned to court on Thursday, October 15, 2015, counsel for the Crown asked for another adjournment, this time for a week. The officer in charge of the investigation, Detective Jeff Allington, took the witness stand and testified that the police had information that Mr. Fuller was planning to attend at his young son’s sporting event the following Wednesday, October 21, 2015. Detective Allington was optimistic that Mr. Fuller could be apprehended at the sporting event, as he is apparently quite dedicated to his son; otherwise, Detective Allington suggested that Mr. Fuller may be in British Columbia, where he has family, or he may have gone abroad.

[6] I granted an adjournment of the trial until the following Friday, October 23, 2015. In addition, at the request of the Crown, I issued a material witness warrant for Mr. Fuller.

[7] Mr. Fuller failed to appear at the anticipated sporting event on October 21st, and cannot now be located. The Crown has produced no further evidence of his suspected whereabouts. Counsel for the Crown in his submissions, along with Detective Allington in his testimony, have made it clear that Mr. Fuller is a drug dealer with a long criminal record, and that he exhibits all of the unreliability and instability that that lifestyle implies. Accordingly, I have been forced to conclude that there is no reasonable prospect that Mr. Fuller can be found.

[8] Counsel for both Defendants point out that their clients have been in custody for over two years waiting for trial to begin. While one previous adjournment of the trial in February 2015 was at the request of defense counsel, this is nevertheless a very long time for the Defendants to remain in pre-trial custody.

[9] The matter returned to court on Friday, October 23, 2015, but for scheduling reasons was put over to Monday, October 26, 2015. At that time, Crown counsel requested a further adjournment to an unspecified date, or an adjournment to practice court to set a new trial date further down the road – presumably months from now, since the case would then return to the court’s Criminal Trial Office and would be put back into the queue. I declined to grant the adjournment, given that there was no reasonable prospect that the Crown’s lead witness, Mr. Fuller, would turn up. The one and only lead on his whereabouts that Det. Allington had mentioned in his testimony – the sporting event – had not panned out.

[10] Effectively, this required counsel for the Crown to either stay the matter or prepare to start the trial. Crown counsel advised that there are some 26 witnesses that he intends to call, and that the matter has been scheduled as a three week jury trial.

[11] Defense counsel submit that Mr. Fuller is so crucial that, if his evidence is not available, the Crown has no case on which to proceed to trial. They argue that none of the other witnesses for the Crown amount to anything in the absence of the one witness who can identify the shooters. Counsel on behalf of both Defendants submit that no amount of ex post facto forensic evidence, or photographs of the crime scene, or witnesses who came upon the scene subsequent to the shooting, or medical evidence relating to Mr. Fuller’s injuries, etc., can make up for a failure to actually identify the person or persons who are alleged to have committed the crime.

[12] The Crown has chosen to proceed to trial. Crown counsel is not prepared to concede that the case rises or falls on the availability of Mr. Fuller.

[13] In any case, counsel for the Crown indicated that one option available to him is to apply under s. 715(1) of the Criminal Code, and/or under the principled exception to the hearsay rule, for Mr. Fuller’s evidence at the preliminary inquiry to be read into the trial record. Mr. Fuller attended at the preliminary inquiry before Bloomenfeld J. of the Ontario Court of Justice in February 2014. He gave evidence over the course of five hearing days. A multi-volume transcript of Mr. Fuller’s testimony at the preliminary inquiry has been made available for this proceeding.

[14] Given the centrality of Mr. Fuller’s evidence, I directed Crown counsel to bring this request as a pre-trial application. The question of whether or not Mr. Fuller’s evidence will be available to the jury will so directly impact on the trial that it is imperative for the sake of judicial economy, for the proper functioning of the trial courts, and for fairness to the Defendants in understanding the nature of the case against them, to determine the question of admissibility prior to launching into the trial proper.

[15] At this pre-trial stage, I am not seized of the trial. The Defendants have not been arraigned and a jury has not been selected. Counsel for the Crown and for both Defendants have consented to be bound by my ruling in respect of Mr. Fuller’s evidence, regardless of whether I end up being the trial judge or another judge is assigned to the trial.

