Court File and Parties

Court File No.: CRIM J (P) 469/14 Date: 2016 10 31 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 Maureen Addie and Jamie Kopman, Counsel for Mr. Williams

Endorsement

(Illness of Counsel for Mr. Browne)

Overview

[1] The Crown is examining Margaret Warner - a critical Crown witness. The jury was excused on October 18, 2016 because of an objection during the examination in chief. After hearing argument, I released an endorsement on October 21, 2016 dealing with the objections. The trial was scheduled to continue on October 24, 2016.

[2] On October 23, 2016, Mr. Bryant, counsel for Mr. Browne notified me of an emergency that occurred during the early morning hours of October 23. Mr. Bryant is ill. The details of that illness have been set out in the various emails filed as Exhibit LL. The trial had been adjourned to October 31, 2016.

[3] In order to ensure that Mr. Bryant is afforded some privacy, I intend to seal that exhibit at the appropriate time until further order of the court. I also do not intend on elaborating on the nature of the illness for the purpose of this endorsement.

[4] I received an update from Mr. Bryant on October 30, 2016. It is quite clear that Mr. Bryant is no position to continue this week. However, he continues to take treatment for his condition. Furthermore, he has a follow up appointment with a medical practitioner on November 7, 2016.

The Issues

[5] As a result of Mr. Bryant’s illness, there are two issues that I have identified and asked counsel to comment on.

[6] First, can the trial continue with the Crown examining Ms. Warner in the absence of Mr. Bryant?

[7] Second, what is a reasonable limit as to how long the court can wait before we proceed with or without Mr. Bryant?

Analysis

[8] I must ensure that the trial is conducted in a fair, orderly and efficient manner.

[9] I accept that Mr. Bryant’s condition has not improved since October 23, 2016. He is also the lead counsel for Mr. Browne. What steps can be taken by the court to ensure that this trial is completed in a timely way? In attempting to resolve the issues that I have identified, I must balance a number of factors.

[10] First, Ms. Warner has been out of the witness box since October 18. I recognize that it is not fair to the witness to have the matter effectively suspended until further notice. Ms. Warner, no doubt, would like to complete her evidence and get on with her life.

[11] Second, the ability of all of the accused in this case to make full answer and defence. Mr. Browne’s counsel of choice is Mr. Bryant a very experienced defence counsel and Ms. Morphew who, by her own admission, is not as experienced. Counsel for Mr. Browne take the position that the trial can continue but it is Mr. Bryant who must be present and conduct the cross-examination of this critical witness. Ms. Morphew has identified some other witnesses that she can proceed with in the absence of Mr. Bryant.

[12] Of course, since this is a joint trial, the interests of Mr. Greensword and Mr. Williams must also be taken into account.

[13] Ms. Rozier submits that the preference of Mr. Greensword is not to interrupt Ms. Warner’s evidence by calling other witnesses. Ms. Rozier also raises a practical concern. Counsel submits that it is unrealistic to expect Mr. Bryant to continue this trial given the severity of his condition. Counsel raises the issue of severance under s. 591 of the Criminal Code.

[14] Ms. Addie submits that the preference of Mr. Williams is not to interrupt Ms. Warner’s evidence by calling other witnesses. Ms. Addie submits that I should consider the issue of severance immediately. Ms. Addie highlights the concern that this murder trial is in relation to a shooting that took place almost four years ago.

[15] The third factor is the jury. The jury has been out since October 18. The Crown, Ms. Rozier and Ms. Addie all submit that there is a live concern that the jury has been excused for a long period of time and that the jurors level of engagement may be reduced because of the period of time that they have been out of the courtroom.

First Issue: Should we continue with Ms. Warner?

[16] On the first, issue, I am satisfied that we should not continue with Ms. Warner.

[17] I accept that Mr. Bryant, who is the senior lawyer on the file, should be present for the examination of a critical Crown witness. Identification is a live issue in this case. Ms. Warner is an important witness for the Crown who will provide some identification of the males present at the shooting. If Ms. Warner was not a critical witness, I may have been inclined to proceed in the absence of Mr. Bryant. However, I do not understand the Crown to disagree with the characterization of Ms. Warner as “critical” to the prosecution.

