Court File and Parties
COURT FILE NO.: CR12900007160000 DATE: 20170217 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – AHMED HUSSEIN Defendant
Counsel: Hafeez Amarshi, for the Crown Andrew Stastny, for the Defendant
HEARD: September 24, 2015
SPIES J. (Orally)
Ruling Re Scope of Examination of Officer Dobbs
Background
[1] The defendant, Mr. Hussein, is charged with possession for the purpose of trafficking in cocaine. He was also charged with possession of proceeds of crime but I directed a verdict of acquittal on that charge at the conclusion of the Crown’s case.
[2] There is no dispute that a search warrant was executed at Mr. Hussein’s apartment. The police allege that a quantity of crack cocaine – 62.85 grams, was found in five separate bags; two larger bags alleged to have been in the pocket of a pair of men’s pants in the closet of the only bedroom and three small bags in the fuse box of the stove in the kitchen. Mr. Hussein was sleeping in the bedroom and was awoken when the officers rammed the door to his apartment and then arrested him. Mr. Hussein is the only person on the lease and testified that no one else had access to the apartment. He claimed no knowledge of the drugs and it is the position of the Defence that the drugs were planted by police during the execution of the warrant. That is the only defence asserted to the charge although the other elements of the offence are not formally admitted.
[3] There is no direct evidence that any of the police officers planted drugs and each officer called by the Crown has denied doing so or being aware of any other officer doing so. This issue will, therefore, largely depend on the jury’s assessment of the credibility of the officers who searched the apartment and the credibility of Mr. Hussein.
[4] The Crown has not called all of the officers involved in the search and, in particular, has not called Officer Dobbs who was supposedly with Officer Dean, who testified that he found and seized the drugs in the men’s pants. I understand that Officer Dobbs is the officer who is alleged to have found $500 in cash in the bedroom and that this is the material evidence that would have supported the charge of possession of proceeds of crime.
The Outstanding Assault Cause Bodily Harm (ABH) Charge against Officer Dobbs
[5] Officer Dobbs is currently facing a charge of ABH, which is scheduled to be heard in this court in December 2015. In April 2010, Officer Dobbs arrested Mr. Costain for impaired driving and related offences. Mr. Costain was also charged with assaulting Officer Dobbs during the course of that arrest and with resisting arrest. A video taken from a police dashboard camera was a key piece of evidence in the trial of Mr. Costain on those charges and in support of an application by Mr. Costain to stay his charges because he alleged that he was assaulted by Officer Dobbs and that excessive force was used in his arrest.
[6] On March 13, 2013, following a trial and blended Charter voir dire, Justice Clements made serious negative findings of credibility with respect to Officer Dobbs and found that he had used excessive force and that his “unlawful extra-judicial punishment, ... would shock the public”. As a result, the charges against Mr. Costain were stayed.
[7] The findings of Justice Clements came to the attention of the Special Investigations Unit (SIU) and, following an investigation, Officer Dobbs was charged with ABH of Mr. Costain.
The Evidence in this Trial
[8] During the course of the Crown’s case I permitted Mr. Stastny, on behalf of Mr. Hussein, to cross-examine the officers called by the Crown from 51 Division and ascertain whether or not they were aware of the fact that Officer Dobbs was facing a charge of ABH. I did not allow Mr. Stastny to examine them as to the details of the charge as there was no suggestion that any of them were present during the arrest of Mr. Costain. I also permitted Mr. Stastny to ask each officer if they attended Mr. Costain’s trial and, if so, for what purpose. This evidence was relevant to the relationship between the officers and Officer Dobbs. My reasons for this ruling have already been given orally.
