COURT FILE NO.: CR-15-0029 DATE: 2016-05-12
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen Andrew Sadler, for the Crown
- and -
Lukas Nganga Ngugi, Accused George Joseph, for the Accused
HEARD: May 11, 2016, at Thunder Bay, Ontario
BEFORE: Mr. Justice W.D. Newton
Reasons On Voir Dire
[1] This is an application by the accused to have the trial judge call Leoncia (Spade) Roundhead as a witness pursuant to the discretion I have to do so as set out in R. v. Cook, [1997] S.C.J. No. 22, and R. v. S. G., 2007 ONCJ 218.
[2] At the conclusion of the argument, I made a ruling and indicated that I would deliver written reasons. These are my reasons and my ruling is reproduced at the conclusion of these reasons.
Overview
[3] The accused is charged with aggravated assault. This is a jury trial. This application was brought on the third day of the trial. The Crown has not yet closed its case. I issued a material witness warrant for the Crown’s final witness on the morning of the third day of trial. The Crown has advised counsel for the accused that the Crown does not intend to call Ms. Roundhead as a witness. Ms. Roundhead is under subpoena by the Crown and has been in attendance at court as required by subpoena.
[4] The accused is alleged to have stabbed Alfred Desmoulin during an altercation on July 4, 2014. The trial evidence to date is that in addition to the accused and Mr. Desmoulin, Harvey Jordan, Evangeline Shakakeesic and Ms. Roundhead were present at the time of the incident. Mr. Desmoulin and Mr. Jordan have testified. Ms. Shakakeesic is the subject of the material witness warrant.
The Application
[5] The accused argues that, following Cook and S. G., I have the discretion to call witnesses “essential… in order to do justice in the case”. (Cook at para. 63)
[6] The accused also argues that:
(a) the Crown has an “oblique motive” and is seeking to suppress exculpatory evidence;
(b) the accused is prejudiced in the presentation of his defence in that he has relied upon a representation that Ms. Roundhead would be called as a Crown witness; and
(c) that the jury was left with the impression by the Crown’s opening that Ms. Roundhead would be called and that therefore Ms. Roundhead should be called but not as a defence witness.
[7] The position of the Crown will be reviewed during the analysis.
[8] On the voir dire, Detective Constable Biloski testified. He conducted the videotaped interview of Ms. Roundhead. Filed as exhibits on the voir dire were the transcript of Ms. Roundhead’s testimony at the preliminary hearing, the discs of the videotaped interviews of Ms. Roundhead and Ms. Shakakeesic, the Crown’s pretrial conference report, a domestic violence supplementary report prepared during the interview of Ms. Roundhead with Detective Constable Biloski, and an audio recording of the Crown’s opening statement made at this trial on May 9, 2016. The video statements and the Crown’s opening statement were reviewed in open court.
The Law
[9] The issue in Cook was whether the Crown was obliged to call witnesses in criminal proceedings. In analyzing whether the Crown had a duty to call witnesses the Supreme Court of Canada considered “trial by ambush”, the loss of the ability to cross-examine, and the loss of the accused’s right to address the jury last.
[10] Justice L'Heureux-Dubé concluded that the “trial by ambush” rationale has been eliminated by the present disclosure requirements post R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[11] With respect to the loss of the ability to cross-examine, Justice L'Heureux-Dubé stated:
39 On this point, I must say that I much prefer the recent decision of LeBel J.A. in V. (J.), supra, at pp. 287-88:
Crown counsel, of course, while bound by strict duties so as to ensure the preservation of the integrity of the criminal justice system, however must operate in the context of an adversarial procedure. Once he has satisfied the obligation to disclose the evidence, it is for him, in principle, to choose the witnesses necessary to establish the factual basis of his case. If he does not call the necessary witnesses or evidence, he exposes the prosecution to dismissal of the charge for having failed to establish its case completely and in accordance with the reasonable doubt rule. However, once this obligation has been met and if improper motives cannot be imputed to him, such as the desire, for example, to hide exculpatory evidence, as a general rule, he will be considered to have properly executed this part of his function in the criminal trial. The defence may, at that time, do its work and call its own witnesses, if it considers it appropriate to do so. In the tradition of the common law, on which Canadian criminal procedure is based, the case retains its adversarial nature and Crown counsel, while an officer of the court, does not act as defence counsel. [Emphasis added.]
