R. v. Millard and Smich, 2016 ONSC 2236
CITATION: R. v. Millard and Smich, 2016 ONSC 2236
COURT FILE NO.: 14-4348
DATE: 2016/04/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown
A. Leitch on behalf of the Crown
- and -
DELLEN MILLARD Accused
R. Pillay and N. Sachak on behalf of D. Millard
- and –
MARK SMICH Accused
T. Dungey and J. Trehearne on behalf of M. Smich
HEARD: March 31, 2016
A.J. Goodman J.:
MID TRIAL WRITTEN RULING # 4 – TIMING OF POLLOCK & MORRISSON APPLICATIONS
[1] The narrow issue for consideration is the appropriate timing of an accused’s application to raise discreditable conduct or bad character evidence against his co-accused during this trial.
[2] This procedure for the introduction of this form of evidence against a co-accused at trial is referred to as a “Pollock & Morrisson” application, in reference to the case of R. v. Pollock, 2004 CanLII 16082 (ON CA), [2004] O.J. No. 2652 (C.A.).
[3] During the pre-trial motions with respect to the application to introduce other discreditable conduct, Crown counsel sought directions as to when defence counsel ought to advise the Court and all parties of any potential Pollock & Morrisson application(s) to be brought during the trial. At that time, I ruled that I would not compel defence counsel to make their respective position known, as it would be premature and some degree of unfairness could arise. The discussion of the timing and process for such application(s) was postponed to a later stage of this trial.
[4] Last week, counsel for Mr. Smich sought directions as to the appropriate timing of the introduction of propensity evidence against a co-accused. After submissions, I provided direction to the parties with written reasons to follow. These are my brief Reasons.
Background:
[5] During the course of the pre-trial applications, all counsel conceded that adequate notice to the Court must be provided in advance of any request to introduce evidence of other discreditable or bad character evidence raised by one accused against his co-accused.
[6] As mentioned, Ms. Trehearne, on behalf of Mr. Smich, seeks to introduce some discreditable conduct or bad character evidence against his co-accused, Mr. Millard, through the cross-examination of a witness, Shane Schlatman. It is also expected that during the course of trial and with the remaining witnesses to be called, this type of application will surface. It was made clear to me that counsel for either accused may seek to bring further applications to admit certain bad character or propensity conduct against his co-accused.
Legal Principles:
[7] In Pollock, Rosenberg J.A. for a unanimous Court of Appeal stated at paras. 106 and 107:
Accordingly, since evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered. In my view, in a joint trial, counsel's mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion. That foundation may come during the Crown's case through evidence of Crown witnesses in chief or through cross-examination. In some cases, the evidentiary foundation may not be laid until the defence case. If so, the prejudicial character evidence would only be admissible, if at all, at that time. The need for this evidentiary foundation is not simply to avoid irrelevant evidence entering the record. An evidentiary foundation is essential to ensure fair management of the trial. The need for the highly prejudicial evidence can be properly assessed only when the accused demonstrates through evidence the contours of the defence. Until then, the trial judge is left to speculate on the importance and necessity of this evidence.
In deciding whether to admit evidence on behalf of one accused of the co-accused's disposition, the trial judge is required to balance the fair trial-rights of the two accused. In some cases, the trial judge will conclude that a fair balance cannot be struck within the confines of a single trial and the judge will grant severance. In most cases, however, it should be possible to balance the fair trial rights of both accused.
[8] In R. v. Suzack, 2000 CanLII 5630 (ON CA), [2000] O.J. No. 100, at para. 111, in addressing an issue of severance, Doherty J.A. discussed the trial judge's duty to balance the rights of co-accused in a joint trial:
Where accused are tried jointly, each is entitled to the constitutional protections inherent in the right to a fair trial. Those protections include the right to make full answer and defence and the right to be shielded from evidence which unfairly prejudices an accused. An accused's right to a fair trial does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone: R. v. Crawford, supra, at pp. 497-98; R. v. Pelletier (1986), 1986 CanLII 1179 (BC CA), 29 C.C.C. (3d) 533 (B.C.C.A.). In joint trials, one accused may elicit evidence or make submissions in support of his defence that are prejudicial to the other accused and could not have been elicited or made by the Crown. In those cases, the respective rights of each accused must be balanced by the trial judge so as to preserve the overall fairness of the trial.
