COURT FILE NO.: 14-4348 DATE: 2016/05/04 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown A. Leitch and C. Fraser on behalf of the Crown
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DELLEN MILLARD Accused R. Pillay and N. Sachak on behalf of D. Millard
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MARK SMICH Accused T. Dungey and J. Trehearne on behalf of M. Smich
HEARD: April 26 & May 3, 2016 A.J. Goodman J.:
MID TRIAL WRITTEN RULING # 7 – APPLICATION TO TAKE A VIEW
[1] In this application, the Crown makes a request to enable the taking of a view by the jury. Both accused, Dellen Millard (“Millard”) and Mark Smich (“Smich”) oppose the application.
[2] The Application for the taking of a view arises near the end of the prosecution’s case. I have reviewed the materials filed; including the facta along with the logistical/operational plan furnished by Crown counsel, the evidence of Inspector Hillman and have heard the submissions of counsel.
Positions of the Parties:
[3] Mr. Fraser, on behalf of the Crown, submits that it is in the interests of justice for the jury to have a view of the various scenes involved to better appreciate the evidence heard to date in this trial. The Crown submits that the jury will be assisted by viewing the matters included in the plan submitted for this application, including a view of the incinerator device at a secure location.
[4] The Crown submits that the passage of time is not an issue in this case as the various sites, along with the pickup truck’s route of travel and the Eliminator is unchanged in any material way. This factor has been corroborated by the testimony of Inspector Hillman adduced during this application. The Crown adds that all concerns regarding the media, security and logistics have been carefully planned out and addressed in this application.
[5] Mr. Fraser submits that the defined or actual route of travel during this exercise is not as significant as the jury’s view of the Bullman field and the Eliminator. The Crown adds that identity is still at issue and the manner in which it is alleged the deceased was lifted or placed in this incinerator (by two men) is a live issue in this case and can only really be assessed by the jury upon their actual physical viewing of the Eliminator device.
[6] Mr Pillay, on behalf of Millard, submits that the Crown seeks an unprecedented order to permit the jury to view seven different locations spanning some 157 kilometers. It applies to have the jury consider the journey from location to location that it theorizes the Bosma truck could have taken on May 6, 2013. Millard submits that the Crown has not demonstrated that the view requested is in the interests of justice. The route the Crown suggests is the most direct route from location to location, without evidence that this was in fact the actual route taken. There are also significant logistical obstacles to the sort of view the Crown seeks.
[7] Millard submits that the potential to mislead the jury is considerable. At no time during the pretrial motions did the Crown advance this application. Notice of this application was first provided to counsel on April 14, three months following the commencement of the trial and almost eight months following the commencement of pretrial motions. The jury has already heard essentially the entirety of the Crown’s case. All of the evidence regarding the various scenes that are the subject of this Application has gone before the jury some time ago.
[8] Millard submits that given the timing of this request - at the very end of the Crown’s case - the prejudice that will be occasioned by the introduction of this sort of evidence will irreparably damage his right to a fair trial. In the absence of any knowledge that the Crown would seek to introduce this sort of evidence until this late date, it potentially impacts some strategic decisions already made.
[9] Ms. Trehearne, on behalf of Smich, submits that the Crown has not shown that the desired information could not be obtained from other sources already introduced in this trial such as maps, photographs or video evidence. This is not a case where the topography or the nature of the terrain was necessary for the jury’s understanding of the case.
[10] Smich submits that the circumstances of this case are highly emotional. The unusual circumstances of the apparent killing of a person by a stranger strikes fear in all who hear about the case. All right-minded individuals feel considerable sympathy for the Bosma family. As such, the proposed tour will have the effect of inflaming the passions of the jury against the accused, and will ensure that the accused cannot receive a fair trial.
[11] Smich submits that it can reasonably be anticipated that the public will attend the taking of the view in large numbers. This is one of the most highly publicized cases in Ontario. The media interest in this case is significant, with some of the largest media outlets assigning reporters full-time to coverage of this case. It can reasonably be anticipated that media will attend in larger numbers to a view, given the unusual nature of the view procedure and the interest it would no doubt hold for the media’s audiences. The public and media that would likely attend the view will have the effect of intimidating the jury.