[18] Ms. Morphew submits that she is not prepared to conduct the examination of this witness. Counsel submits that in order to respect Mr. Browne’s counsel of choice and his ability to make full answer and defence, I should defer the examination of Ms. Warner and proceed with other alternatives to keep things moving.

[19] I have turned my mind to whether or not Ms. Warner could finish her examination in chief in the absence of Mr. Bryant. In my view, this is not the appropriate solution. I say this because in order to conduct an effective cross-examination, counsel should be present for the examination of that witness to observe demeanour or the reaction to certain questions. Furthermore, the Crown will be playing portions of a video to the witness. It is important that Mr. Bryant know what is being played on the video by actually seeing the video in real time as it is being played. A transcript would fail to capture the witness’s reaction and demeanour when answering questions about the video. These are all important factors that experienced counsel use to prepare for cross-examination.

[20] In any event, the Crown is opposed to continuing Ms. Warner’s examination and then deferring cross-examination of Ms. Warner to a later point. I understand the Crown’s submission to be that if Ms. Warner’s evidence is to be deferred, it should be deferred immediately.

[21] I order that Ms. Warner’s evidence be deferred.

[22] However, I see no reason to delay these proceedings any further and I am satisfied that Ms. Morphew’s suggestion that the trial proceed with other witnesses is the fairest solution.

[23] There is no such thing as a perfect trial. I recognize that it is not ideal to call witnesses out of order but all parties agree that the situation involving Mr. Bryant is exceptional.

[24] Ordinarily, I would have to think twice about making an order directing the Crown as to what witnesses it should call and in what order.

[25] However, Mr. Cornelius acknowledges that it is open for me to do this under my inherent power to manage the trial in exceptional situations (See R. v. Felderhof (2003), 68 O.R. (3d) 481 and R.c. Auclair (2013), 302 C.C.C. 365, affirmed, 2014 SCC 6).

[26] Therefore, I direct the Crown to call certain witnesses that have been identified by Ms. Morphew and Mr. Hendry for the remainder of the week and next week. The Crown has emailed the Court an anticipated schedule of alternate witnesses.

[27] Ms. Addie submits that Cst. Smit ought not to be called until next week. Initially, counsel spoke cryptically about her request. However, after my brief oral ruling in court she advised that calling Cst. Smit out of order caused her client prejudice because she was consulting with an expert of her own to prepare for cross-examination of that witness. What I take from counsel’s submission is that she is not able to meet with the expert this week.

[28] I advised Ms. Addie that if Cst. Smit was on the list for this week then I would hear from counsel Wednesday morning and provide a ruling as to whether his evidence could be deferred until the following week.

[29] The Crown submitted a proposed witness list this afternoon. Cst. Smit is not on the list. The submission advanced by Ms. Addie is moot.

Second Issue: Sunset Date?

[30] At this stage of the proceedings, I think it is premature to discuss issues of severance or a sunset date for the matter to proceed with or without Mr. Bryant. I say this because Mr. Bryant has an appointment with a medical practitioner on November 7. Before making such an order, I should make every effort to obtain as much information that I can so that I can make a fair and informed decision.

[31] Therefore, I direct counsel to provide a note from a medical practitioner that sets out an opinion as to when Mr. Bryant can realistically be back in court to conduct litigation in this trial. The medical practitioner should be advised that this trial is expected to go into 2017 and that the reality of this type of criminal litigation is that counsel are expected to be on their feet for long periods of time.

[32] Applications for severance of accused persons are governed by s. 591(3) of the Criminal Code. The court has a discretion which must be judicially exercised. Severance may be granted where the court is satisfied that the interests of justice so require. This often requires the balancing of a number of competing interests.

[33] Ms. Rozier and Ms. Addie have raised severance as a discussion point. The Crown is opposed to any order of severance.

[34] At this stage of the proceedings, and on the record as it now stands, I am not persuaded that the interests of justice require severance. This is of course subject to change as more information becomes known and a record more fully developed.

Conclusion

[35] The trial will continue on Wednesday, November 2, 2016 at 10:30 a.m.

[36] Ms. Warner’s examination in chief will be deferred to a future date. That date will be determined once the court has more information or an opinion from a medical practitioner about Mr. Bryant’s ability to continue with this trial, and if so, his expected return date.

[37] The discussion of severance is premature. I am not inclined to grant severance at this stage on this record.

Coroza J. DATE: October 31, 2016