Court File and Parties
COURT FILE NO.: CR-13-250 DATE: 20160815
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN A. Bernstein, counsel for the Crown
- and -
LAFFETTE CHARLTON Scott Reid and Stefan Dimitrijevic, counsel for the Defendant
HEARD: June 16, 2014
RULING ON APPLICATION BY DEFENCE
Barnes, J.
[1] Mr. Laffette Charlton is charged with two counts of attempted murder. One of the victims, Shamoiey Akinderjoye, is missing and unavailable for trial.
[2] Mr. Akinderjoye provided a videotaped statement to the police and testified at the preliminary inquiry on behalf of the Crown. He identified Mr. Charlton as his shooter.
[3] The Crown wishes to bring an application to admit the previous statement and testimony as an exception to the Hearsay Rule. This is an application by the defence for an order precluding the Crown from bringing said application.
[4] On June 16, 2014, after hearing evidence on a voir dire and the submissions of counsel, I dismissed the defence’s application. These are my reasons.
BACKGROUND FACTS
[5] In December 2014, the Sheriff made three unsuccessful attempts to serve Mr. Akinderjoye with a subpoena requiring him to testify at the trial. Peel Regional Police Officer McMillan took over the efforts to serve the subpoena on Mr. Akinderjoye.
[6] Officer McMillan made some attempts to find Mr. Akinderjoye. At 8:32 p.m., he went to 31 Fair Oaks Place, Toronto, Unit 304. He knocked on the door. A female, who identified herself as Kim, responded but refused to open the door.
[7] Kim told Officer McMillan that Mr. Akinderjoye lived at that address. She told him that Mr. Akinderjoye had gone shopping with his mother. Kim gave Officer McMillan the cellphone number of Mr. Akinderjoye’s mother, Stella.
[8] Officer McMillan had information that Mr. Akinderjoye lived with his sister at 31 Fair Oaks Place. The next place the officer went to was 3480 Colonial Drive, Unit 89. This is Mr. Akinderjoye’s mother’s address. There were no lights on. Officer McMillan left.
[9] On January 28, 2014, Officer McMillan returned to Mr. Akinderjoye’s mother’s home at 3480 Colonial Drive, Unit 89. He observed that there were no lights on and no sound coming from the residence. After about an hour and a half, he called Mr. Akinderjoye’s mother’s cell phone. There was no response.
[10] For the next 14 days, from January 28, 2014 to February 12, 2014, Officer McMillan took no further steps to look for Mr. Akinderjoye. He explained that this was due to his workload and other assignments. He conceded that additional efforts could have been made during that time to look for Mr. Akinderjoye.
[11] On February 12, 2014, Officer McMillan called Mr. Akinderjoye’s mother’s cell phone. There was no response.
[12] After calling Mr. Akinderjoye’s mother, Officer McMillan went to Mr. Akinderjoye’s sister’s residence at 31 Fair Oaks Place. He knocked a few times. There was no sound and he could not see anything through the peep hole.
[13] Officer McMillan then went to Mr. Akinderjoye’s mother’s home. He has no recollection of any sound or lights at the Colonial Drive address. Officer McMillan confirmed with the property manager that Mr. Akinderjoye’s mother lived at the Colonial Drive address. Officer McMillan did not ask the property manager if Mr. Akinderjoye lived at that address.
[14] On February 12, 2014, Officer McMillan contacted Canada Border Services Agency (“CBSA”). He learned that the CBSA could not track whether Mr. Akinderjoye had left Canada. The CBSA could only track and determine whether Mr. Akinderjoye had entered Canada. The CBSA reported that Mr. Akinderjoye had not returned to Canada in the last two months.
[15] Officer McMillan had conducted a CPIC check on Mr. Akinderjoye and was aware that Mr. Akinderjoye had been charged with robbery and intimidating a justice system participant. There was an outstanding warrant for his arrest in relation to those charges.
[16] Officer McMillan called Mr. Akinderjoye’s lawyer and told him that there was an outstanding warrant for the arrest of Mr. Akinderjoye. The officer wanted counsel to contact Mr. Akinderjoye and tell him to contact the police. Defence counsel said he would try.
[17] Officer McMillan then called hospitals in the area looking for Mr. Akinderjoye with negative results. Officer McMillan called United States Customs and Canadian Air Transport Security with negative results.
[18] Officer McMillan made no efforts to find Mr. Akinderjoye from February 13 to 17, 2014. He conceded that during this period he could have made efforts to find Mr. Akinderjoye.
