R. v. Hayes, 2016 ONSC 7152
CITATION: R. v. Hayes, 2016 ONSC 7152
COURT FILE NO.: 015/15
DATE: 2016/11/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Serge Hamel, for the Crown
Respondent
- and -
MATHEW HAYES
James Harbic and Robert Harbic, for the Applicant
Applicant
HEARD: November 10, 2016
PUBLICATION RESTRICTION NOTICE
Pursuant to s. 648(1) of the Criminal Code, no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
RULING ON PRE-TRIAL APPLICATION TO TAKE A VIEW
ellies j.
[1] Mathew Hayes is charged with first degree murder. The Crown alleges that he killed Christopher Parsons in Parsons’ apartment on June 4, 2013 between the hours of approximately 5:50 a.m. and 6:17 a.m.
[2] The defence requested that the jury be permitted to take a view of the scene of the alleged crime under s.652 of the Criminal Code. The Crown agrees that a view would be helpful to the jury.
[3] I granted the request and the jury has now taken a view under certain conditions. These reasons explain why I granted the request and the conditions that I imposed.
[4] Section 652(1) of the Criminal Code provides that a judge may direct a jury to have a view of any place “where it appears to be in the interests of justice”. There are a number of issues that can arise whenever a jury takes a view. These include logistical issues such as how to create a record of what takes place out of the courtroom, transportation to and from the scene, security, insuring that there is no improper contact with the jury, etc. For these reasons, the “interests of justice” test has been interpreted to mean that there must be “some very real and demonstrable advantage that the taking of a view will bring to the proceeding”: R. v. Johnson, [2010] O.J. No. 3971 (Ont. S.C.), at para. 5.
[5] At the suggestion of both sides, I attended the scene as part of the motion, together with Crown counsel, defence counsel, the OPP officer in charge of the investigation, and a court reporter. Both the officer and the court reporter had digital audio recording devices and recorded our visit.
[6] From my own visit to the site, I have concluded that a view would provide the jury with a real advantage in their understanding of the layout of the deceased’s apartment. The apartment is quite small. As a result, it is not always easy to determine what one is looking at in the photographs. Taking a view will help the jury to understand what each photograph depicts.
[7] Many of the logistical problems associated with views that I have referred to above do not arise in this case. The apartment is no more than approximately one-half block away from the courthouse. The jury can easily walk there. On the way, they pass the bank at which the defence has admitted the accused attempted to use the victim’s bank card shortly after the victim’s death.
[8] One logistical problem that would have arisen due to the small size of the apartment is the proximity of the accused to the members of the jury. This problem was avoided, however, because counsel for Mr. Hayes advised that his client did not wish to attend. There is an issue as to whether this is possible.
[9] Section 652(3) of the Criminal Code provides that the accused shall attend the view. In R. v. Auger (1982), 1982 CanLII 3895 (QC CA), 4 CCC (3d) 282, the Quebec Court of Appeal held that s. 652(3) must be interpreted in conjunction with s. 650(2)(b), which permits an accused to be “out of court during the whole or any part of his trial”. The court in Auger held that this section allows a court to conduct a view in the absence of an accused.
[10] Unfortunately, Ontario authority on the issue is divided. In R. v. Sappleton, 2010 ONSC 6305, [2010] O.J. No. 5367, Trafford J. refused to follow the decision in Auger. In his view, the apparent conflict between ss. 652(3) and 650(2)(b) had to be resolved by applying the principle of statutory interpretation by virtue of which the specific provisions in s.652(3) prevailed over the general provisions in s.650(2)(b): see paras. 8 and 9. However, in the earlier case of R. v. MacDonald, [2006] O.J. No. 5514 (Ont. S.C.) D. J. Gordon J. agreed with the conclusion of Kaufman J. A. in Auger and permitted the two accused to waive their right to attend under s.650(2)(b): see para. 10. MacDonald was not referred to in Sappleton.
[11] With respect, I do not share Trafford J’s view, for two reasons.
[12] The first is that there is another principle of statutory interpretation that I believe compels the result in Auger. It is well-established that legislation should be interpreted in a way that avoids absurd consequences: Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at s.10.4. It would make no sense for Parliament to permit an accused to be absent from any part of the trial at which evidence is heard in the courtroom under s.650(2)(b) of the Criminal Code, and yet require the accused to be present under s.652(3) while the jury views evidence outside of the courtroom.
