Court File and Parties

COURT FILE NO.: CRIM J (P) 469/14 DATE: 2016 10 21 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, Counsel for Mr. Williams

Endorsement

Overview

[1] Margaret Warner is currently testifying in this murder trial. During a break in the proceedings on October 18, 2016, outside of the courtroom, she told Cst. Melo that she had some safety concerns because the three accused (who are seated in the prisoners’ box) were staring at her.

[2] Ms. Warner then went to say that “the guy who shot Dwayne was giving me dirty looks”.

[3] Ms. Warner did not reference which of the accused shot Dwayne. Cst. Melo did not ask Ms. Warner any follow up questions.

[4] Cst. Melo did not make a note of this exchange at the time. However, when she had a discussion with Mr. Hendry on October 20, 2016, she disclosed that Ms. Warner had made an in-dock identification. Mr. Hendry quite responsibly directed the officer to make a note of this exchange and this note was disclosed to all defence counsel.

[5] The note of the officer about this exchange are sparse.

[6] Upon receipt of this note yesterday morning, all defence counsel requested a voir dire. All counsel requested that a number of witnesses be called on the voir dire. Crown counsel opposed the request.

[7] Ultimately, I held that I would conduct an inquiry into two issues:

1. the purported in-dock identification of Ms. Warner on October 18, 2016; and
2. breach of my witness exclusion order.

[8] Today, I heard from Cst. Melo on both issues. The officer was thoroughly examined by all counsel. After hearing her evidence and further submissions by counsel, I declined to continue with the inquiry. I told counsel that I would be providing a ruling with respect to what has transpired. These are those reasons.

Should the Inquiry Continue?

[9] The first issue to be resolved is whether, after hearing Cst. Melo’s evidence, the inquiry should continue?

[10] Ms. Morphew submits that if the court were prepared to exclude evidence about the in-dock identification then there is no need to continue.

[11] The Crown supports Ms. Morphew’s position.

[12] Ms. Rozier and Ms. Addie take a more cautious approach. Counsel submit that I should hear from Ms. Warner to determine if she specifically made an identification of the shooter. I take it from the submissions of both counsel that if Ms. Warner were to testify that she could identify who the shooter was four years after the event this would provide a very fruitful area during cross-examination in front of the jury.

[13] I respectfully see no need to move forward with the inquiry.

Requirement for a voir dire

[14] As Watt J.A. noted in R. v. Sadikov, 2014 ONCA 72 a voir dire is held to determine the admissibility of evidence proposed for admission by a party to a criminal proceeding.

[15] On the voir dire, it is for the trial judge to determine whether the conditions precedent to the admissibility of the proposed evidence have been met. The procedure on a voir dire is left to the discretion of the presiding judge, and is not subject to rigid or pre-fabricated rules. Watt J.A. noted that the relevant factors include, but are not limited to, the nature of the issue under consideration and of the case itself, as well as the means of proof available.

[16] I focus on the nature of the issue under consideration. It seems to me, the nature of the issue under consideration is whether Ms. Warner’s in-dock identification made for the very first time, four years after the event, has any probative value in these proceedings? I believe the answer to that question is no.

[17] There is strong authority that supports my finding. I have reviewed the decisions of the Court of Appeal in R. v. Bailey 2016 ONCA 516, [2016] O.J. No. 3508 (C.A.) and R. v. Holmes (2002), 62 O.R. (3rd) 146 at para. 38-40.

[18] This in-dock identification came almost four years after the event and in very suggestive circumstances. I dismissed a previous application to allow the accused to sit at counsel table and they are all seated in the prisoner’s dock. I am of the view that this evidence has no value as evidence identifying any of the accused as the shooter. It does not matter whether Ms. Warner appears honest or certain.

[19] Indeed, I think it is fair to say that this was an assertion made to Cst. Melo in circumstances that the officer believed was not significant. I accept the officer’s explanation that she did not believe that this was important and that the assertion was made in the context of Ms. Warner making complaints about the court process and her safety.

[20] Cst. Melo testified that she could not identify any safety concerns. I take it from her evidence that Cst. Melo did not agree that Ms. Warner was in danger. According to the officer the complaint that the accused were staring at her did not trouble her because from her own perspective it would have been obvious that they were given Ms. Warner’s position in the courtroom. Furthermore, the officer did not think Ms. Warner’s assertion was significant because there was no articulation of a name or description of the shooter. Finally, Cst. Melo testified that Ms. Warner did not suggest which accused she was talking about when she identified the shooter.

[21] After hearing the evidence, I specifically find that Ms. Warner’s assertion was vague and general. The assertion provides no support for a positive in-court identification of the shooter four years later.

[22] The danger with the jury hearing this evidence, is that it puts an accused in the unenviable position of having to refute this in-dock identification. Even with limiting instructions, it is my view that the evidence could confuse the jury and mislead them. That risk is too great to allow this evidence into these proceedings.

[23] I am also not persuaded by Ms. Rozier’s argument (supported by Ms. Addie) that this evidence could have some value for the co-accused. Ms. Rozier submits that I should at least hear from Ms. Warner to determine if she can specifically identify who the shooter is. I do not think it is appropriate for me to bring the witness into the courtroom, in the absence of the jury and provide a preview of her evidence. I say this for the following reasons.

