Court File and Parties
Oshawa Court File No.: 15/13823 Date: 2016-04-21 Ontario Superior Court of Justice
Between: Her Majesty The Queen, Applicant – and – Keenan Corner, Respondent
Counsel: L. Crawford and K. Saliwonchyk, for the Crown/Applicant G. McInnes and S. DiGiuseppe, for the Respondent Michelle Booth, for Crime Stoppers
Date of Decision: April 21, 2016
Ruling on Voir Dire
McKelvey J.:
Introduction
[1] The defendant in this action, Keenan Corner, is charged with second degree murder arising out of the death of Mr. Shabir Niazi. Mr. Niazi was shot to death on the afternoon of February 19, 2014.
[2] The Crown has brought an application for a ruling that it may adduce evidence at trial of a Crime Stoppers tip allegedly made by Mr. Corner. I previously delivered an oral ruling that the Crown’s application would be heard in-camera. For reasons previously given I allowed the defendant to participate at the in-camera hearing. The Crown had previously disclosed the relevant information about the Crime Stoppers tip to the defendant who was the subject of the allegation. In addition, I permitted counsel for Crime Stoppers to make submissions on the issue of whether confidential informer privilege applied. Their submissions were to be made from a position analogous to that of an amicus curiae. Brief oral reasons for my decision on this application were given on April 14, 2016. I advised at the time that I would release written reasons. These are those reasons.
[3] The position of Crime Stoppers is that any phone call to Crime Stoppers is covered by informer privilege and that the only exception which would permit disclosure is the “innocence at stake exception”. The defence is not raising the innocence at stake exception in this case and therefore Crime Stoppers is of the view that the telephone call to police is covered by informer privilege and that it was unlawful for the Crown to even disclose the contents of the tip to defence counsel.
[4] The defendant substantially adopted the Crime Stoppers position and further denied that there was sufficient evidence linking Mr. Corner as the person who made the Crime Stoppers call.
[5] The following issues, therefore, are raised on the Crown’s application:
- Is the Crime Stoppers call which was made in this case covered by informer privilege?
- If the call is not covered by informer privilege is there sufficient evidence that Keenan Corner made the call such that evidence of the call would be admissible at his trial?
- Even if the evidence is prima facie admissible is the probative value of this evidence outweighed by its prejudicial affect.
[6] The parties agreed that the first two issues would be dealt with in the context of an in-camera hearing. If I conclude that the evidence is otherwise admissible I will then proceed to consider whether the probative value is outweighed by the prejudicial effect in the context of a regular voir dire which is not held in-camera.
[7] During the in-camera hearing there was one witness called by the Crown. Officer Dana Edwards is a police officer with the Durham Regional Police Service. She was the individual who took the Crime Stoppers call in question. No witnesses were called by the defence. On consent there were a number of exhibits entered during the hearing relating to the police investigation of the Crime Stoppers call. It was agreed that these documents could be relied upon for the truth of their contents.
The Factual Background
[8] The Crime Stoppers tip was received on February 26, 2014 by Officer Edwards. Officer Edwards is the Crime Stoppers Coordinator for Durham Regional Police. Crime Stoppers is a program run by an independent volunteer board. It allows citizens to report crimes and also provides cash rewards. The main purpose for Crime Stoppers is to allow citizens to give anonymous tips to police and to receive a cash reward for the information if it leads to a charge or an arrest. The calls to Crime Stoppers are not recorded nor is there any effort made to trace the source of the calls. The main purpose for Crime Stoppers is to ensure that the identity of the caller remains anonymous. The information received from a caller is entered into a tip sheet. In addition, Officer Edwards at the request of the investigating detective made some additional hand-written notes about the call.
[9] Officer Edwards explained that if the caller gives identifying information during a call she will stop the tip making process. She will point out to the caller that their tip cannot be considered as part of the Crime Stoppers program or be eligible for a reward under the program because they have provided identifying information. The caller is advised that they can proceed to give information to the police which is not covered by the Crime Stoppers program. Alternatively they can call back at a later time with an anonymous tip to Crime Stoppers.
[10] Officer Edwards had two phones in her office at the time the call in question was received. One phone was dedicated to receiving Crime Stoppers calls based on the advertised phone number for Crime Stoppers. The second phone is a Durham Regional Police phone which is not dedicated to Crime Stopper calls.
[11] In the present case Officer Edwards received the Crime Stoppers call sometime shortly before 12:19 p.m. on February 26, 2014. Twelve- nineteen is the time noted on the tip sheet. The software program automatically generates the time when the file is opened. The phone call was received on her Durham Regional police phone; call display did not reveal the number of the caller. The fact that the call was received on the Durham Regional police phone meant that it had not come directly to her phone. It would have had to have been directed from the switchboard or from communications. Officer Edwards could not be sure which of these alternatives was the original source for the call. Officer Edwards answered the phone by saying, “Crime Stoppers”. The person on the other end of the line seemed confused as to why the call had been put through to her. She asked the caller if he wanted to speak to an investigating officer or alternatively provide a tip anonymously. The caller then asked her how quickly the information would get to the investigator. She told the caller that she would call the investigating officer immediately after their call was finished. The caller then told her that he would give the information to her. She then proceeded to receive the information from the caller and record it in the tip soft program.
