BACKGROUND

The Offences

[1] The defendant, Dania Johnson, was arrested on September 24, 2013. She stands charged with robbery, accessory after the fact to a robbery, and accessory after the fact to a breaking and entering consequent to a home invasion which occurred on September 24. Ms. Johnson is alleged to have been involved as the driver of the getaway car.

[2] The facts of the home invasion are that three masked men were driven by Ms. Johnson and dropped off in the underground parking garage of an apartment building at 15 Oxford Dr., the home of Nicholas Lettern, a drug dealer, and his grandmother. The suspects kicked the apartment door open and entered. Mr. Lettern was not there at the time. One of the suspects muzzled the grandmother with his hand and cautioned her to be quiet. The grandmother sustained a minor injury in a scuffle with the suspect. The suspects entered Mr. Lettern’s bedroom, stole a quantity of cash and drugs and left the apartment.

[3] The three suspects got back into the car and Ms. Johnson drove a short distance to an address at 8 Speers Ave. In addition to Ms. Johnson and the three suspects, a woman named Shaneece Hansraj was also a passenger in the car. The three suspects were later determined to be Elijah Foy, known to Ms. Johnson as “Skirilla”, Benjamin Griffith and a young person. Mr. Foy pleaded guilty to robbery and Mr. Benjamin and the young person were found guilty at trial. Ms. Johnson is the last to be tried in relation to the robbery.

The Adjournment Request

[4] This case is two years old. The defence brings a motion for an adjournment of the trial scheduled as a 7 to 8-day jury trial to commence on November 9, 2015. On November 9, defence counsel requested a one-day adjournment to afford him time to review new and late disclosure received from the Crown in the days leading up to the trial. Defence counsel sought an opportunity to obtain instructions from his client to decide whether or not he would move to adjourn the trial to future dates.

[5] The defence initially intended to raise pre-trial challenges under sections 7, 8, 10(a) and 10(b) of the Charter. Ms. Johnson made a statement to the police late on September 24, early September 25, 2013 and the defence planned to challenge the voluntariness of that statement. On October 12, 2015, defence counsel advised the Crown he intended to abandon the Charter applications including the challenge to the voluntariness of Ms. Johnson’s statement. The court was not formally aware of the defence’s intention until advised at trial.

[6] This is the second adjournment of the trial. It was originally set to commence on November 24, 2014 before the Ontario Court of Justice. As Ms. Johnson was entitled to do, she re-elected about two weeks before trial to be tried before the Superior Court of Justice. The trial time was then converted to a preliminary inquiry requested by the Crown which occurred on November 24where only Ms. Hansraj was called to testify.

[7] It is the defence’s position that Ms. Johnson will be prejudiced by being denied the opportunity to a fair trial if an adjournment is not allowed. The defence submits the Crown made late and new disclosures of information critical to the defence’s trial strategy, information the defence asserts fundamentally changes the evidentiary landscape of the trial. The defence further argues the Crown’s failure in its disclosure obligations results in the defence lacking adequate time to adapt its trial strategy to the additional disclosure. The new and late disclosure, the defence argues, significantly impacts the defence’s trial strategy.

[8] The Crown takes the position that the disclosure at issue essentially comprises extensions of evidence and disclosure already in the hands of and known to the defence from earlier points in the pre-trial process, information easily susceptible to further investigation by the defence during the trial or is information the Crown is not obligated to disclose. As such, in the Crown’s view, the disclosure in question is not of such a nature as to change the evidentiary landscape such that an adjournment is necessary.

THE LAW

[9] Parties are not entitled as of right to an adjournment on the day scheduled for trial. An adjournment request made before the commencement of a trial must be brought by application under the rules: [section 606 (3), Criminal Code and Rule 26, Criminal Proceedings Rules of the Superior Court]. The decision whether to allow an adjournment is in the discretion of the trial judge and is very much driven by the circumstances of the particular case.

[10] The breadth of judicial discretion and the court’s obligation to balance competing interests in the exercise of that discretion has been the subject of common law comment. A trial judge has the authority to control the trial process which includes a wide discretion to grant or deny an adjournment: [R. v. Nichols, 2001 300 (QC CQ), 2001, at p. 300, (Ont. C.A.)]. A determination in relation to an adjournment request made on the date set for trial requires a balancing of the individual interests of the accused and considerations affecting the administration of justice: [R. v. Aziga, 2008 53125, at para. 15, (ON SC)]. The balancing requires weighing the accused’s constitutional right to a fair trial and the trial judge’s discretion in dealing with adjournments in their authority to control the trial process: [R. v. Hazout 2005 30050 (ON CA)].