II. Underlying facts

[16] Although the facts of the case have not yet been established at a trial, the allegations on which the prosecution is premised can be summarized rather briefly.

[17] The Crown alleges that Daniel Fuller is a drug dealer, who was shot during the course of selling illegal drugs to the two Defendants. The shooting took place in Mr. Fuller’s parked car (or, more accurately, in a car registered to Mr. Fuller’s father), while Mr. Fuller sat in the driver’s seat and the shooter sat in the rear seat directly behind him. Mr. Fuller, bleeding from the head and neck, crawled out of the car and staggered to a nearby house, where he knocked on the door and pleaded with the homeowner – a stranger to him – for help. The homeowner acted as a good Samaritan and drove him to the hospital.

[18] Shell casings were found in the back seat of the car, and a firearm was eventually found immersed in water at the bottom of a nearby recycle bin. However, there is no ballistic or other forensic evidence that links the shooting to the Defendants (or, for that matter, to anyone else). Plastic baggies containing cocaine were found strewn in and around the car following the shooting. The shooter or shooters vanished immediately and were apparently seen by no one else.

[19] Although he is the victim of the attempted murder, Mr. Fuller was himself charged with drug trafficking as a result of the police investigation. That case has not yet proceeded to trial.

[20] At the time of the shooting, Mr. Fuller was in possession of a Blackberry. Evidence retrieved from this device indicates that a person named “Angel” is among his contacts, and that Angel was the last person with whom Mr. Fuller texted before the shooting. It is the Crown’s theory that Angel is a nickname for the Defendant, Ramon Williams.

[21] In a development not specifically related to the present case, during the summer of 2012 an investigation under Part VI of the Criminal Code was authorized by this court in the wake of a number of shootings in Scarborough. During the course of that investigation, the police targeted certain telephones for wiretapping and collected a number of intercepted telephone conversations. Certain of these conversations involved Daniel Fuller. Just prior to expiry of the Part VI authorization, in early September 2012, the police held a press conference in which it was announced that Ramon Williams had been arrested in connection with the shooting of Mr. Fuller.

[22] This announcement resulted in a number of further intercepted phone calls, in which various persons appear to be advising Mr. Fuller of Mr. Williams’ arrest. The calls also appear to make mention of a person named “Menace” as having accompanied Angel in the shooting of Mr. Fuller. The Crown contends that Menace is a nickname for the Defendant, Ad-Ham Khamis. The persons in the intercepted phone calls describe Menace as having recently been shot in the leg. It is the Crown’s view that these intercepted calls confirm that the nicknames Angel and Menace relate to Mr. Williams and Mr. Khamis, respectively.

[23] As indicated, Mr. Fuller appeared as a witness at the preliminary inquiry in the Ontario Court of Justice. He began his testimony on February 7, 2014, and continued testifying on February 18, 19, 20, and 25, 2014. It is an understatement to say that he was not a helpful witness. He testified that he had memory loss due to his injuries, and that he does not recall who shot him.

[24] Part way through the first day of Mr. Fuller’s testimony, the Crown brought an application before the preliminary inquiry judge to have him declared a hostile witness at common law. After hearing viva voce evidence from Mr. Fuller and argument by all counsel on the application, Bloomenfeld J. granted the declaration sought by the Crown and permitted Crown counsel to cross-examine his own witness at large. The balance of Mr. Fuller’s testimony proceeded by way of cross-examination, first by counsel for the Crown and then by counsel for each Defendant.

III. Section 715 and the principled exception to the hearsay rule

[25] The Crown seeks to have evidence given in one proceeding – the preliminary inquiry – admitted in another – the trial. There are two sources of authority that permit a party to proceed in this way: section 715(1) of the Criminal Code, and the common law’s principled exception to the hearsay rule: R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, at paras. 57, 60.

[26] Section 715(1) provides, in its material part:

715(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence,…

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[27] The testimony provided by Mr. Fuller at the preliminary inquiry qualifies in a formal sense with the requirements of section 715(1). Evasion of service in order to avoid testifying at trial constitutes a refusal to testify within the meaning of the section: R v Brown, [1997] OJ No. 380 (Ont CA). Prima facie, Mr. Fuller’s prior evidence falls within the terms of the section authorizing its admission.