[12] The tip soft report states the caller reported he was on the back porch of a nearby residence at around 4:10 to 4:20 on the day of the shooting, February 19, 2014. The caller could see the neighboring residence of the crime scene which backed onto the church parking lot. This would indicate that the caller was observing the neighboring backyard at 41 Roosevelt Avenue, as the shooting took place at 39 Roosevelt. The caller reported seeing four black males hanging out at the back of the garage in the neighboring backyard. He then proceeded to give a physical description of these individuals. He also described seeing the four males get into a car in the church parking lot after 5 or 10 minutes. He subsequently saw the car in traffic and stated the car drove to the lake. At the lake the occupants got out of their car and started throwing things in the water. They then went back to their vehicle and left.
[13] Near the end of the call Officer Edwards advised the caller of the tip number for future reference. The caller said he did not have any paper to write down the number and that he was at a pay phone.
[14] The call ended at 12:38 which is when Officer Edwards would have saved the notes on the tip soft program.
[15] Officer Edwards agreed that she thought the caller had given her the information as an anonymous tip to Crime Stoppers. She treated the information as a Crime Stoppers tip and never told the caller that he was not covered by the Crime Stoppers program.
Was the Crime Stoppers Call Covered by the Informer Privilege
[16] For purposes of my analysis I will assume that the Crown is correct in asserting that the accused was in fact the Crime Stoppers caller.
[17] I start with the proposition that any privilege applicable to Crime Stoppers calls is that of informer privilege. This is clear from the Supreme Court of Canada decision in R. v. Leipert, [1997] 1 SCR 281. The Leipert case dealt specifically with a situation where police received a tip from a Crime Stoppers association that the accused was growing marijuana in his basement. At trial the defence sought production of the Crime Stoppers documentation. The Crown refused disclosure on the ground of informer privilege. The trial judge viewed the document and ordered disclosure of a redacted version of the Crime Stoppers data. In the end the Crown declined to tender any evidence; the trial judge entered an acquittal. The Supreme Court of Canada ordered a new trial.
[18] In its decision the Supreme Court noted that the rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same. It was recognized that whatever their motives, the position of an informer is always precarious and their role is fraught with danger.
[19] In Leipert, supra, the court noted the unique features of a Crime Stoppers call and the importance of the informer privilege rule in cases where the identity of the informer is anonymous. The court stated at para. 11:
In most cases, the identity of the informer is known to the police. However, in cases like the instant one, the identity of the informer is unknown to everyone including the Crime Stoppers agent who received the call. The importance of the informer privilege rule in cases where the identity of the informer is anonymous was stressed by the California Court of Appeal in People v. Callen, 194 CAL. App 3rd 558 (1987). The court, in holding that the police, have no duty to determine or disclose the identity of anonymous informers, stated at para. 587:
Such an investigatory burden would not only be onerous and frequently futile, it would destroy programs such as Crime Stoppers by removing the guarantee of anonymity. Anonymity is the key to such a program. It is the promise of anonymity which allays the fear of criminal retaliation which otherwise discourages citizen involvement in reporting crime. In turn, by guaranteeing anonymity, Crime Stoppers provides law enforcement with information it might never otherwise obtain. We are satisfied the benefits of a Crime Stoppers-type program – citizen involvement in reporting crime and criminals – far outweighs any speculative benefits to the defence arising from imposing a duty on law enforcement to gather and preserve evidence on the identity of informants who wish to remain anonymous.
[20] It is apparent that the Supreme Court in the Leipert decision is providing a strong endorsement for the application of informer privilege to Crime Stoppers calls. The court goes on to note that while informer privilege belongs to the Crown, the Crown cannot without the informant’s consent, waive the privilege either expressly or by implication by not raising it. In that sense the privilege also belongs to the informer. Where the informant is anonymous the court notes that it is often difficult to predict with certainty what information might allow the accused to identify the informer. They suggest a detail as innocuous as the time of the telephone call may be sufficient to permit identification. Because the Crown must claim privilege over information that reveals the identity of the informant and because it was impossible to conclude whether the disclosure of details about the call would reveal the identity of the informer to the accused or others the court concluded the statement should not have been edited and ordered disclosed to the defence. The court concluded, “the informer’s privilege required nothing short of total confidentiality”.
[21] It is acknowledged by all parties that the claim of informer privilege is subject to the “innocence at stake” exception. In order to successfully raise this exception to informer privilege there must be a basis to believe that the disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused. This is a very high bar and in any event it is clear that the innocence at stake exception does not apply in the circumstances of the case at hand. The accused in this case is denying that the evidence of the Crime Stoppers call is admissible at trial.
