R. v. Corbière, 2016 ONSC 6820

CITATION: R. v. Corbière, 2016 ONSC 6820

COURT FILE NO.: CR-16-0004

DATE: 20161101

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Kimel Corbiere

Respondent

COUNSEL:

S. Hanes, for the Crown

M. Haraschuk and M. Venturi, for the Respondent

HEARD: September 23, 2016

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 517(1) and subsection 539(1) of the Criminal Code, these reasons shall not be published in any document, or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial.

DECISION re defence witness list

wilcox, J.

[1] Kimel Corbiere is facing a trial by jury in Gore Bay, Ontario.

[2] The Crown applied in advance of trial for direction with respect to the provision of the list of defence witnesses to prospective jurors for the purpose of identifying conflicts between the witnesses and the those prospective jurors. It takes the position that the defence should be ordered to provide a list of defence witnesses to be read out to the prospective jurors in open court.

[3] The defence opposed the Crown’s application on the grounds that:

1. A fundamental principle of our criminal justice system is that an accused is never required to reveal his defence until the close of the crown’s case, and only if the defence chooses to call evidence.

2. The Crown’s request violates the respondent’s rights pursuant to s. 7 and s. 11(c) of the Canadian Charter of Rights and Freedoms.

3. More specifically the Crown’s request violates the respondent’s right to silence, his right against self-incrimination and his right not to be compelled to be a witness in proceedings against himself.

4. The concerns raised by the Crown are adequately addressed if the procedure advanced by the respondent is followed.

[4] The defence sought an order dismissing the Crown’s application and not requiring the accused to provide a list of potential witnesses to the applicant.

[5] I note that the Canadian Criminal Jury Instructions, in the opening comments to the jury panel, say the following with respect to jurors having relationships with prospective witnesses, among others:

Similarly, if you have had any previous association or personal relationship with me as the judge, or [CROWN COUNSEL] as the prosecutor, or [THE ACCUSED], or [NAME OF COUNSEL], counsel for [THE ACCUSED], or any prospective witness, you should again let me know its nature when the (registrar/clerk) calls your name the second time. So that you will know the names of the prospective Crown witnesses, I will now call upon (Mr./Ms.) [CROWN COUNSEL] to read the names of the witnesses (he/she) intends to call as part of the case for the prosecution. (Mr./Ms.) [CROWN COUNSEL], will you please read to the jury panel the names of the witnesses you intend to call as part of your case.

[6] The names of the Crown’s witnesses are disclosed, but not those of the defence witnesses.

[7] In Watt’s Manual of Criminal Jury Instructions, the opening instructions to the jury panel say, under the heading “Knowledge of Witnesses”

1. A person who is, or at any time has been, related to or closely associated with any witness in this case may also not be able to approach the case with an open mind despite his or her best efforts.

2. You are about to hear a list of names of persons who may be witnesses. Please listen carefully to each name. If you are, or at any time have been, related to or closely associated with anyone whose name is read out, or if you think you may be, or may have been, please raise your hand and come to the front of the courtroom.

3. By “closely associated with” I mean any association, past or present, that may make it difficult for you to assess the witness’ evidence solely on the basis revealed by the evidence that the witness gives at trial.

[8] The Notes on Use for that instruction say:

The list of prospective witnesses is confined generally to witnesses to be called by the Crown. It should be made clear that the announced names are of persons who may be called as witnesses for the Crown, so that jurors do not draw an unwarranted adverse inference later if every prospective witness does not testify.

[9] The Canadian Judicial Counsel Model Jury Instructions to the jury panel with respect to knowledge of witnesses or other participants say:

If you have or ever had such an association with anyone involved in the case - for example, (NOA); Crown or defence counsel (identify by name); the witnesses, the investigating officer(s); or (me) the trial judge, or if you have any doubt about it, please come forward. I am now going to ask Crown counsel to read out the names of the witnesses and investigating officers.

[10] There is no explicit indication that the witness list to be read by the Crown is only of the Crown’s own witnesses, but neither was there in Watt’s, and that appears to be the implication, as it is only Crown counsel that is asked to read out the names of the witnesses.

[11] More explicit is the script for “Judges Preliminary Remarks to Criminal Jury Panel (Long Version) found in Ontario Courtroom Procedure, third edition, by Michelle Fuerst and Mary Anne Sanderson in which Crown counsel is directed to “read out the names of the witnesses who may be called by the prosecution”. There is no such direction to defence counsel about its witnesses.

[12] From the standard sources of instructions for criminal jury panels, then, it appears that only the Crown, not the defence, is required to divulge its list of witnesses. The only caveat that I see on this is in Watt’s Notes on Use which say this is “generally” so.