I could not agree more. With respect, I fail to see why the defence should not have to call witnesses which are beneficial to its own case. The adversarial process functions on the premise that it is the obligation of the Crown to establish a case beyond a reasonable doubt against the accused. Once this threshold has been surpassed, however, it is up to the accused to call evidence or face conviction: R. v. Noble. The adversarial nature of the trial process has been recognized as a principle of fundamental justice (R. v. Swain). As such it should be construed in a way that strikes a fair balance between the interests of the accused and those of society: R. v. Levogiannis; Cunningham v. Canada, at p. 148; Re B.C. Motor Vehicle Act. In my view, placing an obligation upon the Crown to call all witnesses with information bearing on the case would disrupt the inherent balance of our adversary system. [Emphasis added.]
[12] Justice L'Heureux-Dubé continues in the same paragraph:
I note, however, that the accused is also not obliged to call the witness. As I propose to expand upon, there are other options which are available to the accused in an appropriate case including, but not limited to, asking the trial judge to call the witness, commenting in closing on the witness' absence, or asking the trial judge to comment. [Emphasis added.]
[13] With respect to the right to address the jury last, Justice L'Heureux-Dubé stated (para 47):
It is clear that the degree to which an accused is prejudiced by the order of closing addresses will vary upon the facts of each case, and most importantly by whether or not he or she already planned to call witnesses. For this reason, I do not feel that this factor is sufficient to warrant impeding the Crown's discretion to produce witnesses as the Crown chooses. Rather, as Finta points out, it can be a factor for the trial judge to consider in deciding whether or not to call the witness him-or herself. In my view, this is a preferable, flexible solution. This process allows the trial judge to balance the competing factors carefully and assess the actual prejudice to an accused rather than merely speculating about potential harm. As such, I believe this is the route which should be followed.
[14] Counsel for the accused in this case candidly admitted that this last concern was not an issue in this case.
[15] Justice L'Heureux-Dubé (at para 63) adopted the caveat of Cory J. in R. v. Finta:
As he stated in that case, the calling of witnesses by the trial judge is a matter to be left to each judge's discretion, and that it should be exercised in rare cases so as to avoid overly interfering with the adversarial nature of the proceedings: Finta, supra, at p. 861. [Emphasis added.]
[16] In S. G., Spies J. exercised her discretion to call a witness where the jury was left with the distinct impression that the Crown would call that witness, where Crown counsel advised counsel for the accused that the Crown would call that witness without qualification, and where the Crown ended up refusing to call the witness, and where she concluded that the defence had been taken by surprise.
[17] Both Cook and S. G. affirm that the onus is on the defence to establish “oblique motive”.
Analysis
“Oblique motive”
[18] The Crown argues that its decision not to call Ms. Roundhead arises not from any “oblique motive” or attempt to suppress exculpatory evidence but rather from the concern that Ms. Roundhead has little to offer beyond what evidence has already been heard.
[19] At the preliminary hearing, Ms. Roundhead testified that she was intoxicated and that her recollection “might be a bit distorted”. She testified that there had been an altercation and that she saw the accused and Mr. Desmoulin on the floor of the porch. She testified that it looked like the accused was getting hurt and that she ran to call the police. She heard that someone said that someone had a knife. She did not see a knife.
[20] During her video statement shortly after the incident, she said that she had four beers and was not really intoxicated. She said that she did not see a knife, that there was an altercation and that Mr. Desmoulin was trying to stop the accused from doing something. Therefore, on the face of it, there is an issue with respect to reliability but also what this witness can offer in addition to the evidence already heard. The fact that a knife was present and that there were knife wounds to both Mr. Desmoulin and the accused is not disputed.
