R. v. Hillis, 2016 ONSC 451

CITATION: R. v. Hillis, 2016 ONSC 451

COURT FILE NO.: CR-14-3232

DATE: 20160129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KRISTOPHER BRADD HILLIS

Accused

Walter Costa, for the Crown

Michael H. Gordner and Lana Strain, for the Accused

HEARD: January 12, 2016

ruling directing the crown to call certain witnesses at trial

pomerance J.:

1The accused’s trial on charges of second degree murder and aggravated assault is about to begin. A jury has been selected. The central issue in the case is whether the accused was acting in self-defence when he killed John Jubenville and wounded Tanya Lapensee. The parties agree that Mr. Jubenville and Ms. Lapensee were the aggressors in the altercation, and that the accused used force in order to defend himself. The question for the jury is whether the actions taken by the accused to defend himself were reasonable.

2I heard a number of pre-trial motions in November and December 2015. On January 6, 2016, I ruled, among other things, that the defence could elicit exculpatory evidence from certain Crown witnesses. Two days after the ruling, the Crown announced that it was no longer going to call those witnesses. The defence now asks for an order directing the Crown to call them at the trial.

3The Crown is no longer calling the witnesses because they are in a position to offer exculpatory evidence. The Crown argues that this is a permissible strategy, so long as there has been full disclosure, and the witnesses are available to be called by the defence. The defence says that this is not a permissible Crown strategy; that it qualifies as an “oblique motive” and gives rise to an abuse of process.

4As a general rule, the Crown is entitled to choose the witnesses that it will and will not call. The prosecution is not required to assist the defence strategy. However, in exceptional cases, the court may direct that certain witnesses be called by the Crown.

5This is one of those exceptional cases. I will explain why in the reasons that follow.

PROCEDURAL HISTORY

6Pre-trial motions were heard in this case in November and December of 2015. During this time, the defence was taking steps to get a witness list from the Crown. On December 17, 2015, Lana Strain, counsel for the accused, wrote to both Crown lawyers, asking “would you kindly advise as to whether you have completed your list of witnesses intended to be called for the trial?”

7On December 23, 2015, at 3:19 p.m., Ms. Strain sent another email message, following up on the request:

Just following up from the last email as well as the conversation with [Crown counsel], we are asking that you please forward your list of witnesses as soon as it’s available. Thank you.

8One of the Crown lawyers responded to Ms. Strain on December 24, 2015, at 9:35 a.m. This message included the following:

We have an extremely lengthy list of witnesses that have been subpoenaed for this trial. This was filed with the PTCR during the SCJ A/C and P/T.

We are uncertain as to who exactly will be called during the course of the trial. This will depend on the rulings we are anticipating to receive January 6, 2016.

We will not excuse the subpoenaed witnesses until we hear confirmation from you that you do not require them either.

If there are specific persons you are inquiring about, please advise…

9Ms. Strain attended at the courthouse on December 24, 2015, and obtained the list of witnesses that Crown counsel referred to in his email. The witnesses on the list included Daniel Gobeil, PC Stramacchia, and PC Mollicone. PC Kettlewell was not included on that list, though during the pre-trial motions it was established that he was one of the officers who was dispatched to the scene, only minutes after the 911 call.

10On January 6, 2016, I ruled on the pre-trial motions: see R. v. Hillis, 2016 ONSC 450. Among other things, I ruled that the defence could elicit certain testimony from Crown witnesses. This evidence concerned the accused’s words and actions at and around the time of the alleged offences. The evidence is exculpatory. The Crown opposed the admission of this evidence during the pre-trial motions. However, it was never suggested that the Crown would not be calling the witnesses at trial.

11The evidence that was ruled admissible included the following:

a. Daniel Gobeil says that, while he was in bed, he heard the accused saying, in a high pitched and distressed voice, “I didn’t mean it”; “call an ambulance”; “call the police” and “I’m sorry, I didn’t mean it”. These statements, made at or around the time of the victim’s death, are admissible as part of the res gestae.

b. PC Kettlewell arrived at the scene minutes after the 911 call was initiated. He saw the accused kneeling over the victim with his hands on his neck. According to Kettlewell, it looked as though the accused was trying to apply pressure to a wound. Kettlewell also confirmed that the accused seemed disoriented and was unable to answer questions.