[9] Each officer confirmed being aware of the outstanding ABH charge against Officer Dobbs and some of them, particularly Officer Dean, admitted going to the trial of Mr. Costain to provide moral support to Officer Dobbs as there had been criticism of his actions in the media in advance of Mr. Costain’s trial. At this point I did not want the jury to hear about the video, or the fact that it had apparently been leaked to the press in advance of Mr. Costain’s trial, as I had not ruled that it could be played for the jury. That issue was reserved to be dealt with if Officer Dobbs was called. In my view the nature and details of the criticism of Officer Dobbs at that time was not relevant. What was relevant was that he had been painted in a negative light by the media in advance of that trial which is why the officers attended Mr. Costain’s trial to support him. They were not otherwise involved in Mr. Costain’s arrest. The Defence seeks to show that the officers involved in the search are close and support each other presumably because that might make it more likely they would cover up for each other.
[10] During the course of the evidence of the Crown’s last witness, Sgt. Smith, the senior officer responsible for the execution of the search warrant at Mr. Hussein’s apartment, he was asked about his knowledge of the outstanding charge against Officer Dobbs. He testified that he was aware of it and he offered to “explain it” if Mr. Stastny wanted him to do so. Mr. Stastny told him he could go ahead and Mr. Amarshi did not object. Although the evidence of the officer that followed was clearly hearsay, there was still no objection. I did not interfere as this evidence was arguably relevant to Sgt. Smith’s earlier evidence that neither he nor the “officers under his control” would ever plant drugs, as it presumably informed his view of the character of Officer Dobbs.
[11] The evidence of Sgt. Smith that followed made reference to the fact that he had watched the video and gave what I would characterize as a forceful summary of Officer Dobbs’ position; namely that he did not use excessive force and that the force he did use was justified given the size and weight of Mr. Costain, the fact that Mr. Costain had fled police and was resisting arrest. Sgt. Smith gave details of the conduct of Mr. Costain that precipitated his arrest including the fact that he had knocked down a number of persons. Then, without prompting, he offered the opinion that “no doubt Officer Dobbs will be vindicated” at his trial.
The Positions of Counsel for the Parties
[12] Given the Crown’s refusal to call Officer Dobbs, Mr. Stastny is considering whether or not he will do so. He seems less convinced than he was at the outset of the trial but naturally, before making a decision, he needs my ruling as to whether or not he can call Officer Dobbs and, if so, whether he can cross-examine the officer and how far into the details of the outstanding ABH charge he can go.
[13] As a threshold issue Mr. Amarshi takes the position that Mr. Stastny cannot even call Officer Dobbs as a witness since his sole purpose in doing so is to impeach his credibility. He submits that if I do permit him to call Officer Dobbs that he can only examine him in chief asking non-leading questions.
[14] Mr. Stastny submits that I should permit him to call Officer Dobbs and allow him to cross-examine the officer on the details underlying the ABH charge. He would like to, in effect, impeach the officer by showing him the video and, if that is not permitted, that he be allowed to ask questions to “paint a picture of the video in words” for the jury. Both counsel took the position that if the jury saw the video the case from their perspective would be over. By the time this issue was revisited following the close of the Crown’s case, Mr. Stastny conceded that the video would be overly prejudicial and distract the jury.
[15] Having watched the video I can understand the position taken by counsel. It is very graphic. Mr. Costain is never visible above the hood of the police car. There appears to be a struggle of some sort with an officer, who I assume is Officer Dobbs. Officer Dobbs appears to be a large man and very clearly delivers 12 blows with his fists towards the ground, presumably making contact with Mr. Costain.
[16] The facts in this case with respect to Officer Dobbs are unusual and resolving the issue of how to permit counsel to proceed is not without difficulty. In virtually every case that considers an issue akin to this one, there is a prior statement of the witness and the analysis follows the steps articulated in s. 9 of the Canada Evidence Act (“CEA”).
