Court File and Parties
COURT FILE NO.: CRIM J (P) 469/14 DATE: 2016 06 23 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: Coroza J.
COUNSEL: Greg Hendry, for the Crown Anne Marie Morphew, for Mr. Browne Nicole Rozier, for Mr. Greensword Maureen Addie, for Mr. Williams
Endorsement
[1] The accused face a charge of first degree murder. The trial will begin with jury selection during the week of September 12, 2016. The trial estimate is three to four months.
[2] Counsel for the accused seek an order directing Crown counsel to provide the following:
- A draft list of proposed witnesses on or before July 8, 2016; and
- A draft order of proposed witnesses on or before August 19, 2016.
[3] The disclosure is voluminous. Counsel for the accused would like a list of proposed witnesses so they can prepare for trial. They argue that having a list will provide them with an opportunity to ensure that all disclosure regarding the proposed witnesses has been received and to address any outstanding issues prior to the start of trial.
[4] The Crown argues that they should not be directed by the Court to produce a witness list by a specific day. As I understand his argument, Mr. Hendry submits that a witness list will be provided once it is finalized, meaning the Crown has confirmed the witnesses have relevant evidence to give at trial and it has been confirmed that the witnesses have been subpoenaed.
[5] For reasons that follow, I agree with counsel for the accused. Accordingly, a draft list of proposed witnesses shall be produced to counsel for the accused on or before July 8, 2016 and a draft order of proposed witnesses shall be produced on or before August 19, 2016. [1]
[6] The parties agree that I have jurisdiction to make the orders. That is because the production of a witness list and proposed order for calling the witnesses properly falls within the prosecutor’s “tactics or conduct before the Court” and is reviewable as part of the court’s trial management function: see R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.).
[7] In my view, the list and order should be produced for the following reasons.
[8] First, given the length of the trial, focus, efficiency and fairness are live concerns. The most important ingredient for an efficient, focused and fair jury trial is well prepared lawyering. The production of a witness list and a proposed batting order of witnesses will go a long way to ensuring that all counsel are well prepared for trial.
[9] Second, I see no prejudice to the Crown in providing this list or order. The list and order requested is only a draft. The list and order can be provided, without prejudice, to the best of the ability of the Crown to predict its case. Therefore, I am not persuaded that a “sunset” date to produce a draft witness list and order is unfair to the Crown. Furthermore, I am not persuaded by Mr. Hendry’s argument that there is a link between production of the items requested and ensuring that the Crown can subpoena certain potentially hostile witnesses or vigorously prosecute the case to the best of their ability.
[10] Finally, in my view, production of the items requested is a tool that I can utilize to ensure that this jury trial runs smoothly. Frequent interruptions during a jury trial are difficult. In that regard, a trial judge has a responsibility to ensure that a jury trial proceeds without these interruptions. [2] A common cause for interrupting proceedings during a lengthy trial is the late breaking motion which should have been brought as a pre-trial proceeding. In order to prevent these late breaking motions, I am persuaded by Ms. Addie’s submission that an advance witness list will ensure that counsel for the accused have turned their mind to and identified any potential issues which can be brought to the attention to the trial judge before the jury is selected or the trial starts. Of course, production of these items also puts counsel on notice that I expect counsel to be prepared during the trial and that counsel should do their very best to assess whether there are any motions that arise as a result of the receipt of these items and to notify the Court as soon as possible.
[11] I recognize and accept Mr. Hendry’s argument that identification of material witnesses is not a skill in the exclusive possession of the Crown. However, in my view, the request being made here is reasonable. There is nothing on this record that would suggest that an order directing the Crown to produce the items sought will be unfair or damage the position of the Crown in presenting this case.
[12] It is for these reasons that I make the order.
Coroza J. DATE: June 23, 2016
Footnotes
[1] I recognize that the parties are waiting for rulings on a number of motions that could affect a witness list and the proposed order for calling these witnesses. However, this does not preclude the Crown from producing an “anticipated” list that can be edited once they receive my rulings. There is a trial management meeting scheduled for August 22, 2016. I anticipate that all of my pre-trial rulings will be delivered by that date.
[2] The responsibilities of a trial judge in case managing complex cases and the various tools at their disposal to achieve the goal of efficiency have been set out exhaustively by the Honourable Patrick J. Lesage and Professor Michael Code (now the Honourable Justice Code) in their Report of the Review of Large and Complex Criminal Case Procedures.