[13] No case law directly on point has been provided, with one exception. This is the unreported decision of Del Frate J. of April 14, 2015 in R. v. Debassige. Significantly, I think, that case was also heard in Gore Bay, Ontario. Therefore, the same Crown’s office was involved in both it and the present case, as was one of the defence counsel. I have been provided with a copy of Del Frate J’s ruling on this issue. It indicates that this was a novel point to counsel and to the judge. The positions and arguments of counsel are not in the transcript, but it appears that they covered at least some of the submissions that were made in the present case. It also appears that counsel referred the case of R. v. MB, 1994 125 (SCC), [1994] 1 S.C.R. 555 to Del Frate J (although the transcript refers to the case of MVP, this appears in context to be a mispronunciation or typographical error. Counsel in the present case confirmed it was the R v. MBP case.) Del Frate J said that it clearly points out that the defence does not have to disclose its case at any time. He accepted the position of the defence, and laid out a procedure such as the defence is proposing in the present case, which I will address in due course. Del Frate J believed that some of the concerns expressed by the Crown were valid, but could be dealt with in the procedure that he laid out. The Crown indicated that R. v. Debassige is being appealed and this treatment of the issue of whether and how to disclose the defence witnesses is likely to be a ground of appeal. The distinction the Crown made was that this time, unlike in R. v. Debassige, the argument is being heard on notice.

[14] Both sides referred to the above-mentioned case of R. v. MBP. In it, the Lamer C. J stated that “(p)erhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution (reference omitted). This means, in effect, that an accused is under no obligation to respond until the state has succeeded in making out a prima facie case against him or her” (par. 36). He went on to discuss the various manifestations of this “overarching principle against self-incrimination” (par. 37-40). In that case, the Crown had closed its case. The trial had been adjourned, but not before the defence stated that it would be calling three witnesses, including an alibi witness. When the trial resumed weeks later, the Crown was allowed to re-open its case and re-call a witness who had testified previously who then changed her testimony as to the time frame, negating the alibi. Lamer C. J found that “the (accused) was prejudiced by the trial judge’s decision to allow the Crown’s case to be re-opened after the (accused) had begun to answer the case against him by calling three witnesses”, and that the trial judge had committed a reversible error (par. 15). He went on to say that “what is so objectionable about allowing the Crown’s case to be re-opened after the defence had started to meet the case is that it jeopardizes, indirectly, the principle that an accused not be conscripted against him or herself”. The danger was that the Crown, if allowed to re-open its case after the defence had begun to meet the case against it, would “seek to fill in gaps or correct mistakes” in its case (par. 41).

[15] I take from this case that the prejudice to an accused arises when the Crown has the opportunity to call evidence in reaction to knowledge it gains of the accused’s case from the accused’s revelation of the identity of the accused’s witnesses. Although in this case the situation arose in the context of the Crown being allowed to re-open its case after learning of the accused’s witnesses, I find the prejudice could also arise if the Crown learned of the accused’s witnesses prior to the Crown calling any evidence, as it would have a similar opportunity to react. This is borne out by the Crown’s response in the present case to the defence’s suggestion that the defence provide its witness list on the condition that the Crown not have those witnesses interviewed. Paragraph 6 of the Crown’s Motion for Direction on point states:

6. It has been, in the past, in the context of other cases, asserted by the defence that they might supply such a list if the Crown undertakes not to ask the police to interview the witnesses on the list. However, in the respectful submission of the (Crown), this type of undertaking is contrary to the legislative duty imposed on the Police and the common law duty imposed on the Crown to ensure that the matter is fully investigated and to see that the matter is prosecuted to the its legitimate strength. This obligation requires the Police to follow up where it becomes known that a person might have evidence bearing on the case. This obligation requires the Crown to see that the police interview the potential witnesses to ensure that their value becomes known and can be assessed against the rest of the case. It has been suggested in the context of this issue that the Crown simply undertake not to have the police interview the witnesses once they become known to the Crown. It is the (Crown’s) respectful submission that such an undertaking would be contrary to the Crown’s obligation to the community it represents and further, such an undertaking, in any event, would not bind the Police.

[16] I find that this shows that revealing the list of defence witnesses to the Crown at the start of the jury selection would amount to conscripting the accused against himself, which Lamer C. J found to be so objectionable in R. v. MBP (par. 41).

[17] The Crown argues that there are limits to the accused right to silence as to who its witnesses will be, giving as examples the requirement to disclose an alibi witness or else face an adverse inference, and the procedure for giving notice of expert witnesses. The defence countered that, with alibi witnesses, nothing says that the accused’s rights must be infringed. Rather, the accused is given a choice to waive his right to silence and disclose the alibi. As for experts, s. 657.3(3) of the Criminal Code sets out a procedure, which requires either the Crown or defence who intends to call an expert to give notice before trial of the expert’s name and area of expertise. However, where it is the Crown that intends to call the expert, the Crown must provide to the defence a report or other material before trial. In contrast, where it is the defence that intends to call an expert, the defence has until the close of the Crown’s case to provide the report or other material to the Crown.

