Court File and Parties

COURT FILE NO.: CRIM J (P) 469/14 DATE: 2016 11 07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams

BEFORE: COROZA J.

COUNSEL: Alex Cornelius and Greg Hendry, for the Crown Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, for Mr. Williams

Endorsement

(PAST RECOLLECTION RECORDED-DARCY HALL)

INTRODUCTION

[1] The three accused are charged with first degree murder. The Crown alleges that the deceased, Mr. Dwayne Thompson was shot to death at 7230 Darcel Avenue, Mississauga on November 1, 2012.

[2] Darcy Hall has testified for the Crown. He completed his evidence on Thursday, November 3, 2016.

[3] On November 1, 2012, Mr. Hall was the superintendent of the Darcel Avenue apartment building. Mr. Hall has testified that at some point during the evening, he heard “pinging” noises and he thought someone may have been vandalizing his car. Mr. Hall has testified that he went outside to check on his car to see if there was damage to it.

[4] During his testimony, Mr. Hall professed to have a poor recollection of some of the events of November 1, 2012.

[5] At one point during cross-examination, Ms. Rozier attempted to cross-examine Mr. Hall about two issues. First, Ms. Rozier confronted him with his prior statement to the police that it was 10:26 p.m. when Mr. Hall heard the noises. He told the police that he had looked at his clock and the time was 10:26 p.m.

[6] Second, Ms. Rozier confronted Mr. Hall with the fact that he also told the police that when he investigated the noises, he saw a non-white male, wearing a shiny black coat or plastic black jacket running across towards the rear lobby door of the apartment building.

[7] Mr. Hall testified that he had no memory of looking at his clock or a male wearing a shiny black coat. He did not adopt these prior statements in his testimony. Ms. Rozier submitted that the statements were admissible for the truth as an exception to the hearsay rule. Counsel relied on the doctrine of past-recollection recorded (see: R. v. Richardson, 2003 ONCA 3896, [2003] O.J. No. 3215 (C.A.), at para. 24).

[8] The Crown agreed that the statements were admissible on this basis. However, the Crown argued that other subsequent portions of Mr. Hall’s statement should also be tendered pursuant to the rule. The Crown submitted that there is a portion of the statement where Mr. Hall is shown the surveillance video of the lobby of the Darcel Avenue building and Mr. Hall tells the police that he does not see the man with the shiny jacket on the video.

ISSUE

[9] On Thursday, Ms Rozier submitted that there was no issue with the subsequent statement being placed before the jury, but that the specific portion should be edited. The Crown agreed with this approach and Ms. Rozier helpfully offered to create one document with all of the relevant excerpts to be tendered to the jury. I advised counsel that this document would become a numbered exhibit and I would give the jury some instructions on the use of prior statements made by a witness.

[10] This morning, Ms. Rozier made further submissions on the issue. Ms. Rozier now submits that the Crown is not entitled to place these subsequent portions of the statement before the jury. Her position is that the Crown should have brought its own application and that it is not proper for the Crown to submit evidence in this fashion. Counsel relies on R. v. Kutynec (1992) 1992 ONCA 7751, 7 O.R. (3d) 277 (C.A.) and argues that admissibility is the problem of the party with the burden of adducing evidence.

[11] After briefly hearing submissions, I advised counsel I would provide counsel with a ruling.

ANALYSIS

[12] In my view, the subsequent portion of the statement is admissible and should be placed before the jury in the edited form that was agreed upon on Thursday.

[13] The subsequent statements about the man in the shiny black jacket are admissible pursuant to the past recollection recorded rule. The essential conditions for admissibility are not in dispute. I set them out in summary form:

• The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.
• The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’s mind to be vivid and likely accurate.
• At the time the witness testifies, he or she must have no memory of the recorded events.
• The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.

[14] The admissibility of Mr. Hall’s statements about the clock and the man in the shiny jacket easily meet the pre-conditions for admissibility.

[15] First, Mr. Hall agreed that he gave the police a statement and it is typed and clear. The statement has been recorded in a reliable way.

[16] Second, Mr. Hall has agreed that he gave that statement on November 2, 2012 and as stated in Richardson, it is sufficient if the statement is prepared close enough to the events to ensure accuracy. He agreed with counsel that the statement was prepared when the events were fresher in his mind.

[17] Third, I accept Mr. Hall’s memory loss as genuine. It has been four years since the events took place. Mr. Hall was not trying to be difficult. He was clear that he had no present memory of looking at his clock or a man with a shiny jacket. I am of the view that even if I permitted the Crown to recall Mr. Hall to address his subsequent statements, he would still testify that he cannot remember the man with the shiny jacket.

[18] Fourth, Mr. Hall vouched for the reliability of his written statement. He testified that, when he prepared it, he was being truthful and the details of the events that he included in the statement were clear in his mind.

CONCLUSION

[19] In my view, the subsequent statements about the man in the shiny jacket are also admissible for the same reasons as the earlier statements. There is no principled basis to distinguish the subsequent statements from the earlier statements. Indeed, I took the Crown’s submission on Thursday to be that the statements were all admissible pursuant to the past-recollection recorded rule.

[20] It seems to me that fairness to the Crown also drives the analysis here. The jury should have everything that Mr. Hall said about the man with the shiny black jacket. If I only permitted the excerpts that Ms. Rozier has flagged to go before the jury, they would have a misleading and incomplete picture of what Mr. Hall actually told the police about the man with the shiny jacket. I see nothing prejudicial about tendering the subsequent statements.

[21] The Crown’s application to tender evidence by way of past recollection recorded is granted. That portion of the statement to be tendered as past recollection recorded has already been discussed on Friday and should be edited in the fashion that was discussed on Friday.

Coroza J. DATE: November 7, 2016