Court File and Parties

COURT FILE NO.: CRIM J (P) 469/14 DATE: 2016 09 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 Angela Chaisson, Counsel 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. I released an endorsement on August 31, 2016 and then held a trial management meeting on September 1, 2016 and advised counsel I would release a further endorsement that dealt with issues discussed at the meeting.

The Order of Peremptory Challenges

[2] Section 635 of the Criminal Code sets out the order for the exercise of peremptory challenges in a criminal jury trial. If there are two or more accused in a criminal jury trial, the section sets out that the co-accused shall exercise their challenges in the order in which their names appear on the indictment unless all co-accused have agreed on some other order.

[3] I directed counsel to the provision of the Criminal Code and asked all counsel to speak to the registrar of the Court. If counsel for the accused intend to deviate from the provision of the Criminal Code they are to advise the registrar in advance of September 13, 2016. I have instructed the registrar to prepare a chart of the proposed order of peremptory challenges by September 13, 2016. That chart is set out as Appendix A to this endorsement.

The Procedure for the Parks Challenge

[4] Each accused has been given permission to challenge jurors for cause pursuant to s. 638(1)(b) of the Criminal Code. I have allowed a question that, in my view strikes an appropriate balance between the defence and the Crown positions on the application. The question is found at paragraph 36 of my endorsement released on August 31, 2016.

[5] Mr. Bryant proposes that defence counsel rotate in asking the question. However, he suggests that one counsel take the lead for five prospective jurors and then counsel for the co-accused ask the question for the next five prospective jurors. Counsel would then rotate for every five jurors called.

[6] I advised counsel that I was in agreement. However, Ms. Rozier requested that she be given some time to consider her position. Ms. Rozier has now advised the Court that she is not in agreement to the proposal. Ms. Addie has not taken a position on this issue.

[7] In my view, unless there is a clear majority from defence counsel on this issue, then counsel for each accused will rotate asking the question for each prospective juror.

Disclosure of Maps, Excel Spreadsheets and PowerPoints

[8] The Crown submits that some of the presentation of the Crown’s case will involve electronic records and aids, such as Excel Spreadsheets, PowerPoints and Maps. I directed counsel to read Fairburn J.’s decision in R. v. Kanagasivam 2016 ONSC 2250. All counsel have reviewed this decision. One of the concerns that I raised with counsel is the timeliness of any objection to aids or records. Therefore, I directed counsel to address any issues surrounding the admissibility of spreadsheets, PowerPoints and Maps well in advance of the witnesses testifying.

[9] The Crown submits that it does not expect to deviate from the spreadsheet of phone records that was introduced at the preliminary hearing. The Crown also anticipated using maps from service providers. As I understand their submission some of these maps have not been produced from the service providers.

[10] After hearing submissions from counsel, I direct the following:

1. Copies of any proposed Excel Spreadsheets, PowerPoints and Maps in the Crown’s possession should be produced to counsel for the accused and the Court by September 12, 2016.
2. Any spreadsheet, PowerPoint and Map tendered at the preliminary hearing should be produced to counsel for the accused and the Court by September 12, 2016.
3. If there are maps from service providers that still have to be produced, I will hear submissions as to when those maps must be produced.
4. The Court should be given notice of any objection to the admissibility of any spreadsheet, PowerPoint, and Map that has been disclosed by September 19, 2016. I will then schedule a hearing of the matter with time limits and dates for materials to be filed.

Videotaping the Evidence of Cassandra Hudson

[11] I ruled in my endorsement of August 31, that I would give counsel the opportunity to examine Ms. Hudson in the absence of the jury. A number of issues have arisen from this ruling. First, counsel for the accused submit that I should make a formal court order and that this order be provided to the witness as opposed to a Crown subpoena or a defence subpoena. Second, counsel ask me to make an order that would prohibit the Crown from speaking or preparing this witness in advance of her attendance in Court. Third, Mr. Bryant, on behalf of the accused Mr. Browne, requests that this testimony be videotaped. [^1] Fourth, counsel seek guidance as to when the questioning of Ms. Hudson will take place.