[13] As I will mention again below, there is presently a debate in the jurisprudence as to whether a view constitutes evidence at all. The consequences to which I refer above become even more absurd if one interprets s. 652(3) as prohibiting an accused from being absent from a viewing by the jury of something that may not even be evidence.
[14] Second, and more importantly, the interpretation given to s. 652(3) by my colleague in Sappleton has the potential to operate unfairly, if not unconstitutionally, for an accused. This case is a good example. Because of the small size of the apartment, I would not have granted the application to take a view if the accused could not waive his right to be present, even though both sides agreed that taking a view would be of real assistance to the jury in trying this case.
[15] This makes Sappleton distinguishable from the present case. In Sappleton, the request to take a view was made by the Crown, and not by the defence, who first supported the request, but then opposed it: para. 4. The trial judge found that the defendants would have asserted their right to be present during the view, except for the fact that they would be required to wear restraints in the immediate presence of the jury: para. 9. It is implicit that the defence felt that the wearing of such restraints in the presence of the jury would be prejudicial. Thus, Trafford J. appears to have concluded that the waiver by both accused of their right to be present was not fully voluntary. In the case at bar, there is no evidence that the accused would have liked to attend, but relinquished that right due to problems associated with his attendance.
[16] For these reasons, I prefer to follow the authority in Auger and in MacDonald and hold that I am empowered to permit the accused to waive his right to attend the view. This removes a significant impediment to the taking of a view in this case.
[17] With respect to keeping a record of the view, the Crown suggested that a video recording be made by an OPP officer. The Crown also suggested that former OPP Identification Officer Mike Cruickshank, who took the photographs of the scene to which I referred earlier, could be present and could point out to the jury where certain photographs were taken and what they depict.
[18] I have three principal concerns with the Crown’s suggestion. For one, taking a video tape has the potential to violate the privacy of the jurors, something we have taken pains during the trial to protect. The venue is too small, in my opinion, to avoid the possibility of capturing jurors on video tape.
[19] Secondly, while I have no doubt that the Crown and Officer Cruickshank would do nothing to purposely violate any of the rules of evidence, I see no way to have any objection to what Cruickshank says dealt with while at the scene.
[20] Lastly, I am concerned that the line will be blurred between keeping a record of the view, on the one hand, and creating evidence that ought to be entered as an exhibit in the trial, on the other.
[21] For these reasons, I believe it would be best if the view was undertaken in the absence of any one other than counsel, court staff, the investigating officer(s), and me. Although it should be audio recorded by the court reporter in the way that my view of the scene was recorded earlier, nothing should be said about the evidence while we are at the scene, except with the consent of counsel for both sides and only to the extent necessary to help the jury understand what they are seeing.
[22] The view should take place before Cruickshank finishes giving evidence. Jurors should be permitted to bring with them their copy of the 8 ½ x 11” scaled diagram of the apartment (exhibit #7), their copy of the photos (exhibit # 4), as well as their pad and pencil.
[23] The members of the jury will be instructed with respect to the purpose of the view. As I indicated earlier, there is a debate raging in the jurisprudence with respect to whether a view is real evidence or otherwise. I would rather not wade into that debate. Even if the scene of the alleged crime is real evidence, its value as such is greatly diminished in this case. The apartment no longer looks exactly the way it did in the photographs entered as evidence. For example, the door to one room near which the deceased’s body was found and which was covered with blood has been removed from the frame and appears to have been sanded. Because of these changes, the jury should be cautioned that the value of the view does not extend much beyond its ability to help them understand the size and layout of the apartment.
[24] The jury will be advised of their right to bring the exhibits I have referred to with them. They will be instructed that, should they have any questions arising from their view, they should write that question down and the question may be submitted to the court once the trial resumes and dealt with in the same way as any other question they have concerning the evidence.
[25] The jury will also be advised that an audio recording will be made of the view and, for that reason, they ought to restrict their communications with each other about the case in order to avoid the possibility that those communications will be captured on the recording, thereby violating the provisions of the Criminal Code.
[26] I believe that by conducting the view under these conditions, the integrity of the trial process can be maintained at the same time as the jury’s understanding of the evidence is enhanced.
Ellies J.
Released: November 25, 2016
CITATION: R. v. Hayes, 2016 ONSC 7152
COURT FILE NO.: 015/15
DATE: 2016/11/25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
MATHEW HAYES
Respondent
RULING ON PRE-TRIAL APPLICATION TO TAKE A VIEW
Ellies J.
Released: November 25, 2016