R v. Picard, 2016 ONSC 6690

R v. Picard, 2016 ONSC 6690

CITATION: R v. Picard, 2016 ONSC 6690

COURT FILE NO.: 12-M7874

DATE: 2016/10/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADAM PICARD

Accused

COUNSEL:

Dallas Mack and James Cavanagh, for the Crown

Lawrence Greenspon and Eric Granger, for the Accused

HEARD: October 3-4, 2016

REASONS FOR Decision

Parfett J.

1The Applicant is charged with first degree murder in the death of Fouad Nayel. The Defence asks the Court to bar the Crown from calling witnesses in relation to admissions made by Defence counsel. The application is dismissed for reasons set out below.

Background

2On June 17, 2012, Fouad Nayel disappeared. He failed to attend several family events as expected and his family filed a missing person complaint when he did not show up for work.

3Six months later, Nayel’s remains were found in a remote, rural area near Calabogie, Ontario.

4The investigation led police to Adam Picard. His cellphone records placed him at Nayel’s last known location.

5The Crown’s theory is that Nayel and Picard were drug trade associates and Nayel was one of Picard’s suppliers.

6Early in June 2012, Picard suffered a significant loss of money. The Crown theorizes that Picard set up a drug purchase from Nayel in a remote location west of Ottawa, where he planned to steal the victim’s drugs and kill him in the process.

Admissions

7In the course of preparing for this trial, the Crown made a number of requests for admission. Some of these have been agreed upon by the Defence.¹ However, the Crown still wishes to call some witnesses to give evidence on areas that are covered by the admissions.

8The Defence has also indicated that it is prepared to admit other items of evidence on the understanding that the Crown will not call any witnesses in relation to those matters. Crown counsel advised the Court that they are not seeking admissions of these matters and therefore will be calling all the necessary witnesses.²

9The Defence objects to any witnesses being called by the Crown in relation to the matters that are either admitted or not in dispute on the basis that the viva voce evidence is no longer relevant to any live issue at trial. The Crown argues to the contrary that the witnesses they wish to call will give evidence on issues that are still in dispute.

Positions of the parties

10The Defence states that the Crown cannot call any evidence related to the admissions because it is no longer relevant to a live issue at trial. Consequently, the Defence asks the Court to prevent the Crown from calling any further evidence on these matters, as part of its inherent jurisdiction to manage its own process.

11The Crown contends that the evidence it seeks to call serves more than one purpose and as such it can call viva voce evidence. Moreover, the Crown states that prosecutorial discretion includes the ability to decide how to prove its case. The Crown notes that the testimony is required in this case to do more than just prove that Adam Picard shot Fouad Nayel. It must also show that the killing was unlawful, intentional, planned, and deliberate. Furthermore, it must negative Picard’s assertion that someone else killed Nayel. Finally, the Crown advised the Court that it will be calling certain witnesses who will require what is colloquially termed a Vetrovec warning. Consequently, the Crown wishes to elicit evidence that it will ultimately argue is confirmatory of the evidence of those witnesses.

Legal principles

12At the heart of the dispute between the Crown and Defence on this issue of admissions is the extent to which the Court can intervene in how the Crown chooses to conduct its case.

13It has long been noted that there is a separation in the roles of counsel and the trial judge. This principle is at the root of the adversarial system. Trial judges are not to “enter the arena” so as to preserve the appearance of impartiality.³ As a practical matter, the separation of powers means that the trial judge ought not to interfere with prosecutorial discretion. As noted in R. v. Power:

The court…cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it. Judicial review of prosecutorial discretion, which would enable courts to evaluate whether or not a prosecutor’s discretion was correctly exercised, would destroy the very system of justice it was intended to protect.⁴

14In R. v. Cook, the Supreme Court of Canada dealt with a situation where Defence counsel sought to require the Crown to call a certain witness at trial. The Court indicated,

At the outset of the analysis, I believe it is helpful to place the issue in its proper context. In essence, the rule suggested by the respondent would force the Crown to call certain witnesses (assuming they were available and competent), regardless of their truthfulness, desire to testify, or of their ultimate effect on the trial. It is immediately apparent that such a duty, if it were to be established, would have a major impact upon the Crown’s ability to conduct its own case. It would be a clear interference with the broad discretionary powers which are said to be within the purview of the Crown attorney, and which are at the very heart of the adversarial process.⁵