[22] It is significant to note, however, that the Supreme Court in Leipert stopped short of stating that all Crime Stoppers calls are covered by informer privilege. Immediately following the quotation noted above at para. 11 of their decision the Supreme Court goes on to state,
Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations, as is the case, for example, with Crown privilege or privileges based on Wigmore’s four-part test. (emphasis added)
[23] The question then, is to what extent are there any exceptions that may preclude a finding of informer privilege in the context of a Crime Stoppers call. There are no specific cases which I have been referred to which specifically address this issue directly. However, the defence and Crime Stoppers point to the Supreme Court of Canada decision in Solicitor General of Canada v. Royal Commission (Health Records), [1981] 1 SCR 494 as supporting a proposition that misconduct on the part of an informant does not destroy informer privilege. This case dealt with a Royal Commission where physicians and hospital employees in Ontario provided police with information without the prior consent of their patients. It was conceded in that case that in each instance where the police received information from either a doctor or hospital employee, the police officer was acting in the course of his duty in the course of an investigation of crime or national security. It was argued in that case that police informer privilege did not apply if the informant had communicated information which he or she should not have given. In response to this argument the Supreme Court stated:
With respect, in my opinion, the answer to this is that the privilege in question is not given to the informer and, therefore, misconduct on his part does not destroy the privilege. The privilege is that of the Crown, which is in receipt of the information and assurance of confidentiality. The existence of the privilege is not to be determined by the nature of the conduct of the informer.
As Lord Simon of Glaisdale said in N.S.P.C.C. case at pp 233 “The rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or demented police informant as much as of one who brings information from a high-minded sense of civil duty. Experience seems to have shown that although the resulting immunity from disclosure can be abused the balance of public advantage lies in generally respecting it.”
[24] The Crown relies on a decision of the Quebec Court of Appeal in Hiscock v. The Queen, 72 C.C.C. (3d) 303. Leave to appeal from this decision was subsequently denied by the Supreme Court of Canada. In the Hiscock decision Gerald Hiscock was a criminal defendant who was found guilty of possession and trafficking in narcotics. It was acknowledged that Mr. Hiscock was a police informant who was under direction from an officer of the RCMP. He had been authorized as a police informer to participate in some drug transactions. It was alleged that both Mr. Hiscock and his police supervisor deviated from the agreed upon plan and were engaging in drug transactions beyond the parameters agreed to. Pursuant to a wiretap authorization some incriminating statements of Mr. Hiscock were identified. The defence asserted that the wiretap evidence should be excluded under police informer privilege. They relied on the Supreme Court of Canada Health Records decision, supra, and argued that misconduct had no effect on the existence of the privilege. The Quebec Court of Appeal disagreed. It stated commencing at para 73:
The informer plays a role which is often important, sometimes essential, in police action and the application of criminal law. His actions sometimes take place in very grey zones. The commission of certain crimes is tolerated, apparently, in the interest of more effective applications of justice. The informer is permitted to make personal profit. According to the Supreme Court of Canada in Solicitor General, supra, his identity is protected even when he commits unlawful or tortious acts. It should be noted, however, that they remain tortious acts committed in the service of the government. In Solicitor General information was gathered by the police from doctors or hospital employees in Ontario, in violation of these persons’ obligation of professional secrecy. The police informer certainly acted improperly. However, he did not step outside the boundaries of his role. The information was illegally gathered, but with a view to the general purpose of the application of the law, even though it involved acts that the law or, at the very least, morality disapproved of.
In the present case one is faced with a different situation. According to the trial judge’s analysis of the evidence, these conversations, these discussions between Sauve, Hiscock and third parties had nothing to do with his functions as an informer. Hiscock was acting in his own interest and that of Sauve. To find otherwise, it would be necessary to reject the trial judge’s findings of fact with respect to this evidence. Hiscock, during his conversations generally acted for his own account by attempting to advance his narcotics business. Even though he was also a police informer, which is freely admitted, during the courses of the events for which he is charged, he was not acting as such. He was working for himself and not for the police and the government.
The informer’s privilege cannot be interpreted and applied so as to grant a licence to commit criminal offences solely in the interests of the accused. It is natural to cover up illegal, even criminal offences provided that they remain oriented towards the application of the law. If one were to accept the appellant’s argument, the privilege invoked would be completely diverted from its goal, since it was used for an end and interests which are contrary to those which justify it in Canadian public law. There was, therefore, no error in the trial judge’s decision dismissing the ground based on the informer’s privilege. This ground of appeal is without merit.
[25] The Crown advances two arguments about why the Crime Stoppers call should not be covered by police informer privilege in the present case. First, the Crown argues that the Crime Stoppers caller did not call in on the Crime Stoppers hotline number and even appeared confused as to why his call had been directed to Crime Stoppers. In addition, the Crown refers to the fact that having been referred to the Crime Stoppers line the caller’s interest did not appear to be in the confidentiality of the call, but rather in how quickly his information could be communicated to the investigating officers. In those circumstances the Crown argued that anonymity was never raised by the caller as an issue and there is no reason to conclude that the caller was requesting anonymity as a condition of providing his information to Officer Edwards.
[26] The circumstances referred to by the Crown do not persuade me that informer privilege should be denied on that basis to the caller. Regardless of how the call got to the Crime Stoppers officer, there are compelling reasons why a Crime Stoppers caller should be treated as prima facie having requested anonymity. As noted in Leipert, supra, anonymity is the key to the Crime Stoppers program; to engage in speculation as to whether a caller was relying on the assumption of anonymity would significantly weaken the public’s faith in the program. This in turn could lead to a significant erosion of the effectiveness of the program. In the present case the caller did not identify himself at the beginning of the call and took the precaution of calling from a number which did not appear on the call display of Officer Edwards’s telephone. Further, having been told that the Crime Stoppers tip would be treated anonymously he proceeded to give information to Officer Edwards which she recorded under the belief that this was a Crime Stoppers tip. I conclude that in these circumstances that the caller did intend to provide the tip anonymously and that informer privilege should not be denied on this basis.
