CITATION: R. v. Hayes, 2016 ONSC 7302
COURT FILE NO.: 015/15
DATE: 2016/11/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Serge Hamel, for the Applicant
Applicant
- and -
MATHEW JAMES HAYES
James Harbic and Robert Harbic, for the Respondent
Respondent
HEARD: November 22, 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.
REASONS FOR DECISION ON APPLICATION UNDER SECTIONS 486(1), 486.31 AND 486.2(2) OF THE CRIMINAL CODE
ellies j.
[1] The Crown applies for a number of orders regarding the evidence of Caitlin Willard, the former girlfriend of the accused, Mathew Hayes. Mr. Hayes is charged with first degree murder in the death of Christopher Parsons. Ms. Willard is expected to testify that Mr. Hayes told her before he left their residence in Cobalt that he was going to rob Mr. Parsons on the night Mr. Parson was killed.
[2] Ms. Willard is also expected to say that Mr. Hayes told her shortly after the death of Mr. Parsons that he killed him with a hammer and a knife, which would be consistent with at least some of the injuries suffered by Mr. Parsons before he died.
[3] The Crown seeks an order excluding the public during Ms. Willard’s evidence under s. 486(1) of the Criminal Code, an order directing that Ms. Willard’s identity not be disclosed under s. 486.31, and an order that Ms. Willard be permitted to testify either behind a screen or via closed circuit television, under s. 486.2(2) of the Criminal Code.
[4] The Crown argues that or some or all of these orders are necessary for the following reasons:
(a) that Ms. Willard is under a great deal of stress and emotional turmoil over testifying;
(b) that Ms. Willard is concerned about the public at large knowing about her testimony in this case;
(c) that Ms. Willard has been implicated in the murder of Mr. Parsons on social media;
(d) that Ms. Willard is concerned about the damage that will flow to both her and her daughter, who is also Mr. Hayes’ daughter, from having Mr. Hayes charged with murder; and
(e) that Ms. Willard is concerned about the effect on her daughter of knowing that her mother testified against her father.
[5] I fail to see how any of the orders sought can prevent the consequences that Ms. Willard or the child may experience as a result of Mr. Hayes being charged with murder. He has been, that fact is well known, and none of the orders sought can change that.
[6] Nor do I see how any of the orders sought would assist Ms. Willard with respect to rumours that she was involved in the killing. Preventing the public from learning her evidence that she was not involved and that she only had information from which to believe that Mr. Hayes was going to rob Mr. Parsons, not kill him, would do nothing to stop public speculation about her involvement.
[7] I am not able to accept that Ms. Willard has any valid concerns about her own privacy. The defence introduced an exhibit during the hearing of this application showing that Ms. Willard is doing absolutely nothing herself to protect her identity as Mr. Hayes’ girlfriend at the time of Mr. Parsons’ death.
[8] That leaves Ms. Willard’s stress about testifying and her concern for her daughter’s privacy.
[9] I do not share Ms. Willard’s concern about her daughter’s privacy and, even if I did, I would not grant any of the orders sought as a result. As I said, Mr. Hayes is already charged and that fact is well-known. Anyone who knows that the child is his daughter will know that even if all of the orders requested are made.
[10] As for the concern about the child learning that her mother testified against her father, it must be borne in mind that the child is presently only three years of age. It will be many years before the child is old enough to care about the details of the trial. It seems to me that if her father is convicted, her mother’s evidence will be but one piece of evidence marshalled by the Crown in the case. This evidence includes video footage of Mr. Hayes using Mr. Parsons’ bank card shortly after Mr. Parsons was killed. It would be unreasonable for the child to blame the father’s conviction on the mother.
[11] Alternatively, if Mr. Hayes is acquitted, it will be because the jury was not persuaded beyond a reasonable doubt by all of the evidence, including that of Ms. Willard, that he was guilty. That may mean that the child will conclude that the mother was not to be believed. But that is not a sufficient reason, in my view, to keep Ms. Willard’s evidence from seeing the cold, harsh light of public scrutiny.
[12] As the Crown concedes, there is a strong presumption in Canada that criminal trials should be open to the public. I do not need to go into all of the reasons, which are well set out in the jurisprudence, including the case of Canadian Broadcasting Corporation v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, cited by the Crown.
[13] Public scrutiny of a witness’s evidence serves a number of important goals. As counsel for Mr. Hayes reminds us, one of them is the possibility that a member of the public may come forward with information relevant to the case because of public knowledge of the evidence. That is an important consideration in this case. Ms. Willard gave two statements to the police shortly after the death of Mr. Parsons in which she said nothing about Mr. Hayes telling her that he was going to rob Mr. Parsons or about Mr. Hayes later confessing to murdering him. Her presently anticipated evidence was given for the first time in a statement she gave to the police in 2015, nearly two years after the death of Mr. Parsons, in circumstances that may give rise to concerns about her truthfulness. Her credibility is in issue as a result.
[14] Therefore, even if I shared Ms. Willard’s concern for her child’s privacy, I would not make any of the orders requested. The cost to the truth-seeking function of the trial would be too high a price to pay.
[15] That leaves only the turmoil of Ms. Willard relating to the act of testifying in this case. I agree with the defence submission that the evidence that Ms. Willard will benefit from testifying behind a screen or on CCTV is pretty thin. However, she did tell OPP Detective Constable Laxton that it was “hard enough” to testify with Mr. Hayes in the courtroom. I can accept that it would be difficult for her to testify in person in front of her former boyfriend, the father of her child, a person for whom she still has strong feelings of attraction. Counsel have agreed that I can consider the evidence that I heard on the Crown’s earlier post-offence conduct application on this one. Ms. Willard testified during that application and Mr. Hayes was present. I saw how uncomfortable Ms. Willard was.
[16] I believe that the truth seeking function of the trial would be enhanced by allowing Ms. Willard to testify via closed circuit television. Doing so may, as the Crown argues, facilitate her ability to give her evidence. At the same time, Mr. Hayes will still be able to “face his accuser”, to borrow a phrase from defence counsel’s submissions.
[17] For these reasons, Ms. Willard will be permitted to testify via closed circuit television, pursuant to s. 486.2 of the Criminal Code.
Ellies J.
Released: November 23, 2016
CITATION: R. v. Hayes, 2016 ONSC 7302
COURT FILE NO.: 015/15
DATE: 2016/11/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
AND:
MATHEW JAMES HAYES
Respondent
REASONS FOR DECISION ON APPLICATION UNDER SECTIONS 486(1), 486.31 AND 486.2(2) OF THE CRIMINAL CODE
Ellies, J.
Released: November 23, 2016