[24] First, when I examine how prejudicial and misleading this evidence is, I do not consider it appropriate for any lawyer to use this evidence. In my view, the prejudicial effect of the in-dock identification substantially outweighs any probative value. Therefore, to preview this evidence or explore it is a waste of court resources.

[25] Second, the evidence from Cst. Melo is that Ms. Warner did not identify who the shooter was. I find it hard to accept that Cst. Melo would have missed a positive identification of the shooter and not record it in her notes. Arguably, her notes were not comprehensive. However, I still find it difficult to accept that Cst. would not have noted down a positive identification of one of the accused as the shooter. The absence of that note in her notebook satisfies me that Ms. Warner did not make that assertion. I do not need to confirm this with Ms. Warner.

[26] Third, there is very strong authority that the failure to provide the opportunity to cross‑examine, even a key witness, prior to the giving of evidence by that witness at the trial, is not a component of the right to full answer and defence. (See Re Regina and Arviv (1985), 51 O.R. (2d) 551 (C.A.)) In my view, bringing in Ms. Warner for an inquiry to recount evidence that is inadmissible and prejudicial for the purposes of creating potential material for impeachment does nothing to advance the pursuit of the truth and does not infringe on the right to make full answer and defence.

[27] It is for these reasons that I decline to go further with this inquiry.

Breach of the Witness Exclusion Order

[28] On September 30, 2016 I released a ruling that permitted the Crown to seek an exception to the order to exclude witnesses from the courtroom. The exception to the order was Cst. Melo.

[29] That order was made and read out loud by the Court registrar at the beginning of these proceedings.

[30] I was persuaded at the time I made the ruling that the exception should be made. I will not repeat my findings here.

[31] I am mindful that defence counsel argue that identification will be front and centre in this case. Again, Cst. Melo is an identification witness to the extent that she will be asked to identify certain clothing she saw when conducting surveillance on November 26, 2012. Pursuant to another ruling, I held that Cst. Melo will also be permitted to answer questions about clothing that a male is wearing on a surveillance video from November 2, 2012.

[32] After hearing Cst. Melo cross-examined on this point, I do not find that Cst. Melo has breached the order. I do not think the officer has communicated to any excluded witness the evidence that we have heard in this case.

[33] I am also of the view that Cst. Melo has not initiated discussion with any witness of what has transpired in the courtroom.

[34] However, it seems to me that Cst. Melo cannot control what witnesses may say in her presence. The officer’s role, is to effectively assist the Crown with obtaining things needed for court and to also accompany witnesses who require a police escort while they are in court.

[35] After giving the matter some thought, I am of the view that Cst. Melo should no longer be exempt from the order.

[36] To be clear, I do not find that the officer has violated the order. However, because I am concerned with contact between witnesses on the issue of identification it is my view that Cst. Melo ought not to be placed in the position of having to accompany witnesses such as Ms. Warner who touch upon identification.

[37] Indeed, in my initial ruling on witness exclusion, I stated that the Crown should be proactive and ask Cst. Melo to step out of the courtroom if it anticipates that the witness it is calling will touch upon identification. Margaret Warner will testify as to her descriptions of the males. The Crown earlier submitted that it would be prepared to ask Cst. Melo to step out if they were introducing this evidence. It seems to me that there is too much of a risk to have this officer in contact with an identification witness outside of the courtroom regardless of whether Cst. Melo has testified or not. The risk lies with what the other witness may do. This is an excellent example of that type of situation. Cst. Melo did not elicit this evidence. According to the officer it was Ms. Warner who did. To prevent any re-occurrence of Cst. Melo hearing assertions made by a witness I think she should be subject to an exclusion order.

Conclusion

[38] In R. v. Omar, 2007 ONCA 117, Sharpe J.A. held that trial judges are not required to proceed with motions on the basis of an abstract theory of relevance that have no foundation in the evidence or anticipated evidence or based on a legal argument that is doomed inevitably to failure.

[39] Sharpe J.A. went on to add that trial judges should be mindful that judicial proceedings are not designed on the basis of a cost-benefit analysis, and that an element of proportionality should inform the manner in which trials are conducted. I have kept these principles in mind in evaluating the submissions of counsel.

[40] In this case, the purported identification is worthless. It has no probative value and is extremely prejudicial because it would confuse the jury.

[41] There is no useful purpose to continue to examine this evidence which has come almost four years after the event. I decline to hear from Ms. Warner on this issue. I exclude this evidence from this trial. In my view, a strong direction to Ms. Warner not to testify or discuss her identification of the accused or the shooter made on October 18, 2016 should be sufficient.

Directions

[42] I make the following directions:

1. No party may make use of the purported in-dock identification of the accused made on October 18, 2016 by Ms. Warner;
2. No party may make use of the purported in-dock identification of the shooter on October 18, 2016 by Ms. Warner;
3. Crown counsel is directed to instruct Ms. Warner that she is not permitted to testify about her discussions relating to identification with Cst. Melo on October 18, 2016;
4. Cst. Melo is directed not to testify about her discussions relating to identification with Ms. Warner on October 18, 2016;
5. Crown counsel is directed to instruct Ms. Warner that she is not permitted to make in-dock identification of the accused or the shooter during her testimony;
6. Cst. Melo is no longer exempt from the witness exclusion order; and
7. The Crown may request an exception to the order for an assisting officer. However, any assisting officer must be an officer who has no involvement in this case.

Coroza J. DATE: October 21, 2016