[27] The second argument raised by the Crown is based on the assumption that the caller was the accused. In these circumstances the Crown argued that the Hiscock exception was directly applicable. The Crown’s position is that the privilege does not apply where the information provided by an accused person constitutes a criminal offence and is solely in the interests of the accused. The Crown referred to the fact that the acts of the accused would constitute the criminal offences of public mischief, contrary to section 140 of the Criminal Code and also obstruction of justice under section 139 of the Criminal Code as the call was clearly an attempt to divert suspicion from the accused for the shooting which occurred.
[28] Crime Stoppers argued that all crime stopper calls are covered by informer privilege and that the only recognized exception is innocence at stake. However, in my view, as informer privilege is the privilege which applies to crime stopper calls, those calls are subject to the same exceptions that may apply generally to informer privilege. The protection of informer identity is based on a finding of informer privilege. Thus, if there are recognized exceptions to a finding of informer privilege those exceptions would also apply to Crime Stoppers calls. Crime Stoppers argued that absolute confidentiality for all calls to Crime Stoppers is critical to the effective of functioning of the program. However, there are no absolute guarantees of confidentiality even for Crime Stoppers calls as there is, at a minimum, the innocence at stake exception.
[29] The defence argued that the Hiscock case can be distinguished on its facts. They point to the fact that there was effectively a finding by the court in Hiscock that the informer went beyond the agreed upon parameters of the informer privilege and became an agent actively engaged in the commission of drug crimes. On basic principles the defence argued that these statements were not covered by informer privilege. While it may well be that informer privilege could have been denied on other grounds, in Hiscock it is apparent that those other grounds were not the basis for the courts conclusion. Instead the Quebec Court of Appeal relied upon the principles referred to earlier.
[30] The defence also argued that the principles in Hiscock have not been followed since 1992 when it was decided. Thus, they questioned the applicability of the doctrine and suggested that Hiscock is an anomaly which does not apply today.
[31] While it is true that I have not been referred to any cases where the Hiscock principles have been specifically adopted in other similar cases I have concluded that the principles still have strong persuasive value today for the following reasons:
The principles have been adopted in at least one authoritative text, The Law of Evidence in Canada by Sopinka, Lederman and Bryant. In the 4th edition of that text under the heading “Who may not Claim the Privilege” the authors state at para. 15.108,
Where the accused is the informer, he or she cannot invoke the privilege to prevent incriminating evidence being used against him or her. The rule was not intended to allow informers to hide behind the privilege when they themselves have allegedly committed crimes.
In support of this assertion the authors rely on the Hiscock decision.
There are subsequent cases which appear to accept the principles outlined in Hiscock. For example in R. v. Moore, 2015 ONSC 1095 the court states,
On October 21, 2011, at 4:30 p.m., the accused called Crime Stoppers and purported to be a tipster named Christopher Parker. He asserted that he knew Mark Moore and that he was innocent of the four murders he had been arrested for, and that he had heard through the grapevine that “Slinky” and “Red” were responsible for the murders. He provided a description of Slinky and Red. The accused says that no one could believe that he was actually trying to divert attention from himself, and that the admission of this evidence will prejudice him by holding him up to ridicule and mockery. I do not agree. It will be for the jury to determine whether this was a rather naïve and hopeless attempt by Moore to divert attention from himself, or was in fact some sort of a joke. The evidence is clearly relevant, and its probative value outweighs any slight prejudicial it may have.
Another case where the issue of privilege did not receive any analysis but the principle seems to have been adopted is R. v. S. (E.L.), 2005 BCSC 1603 where the accused pleaded guilty to a charge of public mischief and uttering a threat to cause death or bodily harm. In this case the defendant anonymously called Crime Stoppers and attempted to direct a police investigation involving a high profile murder to focus on a specific individual. At the time of sentencing the accused stated that she had made a call to Crime Stoppers and left a message that the police should consider a specific individual as a suspect because he lived near the victim at the time of her disappearance and had been acting strangely.
It was Justice LeBel who wrote the majority decision in the Hiscock decision for the Quebec Court of Appeal. He had the opportunity to revisit the principles in that case as a Justice of the Supreme Court of Canada in Named Person v. Vancouver Sun, [2007] 3 SCR 253, 2007 SCC 43. His comments in that case were contained in a dissenting opinion. However, his dissent was directed to another issue, namely the procedure to be followed when a claim for informer privilege is made. In the course of his dissent starting at para 109 Justice LeBel states,
In my opinion, the judge‑made rule of informer privilege cannot deprive a judge of the discretion to consider whether the rule is applicable. The issue will of course be resolved so easily in classic fact situations that the reasoning will be implicit and the application of the rule will appear to be absolute. However, the instant case clearly shows that, in certain exceptional circumstances, it will be more difficult to establish the scope of the privilege and an adversarial proceeding will be necessary. This will be true, for example, where, as appears to be the case here, the judge must consider the possibility that the privilege is being abused or is being diverted from its purpose.