Legal Principles:
[12] The authority for the taking of a view by the jury are set out in s. 652 of the Criminal Code as follows:
(1) The judge may, where it appears to be in the interests of justice, at any time after the jury has been sworn and before it gives its verdict, direct the jury to have a view of any place, thing or person, and shall give directions respecting the manner in which, and the persons by whom, the place, thing or person shall be shown to the jury, and may for that purpose adjourn the trial.
(2) Where a view is ordered under subsection (1), the judge shall give any directions that he considers necessary for the purpose of preventing undue communication by any person with members of the jury, but failure to comply with any directions given under this subsection does not affect the validity of the proceedings
(3) Where a view is ordered under subsection (1), the accused and the judge shall attend.
[13] In Watt’s Manual of Criminal Evidence (2015), at p. 100, the author provides additional guidance for the determination of whether to permit a view:
A determination whether to order a view may include considerations of several factors, for example:
i. the importance to any issue to be decided of the information that may be gained from the view;
ii. the extent to which the information has been or could be obtained from other sources, including maps, diagrams, models, photographs or videotapes; and
iii. the extent to which the place, person, or thing to be viewed has changed in appearance since the material time, and the consequent danger that the view may mislead.
[14] A trial judge has discretion to decide whether or not to order a view: R. v. O’Donnell, 1991 NBCA 2695, 1991 CarswellNB 7, 66 C.C.C. (3d) 56 (C.A.), at para. 6; R. v. Rideout, 1999 NLCA 18942, 1999 CarswellNFld 317, [1999] N.J. No. 294 (C.A.).
[15] The “interests of justice” in the context of s. 652(1) has not been clearly defined. In R. v. Johnson, 2010 ONSC 4700 at paras. 4 - 6, Nordheimer J. expanded on the earlier decision of Ewaschuck J. in R. v. Danvers, 2003 ONSC 6257; that to be “in the interests of justice” taking a view must be “helpful to the jury, though it need not be necessary” and “must be more helpful than misleading”. At para. 5, the trial judge stated:
Given the many problems inherent in taking a jury for a view, including the very real prospect that they may be exposed to improper influences or material, I consider that the degree of assistance that a view will provide to the jury should be fairly high, in order to warrant the taking of that unusual step. The reality is that the taking of a view might, by itself, be helpful in every case, if one applied a very loose or broad definition of that term. However, since the governing criterion is that the taking of a view must be in the interests of justice, it suggests that the person seeking to have the jury take a view must go much further than simply showing that it would be helpful in the most superficial meaning of that word. Indeed, I conclude that the applicant must establish that there is some very real and demonstrable advantage that the taking of a view will bring to the proceeding in terms of the jury's understanding of the evidence they will hear. (Emphasis added)
[16] In his decision, Nordheimer J. discussed the logistical considerations including issues of accessibility, transportation and safety for those attending, public attention to the process, questions involving the accused and their right to be present at the view, and the risk of exposure for the jury to improper or potentially prejudicial information or activity.
[17] In R. v. Danvers, 2003 ONSC 6257, the trial judge stated that: “the taking of the view must be helpful to the jury, though it need not be necessary” and “the taking of a view must be more helpful than misleading”: para. 7. In that case, Ewaschuk J. ordered a view of the nightclub where the murder allegedly occurred, even though photographs, diagrams and videotapes of the nightclub were all in evidence.
Discussion:
[18] In this particular application, the Crown applies for the jury to view various discrete locations:
a. The grass / dirt driveway and field south of the Bullman residence; including Trinity Road South, Book Road West and Claybar Road;
b. The Super Sucker Ltd. location;
c. The area of Bobcat of Brantford;
d. Dumphries Road;
e. Eastern Wood Preservers at 2263 Dumphries Road;
f. The former Millard farm property on Roseville Road;
g. The former Millardair hangar at the Waterloo Airport;
h. G.A. Masonry; and,
i. The Eliminator (at a secure OPP facility).