[11] An accused has the right under the Charter to be tried within a reasonable time. As such, the Crown has an obligation to prepare its case and be ready to go to trial within this time frame. The accused also has an obligation to be ready to go to trial within a reasonable time. If the accused fails to meet this obligation without lawful excuse an adjournment may be refused by the court. Absent such a rule an accused could frustrate the course of justice by repeated requests for adjournments: [R. v. Aziga, at para. 19].

DISCLOSURE CONCERNS

The Police Memo Notes and In-Car Video Recording

The Defence

[12] Officer Wauchope was asked by the officer in charge, Officer Catenaccio, to drive the route from 8 Speers Ave. to 15 Oxford Dr. and back which he did on November 3, 2015. He recorded the drive from his police vehicle. The memo notes of his investigation were disclosed and indicate the trip took about 8½ minutes both ways. On November 4, 2015, the defence received the memo notes and on November 6 received the video recording and a Google map pin-pointing the route and the two locations.

[13] The defence referred to the video evidence as a last minute re-enactment of the route the alleged getaway car took from 15 Oxford Dr. to 8 Speers Ave., in defence counsel’s words, a re-enactment of the actus reus of the offence of accessory after the fact. The defence also points to the discrepancies created by the timelines for the route as reflected in the Google map (6 minutes one way) and Officer Wauchope’s notes (8½ minutes both ways) with evidence Ms. Hansraj gave at the preliminary inquiry that the trip one-way took approximately 5 to 10 minutes.

[14] The defence suggests the Crown intends to use this evidence to challenge Ms. Johnson’s credibility with respect to her explanation of the timelines and her actions on September 24. The defence further argues this disclosure may necessitate further investigation of the route as it was on the day of the robbery with a view to looking at timelines and the possible effects of traffic and construction.

[15] Officer Wauchope’s evidence, the defence submits, ought to have been available for the preparation of the defence’s case.

The Crown

[16] The Crown argues with respect to this evidence that it is not unfair that it was disclosed as it was. According to the Crown, the defence has had available Ms. Hansraj’s evidence from the preliminary inquiry about the timing of the route and it was available to the defence at any time to access a Google map and do its own inquiry into the timing of the route to compare to Ms. Hansraj’s evidence.

[17] That may be true, but as I understand it, the Crown had never disclosed evidence that challenges Ms. Johnson’s credibility as to her actions during the drive in relation to the timing of the drive along the route. The defence became aware of this five days before trial from the notes of Officer Catenaccio’s observations and the disclosure of the Google map.

[18] I find, more important than the fact the defence could have accessed its own Google map and made its own observation of the route, is the fact that this new evidence raises possible credibility issues for Ms. Johnson which the defence should have fair opportunity to address if it calls a defence. If the timing of the drive at the time of the offence is important to the Crown’s case then it should be open to the defence to conduct an investigation of the conditions on the road as they were two years before the Crown’s investigation. Accessing information of this sort is not likely readily available within the days allotted for the trial and more certainly will not be timely enough to allow its inclusion in the defence strategy without an adjournment.

The Photographs

The Defence

[19] The defence submits the Crown was late in disclosing photographs and cannot locate one photograph which the defence asserts impacts the defence’s case and prejudices Ms. Johnson’s chance for a fair trial.

[20] Officer Catenaccio prepared memo notes to explain the photographs. These notes were disclosed to the defence some time ago. Defence counsel submitted that, in reviewing the case for trial, he realized he had not received certain photographs shown to Ms. Johnson during her police interview. Defence counsel concedes he did not request the photographs until October 8, 2015. He received the photographs on November 5 and 6 and was advised at that time that one could not be located.

[21] When reviewing the photographs with Ms. Johnson, defence counsel submits, he learned from Ms. Johnson about aspects of the police interview that were not recorded. The memo notes of Officer Bingham, which were also disclosed to the defence some time ago, contain entries about the unrecorded portion of Ms. Johnson’s statement.

[22] The importance of the photographs, according to the defence, lay in the fact that one of the persons in the photographs is Mr. Foy who pleaded guilty to the robbery. The defence anticipates the Crown will allege Ms. Johnson failed to identify a person in the photographs with whom she is familiar and this will impact her credibility because it appears Ms. Johnson was in a relationship with Mr. Foy at the time.

[23] Defence counsel indicated, in reviewing with Ms. Johnson the unrecorded aspect of the interview, that her memory was refreshed as to information that caused defence counsel to re-evaluate the voluntariness of her police statement and his concession with respect to the statement.

The Crown

[24] The Crown points out that only one photograph is relevant evidence for the trial − the first one depicting Mr. Foy. The second photograph was not shown to Ms. Johnson. It is a picture of Mr. Foy taken when he was arrested and used only to establish he is the same person shown in the first photograph. Other photographs, generated from a police database search under the name “Skirilla”, were shown to Ms. Johnson. Ms. Johnson stated she did not know any of those people and that none of them were Mr. Foy. None of those people are connected in any way to the offence before the court. Ms. Johnson also stated she did not recognize Benjamin Griffith, one of the accused, who was depicted in one photograph.