[18] With respect, I do not find the Crown’s arguments about limits on the accused’s rights which would allow for the provision of the witness list at the outset to be applicable to the circumstances with which we are dealing here. Instead, the existence of these exceptions to the general rule that the accused does not have to disclose his defence until the close of the Crown’s case can be seen to undermine rather support the Crown’s argument.

[19] It follows that I will not require the defence to provide its witness list at the outset of jury selection, or at all.

[20] However, the defence, while maintaining that its witness list is never compellable, expressed willingness to provide its list to the court in an effort to identify potential conflicts early on, provided a certain procedure was followed, which is substantially that used by Del Frate J in R. v. Debassige.

[21] The procedure that I would propose to use will be as outlined by the defence but with some additional details as follows:

1. Both the Crown and the defence will provided their respective witness lists to the court registrar.

2. The court will combine the two lists of names into one in alphabetical order, ensuring that a reader would be unable to distinguish between Crown and defence witnesses.

3. The names on the combined list will be numbered consecutively.

4. Two copies of the combined list would be made, one for the prospective jurors to read, and one for the trial judge. A prospective juror here is a jury panel member whose number has been called.

5. Each prospective juror will be asked to read the list silently to himself or herself.

6. The prospective juror would be asked if he or she knows anyone on the list, yes or no.

   i. If no, there is no conflict identified.

   ii. If yes, the prospective juror would then be asked if he or she could decide the case impartially without bias, yes or no.

   iii. If yes, the selection process continues for that person.

   iv. If no, that prospective juror would be excused.

7. The list of defence witnesses provided to the court and the combined list used in jury selection would be made an exhibit and, after the jury selection is complete, be sealed until further order of the court.

[22] The Crown raised several concerns with the procedure proposed by the defence. Firstly, it would require that the trial judge converse with prospective jurors that identify conflicts with the witnesses without the Crown, defence counsel and the accused hearing those discussions.

[23] I acknowledge that it has been held that conversations between the trial judge and prospective jurors during the impaneling process are part of the trial during which the accused has a right to be present pursuant to Criminal Code s. 650. (R. v. Kakegamaic 2010 ONCA 903, [2010] O.J. No. 5671, ONCA). The proposed procedure does not exclude the accused from those conversations. They would be in open court, on the record, with the accused present.

[24] The Crown continued that using the proposed process would mean that the Crown, the defence and the accused would not be present in a meaningful way because only the prospective juror and the trial judge would know the identity of the witness in question. The Crown took the position that it, like the accused, had the right to be present because the jury selection process involved the vital interests not only of the accused, but also of the community that the Crown represented. The accused might waive his right to be present for this process, but the Crown would not waive its right, if indeed it had one. No law on point was proffered. The defence argued that the speculative conflicts that the Crown based its position on were not sufficient reason to trench upon the accused’s Charter rights.

[25] I am not persuaded by the argument of the Crown on this point. I do not accept the Crown’s criticism of the proposed procedure given that, in my opinion, the procedure already involves a concession by the defence that it was not required to make.

[26] Secondly, the Crown submitted that it and the police, not knowing who the defence has listed, would not be in a position to point out any potential conflicts that the prospective jurors do not bring to the attention of the court, arguing that, especially in a jurisdiction like this one, the District of Manitoulin, with a small population, conflicts are inevitable and it is also inevitable that a prospective juror would want to withhold sensitive personal information about the nature of the conflict from the persons in the body of the court.

[27] This argument was apparently raised in R. v. Debassige, and dealt with by Del Frate J as follows:

We also have to rely on the premise that jurors will follow the direct instructions and directions given by the trial judge. As (the Crown) says, how do we know? We never really do, but we have to go on the premise that they do.

[28] I would add, rhetorically, that if we went by the premise that jurors will not follow instructions, what would be the point of giving any instructions at all? The jury system would be undermined.

[29] Thirdly, it was submitted by the Crown that it would not know if the witnesses that the defence called appeared on the list that was shown to the potential jurors, if the Crown did not have access to the list. However, it was also conceded that this is resolved by the trial judge having the combined witnessed list, monitoring whether a defence witness called is on the list, and making proper inquiries if one is not.

Justice J. A. S. Wilcox

Released: November 1^st, 2016

CITATION: R. v. Corbière, 2016 ONSC 6820

COURT FILE NO.: CR-16-0004

DATE: 20161101

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Kimel Corbière

Respondent

DECISION re defence witness list

Justice J. Wilcox

Released: November 1^st, 2016