[19] The plan would involve the transportation of numerous judicial participants to those locations by the use of a number of different vehicles, including a motor coach bus along with assistance of uniform and tactical police officers for security and access or egress to the various locations along the intended route.
[20] The taking of a view is not unprecedented in criminal trials, albeit it is not a frequent occurrence. The authorities provide that a view will be helpful to the jury where it provides a perspective as to sizes, orientations, topography, sight lines, an overall view, features or layout of a site, and to better understand the relative overall scale of the site. However, as mentioned, taking a view must “materially assist the jury to understand the evidence” in a way that cannot be achieved or duplicated through other “in court” means such as video footage, photographs, scale diagrams, aerial photographs and the like: R. v. MacDonald, 2006 ONSC 34900 at paras. 8, 10, 14, R. v. Welsh, 1997 BCCA 2570, [1997] B.C.J. No. 2343 (B.C.C.A.) at para. 9, R. v. Polimac, 2006 ONSC 38000 at paras. 1, 15, 20, 26-27, Johnson, 2010 ONSC 4700, at paras. 7-12.
[21] I am mindful that trial judges have tended to order a view where the Crown and defence jointly request a view: Polimac. But even in cases where the Crown and defence both support a view, the trial judge retains discretion to dismiss the application.
[22] For example, in R. v. Sappleton, 2010 ONSC 6305, 2010 CarswellOnt 9594, the defence initially supported the Crown’s view application and later appeared to have changed its position. Justice Trafford rejected the view application, in part, because the evidence on record “accurately proved the scene as it was at the time of the investigation”. In that case the evidence included numerous photographs, sketches and a “comprehensive walk-through video, lasting about twenty minutes”, measurements and dimensions of the crime scene, and witnesses who used the photographs when giving evidence: para. 7.
[23] I am persuaded that the test is whether the view would be helpful, recognizing that the degree of assistance that a view will provide to the jury should be fairly high in order to warrant its utility. While not onerous, the Crown has the burden to establish that there is some real and demonstrable advantage that the taking of a view will bring to the proceeding in terms of the jury’s understanding of the evidence they will hear.
Is the view evidence or merely an aid to understanding evidence presented during the trial?
[24] A view can be ordered where it appears to be in the interests of justice based on the circumstances of the specific case. A predominant factor in assessing whether ordering a view is in the interests of justice is whether the view will assist the jury. In other words, a major factor in determining whether ordering a view is in the interests of justice is whether or not the view will benefit, and not mislead the jury.
[25] Trial courts in Ontario have not provided a clear answer to this question. From my review of the jurisprudence, the Ontario Court of Appeal has not definitely stated whether observations taken from a view are evidence or merely an aid to understanding the evidence.
[26] That being said, the recent trend in Ontario courts finds that a view is not evidence and may serve to only assist the jury. Its objective is to facilitate an understanding of the evidence, but is not itself evidence. Additionally, appeal courts in two other Canadian provinces have concluded the view itself is not evidence and is merely an aid to the jury in understanding the evidence presented to them during the trial. In Rideout, at para. 80, the appeal court quoted with approval the trial judge’s determination that a view is not evidence; rather, it simply allows jurors to assess what they have heard as evidence given under oath.
[27] In Welsh, the British Columbia Court of Appeal noted divergence in the authorities over whether a view is itself evidence and while it did not offer a definitive opinion on the issue. At para. 14, the court stated: “The fact that s. 652(1) authorizes a view during the jury’s deliberations suggests to me that the latter is the better view. I accept the interpretation that “what is seen on a view is not evidence and is merely to facilitate a better understanding of evidence that is given in Court”.
[28] In Polimac, at para. 10, Wein J. also acknowledged the discrepancy in the authorities on this topic, but found that the issue need not be decided because counsel “agreed that the view in this case is primarily directed to assist jurors in their understanding of the evidence”. In R. v. Doodnaught, 2013 ONSC 8022, the trial judge, sitting alone, found the view to only be an assist to understanding evidence presented at trial. The judge stated at para. 28, “Although I did not treat the view as evidence per se, it was nevertheless of considerable assistance to me in appreciating the mountain of evidence that was adduced concerning the layout and setup of the operating room.”
