Court File and Parties

Court File No.: Crim J(P) 1156/15 Date: 2016-06-29 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Sheldon Ranglin, Defendant

Counsel: B. McGuire and E. Taylor for the Crown M. Moon and A. Pyper for the Defendant

Heard: June 20, 2016

Ruling on S. 11 Canada Evidence Act Evidence

Ricchetti J.:

[1] On June 20, 2016, this court ruled that the Crown was not permitted to elicit from Mr. Watts, the alleged prior statement by Mr. Moy-Lingomba that he had been told Mr. Ranglin was the shooter. These are the reasons for that ruling.

The Charge

[2] Mr. Ranglin is charged with the first degree murder of Keith Brissett Jr. on June 7, 2011.

Background to the Crown’s Proposed Cross-examination

[3] Mr. Moy-Lingomba had testified for the Crown. Mr. Moy-Lingomba was a reluctant witness. He recanted making his previous statements to Mr. Watts.

[4] A portion of Mr. Moy-Lingomba’s conversation with Mr. Watts on June 21, 2012 was found to be admissible under a KGB ruling. (“KGB Statement”) Separate reasons were given for this ruling.

[5] During his entire testimony, Mr. Moy-Lingomba denied he had seen the shooting or the shooter. Mr. Moy-Lingomba was not asked in his examination in chief whether he had told Mr. Watts that Mr. Ranglin was the shooter.

[6] Mr. Moy-Lingomba was cross-examined by the Defence. The Defence did not ask Mr. Moy-Lingomba whether he had told Mr. Watts that Mr. Ranglin was the shooter. However, the Defence suggested to Mr. Moy-Lingomba that he had seen Mr. Murray (aka Diddy) – the Defence third party suspect – in the area at the time of the shooting. This was a new area which arose for the first time in cross-examination.

[7] During Mr. Moy-Lingomba’s re-examination (the Crown having previously obtained a ruling that Mr. Moy-Lingomba was a hostile witness), the Crown quite properly was entitled to re-examine Mr. Watts on whether he had previously said to anyone that Mr. Murray was at the Rexwood apartment on the night of the shooting.

[8] At one point, the re-examination strayed into whether Mr. Watts had been told by Mr. Moy-Lingomba that Mr. Ranglin was the shooter. The following exchange took place:

Mr. Moy-Lingomba: I don’t remember that conversation

Mr. Taylor: Let’s see if I can refresh your memory. You talked to Darren. You talked about the fact that Skyjuice was the shooter.

Mr. Moon: At least on my understanding that and I could be wrong a witness that is being confronted on a prior oral statement generally it is supposed to be reduced to writing and they should have a chance to review it. I think the crown has already indicated that there is no transcript and I believe the witness has indicated...

The Court: that he doesn’t remember

Mr. Moon: That’s what I have

Mr. McGuire: Section 11 of the Canada Evidence Act says that an oral statement, it doesn’t have to be.. in writing.

The Court: That’s right. He says he doesn’t remember so where are we going

Mr. Taylor: I want to put to him your honour that there is no mention of Diddy even though there is mention of other names in throughout that conversation

The Court: You can ask him and you’ve asked him, he doesn’t remember any reference to Diddy. You can ask him in that same area. Go ahead.

Mr. Taylor: Ok. I was just putting to you in this Mr. Moy there is mention as to Juice, skyjuice. There is mention to you being there. Let me see if I can refresh your memory. And this is what Mr. Watts testified to was that you were there to make sure that none of yours got got. That’s why you had the hammer. Right, Mr. Moy Lingomba? Do you remember the conversation now that he testified to. Is it coming back?

[9] That was the extent of the re-examination on the issue. Subsequently, Mr. Darren Watts was called as a witness by the Crown.

[10] Mr. Watts gave evidence regarding the day of the shooting. There was no issue with respect to that part of Mr. Watts’ evidence.

[11] Mr. Watts had a conversation with Mr. Moy-Lingomba on April 27, 2012 which was not recorded. Then Mr. Watts became a police agent. On June 21, 2012, Mr. Darren Watts wore a recording device while in the same cell as Mr. Moy-Lingomba. A Consent Authorization had previously been obtained. There is an audio of the encounter (“Watts Audio”) although of very poor quality.

[12] Mr. Watts confirmed the portion of the conversation with Mr. Moy-Lingomba which was admitted as a KGB Statement. Mr. Watts also testified regarding other statements made by Mr. Moy-Lingomba which statements Mr. Moy-Lingomba denied or couldn’t recall having made. This testimony, regarding Mr. Moy-Lingomba’s statements to Mr. Watts, could only be used by the jury to assess the credibility of Mr. Moy-Lingomba.

[13] The Crown then proceeded to attempt to examine Mr. Watts to elicit that Mr. Moy-Lingomba had told him, during the conversation in the courthouse cells, that Mr. Ranglin was the shooter. The Crown relied on s. 11 of the Canada Evidence Act to pursue this line of questioning.

[14] This court ruled that Mr. Watts could not be asked whether Mr. Moy-Lingomba had told him that Mr. Ranglin was the shooter. The reasons for this ruling are set out below.

[15] Out of the presence of the jury, Mr. Watts was told that he could not and should not give that evidence.