12In my ruling, I also found that PC Stramacchia could testify about certain statements made by Dionne Hewitt to Tanya Lapensee after the police arrived at the scene. The Crown objected to the admission of this evidence on the basis that it was hearsay. I ruled that it was not being tendered for a hearsay purpose; that there was no truth to be proved by the statements. Their relevance lay in the fact that they were said.

13Two days after the ruling, on Friday, January 8, 2016, the Crown sent an email to the defence, attaching a new witness list. Daniel Gobeil and PC Stramacchia had been removed as Crown witnesses. The Crown confirmed that it would not be calling PC Kettlewell as a witness.

14The Crown also removed PC Mollicone from its witness list. PC Mollicone’s evidence was not in issue during pre-trial motions, though it was clear that the officer’s evidence was important for the accused. Officer Mollicone, a blood spatter expert, produced a report for the Crown, and testified for the Crown at the preliminary hearing. This officer testified that, among the blood spatter evidence observed at the scene, the accused’s blood was in an impact pattern on the window blinds. This evidence tends to establish that, during the altercation, the accused was punched with some degree of force. The Crown will be leading evidence as to the presence of blood at the residence and who the blood belongs to, but is now not calling the blood spatter expert to interpret the scene.

15On January 8, 2016, the defence learned, for the first time, that the Crown would not be calling these witnesses. Jury selection was scheduled for January 11, 2016. A jury was selected on that date and the case was briefly adjourned to allow for the argument of this issue. The trial is to commence before the jury on Monday, January 18, 2016.

ANALYSIS

16In R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, 114 C.C.C. (3d) 481 [Cook], the Supreme Court of Canada held that, as a general rule, the Crown is entitled to decide how it will present its case. It is at liberty to choose the witnesses that it will and will not call. Because these types of decisions involve the exercise of prosecutorial discretion, they are not generally subject to judicial review.

17While the Cook decision advocates judicial restraint, it does not allow for unlimited prosecutorial power. The courts have consistently recognized that, while prosecutorial decision making is generally immune from scrutiny, the courts shall interfere where it is shown that a decision was based on an oblique or improper motive. This is akin to saying that prosecutorial discretion may be reviewed when it is alleged to give rise to an abuse of process.

18In Cook, Justice L’Heureux-Dubé stated at para. 58:

A second possibility is where the Crown intentionally abuses its discretion in some manner by failing to call the witness. While this has traditionally been referred to as being an “oblique motive”, it would seem to have much in common with the doctrine of abuse of process. Indeed, given that the finding of an “oblique motive” by its very name implies improper conduct on the part of the Crown, I feel it is unlikely that such a finding could arise without there being a legitimate claim of an abuse of process. This does not, of course, preclude the trial judge from considering conduct of the Crown which, although falling short of an abuse, could be one factor influencing him- or her to exercise the discretion to call the witness.

19In the subsequent case of R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, 144 C.C.C. (3d) 97, at para. 21, Binnie J. confirmed that Crown tactics are immune from intervention unless there is unfairness and/or prejudice to the accused.

It is not the duty of the Crown to bend its efforts to provide the defence with the opportunity to develop and exploit potential conflicts in the prosecution’s testimony. This is the stuff of everyday trial tactics and hardly rises to the level of an “oblique motive”. Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused. Where an element of prejudice results (as it did here), remedial action is appropriate. [Emphasis added.]

20Is the Crown entitled to refrain from calling reliable evidence on the basis that it could assist the accused? I find that this is not a permissible Crown strategy. The desire to withhold reliable exculpatory evidence during the case for the Crown is inconsistent with the role of Crown counsel as a quasi-minister of justice, and custodian of the public interest. The Crown argues that the evidence is not concealed because there has been full disclosure to the defence. That may be so, but the effect of not calling the evidence is to conceal it from the jury unless the defence decides that it has to call it, thereby giving up procedural protections. The Crown may decide not to call a witness for any number of legitimate reasons. It should not omit reliable evidence from its case solely because it might help the accused.

21This is borne out by the authorities. In Cook, at para. 28, the court, citing earlier Supreme Court authority, affirmed that: “the Crown must not hold back evidence because it would assist the accused”. Similarly, at para. 39, the Court in Cook affirmed the following statements of Lebel J.A. in R. v. V.(J.) (1994), 1994 CanLII 5620 (QC CA), 91 C.C.C. (3d) 284, [1994] J.Q. No. 347 (Que. C.A.):

Once [crown counsel] 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 improper motives cannot be imputed to him, such as the desire, for example to hide exculpatory evidence, as a general rule [crown counsel] will be considered to have properly executed this part of his function in the criminal trial.