[29] I am of the opinion that the proper approach arising from the jurisprudence with respect to the taking of a view provides that it is not evidence; rather it is only an aid to the jury’s understanding of the evidence.
[30] Turning to this specific case, the Crown submits that it would be helpful for the jury and in the interests of justice for a view to be taken of select scenes involved as well as the Eliminator device to better understand the evidence heard to date in this trial. Specifically, the Crown has presented detailed operational plans related to the route to be taken. The Crown has also filed extensive logistical information regarding the transportation of the parties, as well as security and other relevant factors.
[31] Although there have been descriptions of the Eliminator and the introduction of photographs, the Crown says that it is impossible to fully appreciate the significance or size of the device without seeing it first-hand. The Crown says that a scene view will enhance the jury’s understanding of the evidence and most importantly, the level of both accused’s culpability by the use of the Eliminator. The Crown submits that the view also addresses issues of identity and planning and deliberation of the offence. As such, it is impossible for viva voce evidence and photographs to fully focus this issue for the jury’s benefit.
[32] It is logical that in order to succeed, the Crown must establish that each scene is in substantially the same condition as it was at the material time. Where the location is not the same since the material time, there is a danger that the view will mislead the jury. Inspector Hillman testified that there have been no significant changes in the various locations, but he conceded that he was not intimate with the specific sites, rather had an extensive familiarity with the area.
[33] It is not lost on me that there is no operational plan to view the actual site of the genesis of the crime, namely, the Bosma residence in Ancaster. I am advised that counsel for the family expressed an unwillingness to have the accused attend at that location; hence it was omitted from the plan.
[34] Further, the specific areas where the Eliminator was located at the farm property and the burn sites are not part of the operational plan. While consent has been obtained, according to Inspector Hillman, it would take up too much time for members of the jury to traverse the area on foot where the Eliminator was first discovered by police and also migrate to the rest of the farm property. Mr. Fraser submits that there is potential for injury if the jurors were to proceed on foot. The topography and access to the ledge of the Niagara escarpment did not detract from the taking of the view in the Polimac case.
[35] From the photographs presented in this motion, it appears that the barn structure and the view from the Roseville Road towards the direction of the barn and the farm property has changed since May 2013 with reparations to the barn and a pergola structure being added to the property. So if we are not going to the actual locations situate on the farm property itself, I query; what is the value of this exercise?
[36] Another consideration is the planned route itself. The Crown proposes that the jury view travel a certain course, which may or may not mirror its theory as to the actual route the Bosma pickup truck would have travelled on the evening of May 6, 2013. Crown counsel submits that the proposed route is not being advanced as the actual route taken by the perpetrators on the night in question; it is merely the most direct route to get to the various sites.
[37] The evidence provided at trial thus far on the question of the direction of travel on May 6, is but one inference to be drawn. The Crown’s theory that the vehicles took the “most direct route” is simply an assumption supported in part by certain video captures. Mr. Plaxton testified there were other potential routes between the various places that the vehicles could have taken on the way to Waterloo region.
[38] I am persuaded that a view of what the Crown theorizes was the route will significantly increase the potential that the jury will be misled. The request to view the route in this instance is unlike some of the other jurisprudence where there was no real issue about a certain location being the actual scene of the crime. In a recent notorious Hamilton homicide case, (Josopovic) my colleague Arrell J. granted a request to take a view on consent of all parties. Unlike the present case, there was no dispute about the actual route that the two convicted men took in chasing down the deceased through the streets of East Hamilton.
[39] At this stage of trial, I agree with both Mr. Pillay and Ms. Trehearne that this particular route would tend to enhance the validity of the Crown’s theory as to the timing of various events and the direction of travel to Waterloo.