The decision of the Quebec Court of Appeal in R. v. Hiscock (1992), 72 C.C.C. (3d) 303, appears to be based on the reasoning. In that case, one of the two accused was a police informer whom the RCMP had asked to set up an operation to import hashish. The RCMP soon suspected that something was amiss in the operation. After electronic surveillance, followed by a search of the informer’s vehicle, the informer was arrested and charged with conspiracy, trafficking, and possession of narcotics for the purpose of trafficking. According to the Crown, the informer had misappropriated part of the shipment of drugs that was supposed to be controlled by the RCMP.
After being convicted at trial, the accused argued that the wiretap evidence should be excluded because to admit it on appeal would be to violate informer privilege. The Quebec Court of Appeal rejected this argument, stating that informer privilege did not apply in the circumstances of the case. Writing for a unanimous panel, I took the opportunity to emphasize that the social justification for this privilege was found in the need to ensure performance of the policing function and maintenance of law and order (p. 329). The informer was granted the protection of informer privilege not in his personal interest, but in the interest of more effective law enforcement (p. 329). I concluded that the privilege should not be interpreted and applied so as to authorize the commission of criminal acts in the sole interest of the accused and therefore could not be used by the accused as they proposed to use it (p. 330). The opposite interpretation would have endorsed an abuse of the privilege, given its objective.
[32] In summary, I find the principles outlined in the Hiscock decision to be persuasive. Informer privilege was created as a matter of public interest to protect the position of informers whose role was recognized to be a dangerous one and to encourage citizen involvement in reporting crime. Where an accused uses the Crime Stoppers system to deflect attention from himself the privilege is being completely diverted from its goal and for a purpose which is contrary to those which justify it. If the accused did in fact make the Crime Stoppers call in this case there can be no question but that his objective was to divert attention from himself as part of the police investigation. The conduct would prima facie be criminal in nature as suggested by the Crown. I am mindful of the concerns expressed by Crime Stoppers about the importance of anonymity to the Crime Stoppers program. Crime Stoppers is an important program that depends on anonymity to function effectively. But in my view the Crime Stoppers program has never been able to give a “guarantee” of anonymity. Exceptions such as innocence at stake are rare, but constitute an exception to the general rule. Cases such as the one before me are rare as well. Nevertheless the rationale for denying informer privilege to an accused who is alleged to have made a call in his own interest and in circumstances which would constitute a criminal offence is compelling. I therefore find that if the Crown can satisfy the court that the accused was the Crime Stoppers caller the accused would not be entitled to claim informer privilege and the evidence would be admissible at trial subject to a review of the probative versus prejudicial value of the evidence.
Has the Crown Established that the Accused was the Crime Stopper’s Caller?
[33] The first issue which must be addressed is the standard of proof for the Crown on this application. The Crown relies on the Supreme Court of Canada decision in R. v. Egger, [1993] 2 SCR 451 to support its position that the standard of proof is on a balance of probabilities. In Egger the court notes at para 32 that proof on a balance of probabilities is an acceptable standard for deciding a preliminary question of fact with respect to the admissibility of evidence. The court notes that the effect of satisfying the burden of proving preliminary facts to the admissibility of evidence is only that the evidence is admitted. The admissibility does not determine either the weight of the evidence or the guilt of the accused. This occurs during the next step of the process during which the Crown must satisfy the court of the guilt of the accused. However, where the admission of the evidence may itself have a conclusive effect with respect to guilt, the criminal standard of proof is applied.
[34] In the present case the admission of the evidence of the Crime Stopper’s call would not determine the guilt or innocence of the accused. At its highest it would simply be some evidence which could be relied upon by the Crown to satisfy its burden that the accused is guilty beyond a reasonable doubt.
[35] The defence takes the position that for policy reasons the balance of probabilities standard is not sufficient to justify releasing the identity of an informant in a public forum. They point to the potential for a real safety concern if the identity of an informer is released when there is significant doubt left about the identity of the informer. The defence suggests that the criminal standard of proof beyond a reasonable doubt should apply in the circumstances. I have concluded that it is a balance of probabilities standard which prevails in accordance with the decision in Egger supra. This conclusion is supported by the comments of the Supreme Court in R. v. Basi, [2009] 3 SCR 389, 2009 SCC 52 where the court states at para. 39 that in determining whether informer privilege exists, the judge must be satisfied, “on a balance of probabilities, that the individual concerned is indeed a confidential informant”.
[36] In support of its argument that the accused was the Crime Stoppers caller in this case the Crown refers to evidence which it asserts supports a conclusion that the crime stopper call was not a legitimate call from an independent witness. In support of its conclusion in this regard the Crown relies on its investigation at the time of the shooting which it says supports a conclusion that no one could have been hiding behind the garage at 41 Roosevelt Avenue. It also relies on its investigation after the fact in which it canvassed the people who live in the area and who would have a view of the backyard of 41 Roosevelt Avenue. There was no male identified during this investigation who was a witness to the observations reported by the Crime Stoppers caller.