[19] On February 18, 2014, Officer McMillan returned to Mr. Akinderjoye’s sister’s address at 31 Fair Oaks Place. The police had information that Mr. Akinderjoye was living at that address. He heard a child’s voice coming from the residence. He knocked once. The child’s voice fell silent. He knocked up to five times. There was no sound coming from the apartment and no one came to the door.
[20] On February 18, 2014, Officer McMillan checked with local hospitals and United States Customs, all with negative results.
[21] Officer McMillan returned to Mr. Akinderjoye’s sister’s house. He heard sounds he described as “wrapping paper” coming from the residence. As soon as the officer knocked, those sounds stopped. Officer McMillan knocked up to four times. There was no sound and no response. Officer McMillan called Brampton Probation and Parole. It was after hours. He received no response.
[22] From February 19 to 23, 2014, Officer McMillan took no steps to find Mr. Akinderjoye. He conceded that he could have made some efforts during this period.
[23] Due to the illness of the assigned Crown counsel, Mr. Lemke, the trial was adjourned from February 24, 2014 to June 9, 2014. Officer McMillan was informed of the adjournment very shortly thereafter. At some point Crown Counsel Adam Bernstein replaced Mr. Lemke.
[24] In March 2014 through to April 16, 2014 the police took no steps to find Mr. Akinderjoye. However, Officer McMillan did put a note in the Peel Police Data base notifying that there was a warrant for Mr. Akinderjoye’s arrest. Officers were told to inform Officer McMillan and Detective Darren Richard Hawley if Mr. Akinderjoye was arrested. Officer McMillan conceded that the police could have made other efforts to find Mr. Akinderjoye during this period.
[25] On April 16, 2014, Officer McMillan contacted Mr. Akinderjoye’s lawyer to find out if he had told Mr. Akinderjoye to contact the police. He did not ask counsel for Mr. Akinderjoye’s address. Officer McMillan said he did not expect counsel to give him Mr. Akinderjoye’s address.
[26] Officer McMillan took no steps to look for Mr. Akinderjoye in the last two weeks of April or in May 2014. Officer McMillan conceded that he did not pursue any other efforts because Mr. Akinderjoye was in hiding and his efforts would be fruitless.
[27] On May 28, 2014, Officer McMillan received information that Mr. Akinderjoye’s counsel could not help the police locate Mr. Akinderjoye.
[28] On May 29, 2014, Officer McMillan returned to Mr. Akinderjoye’s sister’s residence and knocked three times with no response. He spoke to the property manager and received contact phone numbers for a Shoshanna Akinderjoye and someone called Sandy. Officer McMillan called those numbers and determined that the phone numbers did not belong to either Shoshanna or Sandy.
[29] Officer McMillan called Air Transport Authorities and the CBSA with negative results for Mr. Akinderjoye.
[30] On May 30, 2014, Officer McMillan went to Mr. Akinderjoye’s mother’s house. He knocked on the door and there was no response. Officer McMillan left the subpoena under the door. Officer McMillan spoke to the property manager but did not ask whether he had seen Mr. Akinderjoye.
[31] On June 3, 2014, Officer McMillan contacted area hospitals and U.S. Customs with negative results for Mr. Akinderjoye.
[32] On June 3, 2014, six days before the trial date, Officer McMillan conducted surveillance on Mr. Akinderjoye’s sister’s residence and Mr. Akinderjoye’s mother’s residence. Officer McMillan took no additional steps on June 4 to 8, 2014 because he was off work on those days.
[33] On June 8, 2014, Officer McMillan contacted the Ministry of Transportation, Ontario Death Registry and Brampton Probation and Parole with negative results for Mr. Akinderjoye.
[34] Officer McMillan denied that he was trying to hide the fact that Mr. Akinderjoye could not be found from the defence. Officer McMillan said he did not think of seeking a material witness warrant or any other warrant in an effort to track down Mr. Akinderjoye. He said he took no steps to track down Mr. Akinderjoye through his known associates.
[35] Detective Darren Richard Hawley is the Officer-In-Charge of this case. On February 18, 2014, he sent Crown counsel, Mr. Lemke, a synopsis of efforts to subpoena Mr. Akinderjoye.
[36] On January 27, 2014, Detective Hawley instructed Officer McMillan to serve Mr. Akinderjoye. This was after the Sheriff’s attempts had been unsuccessful. Officer McMillan updated Detective Hawley on his efforts to find and serve Mr. Akinderjoye.
[37] By January 2014, Detective Hawley had informed the Crown that Mr. Akinderjoye could not be found. On May 28, 2014, on the Crown’s instructions, Detective Hawley instructed Officer McMillan to prepare a written summary of the chronology of police efforts to find Mr. Akinderjoye. Detective Hawley said it did not occur to him ask Officer McMillan to disclose his notes on his efforts to locate Mr. Akinderjoye.