[28] Admissibility of the prior testimony, however, is not mandatory, even where the terms of section 715(1) are met – at least on their face. As Watt J.A. pointed out in R v Saleh, 2013 ONCA 742, at para 73, “[t]he language in s. 715(1) of the Criminal Code is discretionary: evidence given at the preliminary inquiry that satisfies the requirements of the subsection ‘may be admitted as evidence’ at trial’” [emphasis added]. Regardless of whether the other more formal criteria of the section have been satisfied, the judge hearing the application is given the discretion not to admit testimony given at the preliminary inquiry where its admission would operate unfairly to the accused: R v Potvin, 1989 130 (SCC), [1989] 1 SCR 525, at 547-548.

[29] This discretion is a wide one, allowing a judge to avoid a strictly mechanical application of section 715(1). As Wilson J. explained it in Potvin, at 555, “[t]he discretion should be construed broadly enough to deal with situations where the testimony was obtained in a manner which was unfair to the accused or where, even though the manner of obtaining the evidence was fair to the accused, its admission at his trial would not be fair to the accused.” Indeed, this ability to exclude evidence that otherwise seems to fit the section 715(1) criteria, amounts to “discretion broader than the traditional evidentiary principle that evidence should be excluded if its prejudicial effect exceeds its probative value”: Ibid.

[30] The exclusionary discretion in section 715(1) is directed at two circumstances:

…namely where the testimony was obtained in a manner which was unfair to the accused or where, even although the manner of obtaining the evidence was fair to the accused, its admission at his or her trial would not be fair to the accused. I would stress that in both situations the discretion should only be exercised after weighing what I have referred to as the ‘two competing and frequently conflicting concerns’ of fair treatment of the accused and society’s interest in the admission of probative evidence in order to get at the truth of the matter in issue: see Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383, at pp. 392-93.

Potvin, at 555.

[31] The primary focus, therefore, must be on the protection of the Defendants from unfairness; even where the evidence is probative, the key ingredient in the exercise of discretion conferred by section 715(1) is the fairness of the adjudicative process: Saleh, at para 75.

[32] Needless to say, “the discretion to prevent unfairness is not a blanket authority to undermine the object of s. [715(1)] by excluding evidence of previous testimony as a matter of course”: Potvin, at 547-48. Nevertheless, “it is critical to remember that a fair trial is a trial that appears fair, both from the perspective of the accused and from the perspective of the community”: Saleh, at para 81. To use the Supreme Court of Canada’s words in R v Harrer, 1995 70 (SCC), [1995] 3 SCR 562, at para 45, “[a] fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.”

[33] Furthermore, the Court of Appeal has made it clear that the principled approach to the hearsay rule has a place in the interpretation and application of section 715(1): R. v. Li (2012), 2012 ONCA 291, 110 OR (3d) 321, at para. 50. Watt J.A. observed in Saleh, at para 80, that “no principled reason would assign compliance with s. 715(1) a place of predominance over any other admissibility rule”. This includes instances where, for example, the prejudicial effect of the evidence exceeds its probative value, or where the effect of the evidence on the trier of fact would be out of proportion to its reliability: R v Hawkins, 1996 154 (SCC), [1996] 3 SCR 1043, at para 85. Weighing the necessity of the evidence against its reliability is therefore part and parcel of the overall admissibility exercise.

[34] One obvious factor that must be considered here is the critically important nature of Mr. Fuller’s evidence. “The potentially high probative value of [the] prior testimony [does] not argue in favour of its exclusion. Quite the contrary, it was a factor that militate[s] strongly in favour of its admission as evidence”: R v Michaud (2000), 2000 14347 (NB CA), 144 CCC (3d) 62, at para 26 (NBCA).