[37] Based on the assumption that the Crime Stoppers call was not made by a legitimate informer, the Crown then relies on a number of facts which it asserts establish that the accused was in fact the caller. This includes observations of the accused who was under surveillance on February 26th and was observed making a phone call at around the same time as the Crime Stoppers call. In addition, the Crown relies on certain similarities in the description of the people who were reported to be in the backyard at 41 Roosevelt Avenue to those described by the accused in statements given to the police. It is apparent that if it is not possible to rule out a legitimate caller to Crime Stoppers, the Crown would not be able to satisfy its burden of establishing that the accused made the call. The Crown’s application would fail at that point.
[38] In the present case the caller stated that he was on his back porch of a nearby residence at sometime between 4:10 to 4:20 when he observed four black males hanging out at the back of the garage of 41 Roosevelt Avenue. One of the males was holding a big black garbage bag. The caller stated that the males went through the opening in the fence which was adjacent to a local church parking lot. They were waiting there between five to ten minutes and got into a car. The only information adduced during this hearing with respect to the time of the shooting were statements by the accused to the police after the shooting. In one statement the accused gave an estimate of the time of the shooting as between 3:50 to 4:10 p.m.. Later the accused gave an estimate of 4:25 p.m. Thus, the range of time estimates given by the accused for the time the shooting occurred range from 3:50 to 4:25 p.m.. The time frame for the caller’s observations casts some real doubt about the legitimacy of the call. The accused had reported to police that three people had entered the garage where he and the deceased were expecting drug clients. One of the persons entering into the garage had a gun and shot his friend. The drugs in the garage were reported to be stolen. It seems unlikely in these circumstances that the persons responsible for the robbery and the shooting would have waited behind the garage on the adjacent property between five and ten minutes for a car to arrive and take then away from the scene. This in my view raises considerable doubt about the legitimacy of the call.
[39] The Crown also refers to evidence taken by police following the report of the shooting. The shooting occurred in February when there was snow in both the backyards of 39 and 41 Roosevelt Avenue. Exhibit 4 is an agreed statement of fact as to what two officers observed in the time period shortly after the shooting incident. Officers Ellis and MacIver saw no footprints in the backyard of 41 Roosevelt or along the fence line between Roosevelt and the church parking lot. Officer Ellis had no particular recollection about the southeast corner of 41 Roosevelt behind the garage. Officer MacIver saw no footprints leading from the backyard of 41 Roosevelt to the church parking lot. Officer MacIver’s recollection was that the gap in the fence area between 41 Roosevelt Avenue and the church parking lot was not shoveled and there was snow from the plow clearing the parking lot in that area. This is shown in photographs which were taken from the area of the fence which appears to correspond to the “break in the fence”. In this area the fence appears to be significantly lower so that a person could easily climb over. The photo shows that while the church parking lot is shoveled a large pile of snow has been pushed up against the “gap in the fence”.
[40] The significance of the police observations is that a person leaving the garage at 39 Roosevelt Avenue and going to the back of the garage at 41 Roosevelt would have to leave footprints in the backyard of 41 Roosevelt. No such footprints were seen. Alternatively a person could have obtained access to the area behind the garage at 41 Roosevelt by going from the church parking lot (which had been shoveled) to behind the garage. But as shown in the photos which have been filed they would have to go through a pile of snow which had been pushed to that area of the gap in the fence. Officer MacIver saw no footprints leading from the backyard of 41 Roosevelt to the church parking lot. Thus, this means of access to the back of the garage of 41 Roosevelt appears to have been ruled out as well.
[41] The defence argued that the court needs to be cautious about accepting the factual assertions given by the caller given that the caller has not been subjected to cross-examination. The defence points to the possibility that some of the observations given by the caller might have been well meaning, but inaccurate. For example, it was suggested the caller might be mistaken about the location where the four individuals were observed behind the garage at 41 Roosevelt when possibly they could have been in the church parking lot and left no footprints, given that the parking lot had been shoveled. The defence points to the fact that the call was received about a week after the incident in question which again raises the issue as to whether the caller was able to recall all of the details of his observations accurately and whether he was even correct about the date.
[42] I agree that without the benefit of cross-examination a court must be cautious and recognize the potential for some observations to be inaccurate from a legitimate and well intentioned caller. Nevertheless the observations of the caller were quite specific in this case. The caller stated that he saw the males hanging out at the back of the garage in the neighboring yard. The caller also stated that the persons he saw went through the opening in the fence to the church parking lot. The observations communicated by the caller are consistent with the known layout of the church parking lot, the fence, and the garage located at 41 Roosevelt Avenue. On balance I am persuaded that the evidence of the investigating police officers casts significant doubt about the legitimacy of the call.
[43] Further the police did a canvass of the neighborhood after the shooting incident. There were three homes which conceivably might provide a view for the backyard of 41 Roosevelt Avenue. Only one male was identified as living in those neighboring residences. This individual was subsequently interviewed by the police and he reported that he was not in the area at the time of the shooting. The defence points out that there may be reason to question the adequacy of the police records of the occupants who lived in the neighboring houses. I also had some concern that the male occupant referred to above was asked specifically whether he made the Crime Stoppers call. There was no reason to believe that this individual was involved in the shooting and to ask him whether he was the caller in light of his earlier information that he did not see the shooting was, in my view, an unnecessary and inappropriate question to ask given that a Crime Stoppers caller would normally expect his identity to remain confidential I would not place any reliance on a denial by a person that they were a Crime Stoppers informant in these circumstances.