[38] Detective Hawley testified that he may have told the Crown by the first trial date, February 24, 2014 that Mr. Akinderjoye could not be found and most likely would not be available for trial. Detective Hawley did not have an independent recollection of passing on this information to the Crown.
[39] On February 24, 2014, the assigned Crown, Mr. Lemke, was ill and Crown counsel, Ms. Bridge, spoke to the matter. The matter was adjourned to June 9, 2014. On April 15, 2014, Detective Hawley told Officer McMillan to continue the search for Mr. Akinderjoye and after May 28, 2014, Detective Hawley asked Officer McMillan to make more and more checks.
[40] Detective Hawley conceded that the police did not try to contact Mr. Akinderjoye’s known associates in the police database to see if Mr. Akinderjoye could be found. Detective Hawley said Mr. Akinderjoye’s family was not cooperative in efforts to find him.
[41] Detective Hawley said he does not recall whether Crown counsel, Mr. Lemke, told him in February 2014, that the Crown was planning to bring an application to admit Mr. Akinderjoye’s previous statement and preliminary inquiry transcript into evidence at trial.
[42] Detective Hawley confirmed that in March, April, and May 2014, the police did not expect to find Mr. Akinderjoye, and therefore, did not expend resources to find him because there were other matters requiring police attention.
POSITION OF THE PARTIES
[43] Rule 30.04 of the Superior Court Criminal Proceedings Rules requires a party bringing an application dealing with issues on the admissibility of evidence to provide the opposing party with 30 days’ notice of this intention.
[44] The defence submits that the Crown did not comply with this rule. Notice of this hearsay application was provided on June 2, 2014. The defence was given only seven days’ notice. The defence says this is despite the fact that the Crown knew by April 15, 2014, nearly 60 days prior to the trial date, that it intended to bring this hearsay application.
[45] The defence submits that there is a notation on the pre-trial forms, which states that, after a pre-trial conference has been completed, a party who seeks to bring a motion not listed on the pre-trial form shall provide written notice of this intention to the trial coordinator and the opposing party. There is also a presumption that a motion not listed on the completed pre-trial form will not be heard at trial. There is no valid reason why this presumption should be displaced.
[46] February 24, 2014 was the first trial date for this matter. The trial could not proceed on that day because the assigned Crown counsel Mr. Lemke was ill. Ms. Bridge sought an adjournment on behalf of the Crown. The defence contested the adjournment, wanted a new Crown assigned, and asked that the trial proceed. The defence submits that Ms. Bridge misled the court and the defence by withholding information that the victim, Mr. Akinderjoye, could not be found. The defence explains that its submissions would have been different had this fact been revealed.
[47] The defence submits it had no idea that Mr. Akinderjoye could not be found until 11 days before the second trial date of June 9, 2014. The Crown had this information since February 18, 2014.
[48] The defence explains that the Crown did not disclose that the witness could not be found when Ms. Bridge spoke to the matter on February 24 and 25, 2014, or on April 15, 2014 when the Crown made the decision to bring the hearsay application. The defence says the Crown disclosed that Mr. Akinderjoye could not be found at the eleventh hour only because this was necessary to support the Crown’s hearsay application.
[49] The defence says the police failed to take reasonable efforts to find Mr. Akinderjoye. This includes exploring the obvious route of trying to find Mr. Akinderjoye through his known associates. The defence submits that this is a shocking dereliction of duty because from February 28 to May 29, 2014, the police did nothing.
[50] The defence says that although the Crown knew that there was a warrant in the first for Mr. Akinderjoye’s arrest on other charges, the defence did not learn about the warrant until the hearsay application was filed. This is yet more information that the Crown should have disclosed earlier. The length of the trial has been extended by the Crown’s actions.
[51] The defence submits that it is unlikely that the Crown’s hearsay application will succeed because Mr. Akinderjoye’s identification evidence will be inadmissible as it is double hearsay in his absence. The defense argues this case should send a message to the Crown that it too must abide by the Rules.
[52] The defence explains that even if Mr. Akinderjoye were found, information that he could not be found because he did not want to be found is very relevant and should have been disclosed. It provides the defence with additional grounds to test Mr. Akinderjoye’s credibility.
[53] The defence submits that the Crown had the option to file a boiler plate notice of application in April 2014. This action would have triggered a judicial pretrial. Judicial direction could then have been obtained on the filing of factums.
[54] The defence submits that in light of the police concession that they failed to make additional efforts to find Mr. Akinderjoye on several occasions because they believed him to be in hiding, it was unreasonable for the Crown to assert that up until May 22, 2014, it was hopeful Mr. Akinderjoye would be found.