[25] The Crown submits the undisclosed photographs are irrelevant because they are not material to the offences before the court and for this reason were not made part of the Crown brief that was disclosed to the defence.

[26] I do not find the non-disclosure of the photographs to be fatal to the Crown’s position on this application. For some time, the defence had Officer Catenaccio’s memo notes which explained how they were used and why they were generated. While it would have been preferable for the Crown to have disclosed all the photographs pursuant to its R. v. Stinchcomb obligations, I am nonetheless satisfied that their non-disclosure is not a sufficient reason to allow an adjournment: [R. v. Stinchcomb, 1991 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.)]. Similarly, Officer Bingham’s notes of the unrecorded part of Ms. Johnson’s police interview were also disclosed some time ago, so there would have been an opportunity much before trial to refresh Ms. Johnson’s memory with this information and consider this in fashioning a defence.

The Prospective Witness Shaneece Hansraj

The Defence

[27] Ms. Hansraj is an important witness as she was in the car driven by Ms. Johnson before and after the robbery. In a telephone conversation on November 6, 2015, the Crown advised defence counsel of his intention not to call Ms. Hansraj as a witness at trial.

[28] The defence argues it anticipated the Crown would call Ms. Hansraj. Learning at the final hour that she would not be called, the defence submits, has an unexpected impact on the defence’s case. Ms. Hansraj had given evidence at the preliminary inquiry about her observations of Ms. Johnson and the three male suspects while Ms. Johnson was driving the vehicle during the trip to and from the scene of the robbery.

[29] Defence counsel conceded that the Crown did not commit to calling Ms. Hansraj. Nor did he seek such a commitment. The Crown did subpoena Ms. Hansraj and she remains available to the defence to call her as a witness. The defence argues the Crown’s last minute decision not to call Ms. Hansraj has resulted in a substantial change in the Crown’s case and has left him with no opportunity to meet with Ms. Hansraj to prepare her if a defence is called.

The Crown

[30] The Crown included Ms. Hansraj on a list of prospective civilian witnesses which the Crown provided the defence long before trial. Ms. Hanraj was the only witness called by the Crown to testify at the preliminary inquiry. The parties do not dispute that while the Crown is required before trial to provide witness lists, such lists are not an undertaking by the Crown to call the witnesses. The Crown has no duty to disclose precisely who it will call. The fact that the Crown advised the defence on November 6 was therefore a gratuitous act on the Crown’s part.

[31] The fact that defence counsel anticipated the Crown would call Ms. Hansraj, I find, is not a basis to allow an adjournment since the defence knows the Crown is permitted to change its mind about the witnesses it will call even after the start of the trial.

Sworn Will-Say Statement of Mr. Lettern’s Evidence

The Defence

[32] During the telephone conversation with the Crown on November 6, the defence also learned that the police had taken a statement from Mr. Lettern, one of the complainants in the robbery. On November 7, the defence received a will-say statement of Mr. Lettern’s expected evidence for trial. It is a one-page sworn statement made by Officer Catenuccio which is not endorsed by Mr. Lettern. In the statement, made on November 6, 2015, Mr. Lettern admits he sold drugs to a person who pleaded guilty in this case, whom he also admitted was his main client. Mr. Foy pleaded guilty so Mr. Lettern’s reference must be to Mr. Foy. Mr. Lettern also stated that marijuana and cash were stolen from him on September 24, 2013.

[33] This new evidence, the defence points out, represents a marked departure from Mr. Lettern’s previous evidence that he did not sell drugs and did not have a relationship with Mr. Foy. This evidence in relation to Mr. Lettern and Mr. Foy had not previously been part of the Crown’s case. It is evidence implicating only one of the accused robbers, the one connected to Ms. Johnson. What the defence refers to here is the allegation that Ms. Johnson admitted in her police interview to having a relationship with Skirilla, subsequently known to be Mr. Foy.

[34] This, in the defence’s view, changes the evidentiary landscape substantially, and if a defence is called, will affect the conduct of the defence as it relates to Ms. Johnson’s statement. The defence is concerned that the evidence related to Mr. Foy could extend to Ms. Johnson and leave available in the mind of the jury certain unfavourable inferences.

[35] No memo notes or video or audio recording have been disclosed in relation to Mr. Lettern’s statement. Defence counsel submits he needs the opportunity to investigate this and make further disclosure requests in relation to the circumstances of that statement.

The Crown

[36] The Crown discounts the defence’s concern about the newly disclosed will-say statement in what I find to be a most superficial way. The Crown speaks of the statement in terms of its brief length, minimizing its impact on the defence’s case for this reason. However, apart from the deficiencies in its form – that is, the fact that it is a sworn but second-hand will-say statement by an officer attesting to what Mr. Lettern will say at trial and it is unsigned by Mr. Lettern − there is a more substantial concern related to its content.