[44] Thus, while the post incident canvass by the police may not have been perfect and while there is a possibility that another male might have lived in one of the houses that had a view of the garage in question the police canvass after the shooting does lend some additional support for the proposition that at the time of the shooting there was no male in the neighborhood who would have been in a position to observe what the Crime Stoppers caller reported.
[45] Taking all of the evidence into account I am satisfied that the Crime Stoppers call was not a legitimate call from a concerned citizen who had actually observed the events described.
[46] The final issue to be considered is whether the Crown has satisfied its burden to establish that the caller in this case was the accused. The Crown relies heavily on surveillance of the accused which was in place in the general time frame when the Crime Stoppers call was made. The surveillance records were introduced on consent. They document that the accused stopped at a Bell payphone booth in a plaza at 12:12 p.m. and was observed talking on the phone. The next entry is at 12:16 p.m. when the accused is noted to be still on the phone. At 12:38 it is noted that the accused is “out of phone booth and walking westbound in front of Sobeys”.
[47] We know from the evidence of Officer Edwards that she opened the software ticket program shortly after receiving the call. This occurred at 12:19 p.m. according to the tip soft record. The evidence of Officer Edwards is that the call was directed to her by either switchboard or communications. We do not know how long the caller was on the phone before being directed to Officer Edwards. There would also be a short period of time before Officer Edwards opened the tip soft program. There is a seven minute gap between the observation of the accused going into the phone booth and Officer Edwards opening the Crime Stoppers file. I do not consider the timing to be inconsistent with the accused being the Crime Stoppers caller. However, at the same time this evidence does not add a great deal of weight to the Crown’s position that he was the caller. Overall, I conclude it is a neutral factor.
[48] The termination of the call occurred at 12:38 p.m. according to Officer Edwards. Twelve thirty-eight is also the time which is noted in the surveillance records when the accused was out of the phone booth and walking westbound in front of Sobeys. The defence argued that if the accused were walking in front of Sobeys in the plaza he must have left the phone booth earlier than 12:38 p.m. The defence also argued that the surveillance does not specifically identify the call ending at 12:38 p.m. If the accused was walking in front of Sobeys it would suggest that accused left the phone booth sometime prior to 12:38 p.m. In my view it is reasonable to conclude that the accused left the phone booth at approximately 12:38 p.m. The details found in the surveillance summary suggest that the accused was under continuous surveillance. Any significant movement or new observations appear to be well documented. So for example at 12:39 it is documented in the surveillance notes that the accused was now wearing yellow work gloves, walking westbound and then northbound out of the plaza. Further I infer that the accused left the phone booth after his call was finished as there is no information suggesting any other activity on his part in the phone booth prior to 12:38.
[49] The fact that the accused terminated his call at approximately the same time as the call to Crime Stoppers ended leaves me with a high index of suspicion that the accused was in fact the Crime Stoppers caller.
[50] The Crown also relies on the fact that the Crime Stoppers caller reported he was at a pay phone as further evidence that the accused was the called. The Crown in this regard relies on the Supreme Court of Canada decision in R. v. Evans, [1993] 3 SCR 653. In that decision the court noted that an out of court statement which is admitted for the truth of its contents is hearsay. However, statements may still have some probative value as non-hearsay if they narrow the identity of a declarant to a group of people who are in a position to make similar representations. Thus, the more unique or unusual the representation, the more probative value will attach on the issue of the identity of the declarant. The court found in that case that statements made by the purchaser of a car could be used to identify him as an accused and stated, “This statement has probative value without assuming the truth of the statement because the mere fact that it was made tells us something relevant about the declarant that connects him to the accused”.
[51] The Crown argued that the caller’s statement that he was in a pay phone goes to the identity of the caller as it narrows the group of persons who conceivably could have been responsible for the call to Crime Stoppers. The defence takes the position that the Crown is attempting to rely on the truth of the contents of the statement. In this regard I accept the defence submission. I conclude that the assertion by the caller that he was at a payphone does little to narrow the group of people who could conceivably have made the call. Its relevance, however, would be that it corroborates the observations of the police surveillance. In this regard it appears to be evidence which the Crown is relying upon for the truth of its contents. As it is a hearsay statement it would be inappropriate for me to rely on this statement for the truth of its contents.
[52] The fact that the caller was very familiar with the layout of the neighborhood and in particular the details of the layout 39 and 41 Roosevelt Avenue as well as the church parking lot are consistent with the caller having been the accused. On the other hand I accept the defence submission that anyone using the church parking lot would know all of the relevant details of the layout. Therefore, I decline to give this factor any significant weight.
[53] This leads to a consideration of the information received from the caller which I find to be very significant. The accused gave a series of statements to the police after the shooting incident in which he described the three persons who came into the garage and who were responsible of the robbery and the shooting of the deceased. It is apparent that knowledge of his description of those individuals would be limited to himself and members of the police involved in the investigation.
