CITATION: R. v. Hayes, 2016 ONSC 7422
COURT FILE NO.: 015/15
DATE: 2016/11/30
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.
REASONS FOR DECISION IN APPLICATION TO EDIT VIDEO-recorded INTERVIEW
ellies j.
[1] Mathew Hayes is charged with first degree murder in the death of Christopher Parsons, who died in the early morning hours of June 4, 2013.
[2] For reasons delivered on October 13, 2016 (2016 ONSC 6178), I ruled that a video-recorded interview of Hayes by the police on July 10, 2014, was admissible, subject to editing. In the interview, Hayes denies killing Parsons. He also denies using his bank card at an ATM shortly after Parsons was killed. However, the surveillance videos clearly show Hayes at the ATM. Indeed, in an agreed statement of fact filed as part of the trial record, Hayes now admits to being the individual seen in the video surveillance.
[3] The Crown and the defence have been able to agree on a substantial number of edits, with five exceptions. The areas of dispute were the subject of argument shortly before the trial began on November 14. I provided my ruling orally on November 17. These are my reasons for that ruling.
[4] All five segments in issue have in common the fact that what the defence seeks to exclude is not something said by Hayes, but rather, something said by the interviewing police officer, Detective Sergeant Darren Miller. In four of the five segments, Miller tells Hayes that the police are certain about various aspects of their case. In three of those segments, and in the remaining segment, Miller urges Hayes to provide information concerning the death of Parsons. With respect to these segments, the defence raises two concerns.
[5] First, the defence submits that Miller’s comments about the certainty of the police would be inadmissible at trial and, therefore, ought not to be admitted as part of the video-recorded interview. Relying on cases such as R. v. Jackson, [2009] O.J. No. 1644 (Ont. S.C.), the defence submits that the court should redact the opinion evidence from the video which, if not redacted, would act as a “voice for the Crown” in the jury room, to borrow the words of Turnbull J., in Jackson, (para. 82).
[6] Second, the defence argues that, if not redacted, the segments at issue will have the effect of undermining Hayes’ right to silence. Although not articulated exactly this way, I understand the concern to be that the effect on the jury of including these portions of the interview will be the same as the effect Miller intended by making the comments he made to the accused; namely, to provide a compelling reason to give up his right to silence in order to answer Miller’s accusations.
Lines 543 to 570
[7] In this segment, Miller tells Hayes that they showed a still picture of him taken from the video at the bank to his girlfriend, Caitlin Willard. He also says that he is confident that Hayes is the individual shown in the picture. As well, Miller says that “there’s questions out there... that are gonna be tough for you to explain.”
[8] I see no reason to exclude any portion of this segment. The police did show Willard a photo of Hayes. Miller’s confidence in the fact that it is Hayes in the photo is not prejudicial in light of the fact that the defence has now admitted this fact. Finally, Miller’s suggestion that there are tough questions to answer is a reference to the fact that Hayes is seen on the bank video using the victim’s bank card shortly after his death. There is no doubt that the video does raise questions. The jury will be instructed that the accused has no onus of proof in a criminal trial, but they will also be instructed about the value of circumstantial evidence.
Lines 823 to 859
[9] In this segment, Miller tells Hayes that “we’re confident you were in Haileybury that morning and you went to Crispy’s [Parsons’ nickname]”. He tells Hayes he knows how Hayes got to Haileybury that morning and that the police showed Hayes’ girlfriend a picture of Hayes at the bank. He also says that he is not convinced that Hayes is a cold-blooded killer or that Hayes had a plan to kill Parsons.
[10] I see no basis to exclude all of this segment, as requested by the defence. The police did have reason to be confident that Hayes was in Haileybury the morning Parsons died. As I mentioned, Hayes has admitted as much.
[11] Although there is some uncertainty in the evidence as to how Hayes got to Haileybury from his residence in Cobalt on June 4, 2013, Miller does not provide any information about that to Hayes in this portion of the interview. Therefore, this portion does not have the potential to act as an advocate for the Crown on that issue during the jury’s deliberations.
[12] Somewhat more problematic is Miller’s comment that he is not convinced that Hayes is a cold-blooded killer. Implicit in this comment is Miller’s confidence the police have the right suspect. However, I agree with the Crown that removing this segment risks denuding Hayes’ denial about the bank card of relevant context. The implicit nature of Miller’s confidence does not give rise to the same concerns about prejudice that arise as a result of some of his more forceful comments, with which I will deal below.