22This is not a startling proposition. It flows quite naturally from the conception of the Crown as a quasi-minister of justice, and the implications of that role. The following passage from R. v. Boucher, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, 110 C.C.C. 263, continues to govern the philosophy of prosecutorial decision making:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion 'of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

23Similarly, in R. v. Regan, the court noted that : “The Crown has no specific interest in winning or losing, but it does have an interest in placing the relevant facts before the court for a determination on the merits”: see R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 228.

24In other words, the Crown is not at liberty to curate the evidence, excising anything that might be exculpatory. To do so is to place too high a premium on “winning”. It is to lose sight of the Crown’s primary duty to present the case fairly, and in a manner that will secure a just result.

25This is not to say that Crown counsel is foreclosed from being a strong and vigorous advocate. That is expected in our adversarial system. It is only to say that Crown counsel cannot adopt a purely adversarial role toward the defence. As L’Heureux-Dubé observed at para. 21 in R. v. Cook:

Nevertheless, while it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence (Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; Power, supra, at p. 616), it is well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth: see, for example, R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 295, per L’Heureux-Dubé J. Nor should it be assumed that the Crown cannot act as a strong advocate within this adversarial process. In that regard, it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability. Indeed, this is a critical element of this country’s criminal law mechanism: R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91; R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229; Boucher, supra. In this sense, within the boundaries outlined above, the Crown must be allowed to perform the function with which it has been entrusted; discretion in pursuing justice remains an important part of that function.

26This balance between advocacy and fairness is reflected in several places in the Ontario Crown Policy Manual. The Preamble includes the following statement at p. 2 :

A prosecutor’s responsibilities are public in nature. As a prosecutor and public representative, Crown counsel’s demeanour and actions should be fair, dispassionate and moderate; show no signs of partisanship; open to the possibility of the innocence of the accused person and avoid “tunnel vision”.

27See also the Rules of Professional Conduct 5.1-3 “Duty as Prosecutor”. The Crown does not have to call evidence merely because it assists the defence, but the Crown cannot categorically exclude all evidence that might have that effect.

28It is against this backdrop that I must assess the Crown strategy in this case. As I understand it, the Crown acknowledges that it decided not to call the witnesses because they have exculpatory evidence to offer. This is confirmed by the chronology of events. The Crown told the defence that it would not decide on a witness list until it received the court’s ruling on the admissibility of evidence. I ruled against the Crown on certain issues. Two days later the Crown excluded the witnesses whose evidence was admitted over the Crown’s objection.

29Apart from the exculpating nature of the evidence, it is hard to imagine why else the Crown would decline to call these witnesses. Their evidence is directly relevant to the issues the jury must determine. The evidence purports to be reliable. Three of the witnesses are police officers. Two of them arrived at the scene just minutes after the 911 call was placed. The third is the blood spatter expert retained by the Crown and called by the Crown at the preliminary hearing. This is the very type of evidence that is ordinarily called by the Crown in a homicide prosecution. The Crown does not take issue with the accuracy of the evidence offered by these witnesses in this case.

30Daniel Gobeil is a civilian witness. He is the only civilian from the group at the scene that is not being called by the Crown. The Crown says that it has concerns about the reliability of Daniel Gobeil’s testimony. To be fair, there is one item of evidence on which Mr. Gobeil is imprecise. The defence wants to lead evidence that, during the altercation, Dionne Hewitt ran into Mr. Gobeil’s bedroom and said “the guys are being assholes”. On the voir dire before me, Mr. Gobeil said that he could not really remember that event. He was sleeping at the time and does not remember who came into his room or what was said. On this point, the question is not the reliability of his evidence; it is whether he has any evidence to offer at all.

31That is just one aspect of Mr. Gobeil’s evidence. He can otherwise speak about the interactions between the accused and deceased on the night of the alleged offences. He can provide evidence of animus between the accused and the deceased. Crown and defence agreed, during pre-trial motions, that evidence of animus should be placed before the jury. And Mr. Gobeil is the one witness who can testify about the res gestae statements made by the accused at the time of or immediately after the killing of John Jubenville. Mr. Gobeil has been interviewed several times. He has consistently maintained that he heard the accused say the words at issue.