[54] There are both similarities and dissimilarities in the description provided by the Crime Stoppers caller as compared to the statements given by the accused to police. The most significant dissimilarity is the report that four persons were seen behind the garage at 41 Roosevelt Avenue as opposed to three as reported by the accused. There are, however, other dissimilarities as well. For example all of the individuals observed were described by the Crime Stoppers caller as being black. In his statement given to the police after the shooting the accused described the intruders as middle-eastern with a dark brown complexion. The Crown refers to the fact that at the time of his arrest on March 1st the accused told police that he lied about the complexion of the people who came into the garage. He stated that they were not brown but were in fact were black. The defence pointed out that the accused could not have reasonably anticipated being arrested after the Crime Stoppers call and giving a statement following his arrest where he would change the skin colour of the third party suspects. While that is true one is left to question whether the accused on March 1st might have changed his evidence about the skin colour for the third party suspects to conform with the information he had given to the police through a Crime Stoppers tip. Thus, on balance I am reluctant to place any weight on the fact that the skin colour for the people observed by the Crime Stoppers caller was described as dark brown instead of black.
[55] As noted previously the most significant dissimilarity in the Crime Stoppers call is the report that four persons were seen behind the garage at 41 Roosevelt Avenue as opposed to just three reported by the accused. I recognize this as a significant difference which must be considered. Having said that the reference to a fourth person in the Crime Stoppers call is not necessarily inconsistent with the accused’s description of three persons having entered the garage as part of the home invasion. The statement by the accused to the police after the event does not rule out the possibility there was a fourth person who was part of the home invasion, but who did not enter the garage area.
[56] There are significant similarities between the descriptions of the first three males described by the accused when compared to the information provided in the Crime Stoppers call. In his statement to police the accused described the first male as being six foot one inches or bit more, dark hair, black puffy jacket, black jeans, black shoes and black leather-type gloves. He estimated the age of this individual at 20 to 32 years old. In the Crime Stoppers call this individual was described as six foot four, dark hair, trimmed beard, a dark puffy jacket with hood that has fur around it, dark jeans, and dark shoes. The estimated age was 20-30 years old. It is apparent that these two descriptions are very similar with the exception of the reference to a trimmed beard. In his statement to police when asked if this individual had any facial hair the accused responded that he didn’t know but did not remember any. The description, however, of a “dark puffy jacket” mirrors closely the description given to Crime Stoppers except for the fact that there was no reference to a hood in the statement to police. The reference to dark jeans and dark shoes is also quite consistent as well as the estimated age.
[57] The description of the second suspect in the accused’s statement to police is very similar to his description of the first suspect in the Crime Stoppers call. He estimated the height to be five foot five to five foot seven. In his statement to police he estimated that the individual was a tiny bit shorter than himself. The accused gave his height as five eight to five foot nine. In his statement to police he described the individual as wearing a blue jacket that looked like a Northface jacket and had fur around the hood. In the Crime Stoppers call the individual was described as wearing a blue winter jacket with fur around the hood.
[58] In his statement to police the accused described this person as having dark hair and corn rows. In the Crime Stoppers call the individual is described as having short hair. There is some inconsistency with respect to the description of the hair but considering the stated vantage point of the caller it would not be expected that someone at that distance would be able to distinguish between corn rows and short hair. I am therefore not inclined to place a lot of significance on this difference.
[59] The third person identified by the accused in his statement to police was described as five foot two and being big and strong and stocky. He was described as having some “peach fuzz” facial hair with a black down jacket with fur on the hood. He was also described as wearing black jeans and black shoes. In the Crime Stoppers call the individual was described as being five foot four with a full beard, all dark clothing and hooded jacket but no fur around it. There are some dissimilarities in this description. For example the Crime Stoppers caller described a full beard as opposed to “peach fuzz” and the Crime Stoppers caller described all dark clothing with a hooded jacket but no fur around it. This is consistent with the description given by the accused to the police with the exception of the presence of fur on the hood of the jacket.
[60] While there are certainly some differences between the accused’s statement to police and the Crime Stoppers call, the similarities of the three individuals described in the Crime Stoppers call are for the most part quite consistent with the description by the accused to the police of the three persons who were reported to have been responsible for the home invasion. Of particular significance is the number of facts that are either identical or very close to the description given by the accused to the police. The probability that there would be this number of similarities between the two descriptions without the Crime Stoppers caller being aware of the description given by the accused to the police seems most improbable to me. In comparing the descriptions of these three individuals, I have concluded that if taken at face value the description of the three persons in the Crime Stoppers call would strongly corroborate the information given by the accused to police. I am therefore led to the conclusion that the Crime Stoppers caller had access to the description given by the accused to the police after this incident. This narrows very considerably the group of persons who could have made the Crime Stoppers call. When considered in the context of the surveillance evidence which shows the accused making a telephone call which ends at approximately the same time as the Crime Stoppers call I am led to the conclusion that the call to Crime Stoppers was in fact made by the accused.
Conclusion
[61] For the above reasons I conclude that the evidence of the Crime Stoppers call is admissible evidence at trial subject to a consideration of the probative and prejudicial value of the evidence.
Justice M. McKelvey Released: April 21, 2016