15Prosecutorial discretion is not unlimited. It is, however, a broad power and includes a wide variety of decisions such as whether to prosecute, what to prosecute and how to present the case.⁶ This discretion is not to be lightly interfered with and is entitled to considerable deference.⁷ To the contrary, “decisions on how to present the case against an accused must be left to the Crown’s discretion absent evidence that this discretion is being abused.”⁸

16On the other hand, prosecutorial decisions concerning tactics or conduct before the Court do come within the scope of the Court’s inherent jurisdiction to control its own process.⁹

17Based on the jurisprudence, it is apparent that the Court can intervene in a trial to:

• Review the order in which evidence is called;¹⁰
• Place reasonable limits on oral submissions;
• Direct that submissions be made in writing;
• Require a summary outline of a motion before embarking on it;
• Defer rulings; and
• Direct the manner in which a voir dire is conducted, i.e., whether viva voce evidence or some other form of evidence is to be called.¹¹

18These two principles—prosecutorial discretion and the inherent jurisdiction of the Court — which are vital to the adversarial system, come into conflict on the issue of the precise effect of an admission requested by the Crown and agreed to by the Defence.

19Section 655 of the Criminal Code, R.S.C., 1985, c. C-46 states:

Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.

20The jurisprudence indicates that there is a structure to the establishment of an admission. Firstly, it is for the Crown to request the admission. As noted in R. v. Castellani,

When recourse is proposed to be had to [s.655] it is for the Crown, not for the defence, to state the fact or facts which it alleges against the accused and of which it seeks admission. The accused, of course, is under no obligation to admit the fact so alleged but his choice is to admit it or to decline to do so.¹²

21It follows from this structure that the Crown is not obliged to accept an admission offered by the Defence rather than call the evidence it considers necessary to its case. In short, the “defence cannot pre-empt the Crown’s ability to call whatever relevant and admissible evidence it wishes.” ¹³ In addition, the Defence is limited in how it accepts the requested admission. The Defence cannot “frame the wording of the allegation to suit his own purposes and then insist on admitting it.”¹⁴ Instead, it must accept the admission as framed by the Crown.¹⁵

22Once an admission requested by the Crown is unequivocally accepted by the Defence, no other proof of the facts admitted is necessary.¹⁶

23Consequently, as noted in the jurisprudence, once that happens, the prosecution is not entitled to “expend valuable court time leading evidence to prove a point that is not in contention.”¹⁷ This approach is particularly so when the evidence in question is also highly prejudicial.¹⁸ Instead, the trial judge is entitled to refuse to let either the prosecution or defence lead evidence that is unnecessary given the admissions that have been made.¹⁹

24An ancillary issue to the effect of admissions on the Crown’s right to call its case as it chooses, is the effect of calling repetitive evidence. As noted in R. v. Stevenson,

[T]o allow [the repeated admission of evidence] through different witnesses would serve to increase its prejudicial effect … to such an extent that could be disproportionate to its probative value.²⁰

25In summary, Crown counsel has a very broad discretion to call its case and the Court should be loath to interfere with that discretion. On the other hand, Crown counsel cannot abuse that discretion by obtaining admissions and then calling evidence on the matters contained in those admissions.

Analysis

26At the outset, it is important to understand the theory of the Crown and the position the accused is taking at this time in relation to that theory. As set out earlier in these reasons, the Crown believes that Picard and Nayel were associates in the drug trade. Nayel supplied Picard with his drugs. In early June 2012, Picard suffered a significant loss of money and needed to find a way to recoup his losses as quickly as possible. According to the Crown, Picard arranged with Nayel to deliver a large supply of drugs with a view to robbing Nayel of those drugs and killing him. The Crown states that in furtherance of this plan, Picard bought a shotgun and spent some time practicing with it. Picard then lured Nayel to a remote location, shot him and took his drugs.

27The Defence has indicated to the Court that Picard’s position is that he was in the drug business. Nayel was one of his suppliers and he did arrange to meet Nayel at a remote location west of Ottawa for the purpose of conducting a drug deal. However, Picard states that one or more unknown assailants arrived on scene and shot Nayel with his shotgun. The precise details of how this incident occurred are as yet unknown.

28The Defence asserts that Picard’s position substantially narrows the issues in this trial. He concedes that his client’s shotgun was used to kill Nayel and that Picard was at the location where Nayel was killed. He denies, however, that his client had anything whatsoever to do with killing Nayel and therefore states that the only issue at trial is who shot Nayel.

29The Crown disagrees strongly with this characterization of the issues. It says the charge is first degree murder on the basis that Nayel’s killing was planned and deliberate. The Crown contends that given it is the accused’s intention to plead not guilty to that offence that all elements of the offence remain in issue. Moreover, the Crown states that Picard’s assertion that someone else killed Nayel in his presence effectively raises the issue of a third party suspect. In those circumstances, the Crown argues it is required to negate that allegation. It proposes to do so by attempting to demonstrate that the police investigation was thorough and complete and failed to turn up any evidence of a third party.

30Finally, the Crown states that some of its witnesses are unsavoury and therefore a warning will have to be given to the jury to be cautious about accepting their evidence. The Crown asserts that it must be able to elicit evidence that it will later argue is confirmatory of those witnesses’ evidence.

31It is against this backdrop that the issue of the effect of the admissions must be assessed.

32Dealing first with the admissions that the Defence wishes to make but the Crown indicates it is not requesting. These items were requested as admissions by the Crown at the pre-trial, shortly after the matter was committed for trial. Subsequently, the Crown re-drafted some of these requests (see Appendix A) and withdrew other requests. The Defence wishes to agree to some of these original requests.

33The Crown argues that it has withdrawn these requests and the Defence cannot now agree to them. On the other hand, the Defence says that the Crown cannot simply re-draft and/or withdraw requests for admission.

34Neither counsel provided me with any authority indicating that the Crown cannot re-draft or withdraw any request for admission. To the contrary, as noted earlier, the jurisprudence indicates that it is the Crown’s role to state the facts of which it seeks admission. The Defence can choose to accept it or not, but it cannot frame the wording of the allegation to suit him and then seek to admit it.²¹ In addition, the Crown is entitled to reject a defence-framed admission.²² These principles are broadly drafted. Moreover, the Crown has wide discretion to present its case. Consequently, I find that the Crown is entitled to withdraw or re-frame admissions. The Defence is still in a position to state that these matters are not in dispute. However, I find this is not a situation where the Court can intervene.

35Where the Defence has accepted the admissions that the Crown has requested, it is clear there is no further need to call evidence on those matters and it is within the inherent jurisdiction of the Court to limit the calling of evidence on matters no longer in dispute. This is a power that is to be exercised cautiously. Consequently, it is my view that it is not the role of the Court to dictate which specific witnesses should be called or not. Rather, I would advise Crown counsel to carefully review its list of witnesses to limit the possibility of a witness testifying on an issue covered in an admission or more than one witness testifying on the same issue.

36In this case, Crown insists that it must still call at least some evidence on facts that have been admitted for the three purposes outlined above: to negate the assertion a third party was present, prove planning and deliberation, and to provide confirmatory evidence for the unsavoury witnesses.

37Admissions, once made, are evidence of the facts set out. Therefore, in my view, this evidence can serve, in and of itself, as confirmatory evidence of the testimony of the unsavoury witnesses without the necessity to call further evidence. Nevertheless, I leave it to the Crown to make the final call on this issue.

38However, the same cannot be said for the evidence the Crown states will negative the presence of a third party or demonstrate planning and deliberation. It is much harder to prove a negative and the inferences to be drawn from any such evidence are much more subtle. Furthermore, evidence of planning and deliberation is usually circumstantial and it appears it will be in this case. As a result, I decline to intervene in relation to these aspects of the case even though they may overlap with evidence contained in the admissions.

39In conclusion, the application is dismissed.

Justice Julianne Parfett

Released: October 26, 2016

APPENDIX A

CROWN’S REQUESTS FOR ADMISSIONS

1. Cellphone and GPS data: − Admitted. No further ruling requested.

2. Biographical information re Fouad Nayel, including:

• his date of birth;
• the vehicle information of the car he was driving on June 17;
• address;
• that a missing person investigation was started on June 19;
• last banking information; and
• border crossing check. − Admitted. No witnesses to be called in relation to this evidence.

3. That certain items recovered from the Chelsea, Quebec, Brydges Road and Norton Road sites were examined by Dr. Lindsay of CFS and a report was prepared, dated October 31, 2013. − Continuity of the exhibits is admitted. Locations where items recovered admitted. Dr. Lindsay’s report can be filed without the necessity of calling her. − Crown wishes to call witnesses in relation to the location where the items were found.

4. Recovery and continuity of remains from Norton Road, specifically:

• The map setting out the location of the ‘grave site’ off Norton Road where Nayel’s remains were found;
• The chart detailing the exact location of Nayel’s remains that were recovered by Dr. Gruspier; and
• Continuity of the remains. − Defence admits the map, but does not admit the remainder of this evidence. Defence argues this evidence is not relevant to any issue at trial. − Crown wishes to call Dr. Gruspier, Dr. Wood and the officers who located the remains.

5. Information regarding the shotgun, specifically:

• Details concerning how Joshua Wicks came to express an interest in purchasing a shotgun;
• Evidence concerning the circumstances of how the shotgun was transferred to a lawyer and then to police; and
• Evidence identifying the shotgun and the shells recovered at Brydges Road, Beaton Road and Norton Road. − Subject to certain changes made, this evidence is admitted. − Defence says no witnesses will be required to testify regarding this evidence. − Crown says it will be calling a number of witnesses in relation to these matters.

6. Financial data − Defence will admit.

APPENDIX B

Defence admissions

1. Cause of death − Withdrawn by Crown.

2. Drug business and financial information − Drug business request for admission withdrawn by Crown. Financial admission re-drafted – see #6 Appendix A.

3. Fouad Nayel disappearance − Withdrawn by Crown.

4. Persons and places − Replaced in part by #2 Appendix A. Remainder withdrawn by Crown.

5. RIDE program near Nipigon − Withdrawn by Crown.

6. Recovery of remains − Replaced by #4 Appendix A.

7. Examination of Brydges Road site − Replaced by #3 Appendix A.

8. GPS data − Replaced by #1 Appendix A.

CITATION: R v. Picard, 2016 ONSC 6690

COURT FILE NO.: 12-M7874

DATE: 2016/10/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Adam Picard

Accused

REASONS FOR Decision

Parfett J.

Footnotes

1. 1See Appendix A.
2. 2See Appendix B.
3. 3R. v. Felderhof, 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 at para. 45 (Ont. C.A.) [Felderhof].
4. 41994 CanLII 126 (SCC), [1994] 1 SCR 601 at 627 (S.C.C.)[Power].
5. 51997 CanLII 392 (SCC), [1997] 1 S.C.R 1113 at para. 19 [Cook].
6. 6R. v. Anderson, 2014 SCC 41 at para. 44 [Anderson].
7. 7Ibid, at para. 48.
8. 8Cook, supra, note 5 at para. 55.
9. 9Felderhof, supra note 3 at para. 53, citing Krieger v. Law Society of Alberta, 2002 SCC 65 at para. 47; R. v. Passley, 2003 MBQB 171 at para. 7.
10. 10Felderhof, supra note 3 at para. 54.
11. 11Ibid at para. 57.
12. 121969 CanLII 57 (SCC), [1970] SCR 310 at 315 (S.C.C.) [Castellani].
13. 13R. v. Basi, 2010 BCSC 1599 at para. 27 [Basi].
14. 14Castellani, supra note 12 at 315.
15. 15R. v. J.S.R., [2008] O.J. No. 4163 at para. 12 (Ont. S.C.) [J.S.R.].
16. 16R. v. P.(R.), 2013 ONCA 53 at 42 [P.R.].
17. 17J.S.R., supra note 15 at para. 10.
18. 18J.S.R., supra note 15 at para. 8.
19. 19Ibid, at para. 12.
20. 202009 Carswell-Ont 9716 (WL Can) at para 167 (Ont. S.C.) [Stevenson].
21. 21Castellani, supra note 12 at 315.
22. 22R. v. Dickson, 2014 ONSC 2385 at paras. 13-15 [Dickson].```