[55] The defence submits that it has no obligation to demonstrate that it is prejudiced by the late notice of this hearsay application; however, the defence is prejudiced because it had to rush to prepare a response. The defence also submits that the absence of Mr. Akinderjoye adversely prejudices the defence because it is unable to cross-examine Mr. Akinderjoye on whether his identification of Mr. Charlton as the shooter is based on hearsay evidence.
[56] The defence counsel submits that the Crown’s conduct and failure to comply with the Rules is an affront to the administration of justice and the Crown should not be permitted to bring the hearsay application.
[57] Crown counsel Adam Bernstein explained that up until May 22, 2014, he was under the impression that the police were still looking for Mr. Akinderjoye. Crown counsel said he became certain that a hearsay application was required shortly thereafter. Because of the nature of the evidentiary basis for his application, he decided to prepare a notice and a comprehensive factum. Crown counsel says the decision to prepare a comprehensive factum accounts for the Crown’s failure to provide the 30 days’ notice mandated by the Rules.
[58] Crown counsel submits that although the Rules do not require the preparation of a factum, sub rule 30.03(1) requires that the same details he provided in the factum also be included in the notice of application.
[59] The Crown submits Crown counsel Ms. Bridge sought an adjournment of the February 24, 2014 court appearance because the assigned Crown counsel Mr. Lemke was ill and could not continue; this case is a serious and complex case; and some Crown witnesses are not co-operative. Under these circumstances, the case could not simply be reassigned. Crown counsel submits that the Crown never sought an adjournment of the trial to hide the fact that Mr. Akinderjoye could not be found. Crown counsel submits that the defence is not prejudiced and the hearsay application should be heard on its merits.
DISCUSSION
[60] A pre-trial conference was held in this case on May 22, 2013. A pre-trial conference report was filed in accordance with sub rule 28.04. Crown counsel did not indicate on the form or at the pre-trial that he intended to bring a hearsay application.
[61] The Crown’s decision to bring the hearsay application at trial is a change from the Crown’s position at the pre-trial conference. Sub rule 28.04(11) requires either party who changes their recorded position on the pre-trial form to provide written notice of the change to the other parties and the Superior Court trial coordinator, and “to arrange for a further pre-trial conference as soon as practicable, and serve and file any notices, records, facta, books of authorities or other materials required by these rules.”
[62] The Crown failed to comply with sub rule 28.04(11). Sub rule 28.04(12) states that, “Failure to comply with sub rule 28.04(11) may result in any application resulting from a change in position not being heard by the trial judge.”
[63] Rule 30.04 sets out the procedure for seeking to admit evidence that is presumptively inadmissible under the common law or other rule of admissibility. Hearsay evidence is presumptively inadmissible under the common law. A party that seeks to admit hearsay evidence is required to comply with Rule 30. In this case, the Crown seeks to admit Mr. Akinderjoye’s videotaped statement and preliminary inquiry testimony as an exception to the Hearsay Rule. The Crown is required to comply with Rule 30.
[64] Sub rule 30.04 requires a party bringing an application under Rule 30 to provide 30 days’ notice to the other parties. The Crown did not comply with this Rule. Instead, the Crown provided seven days’ notice to the defence.
[65] A court may dispense with compliance with the Rules. Rule 2.01 states, “A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the ‘ interests of justice’ to do so” [emphasis added].
[66] The term “interests of justice” is a broad term, which of necessity encompasses, but is not limited to, issues of fairness, efficiency, timeliness, effectiveness and the proper and effective application of legal principles and administrative processes. The purpose is to maintain and enhance society’s confidence in the court’s ability to ensure the proper administration of justice.
[67] In R. v. Land, 2012 ONSC 6123, the Crown sought to bring an application to admit prior discreditable conduct evidence three days after it had closed its case and on the eve of the defence opening its case. The Court indicated that it would deny the Crown’s request because the Crown had the information that formed the subject of the application before the commencement of pretrial motions. There was no good reason why the Crown had waited until the eve of the defence’s case to reveal its intention to bring the motion. Permitting the motion to proceed would have created unfairness as it would have been disruptive to the trial process: R. v. Land, 2012 ONSC 6123, [2012] O.J. No. 5738, at paras. 1, 10-15.
[68] Prejudice to the party complaining of inadequate notice and whether any existing prejudice can be effectively addressed by a remedy other than a refusal to hear the motion, is a relevant consideration in determining whether it is in the interest of justice to permit non-compliance with the Rules: R. v. Blom.