Discussion:
[9] It is settled law that bad character evidence or other discreditable propensity conduct is generally not admissible when sought to be introduced by the Crown. However, in a joint trial, such evidence is potentially admissible when advanced by an accused against a co-accused, in order to provide for full answer and defence. When this type of evidence is introduced by an accused, it is appropriate that a limiting instruction be provided to the jury.
[10] After hearing the submissions of all counsel, it was clear that the thrust of the Pollock and Morrisson ratio outlining the purpose for advising the Court and a co-accused of a party’s intention to introduce bad character or propensity evidence was fundamentally one of fairness to all parties. At the same time, it is clear that the Court of Appeal in Pollock did not address the timing of such an application.
[11] This ruling does not address the particular evidence sought to be introduced, whether it is necessary or unduly prejudicial; or whether there is some evidentiary foundation in support of its admission. Nor am I called upon in this ruling to decide its ultimate admission and thus, undertake the delicate balancing of the fair trial rights of both accused: R. v. Crawford (1995), 1995 CanLII 138 (SCC), 96 C.C.C. (3d) 481 (S.C.C.)
[12] The nub of this question is the timing of the application as it impacts primarily on propensity or bad character evidence sought to be adduced by Mr. Smich against Mr. Millard, as Mr. Millard appears first on the indictment. Mr. Millard’s counsel is required to complete his cross-examination of a Crown witness prior to any cross-examination by counsel for Mr. Smich. Generally, counsel for Mr. Millard would have no right of re-cross-examination of a witness should the bad character evidence be adduced and the notice for the introduction of this evidence only provided after counsel for Mr. Millard had finished his cross-examination of a prosecution witness.[^1]
[13] Based on the submissions of counsel, there appears to be no precedent for the process or timing of such an application. It must be reasonably assumed that when confronted with this type of scenario, trial judges have dealt with the issue on a case-by-case basis.
[14] I agree with counsel that the interests of fairness dictate that I formulate a process that permits full answer and defence while respecting and engaging the rights of both accused to a fair trial.
Disposition:
[15] In order to maintain full answer and defence along with procedural fairness to all parties, I directed that when counsel for Mr. Smich wishes to adduce bad character or propensity evidence against Mr. Millard through a prosecution witness under the Pollock & Morrisson rubrique, such notice be provided at the conclusion of the Crown’s examination-in-chief and prior to the commencement of cross-examination by Mr. Millard’s counsel. As such, adequate notice would have been furnished to Mr. Millard.
[16] Should an issue(s) arise during the course of Mr. Millard’s counsel’s cross-examination of a witness that warrants further consideration and clearly not anticipated, Mr. Smich’s counsel may revisit his/her Pollock & Morrisson application prior to commencing his/her cross-examination.
[17] If, as a result of such reassessment, additional propensity or bad character evidence is permitted to be introduced by Mr. Smich in cross-examination, counsel for Mr. Millard may request that he be able to re-cross-examine the same witness on that narrow issue. However, whether any further right to examination is permitted will be determined based on the circumstances and evidence adduced with regards to that particular witness, bearing in mind the fundamental interests of fairness to all parties.
A.J. GOODMAN, J.
Released: April 4, 2016
CITATION: R. v. Millard and Smich, 2016 ONSC 2236
COURT FILE NO.: 14-4348
DATE: 2016/04/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown
- and -
DELLEN MILLARD Accused
- and -
MARK SMICH Accused
MID TRIAL WRITTEN RULING # 4- TIMING OF POLLOCK & MORRISSON APPLICATIONS
A. J. GOODMAN, J.
Released: April 4, 2016
[^1]: Similar timing concerns and advising the Court of a potential Pollock and Morrission application do not arise in respect of any applications brought by Mr. Millard, as counsel for Mr. Smich always follow after Millard in the order of cross-examination of a witness.