[13] There is one portion of this segment, however, that I believe should be removed. At line 850, Miller says:
… and that’s where you have an option to explain yourself to make that clear to people so that there’s no longer a question the question isn’t who the question is why and how like how it all came about…[Emphasis added.]
[14] In my view, this part should be removed for two reasons.
[15] First, Miller’s comment that Hayes has an option undermines his right to silence in a way that I am worried I may not be able to overcome, even with a proper instruction to the jury. The video will be available to the jury during their deliberations and may be played by them long after my instructions have been heard.
[16] Second, Miller’s statement that the identity of the killer is no longer a question is so unequivocal as to cause me concern that the jury may wonder if there is not some other evidence they did not hear about in the trial.
[17] For these reasons, that portion of the segment beginning at line 850 with the words “and there’s where you have that option…” shall be removed, up to line 853, ending after the words “all came about”.
Lines 4740 to 4804
[18] In this segment, Miller insists that the police know that it was Hayes in the bank video. He says such things as:
• “I’m telling you it was you okay”
• “it was you like we we can prove it”
• “we know it’s you we can say without a doubt a hundred (100) percent it was you Mat”
[19] Again, I see no reason to remove this portion of the segment, given the accused’s admission that he is the one seen in the bank surveillance video.
[20] Moreover, I agree with the Crown’s submission that doing so would cause Hayes’ denial of using the bank card to lose context. Miller’s comments about the certainty with which the police believe he is shown in the video is preceded by the following exchange:
MILLER: Okay but how did you come to his bank card and use his bank card Mat like you’ve gotta answer that everyone’s gonna ask
HAYES: I don’t know why you guys think that
[21] For this reason, I believe the portion referred to above should remain.
[22] I do agree with the defence, however, that a portion of this segment should be removed. At line 4760, Miller says:
ya no and it’s a tough decision to make but these are your options you know… truth is it’s you using the bank card and it is you that took his life… there is more options than just to sit quiet there is more options you have the right you’ll always have it…
[23] In addition, Miller says:
…Caitlin knew it was you she knew when she saw that picture…
[24] I have two concerns about the comments I have set out above.
[25] First, once again, by telling Hayes that he has options beyond remaining silent, my concern is that Hayes’ right to silence will be undermined despite my best efforts to the contrary.
[26] Second, Miller is incorrect when he says that Caitlin Willard knew it was Mathew Hayes in the still picture. During argument, it was clarified for me that Willard did not say that she knew it was Hayes.
[27] For these reasons, the video should be edited to remove the portion beginning at line 4760 and ending at line 4804, inclusive.
Lines 4837 to 4839
[28] This segment is preceded by Hayes telling Miller that he had nothing to do with the death of Parsons. Miller then says, beginning at line 4837:
I can’t believe it I can’t believe it Mat like I I can’t I can’t believe that I can’t accept that it’s impossible for me to accept that because of what I know and what I have or we have you know
[29] The Crown did not argue that this segment should remain. In my view, it should not. As I expressed above, my concern is that the jury may wonder about evidence they did not hear at trial.
Lines 5785 to 5838
[30] This segment begins with Miller asking Hayes if he was in Haileybury on the morning that Parsons was killed and if revenge in relation to Willard was involved. Hayes replies that he has nothing else to say. I see no reason to remove this part. This is the stuff of which most police interviews of accused persons consist.
[31] However, immediately following this part, beginning at line 5791, Miller goes on at length about how, if he was in Hayes’ shoes, he “would be talking [non-]stop to try to prove … it wasn’t me”. Again, these statements by Miller have the significant potential to undermine Hayes’ right to silence in a way that I might not be able to correct sufficiently by my instructions to the jury.
[32] For this reason, the video must be edited, beginning at line 5791, up to and including the word “here”, at line 5937, following which there is a long period of silence during the interview.
Ellies J.
Released: November 30, 2016
CITATION: R. v. Hayes, 2016 ONSC 7422
COURT FILE NO.: 015/15
DATE: 2016/11/30
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
MATHEW HAYES
Respondent
REASONS FOR DECISION IN APPLICATION TO EDIT VIDEO-recorded INTERVIEW
Ellies J.
Released: November 30, 2016