[12] After considering the submissions of all counsel, I provide the following directions:

1. Once a date is established by counsel for Ms. Hudson’s appearance, a formal court order will be drafted up and provided to Ms. Hudson through the Crown Attorney’s office and/or the Peel Regional Police.
2. Crown counsel and defence counsel are permitted to speak to the witness in advance of her testimony. I decline to order that the Crown may not speak or prepare this witness in advance. Preparation of any witness is an essential means of readying Crown counsel and that witness for adversarial testing. I consider preparation of witnesses a duty that is imposed on Crown counsel in order to present all available legal proof of the facts.
3. I see no basis to videotape Ms. Hudson’s testimony. First, the purpose of the remedy granted at paragraph 75 of my endorsement is to ensure that in order to make full answer and defence the defence should be allowed to discover the Crown’s case by examining Ms. Hudson in advance of her testimony. The situation is analogous to production of Ms. Hudson at the preliminary hearing. Since the remedy is directed at discovery, I know of no authority that holds that there is an independent Charter right to cross‑examine a witness at a preliminary inquiry and have the examination videotaped. Second, if the purpose of videotaping Ms. Hudson is to capture her demeanour for impeachment purposes while she is being examined, I do not find this to be a compelling reason to videotape the proceedings. We routinely tell jurors that it is the inconsistency in the out of court statement that matters not their demeanour in deciding the credibility of a witness who has made a prior inconsistent statement out of court. In most criminal trials, the final instructions given to jurors tells them to look at the facts, nature and extent of any differences between versions in deciding credibility. We do not mention the demeanour of the witness when she gave the statement. In my view, a transcript of this discovery process, accompanied with any synopsis created by the Peel Regional Police of the videotaped interview provides sufficient disclosure of the Crown’s case against each of them and impeachment material. I am satisfied that this procedure with the other remedies set out in paragraph 75 go a long way to ensuring that the accused can make full answer and defence as guaranteed by s. 7 of the Charter and alleviate any prejudice.
4. Counsel are encouraged to reach an agreement as to the dates that Ms. Hudson can be produced for examination. In any event, I direct that the examination will take place before the presentation of the evidence of the Crown. I will revisit the issue of dates of this examination on September 13, 2016.

Further Non-Sitting Dates

[13] In addition to the dates set out at paragraph 90 of my endorsement, the Court will not sit on November 10, 11 (Remembrance Day), 16 and December 22, 2016. The Christmas break will run from December 22 to January 8. The Court will re-commence sitting on January 9, 2017.

[14] Mr. Bryant raised an issue of a possible conflict with a case before my colleague Mulligan J. in January of 2017. I believe it is likely that this trial will continue into January 2017. As a courtesy I have contacted my colleague to advise him of the nature of Mr. Bryant’s issue. I will discuss this situation with Mr. Bryant on September 13, 2016.

Miscellaneous Orders

[15] On behalf of Mr. Browne, Ms. Morphew requested more time to deal with the issue of nourishment for the accused. On behalf of Mr. Greesnword, Ms. Rozier advised me that the issue of clothing exchanges has been dealt with in other cases between defence counsel and the security officers in the cell area.

[16] As discussed with counsel, I am prepared to make orders permitting counsel to purchase and deliver food to their clients from the cafeteria or the provision of extra nourishment from court security. I am also prepared to make an order of clothing exchanges on terms agreeable to court security and defence counsel.

[17] Counsel for the accused are therefore directed to produce one draft order for food and one draft order for clothing exchanges that will apply to all accused. These draft orders are to be provided to the Crown and the court by September 12, 2016. The Crown is directed to make inquiries of security in the courthouse and if there are concerns about the orders they will address these concerns on September 13, 2016.

Coroza J.

DATE: September 7, 2016

Appendix A

CHALLENGE FOR CAUSE TRACKER – THREE ACCUSED

Defence Csl: Not by challenges BUT by who’s turn is next.

D1 FOR CR D2 FOR D3 FOR Challenges – Crown 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 Challenges – Defence 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Challenges – Defence 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Challenges – Defence 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Code: (1.) Circle letter who’s challenged ie: C D D² D. ( 2.) Next turn small # top of D or C ie: C D D ³ (3.) Challenge or content done, strike box .