32Is the Crown genuinely concerned about the reliability of Mr. Gobeil’s evidence? Perhaps. But logic suggests that that is not why they removed him from their witness list. The Crown says that Mr. Gobeil was drinking on the night of the incident. But so was everybody else at the party. Everyone else is being called as a witness by the Crown. The Crown says that Mr. Gobeil doesn’t have very much to add to the case. But Mr. Gobeil has more to offer than Dionne Hewitt, who claims to have no memory of anything that took place. Crown counsel candidly disclosed to the court, during submissions, that Mr. Hewitt has little to add to the case and that she is likely not being truthful. Despite this, the Crown is calling Ms. Hewitt, and refusing to call Mr. Gobeil. The difference between the two witnesses is that Mr. Gobeil has exculpatory evidence to offer, and Ms. Hewitt does not.

33It is true that the defence has full disclosure of the witnesses’ evidence, and could call them to testify at trial. However, this would disadvantage the defence. The defence cannot cross-examine its own witnesses, and by calling evidence it forfeits the right to address the jury last. These tactical disadvantages are a natural incident of the trial process, but should not be forced upon the defence by an unfair prosecution strategy.

34While I disagree with the Crown’s position in this case, I need not determine whether it amounts to an oblique motive, or results in an abuse of process. I am satisfied that it is open to the court to intervene on a lower standard of review.

35In Cook, the Supreme Court of Canada perceived that the identification of Crown witnesses is an exercise of prosecutorial discretion. Since Cook, the Supreme Court of Canada has refined what it means by “prosecutorial discretion”. Recent authority suggests that the choice of witnesses is more a question of trial tactics than prosecutorial discretion. While Crown tactics are entitled to deference, they are reviewable on a standard below that of prosecutorial discretion, which only warrants judicial intervention in cases of an abuse of process.

36This point was first made by Rosenberg J.A. in R. v. Felderhoff (2003), 2003 CanLII 37346 (ON CA), 180 C.C.C. (3d) 498, [2003] O.J. No. 4819, at para. 53 [Felderhoff], in which he observed the need to modify the holding in Cook:

Finally, the broad statements by Justice L'Heureux-Dubé in Power and Cook must now be read in light of the recent decision of the Supreme Court in Krieger v. Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372, 217 D.L.R. (4th) 513. Iacobucci and Major JJ. speaking for the court, at para. 43, held that "'prosecutorial discretion' is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence." Iacobucci and Major JJ. expressly addressed, at para. 47, the contention that prosecutorial discretion insulates tactical and other conduct before the court from judicial supervision:

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.

37Rosenberg J.A. went on to note that the Crown’s witness list may be reviewed as part of the court’s trial management function:

In my view, the trial judge's power to manage the trial, including the power to review the order in which certain evidence may be called, properly falls within the area of the prosecutor's "tactics or conduct before the court" and thus does not implicate prosecutorial discretion that is reviewable only on the standard of abuse of process, bad faith or improper purpose. I do not think the appellant's separation of powers rationale stands in the way of recognizing a trial management power.

38The distinction between “true” prosecutorial discretion, on the one hand, and Crown behaviour or tactics, on the other, was solidified by Moldaver J. in the later case of R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 35-36 [Anderson], in which he stated the following:

There are two distinct avenues for judicial review of Crown decision making. The analysis will differ depending on which of the following is at issue: (1) exercises of prosecutorial discretion; or (2) tactics and conduct before the court.

All Crown decision making is reviewable for abuse of process. However, as I will explain, exercises of prosecutorial discretion are only reviewable for abuse of process. In contrast, tactics and conduct before the court are subject to a wider range of review. The court may exercise its inherent jurisdiction to control its own processes even in the absence of abuse of process.

39Prosecutorial discretion was defined at para. 44 as decisions pertaining to “the nature and extent of the prosecution”:

In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.

40Decisions relating to trial strategy are outside of the realm of true prosecutorial discretion, falling into the category of crown conduct or tactics. As Moldaver J. explained at paras. 58-59:

Superior courts possess inherent jurisdiction to ensure that the machinery of the court functions in an orderly and effective manner: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 26. Similarly, in order to function as courts of law, statutory courts have implicit powers that derive from the court’s authority to control its own process: Cunningham, at para.18. This jurisdiction includes the power to penalize counsel for ignoring rulings or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire. Sanctions may include orders to comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings.

While deference is not owed to counsel who are behaving inappropriately in the courtroom, our adversarial system does accord a high degree of deference to the tactical decisions of counsel. In other words, while courts may sanction the conduct of the litigants, they should generally refrain from interfering with the conduct of the litigation itself.