[69] In Blom, the Ontario Court of Appeal concluded that despite the defence’s failure to provide adequate notice of a Charter application under the Rules, there was no real prejudice, on those facts, to the Crown. Therefore, a brief adjournment was preferable to a complete denial of the opportunity to bring the motion.
[70] There will be circumstances where the conduct of the party providing inadequate notice is so egregious that even in the absence of prejudice to the other party, permitting the application to proceed will not be in the interests of justice. I have concluded that this is not the case here.
[71] The police took steps to try to find Mr. Akinderjoye; however, there were blocks of time when police made no efforts to find him. The police explanation that there was no expectation that Mr. Akinderjoye would be found, and therefore, there were several periods of police inaction, is insufficient and unacceptable. Mr. Akinderjoye was the primary victim in a serious charge of attempted murder. The police could have done more to find Mr. Akinderjoye but failed to do so.
[72] The Crown is under a legal duty to disclose all relevant information to the defence. The obligation to disclose is subject to the Crown’s duty to protect the identity of informants and the rules of privilege. To achieve this objective the Crown has discretion to withhold information and to control the timing and manner of disclosure. The Crown’s discretion is not absolute and is subject to review by the trial judge and can be challenged on the basis that the Crown’s decision on disclosure adversely impacts the accused’s ability to make a full answer and defence: R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[73] It is the obligation of the Crown to disclose “ all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it. … [T]he Crown is under a duty at common law to disclose to the defence all material evidence whether favourable to the accused or not": R. v. Stinchcombe, [1991] 3 S.C.R. 326, at pp. 338-339. The fact that the police had difficulty finding Mr. Akinderjoye should have been disclosed to the defence prior to, and at the very least, at the February 24 and 25, 2014 appearance dates. Even if Mr. Akinderjoye had been found, the reasons for his reluctance to attend are relevant to issues such as the credibility of Mr. Akinderjoye. I do not accept the Crown’s submission that the information was clearly irrelevant.
[74] The police concluded that there was no point in intensifying their efforts because Mr. Akinderjoye was in hiding and did not want to be found. Nevertheless, the Crown periodically repeated its request to the police to continue looking for Mr. Akinderjoye. I am satisfied that the Crown did not share the police’s conclusion. However, by April 15, 2014, the Crown had formed the intention to bring the hearsay application, and at that time, the Crown should have promptly informed the defence and the Superior Court trial coordinator of this intention and scheduled a pre-trial conference for judicial directions as per the Rules. The Crown failed to do so.
[75] The Supreme Court of Canada in Boucher v. The Queen, [1955] S.C.R. 16 at page 24 describes the role of the Crown. Rand J explained:
The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[76] It is in the interest of justice for the Crown to conduct its duties as described in Boucher. The Crown’s failure to disclose information that Mr. Akinderjoye could not be found is not due to an improper and oblique motive. It was due to a failure of the Crown to properly appreciate the significance of this information to the defence.
[77] On the first trial dates of February 24 and 25, 2014, Crown counsel Ms. Bridge was preoccupied with the fact that the assigned Crown, Mr. Lemke, was ill and unable to conduct the trial. Due to the Crown’s perception of the complexity of the case, the Crown was of the view that the case could not be reassigned in time for the February 2014 trial dates to be utilized.
[78] The timing of the hearsay application was due to a misplaced expectation by Crown counsel that Mr. Akinderjoye would be found. Crown counsel underappreciated the importance of providing adequate notice, which would then trigger a judicial pre-trial. Instead the Crown focused his efforts on making sure that the materials necessary for arguing the motion were complete. In most cases, there is a distinction between the material needed to provide notice of a motion and the material needed to argue the motion.
[79] I conclude that there was no improper conduct or motive on the part of any of the Crown counsel who were involved in this case.
[80] Mr. Akinderjoye’s videotaped statement was disclosed to the defence some time ago. The defence had ample opportunity at the preliminary inquiry to cross-examine Mr. Akinderjoye on issues surrounding the making of the statement and all aspects of his incriminating identification of Mr. Charlton.
[81] Despite the factual matrix of this case, the current state of the law on principled exceptions to the Hearsay Rule is clear. The defence’s expressed inability to cross-examine Mr. Akinderjoye on whether his identification of Mr. Charlton as the shooter is based on hearsay evidence is not relevant to the notice issue. It is relevant to the merits of the hearsay application. The defence is not prejudiced by the timing of the Crown’s hearsay application.
[82] For all the reasons articulated, I conclude that it is in the interests of justice to permit non-compliance with Rule 30. The defence’s application is dismissed.
Barnes, J.
Released: August 15, 2016