[37] The statement introduces evidence by a complainant counter to his previous evidence, which I agree, significantly changes the Crown’s evidence and hence the case the defence has to meet. Mr. Lettern’s new admissions of being a drug dealer whose main client is Mr. Foy and that he was robbed at his home on September 24 raises a possible inference in relation to Ms. Johnson, given her relationship with Mr. Foy, that was unknown to the defence until two days before trial.

[38] There is also the problem that there is no evidence disclosed as to whether the statement was captured by memo notes or a video or audio recording. The Crown argued defence counsel could have requested further disclosure in relation to the will-say statement before the first day of trial if he felt the statement had such an impact on the defence’s case. However, it is the Crown’s obligation to disclose all evidence material to the case. It is not the defence’s burden to anticipate the evidence the Crown might have, especially with disclosure of new evidence generated under uncertain circumstances virtually on the eve of trial.

[39] I agree with the defence that the will-say statement disclosed on the brink of trial changes the evidentiary complexion of the Crown’s case. I find, without the time allowed by an adjournment, the defence would not have a fair opportunity to contemplate the implications of this evidence on its trial strategy and conduct an effective defence, if a defence is called.

Effect on the Trial Process

[40] A factor to consider on an adjournment application made before the commencement of trial is whether there have been any previous adjournments. The trial scheduled to start on November 24, 2014 was adjourned at the behest of Ms. Johnson’s re-election to be tried before the Superior Court, which an accused is entitled to do. An adjournment is necessary in these circumstances. The trial time however was not completely wasted since the first day was put to good use by the conduct of the preliminary inquiry. The previous adjournment has little or no impact on my decision.

[41] The defence submits that an adjournment is the only practicable and fair way to address the change in the evidentiary landscape and cure the prejudice to Ms. Johnson. As the defence points out, a judge-alone trial could possibly address the disclosure issues in time to save the remaining days to complete the trial or could allow an adjournment of a portion of the case to later dates. This is not possible with a jury trial scheduled for 7 to 8 days.

[42] The defence asserts that if required to proceed to trial now it will be left to engage in conjecture and supposition about the Crown’s case. Without an opportunity to carefully consider the implications of the new and late disclosed evidence, the defence argues, it will be left without a chance to investigate the disclosure if it finds that to be necessary.

[43] The Crown submits that none of the defence’s disclosure concerns are sufficient to warrant an adjournment. It is the Crown’s view that an adjournment will needlessly prolong this matter and unnecessarily expend the resources of the justice system. In the Crown’s estimation the defence will have the opportunity during the days of the trial to conduct investigations in relation to the disclosures at issue and will have ample time to prepare its defence strategy.

[44] However, I agree with the defence it would not be fair for it to be expected to reformulate its defence in an ad hoc manner prompted by guess work as to the Crown’s case. This would result in patent prejudice to Ms. Johnson’s right to a fair trial.

[45] I also agree with the defence that from a procedural point of view a jury trial presents with certain challenges not faced in judge-alone trials. With a jury trial, the flexibility does not exist to continue a trial at a later date if it happens that the trial cannot be concluded within the days scheduled. Consideration might also have to be given to the possibility the defence may resurrect its application on the voluntariness of Ms. Johnson’s statement in view of the new and late disclosures. This would extend the time of the trial. It is not an answer, as the Crown suggested that it will not oppose the defence renewing the application since this does not resolve the time constraints of a jury trial.

CONCLUSION

[46] I find Ms. Johnson will be deprived of a fair trial or the appearance of a fair trial if I do not grant an adjournment. I find the defence must be allowed the time to consider its defence strategy in view of the disclosure of the in-car video recording and Officer Catenaccio’s memo notes and the will-say statement by Mr. Lettern: [R. v. McCallen (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56 (C.A.)]. I find balancing the rights of the accused to a fair trial with the court’s authority to control the timeliness of the trial in the interests of the administration of justice weighs in favour of the accused.

DISPOSITION

The adjournment is granted.

Allen J.

Released: November 12, 2015

COURT FILE NO.: CR-14-50000815-0000

DATE: 20151112

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DANIA JOHNSON

Accused

REASONS FOR decision on an adjournment

Allen J.

Released: November 12, 2015

Her Majesty the Queen v. Dania Johnson, 2015 ONSC 6979

Case Summary

BACKGROUND

The Offences

The Adjournment Request

THE LAW

DISCLOSURE CONCERNS

The Police Memo Notes and In-Car Video Recording

The Defence

The Crown

The Photographs

The Defence

The Crown

The Prospective Witness Shaneece Hansraj

The Defence

The Crown

Sworn Will-Say Statement of Mr. Lettern’s Evidence

The Defence

The Crown

Effect on the Trial Process

CONCLUSION

DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1