Moldaver J. continued at paras. 60-61:

Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused: Jolivet, at para. 21. Likewise, as this Court recently held in R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, a judge may exceptionally override a Crown tactical decision in order to prevent a Charter violation.

Finally, as with all Crown decision making, courtroom tactics or conduct may amount to abuse of process, but abuse of process is not a precondition for judicial intervention as it is for matters of prosecutorial discretion.

41Relying on Felderhoff, Kreiger, and Anderson, I find that the decision of the prosecution to call or not call certain witnesses at trial is a matter of Crown tactics, reviewable under the court’s trial management authority. These decisions are, like all prosecutorial decisions, subject to review where the product of oblique motive. But they are also subject to judicial review on a lesser standard relating to the fairness of trial.

42I am concerned that the Crown strategy in this case could adversely affect trial fairness. This justifies the court’s intervention whether or not the conduct amounts to an abuse of process. The Crown proposes to call evidence of certain observations and events at the crime scene, but not others. The jurors will hear about certain things that happened during the case for the prosecution. But they will not hear Daniel Gobeil’s evidence about the accused’s statements at or around the time of the victim’s death, in which he apologized and said he “didn’t mean it”. They will not hear PC Kettlewell’s evidence that the accused was trying to staunch the victim’s bleeding, by holding his neck when the police arrived (though this evidence might be available from PC D’Alimonte, which is being called by the Crown). They will not hear that the blood spatter evidence is consistent with the accused having been punched with significant impact. In short, the narrative will be missing several critical pieces.

43In some cases, the Crown is motivated to call all relevant evidence because it needs to prove its case. If it leaves out certain evidence, it may not discharge its onus of proof. At para. 30 of Cook, Justice L’Heureux-Dubé cited with approval the following passage from Yebes:

While the Crown may not be required to call a given witness, the failure of the Crown to call a witness may leave a gap in the Crown's case which will leave the Crown's burden of proof undischarged and entitle the accused to an acquittal. It is in this sense that the Crown may be expected to call all witnesses essential to the unfolding of the narrative of events upon which the Crown's case is based.

44This “self policing” rationale does not apply here. The missing evidence does not expose gaps in the crown’s case. It leaves the erroneous impression that no such gaps exist.

45The Crown insists that the evidence could be called by the defence. The defence could, indeed, call the evidence. This would ensure that the evidence is heard by the jury. It might even afford the defence a tactical advantage. The jury, realizing that important information was withheld by the Crown, might lose faith in the prosecution. Be that as it may, it is for Mr. Gordner, as the accused’s counsel, to weigh the pros and cons of these alternatives. It was not unreasonable for him to conclude that the benefits of calling the evidence are outweighed by the disadvantages, such as losing the ability to cross-examine, and the possibility of addressing the jury last.

REMEDY

46For the reasons discussed above, it is “essential…in order to do justice in this case” that the jury hear from Daniel Gobeil, PC Stramacchia, PC Kettlewell, and PC Mollicone: see Cook, at para. 63. I direct that the Crown call these witnesses during the case for the prosecution. I leave it to the Crown to determine when it calls these witnesses and what, if any, evidence it chooses to elicit in-chief.

47In some cases, the remedy for the Crown’s refusal to call a witness is for the trial judge to call the evidence. That is not the preferred remedy in this case, as the accused is to be tried by a jury. It would be difficult to explain to the jury why the trial judge is calling witnesses, rather than one of the parties before the court. I would not want the jury to view the evidence as any more or any less important than the other evidence called at trial. I would not want the jury to perceive the trial judge as a participant in the adversarial contest. Nor would it be fair to place a judicial imprimatur on the witnesses that are called. It seems to me that the more appropriate remedy is to require the Crown to call the witnesses during its case, to align with traditional trial procedure.

48I recognize that this is a remedy to be reserved for exceptional circumstances. I have not arrived at this decision lightly. I have based my decision on the combined effect of the following factors:

a) the witnesses are of the type that would ordinarily be called by the Crown. Three are police investigators who were present at, or analyzed evidence from, the crime scene. The fourth is a civilian witness who, like the other witnesses who are on the Crown’s list, was at the scene at the time of the alleged offences.

b) These individuals, save for P.C. Kettlewell, were on the Crown’s original witness list and were only removed two days before jury selection.

c) The decision to remove these witnesses from the Crown’s list was motivated by the desire to exclude reliable exculpatory evidence from the Crown’s case.

49For all of these reasons, the application by the defence to require that the Crown call the witnesses is allowed.