[40] That being said, the jury has already heard a significant body of evidence regarding the various scenes that are the subject of this motion. In fact, there have been a vast number of photographs introduced as exhibits, and evidence provided by many witnesses regarding these sites. There has been extensive video surveillance footage from various locations along the proposed route introduced in evidence through Mr. Plaxton. I am confident that the evidence tendered by the Crown depicting the scenes and related objects adequately conveys the information that the Crown seeks to have the jury consider.
[41] To a certain extent, I ponder why the Crown did not present this application during the pretrial motions or at an earlier stage in this trial. While this aspect does not form the singular basis for my ultimate conclusion, I appreciate counsels’ submissions that at this juncture, this late application could tend to compromise the defence strategy and their client’s rights to a fair trial. It would have been preferable for this matter to have been advanced during the pretrial motions to allow all parties to fairly digest the consequences of such a ruling.
[42] However, compounding the concerns raised by counsel is the fact that there is no explanation offered by the Crown for the late filing of this motion. While it was suggested that Millard and Smich may raise an issue with respect to their respective shoulder injury(s), which could muster some defence to the Crown’s theory of their lifting of the deceased in tandem into the Eliminator device, I note that this information is nothing new to the prosecution.
[43] It is true that had the device been of reasonable size and girth, it could have been presented in this courtroom. During the course of the trial, the Crown is not estopped from adducing this evidence. However, it is not just a question of the Eliminator’s commanding potency and magnitude; rather it is the timing of this application at the end of the Crown’s case that is most troublesome.
[44] The defence submits that in these circumstances an inference can be drawn that bringing this application at this time was in fact a strategic decision on the part of the Crown. The failure to advance the application during the pretrial motions should be fatal to this application.
[45] Overall, I agree with defence counsel that the danger is exacerbated by the timing of this Application. Had this motion for a view been brought at the outset of the trial, it would have been easier for the jury to understand that the view was to provide context for the evidence they were about to hear, or heard at the early stages of the trial, but was not evidence itself. Coming at the very end of the prosecution’s case, I am persuaded that the jury will have difficulty using the view only as backdrop or an aid, rather than evidence itself.
[46] Finally, I address the specific issue of the request to view the Eliminator. The Crown has introduced into evidence a robust amount of photographs of the Eliminator device, (according to Mr. Pillay some 22 captures) from all perspectives and in different locations. At least one photograph depicts the forensic anthropologist actually inside the Eliminator device. There can be little doubt as to its size and breadth.
[47] In particular, and most significantly, it seems to me that the thrust of the Crown’s argument is the emphasis placed on its request to view the Eliminator; the rest of the scenes contained in this exercise being somewhat ancillary to that end. Exposing the jury to the actual incinerator unit now will only serve to enhance and over-emphasize its appearance to the extent that it would be unnecessarily prejudicial to both Millard and Smich.
[48] I accept Ms. Trehearne’s submissions to the effect that the jury ought to dispassionately and clinically examine all of the evidence in the courtroom, while foregoing the emotions that will likely arise from a close and intimate examination of the device itself. I cannot help but conclude that the request to view this imposing item of evidence at this stage in the trial would serve to inflame the jury.
[49] I am also mindful that the Eliminator is but one piece of evidence that falls under the realm of after-the-fact conduct. I must be vigilant that it not be overemphasised by the jury beyond the evidential value that it brings to this trial.
[50] In some cases, judges have also considered logistical and practical obstacles as a factor in rejecting the view application. As I am denying the application on the merits, I need not address the myriad of logistical issues.
Conclusion:
[51] In my opinion, there is a real risk that at this late stage of the proceedings, jurors’ memories of the evidence will be overwhelmed by the taking of a view and that improper weight may be provided to certain aspects of the evidence that they have already heard. The taking of a view must materially assist the jury to understand the evidence. I am not persuaded that this is the case here.
[52] For all of the aforementioned reasons, I find that it is not in the best interests of justice that the jury be permitted to take a view at this stage of the trial. The s. 652 application is dismissed.
A.J. GOODMAN, J. Released: May 4, 2016
Cited Cases and Legislation
Legislation:
Case Law: