R. v. Yeshi and Chuk, 2016 ONSC 6772

CITATION: R. v. Yeshi and Chuk, 2016 ONSC 6772

COURT FILE NO.: CR-14-10000421-0000

DATE: 20161114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JIGME YESHI and YESHI WANG CHUK

Defendants

Brigid McCallum, for the Crown

William Jaksa, for Jigme Yeshi Robert Valentine, for Yeshi Wang Chuk

HEARD: October 26 and 27, 2016

RULING RELATED TO ADMISSIONS OF COUNSEL

B. P. O’MARRA J.

[1]

Overview

This application relates to admissions made and positions stated by counsel for both accused and the Crown at the pre-trial motion stage. It also relates to a position declared by the Crown at trial after arraignment and before evidence was called.

2The two accused are jointly charged on a five count indictment related to an incident that occurred in the early hours of July 4, 2013. Two named complainants received stab wounds as a result of an altercation outside a bar on Queen Street in Toronto. Trial counsel for each accused represented their clients at the pre-trial stage in this court.

[3]

Background

On October 24, 2016 there was a re-election to judge alone and pleas of not guilty were entered by both accused. Before evidence was called, the Crown put certain admissions on the record, including the following:

(1) The two accused were the two Asian males involved in the altercation that led to the charges;

(2) The video statement of Jigme Yeshi was voluntary and admissible for the purposes of cross-examination only; and

(3) Medical records relating to the two complainants could be filed on consent.

The admissions were not produced in written form. Counsel for both accused made brief submissions related to the medical records.

4On the issue of identity, it became apparent later that counsel for both accused and myself misheard what the Crown had said at the outset. I did not understand that both accused admitted that they were present and involved in the altercation.

5The Crown proceeded to call four civilians and eight police officers in chief. The two complainants described the circumstances wherein they both suffered injuries. They provided non-specific descriptions of the suspects. They were not asked to identify either of the accused in court. Two other civilians observed some of the events in question. Neither could identify any suspects. The police testified as to observations of the complainants and the accused. The injuries to the complainants were consistent with knife wounds or by some other sharp object. No weapon was recovered. By the end of the Crown’s case there was no testimony that implicated either accused in these offences.

6Before calling on either accused to declare whether they intended to bring a motion or call evidence, I asked the Crown if there was any evidence implicating either accused in the altercation. She replied that it was admitted by both accused that they were present and involved. I advised the Crown that I did not understand that presence and involvement at the scene was admitted by both accused. Crown counsel indicated that those admissions were put on the record before evidence was called with no qualification from either counsel.

7Counsel for both accused had the same impression as myself that there was no such admission. It was clear that Crown counsel believed there were such admissions. A subsequent review of the recording of her comments at the outset of trial confirmed that she put those admissions on the record. Based on this apparent miscommunication or misunderstanding between counsel, I suggested that they discuss the issues during a recess to see if the issues could be clarified or resolved. I advised counsel that if they were unable to resolve matters I was inclined to permit the Crown to re-open its case to call such further evidence as was available relating to identity or any other issues. The defence would not be prejudiced by this procedure since they had not yet been called upon to bring a motion for nonsuit or elect to call evidence.

8When court resumed, counsel advised that they were unable to resolve their differences. The Crown indicated that she would now tender the post-arrest statement of Jigme Yeshi as part of its case in chief. She also advised that Yeshi Wang Chuk had admitted on the record at the pre-trial motion before Clarke J. that he was present at the altercation involving the two complainants.

9Counsel for Jigme Yeshi advised the court that if the Crown sought to tender the post-arrest statement as part of the Crown’s case, voluntariness was not admitted. The Crown replied that there was an admission by counsel for Jigme Yeshi at the pre-trial motion before Clark J. that the statement was voluntary. Counsel for Jigme Yeshi then referred to the Crown’s opening statement at trial that voluntariness of the statement was admitted for the purpose of cross-examination only. Crown counsel advised that a voluntariness voir dire would involve up to twenty police officers and could take up five more days of court time. Crown counsel and counsel for Jigme Yeshi each asserted that the other was resiling from an admission or stated position.