[35] That said, I am first and foremost required to consider the effect that the admission of this evidence would have on the fairness of the Defendants’ trial: Potvin, at 552. This entails weighing fair treatment of the Defendants against the societal interest in having probative evidence to discern the truth of the allegations. The primary focus is “the protection of the accused from unfairness, not the admission of probative evidence without too much regard for the fairness of the adjudicative process”: Saleh, at para 88, citing Potvin, at 553.

[36] In assessing the question of adjudicative fairness, it is important to consider the credibility of Mr. Fuller as the witness whose evidence is tendered for admission. Most critically, “the jury…will have no opportunity to observe [the witness’] demeanor as an aid in assessing that witness’ credibility”: R. v. Tourangeau (1994), 1994 4684 (SK CA), 128 Sask R 101, at para 18 (Sask CA). Accordingly, “in exercising…discretion under s. 715, it [is] open to the trial judge to take into account that [the witness’] credibility would be critical at trial”: R. v. Castanheira, [1996] OJ No 3006, at para 2 (Ont CA).

[37] I must therefore turn my mind to the unusual situation here where the Crown has impugned the credibility of its own proposed witness.

IV. Hostile witness

[38] The Crown is not in a position to say that Mr. Fuller was a reliable and credible witness. He was anything but that. The Crown was successful in having Mr. Fuller declared a hostile witness, which required it to show more than that Mr. Fuller was opposed in interest to the Crown; it required a conclusive demonstration that Mr. Fuller is a witness “who does not give his evidence fairly and with a desire to tell the truth”: R v Coffin, 1956 94 (SCC), [1956] SCR 191, at para 64.

[39] Bloomenfeld J. made this finding, based on the Crown’s submissions and her assessment of Mr. Fuller’s testimony, after a voir dire held during the preliminary inquiry. She stated at pp. 114-5 of her reasons for decision dated February 20, 2014:

Thus I must be satisfied that Daniel Fuller is more than simply opposed in interest to the Crown. The evidence must persuade me that his attitude towards the prosecution is actually hostile or antagonistic, resulting in a clear unwillingness to give his evidence fairly with the desire to tell the truth… In this case there was ample support for finding that Mr. Fuller falls within the common-law definition of hostile witness.

[40] Any assessment of Mr. Fuller’s evidence, therefore, has as its starting point the fact that he is a liar. The Crown, whose witness he is, and the preliminary inquiry judge, before whom he gave the evidence which the Crown proposes to read into the trial record, have both said so. This presents a paradox for anyone who wants to rely on his evidence.

[41] Counsel for the Crown compares this case to R v Jones-Solomon, 2015 ONCA 654 in that, like there, the Crown had an uncooperative witness who testified at a prior stage of the proceeding. However, the two cases are not exactly alike. In Jones-Solomon, at paras 58-59, the Court of Appeal noted that there was some prior evidence given by the uncooperative witness that “tends to undermine her credibility and other evidence that may enhance her credibility”. That mixture allowed the court to admit the prior testimony, since its “task on the principled approach to hearsay is not to usurp the function of the jury.”

[42] By contrast, in the present case the Crown seeks to introduce Mr. Fuller’s prior testimony for the very purpose of showing him to be unreliable and his testimony to be untrue. The agreement of all parties that Mr. Fuller lacks credibility raises the question of whether his evidence can ever be put fairly before a jury who will not have the opportunity to see him testify before them.

[43] By definition, the Crown cannot demonstrate that the test for reliability as set out in R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787, at para 93, has been met. The preliminary inquiry judge found that not only did Mr. Fuller lie, but “he continually telegraphed his disinterest in taking the proceedings seriously:” Bloomenfeld J., February 20, 2014, at pp. 117-118.

[44] Mr. Fuller may be such an unreliable witness that one cannot even rely on him being unreliable in exactly the same way each time he speaks. For the very reasons that the Crown says Mr. Fuller cannot necessarily be believed when he says under oath that he does not know who shot him, Mr. Fuller cannot necessarily be believed when he speaks to a friend in an intercepted telephone conversation, or when he tells that friend that he does know who shot him.

V. Demeanor and hearsay

[45] It is important to note the reasons that Bloomenfeld J. gave for finding Mr. Fuller to be hostile on the voir dire. She indicated at p. 122 of the transcript containi