1 D1, D2, D3, C 12 C, D, D, D 23 D, D, D, C 34 C, D, D, D 2 C, D, D, D 13 D, D, D, C 24 C, D, D, D 35 D, D, D, C 3 D, D, D, C 14 C, D, D, D 25 D, D, D, C 36 C, D, D, D 4 C, D, D, D 15 D, D, D, C 26 C, D, D, D 37 D, D, D, C 5 D, D, D, C 16 C, D, D, D 27 D, D, D, C 38 C, D, D, D 6 C, D, D, D 17 D, D, D, C 28 C, D, D, D 39 D, D, D, C 7 D, D, D, C 18 C, D, D, D 29 D, D, D, C 40 C, D, D, D 8 C, D, D, D 19 D, D, D, C 30 C, D, D, D 41 D, D, D, C 9 D, D, D, C 20 C, D, D, D 31 D, D, D, C 42 C, D, D, D 10 C, D, D, D 21 D, D, D, C 32 C, D, D, D 43 D, D, D, C 11 D, D, D, C 22 C, D, D, D 33 D, D, D, C 44 C, D, D, D 45 D, D, D, C 79 D, D, D, C 113 D, D, D, C 147 D, D, D, C 46 C, D, D, D 80 C, D, D, D 114 C, D, D, D 148 C, D, D, D 47 D, D, D, C 81 D, D, D, C 115 D, D, D, C 149 D, D, D, C 48 C, D, D, D 82 C, D, D, D 116 C, D, D, D 150 C, D, D, D 49 D, D, D, C 83 D, D, D, C 117 D, D, D, C 151 D, D, D, C 50 C, D, D, D 84 C, D, D, D 118 C, D, D, D 152 C, D, D, D 51 D, D, D, C 85 D, D, D, C 119 D, D, D, C 153 D, D, D, C 52 C, D, D, D 86 C, D, D, D 120 C, D, D, D 154 C, D, D, D 53 D, D, D, C 87 D, D, D, C 121 D, D, D, C 155 D, D, D, C 54 C, D, D, D 88 C, D, D, D 122 C, D, D, D 156 C, D, D, D 55 D, D, D, C 89 D, D, D, C 123 D, D, D, C 157 D, D, D, C 56 C, D, D, D 90 C, D, D, D 124 C, D, D, D 158 C, D, D, D 57 D, D, D, C 91 D, D, D, C 125 D, D, D, C 159 D, D, D, C 58 C, D, D, D 92 C, D, D, D 126 C, D, D, D 160 C, D, D, D 59 D, D, D, C 93 D, D, D, C 127 D, D, D, C 161 D, D, D, C 60 C, D, D, D 94 C, D, D, D 128 C, D, D, D 162 C, D, D, D 61 D, D, D, C 95 D, D, D, C 129 D, D, D, C 163 D, D, D, C 62 C, D, D, D 96 C, D, D, D 130 C, D, D, D 164 C, D, D, D 63 D, D, D, C 97 D, D, D, C 131 D, D, D, C 165 D, D, D, C 64 C, D, D, D 98 C, D, D, D 132 C, D, D, D 166 C, D, D, D 65 D, D, D, C 99 D, D, D, C 133 D, D, D, C 167 D, D, D, C 66 C, D, D, D 100 C, D, D, D 134 C, D, D, D 168 C, D, D, D 67 D, D, D, C 101 D, D, D, C 135 D, D, D, C 169 D, D, D, C 68 C, D, D, D 102 C, D, D, D 136 C, D, D, D 170 C, D, D, D 69 D, D, D, C 103 D, D, D, C 137 D, D, D, C 171 D, D, D, C 70 C, D, D, D 104 C, D, D, D 138 C, D, D, D 172 C, D, D, D 71 D, D, D, C 105 D, D, D, C 139 D, D, D, C 173 D, D, D, C 72 C, D, D, D 106 C, D, D, D 140 C, D, D, D 174 C, D, D, D 73 D, D, D, C 107 D, D, D, C 141 D, D, D, C 175 D, D, D, C 74 C, D, D, D 108 C, D, D, D 142 C, D, D, D 176 C, D, D, D 75 D, D, D, C 109 D, D, D, C 143 D, D, D, C 177 D, D, D, C 76 C, D, D, D 110 C, D, D, D 144 C, D, D, D 178 C, D, D, D 77 D, D, D, C 111 D, D, D, C 145 D, D, D, C 179 D, D, D, C 78 C, D, D, D 112 C, D, D, D 146 C, D, D, D 180 C, D, D, D 181 D, D, D, C 186 C, D, D, D 191 D, D, D, C 196 C, D, D, D 182 C, D, D, D 187 D, D, D, C 192 C, D, D, D 197 D, D, D, C 183 D, D, D, C 188 C, D, D, D 193 D, D, D, C 198 C, D, D, D 184 C, D, D, D 189 D, D, D, C 194 C, D, D, D 199 D, D, D, C 185 D, D, D, C 190 C, D, D, D 195 D, D, D, C 200 C, D, D, D

[^1]: The Crown and Ms. Rozier on behalf of Mr. Greensword opposes this request. Ms. Addie for Mr. Williams takes no position.