[10]

The Application

On October 27, 2016, the Crown presented authorities in support of an application to enforce admissions made by counsel at the pre-trial motion stage before Justice Clark. She specifically sought enforcement of the following:

(1) The video statement of Jigme Yoshi was voluntary on the basis that the Crown would not tender any other statements attributed to him; and

(2) Yeshi Wang Chuk was present and involved in the altercation. On that basis the Crown would not tender or seek to cross-examine Yeshi Wang Chuk on any other statements or utterances allegedly made by him.

11Crown counsel provided me with the recording of pre-trial proceedings before Clark J. On January 18 and 19, 2016, voluntariness voir dires were commenced related to post-arrest statements by both accused. Before the evidence was completed on January 19, 2016, counsel for the Crown and both accused advised the court that they had reached agreements that obviated the need to complete the voir dires. The following agreements were placed on the record:

(1) Counsel for Jigme Yeshi conceded the voluntariness of the video statement of his client. The Crown agreed it would not seek a ruling with respect to the voluntariness of any other utterances made by Jigme Yeshi to the police.

(2) Counsel for Yeshi Wang Chuk conceded that he was one of the Asian males described by civilian witnesses who was involved in the altercation on Queen Street with the two complainants. The Crown agreed it would not seek a ruling as to the voluntariness of any utterances made by Yeshi Wang Chuk to the police. The Crown further undertook not to tender or cross-examine Yeshi Wang Chuk on any utterances overheard by the police and made at the hospital.

[12]

Legal Principles

Admissions and statements of position by counsel have a direct impact on the proper administration of justice. Counsel have ethical and professional obligations to abide by admissions and statements of positions communicated to the court and opposing counsel. There is a residual discretion in a trial court to deny enforcement of a stipulation where there has been fraud, mistake of fact, or other special circumstances: R. v. Baksh, 2005 CanLII 24918 (ON SC), [2005] O.J. No. 2971 (O.S.C.) per Hill J., at para. 106.

[13]

Ruling

After submissions by all counsel, I made the following orders:

(1) The Crown was entitled to call further evidence as part of its case in chief, even though she had closed her case before these issues arose.

(2) Yeshi Wang Chuk was bound at trial by the admission made on the record at the pre-trial motion that he was present and involved in the altercation.

(3) Counsel for Jigme Yeshi had conceded voluntariness of his post-arrest video statement on the basis that the Crown would not tender any further statements attributed to him. Crown counsel had declared at the outset of trial that this statement would only be tendered or referred to in cross-examination. Counsel for Jigme Yeshi was not bound by this admission of voluntariness if the Crown proposed to tender the statement as part of its case in chief.

(4) If the Crown seeks to tender the post-arrest statement of Jigme Yeshi in its case in chief, it will have to be proven or conceded to be voluntary.

(5) In light of the fact that counsel for Jigme Yeshi had conceded voluntariness of the statement (albeit for the stipulated and limited use declared by the Crown), it was my hope that counsel would work together to narrow the number of witnesses and time required if a voir dire was necessary.

[14]

Concluding Remarks

I wish to make clear that I did not perceive any bad faith by any counsel on this matter. This was a situation where there was miscommunication, misunderstanding and lack of clarity on all fronts. I share responsibility in all of those root causes. The best practice for admissions pursuant to s. 655 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 is to have them produced in written form and signed by all counsel. As the trial judge, I perhaps should have sought earlier clarification as to whether identity at the scene was in issue or admitted.

15In the end, counsel were able to narrow the number of witnesses required for the voir dire to a relatively small number. I am grateful to them for their continuing dialogue with each other to narrow the issues and the further time required.

B. P. O’Marra J.