[21] I conclude that the accused has not satisfied his onus of establishing “oblique motive” on the part of the Crown.
“Prejudice to the accused”
[22] In the Crown’s pretrial conference report, the Crown counsel (not counsel at trial) made this statement:
The Crown has concern about certain witnesses attending court in response to their subpoenas. The complainant had to be located by police, taken into custody and brought to court after failing to appear/voluntarily attend court for the preliminary hearing. Another witness only attended the preliminary hearing after being warned that a warrant would be sought for her arrest if she failed to attend. The Crown will likely be seeking witness warrants….
[23] It is not disputed that the witness who attended the preliminary hearing only after being warned that a warrant would be sought was Ms. Roundhead. Counsel for the accused equates this statement with an undertaking that Ms. Roundhead would be called.
[24] This trial commenced on Monday, May 9, after jury selection in the morning. After I gave my preliminary instructions to the jury the Crown made a brief opening at approximately 4 PM. The trial was adjourned following that opening. It is not disputed that the next morning, before any evidence had been called, Crown counsel advised counsel for the accused that he may not be calling Ms. Roundhead. The circumstances do not equate to an undertaking to call a witness without qualification such that the witness should be called by the trial judge. Certain measures can be taken to address any prejudice to the accused caused by the uncertainty as to whether Ms. Roundhead would be called by the Crown.
“The Crown’s opening”
[25] In this case, there was no specific statement that Ms. Roundhead would be called as a witness. Crown counsel said this:
The Crown’s position is that Mr. Ngugi was accosting some of Evangeline Shakakeesic and Leoncia Spade (Roundhead), that Alfred Desmoulin, when he heard that Mr. Ngugi had pulled a knife went to their aid, and in the confrontation Mr. Ngugi’s stabbed Mr. Desmoulin, cut him on the bicep, stabbed him in the back, cut him on the other arm.
[26] Crown counsel also stated: “I want to call enough evidence to help you understand what happened, but I am not interested in being repetitious…”
[27] I do not equate these statements made during the Crown’s opening with the statements made by the Crown in S. G., in which Crown counsel indicated that “I expect you will also hear from… (the witness that the Crown did not call).”
Ruling on application
[28] I conclude that it is not “essential… in order to do justice in the case” for the court to call Ms. Roundhead. In so concluding I am mindful that this discretion should be “exercised in rare cases so as to avoid interfering with the adversarial nature of the proceedings.” (See para 15 above).
[29] Having said that, given that the actual decision by the Crown not to call Ms. Roundhead was not made until the third day of trial, I conclude that some accommodation is necessary to address the potential prejudice to the accused in not having access to Ms. Roundhead, prior notice of the Crown’s final decision, and an opportunity to prepare his case based on this information.
[30] My ruling on the application is as follows:
- The application by the accused to have me call Leoncia (Spade) Roundhead as a witness pursuant to R. v. Cook is denied with the following additional orders.
- Counsel for the Crown has Ms. Roundhead under subpoena. Upon her attendance at the courthouse tomorrow, the Crown is to make Ms. Roundhead available to meet with Mr. Joseph at a private meeting room here at the courthouse. The Crown is to provide Ms. Roundhead’s contact information to Mr. Joseph, if required. Mr. Joseph may have as much time with Ms. Roundhead as she will give him and he requires. The defence need not open until Mr. Joseph has spoken to Ms. Roundhead as much as she will permit and he requires.
- Should Ms. Roundhead be called by the accused, then counsel for the accused is at liberty to cross-examine her without the need to meet the requirements of s. 9 of the Canada Evidence Act. The Crown may then cross-examine. Mr. Joseph may then re-examine on any new matter raised by the Crown and is not restricted to open-ended questions in re-examination.
- If neither the Crown nor defence call Ms. Roundhead then counsel for the accused is at liberty to advise the jury during closing submissions that Ms. Roundhead was under subpoena by the Crown, was present at court, but that the Crown elected not to call her as a witness. What further comments can be made will be the subject of the pre-charge conference.
Released: May 12, 2016 The Hon. Mr. Justice W.D. Newton