[16] The Defence proceeded to cross examine Mr. Watts. During the cross-examination, on several occasions, the Defence pursued the very issue that Mr. Watts had been told he could not and should not give as part of his evidence – that Mr. Moy-Lingomba had told him Mr. Ranglin was the shooter.

[17] As a result of the Defence cross-examination in this area, Mr. Watts was advised that the prior restriction no longer applied and he could respond to any question, where it was relevant to the question asked, that Mr. Moy-Lingomba had told him Mr. Ranglin was the shooter. The cross examination continued.

[18] The Crown re-examined on the issue which the court had previously ruled could not be pursued by the Crown in its examination in chief.

S. 11 Canada Evidence Act (CEA)

[19] Notwithstanding the subsequent cross-examination and re-examination, let me provide my reasons for my ruling that the Crown was, during its examination in chief of Mr. Watts, precluded from pursuing this issue.

[20] S. 11 of the CEA provides:

11 Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

[21] A rationale and purpose of s. 11 of the CEA was described in R. v. Pargelen, (1996), 31 O.R. (3d) 504 (C.A.):

The wording of s. 11 is quite similar to s. 12. Both provisions refer to "a witness" and deal with some aspect of cross-examination and extrinsic proof. Both provisions were enacted at the same time. If s. 12 applies to the accused as a witness, I see no basis for giving s. 11 any different interpretation merely because at the time of their original enactment the accused was not a competent witness.

The underlying policy considerations

The rationale for giving the witness notice lies principally in considerations of trial economy and fairness to the adversary and to the witness. The rationale is succinctly summarized by M. Graham in "Employing Inconsistent Statements for Impeachment and as Substantive Evidence: A Critical Review and Proposed Amendments of Federal Rules of Evidence 801(d)(1) (A), 613, and 607" (1977), 75 Mich. L. Rev. 1565 at p. 1595:

The rationale of the rule was essentially threefold: (1) to save time, since an admission by the witness that the statement was his own might make the introduction of extrinsic evidence unnecessary; (2) to avoid unfair surprise to the adversary, by alerting him to the possible existence of a prior inconsistent statement and thus enabling him to prepare to meet the issue; and (3) to prevent unfairness to the witness, by permitting him to explain or deny an apparent inconsistency at the time it was first suggested.

(Also see Alan W. Bryant, "The Adversary's Witness: Cross- examination and Proof of Prior Inconsistent Statements" (1984), 62 Can. Bar. Rev. 43 at p. 45.)

The authorities identify one further factor. By requiring that a witness be given an opportunity to explain their statement prior to contradiction, there is less danger that the trier of fact will improperly make substantive use of the statement than if the statement is produced for the first time through the testimony of the adversary's witness.

[22] There were a number of problems with the Crown pursuing this area (whether Mr. Moy-Lingomba had told Mr. Watts that Mr. Ranglin was the shooter) in the examination in chief of Mr. Watts.

[23] This issue was not squarely put to Mr. Moy-Lingomba during the Crown’s examination (either in chief or in re-examination) of Mr. Moy-Lingomba. This pre-condition of s. 11 of the CEA had not been met. See R. v. Nissan, (1996) 89 O.A.C. 389 (C.A.):

I see no reason why this court would nevertheless permit the Crown to pursue this line of questioning by the Crown. He ruled that the defence did not comply with s. 11 of the Canada Evidence Act and that it would be "unfair to the complainant now to allow allegations as to what she is supposed to have said when she was in the basement, when she has never been confronted with those allegations."We cannot say that the trial judge's ruling was wrong.

[24] I do not accept that this specific area was put to Mr. Moy-Lingomba during the Crown’s re-examination of Mr. Moy-Lingomba. As can be seen from the above excerpt, Mr. Moy-Lingomba never answered the question of whether he had told Mr. Watts that Mr. Ranglin was the shooter.

[25] The issue was not squarely put to Mr. Moy-Lingomba during a cross examination of the witness who denies having made a statement. This requirement that it be done in cross-examination is significant. If done in a cross-examination, the opposing party has a right to re-examine the witness on the prior statement. Have pursued this area in re-examination of Mr. Moy-Lingomba, this resulted in no opportunity for the Defence to deal with this statement as the Defence had no right to further examine Mr. Moy-Lingomba after the Crown’s re-examination.

[26] In any event, the Crown’s re-examination of Mr. Moy-Lingomba on this issue, would have been improper as it was an area not covered in the Crown’s examination in chief and not the subject of cross-examination by the Defence.

[27] In this case, the rationale and purpose of s. 11 of the CEA was not complied with making it improper and unfair to permit such questions to be put to Mr. Watts to prove a statement not put to Mr. Moy-Lingomba.

[28] In any event, given that Mr. Watts’ evidence that Mr. Moy-Lingomba had told him Mr. Ranglin was the shooter could only be used to assess Mr. Moy-Lingomba’s credibility, such a statement had limited probative value particularly since there was no opportunity by the Defence to now explore whether Mr. Moy-Lingomba’s statement was based on first hand observation of the shooting, Mr. Ranglin’s statement to Mr. Moy-Lingomba or rumours. On the other hand, it had substantial prejudicial value to the Defence. I would have excluded this evidence, on this basis alone.

Conclusion

[29] The Crown was not to elicit in its examination in chief evidence from Mr. Watts that Mr. Moy-Lingomba had told him Mr. Ranglin was the shooter.

Ricchetti, J. Released: June 29, 2016