[17] Here we do have a prior statement of Officer Dobbs since there is a transcript of his evidence in the trial before Justice Clements. His position before Clements J. was that he did not use excessive force. If Officer Dobbs is called as a witness in this trial, there is virtually no likelihood of his evidence changing or a need arising for Mr. Stastny to cross-examine on a prior inconsistent statement. What has changed is that Officer Dobb’s evidence was not accepted by Clements J. and he is now charged with ABH of Mr. Costain. In fact, in the unlikely event his evidence changed and he took more responsibility for what happened to Mr. Costain, Mr. Stastny would not want to impeach him on that evidence.
The Position of Counsel for Officer Dobbs
[18] When this issue was formally argued, counsel for Officer Dobbs, Ms. Negandhi, attended before me to ensure that Officer Dobbs’ s. 13 Charter and s. 5(2) CEA rights are engaged if he is compelled to testify. I advised her that if Officer Dobbs is called I would set those rights out on the record, in the absence of the jury, and ensure that he invoked his rights under s. 5(2) of the CEA and that he objected on this basis to all questions that might be asked of him. Ms. Negandhi was satisfied with the proposed procedure.
Can the Defence call Officer Dobbs for the purpose of impeaching him?
[19] The usual starting point is the principle set out in the opening words of s. 9(1) of the CEA that “A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character…”. This is a codification of the common law that a party calling a witness cannot seek to impeach the witness by asking him about specific acts of prior misconduct.
[20] The cases that Mr. Amarshi relies upon that set out the common law principle included R. v. Soobrian, [1994] O.J. No. 2836 (CA). In that case the Crown called a witness knowing that his testimony might be inconsistent with a written statement to police and sought a ruling that the witness was hostile and could be cross-examined at large. The facts are complicated but essentially the trial judge found that the purpose in calling the witness was so that the Crown could attack the credibility of that witness. He found that such a use of cross-examination of a party’s own witness at large was not permissible. In this case there was a prior statement and s. 9 of the CEA was considered to apply.
[21] In its analysis the Court of Appeal considered the question of whether the Crown should have been permitted to introduce the evidence of the witness considering that it was taking the position that none of what the witness had to say was true. The Court found that the Crown had brought itself technically within s. 9(2) of the CEA but that had the Crown sought a ruling in advance, the trial judge ought to have precluded this use of the witness. There was no purpose left for a s. 9(2) order since the Crown was not attempting to show that either the prior statement or the witness’ testimony at trial was the truth. I note in that case the evidence of the witness was considered to be irrelevant or at least of minimal probative value.
[22] Mr. Amarshi also referred me to the decision of the British Columbia Court of Appeal; R. v. Biniaris, [1998] B.C.J. No. 576, where, at para. 10, the Court referred to a number of authorities for the proposition of law that as a general rule a party who calls a witness is not permitted to prove generally that he is unworthy of credit or impeach the character of his own witness, although that party may contradict the witness as to particular facts which may have the effect of discrediting the witness.
[23] Similarly I reviewed a decision of the British Columbia Supreme Court; R. v. Chanthabouala, [2010] B.C.J. No. 1079 where the trial judge reviewed the basic principles that apply when a party wishes to call a witness and then impeach that witness. Chanthabouala refers to a decision of our Court of Appeal; Wawanesa Mutual Insurance Co. v. Hanes, [1961] O.R. 495 at 500-501, where the Court relied on an evidence text for the proposition that “[b]y calling the witness, a party represents him to the court as worthy of credit, or at least not so infamous as to be wholly unworthy of it” and that impeaching the witness would be mala fides towards the court.
[24] These cases set out the common law that presumably led to the declaratory language set out in the preamble of s. 9(1) of the CEA.
[25] Having considered the submissions of counsel and the authorities referred to, I have concluded, for a number of reasons, that Mr. Stastny may call Officer Dobbs as a witness. First of all, Officer Dobbs played a material role in the search and Mr. Stastny has advised that he wishes to ask the officer about his role in the search. I cannot conclude that Mr. Stastny’s sole purpose in calling him would be to impeach his credibility.
[26] Secondly, and perhaps most importantly, the interests of justice in this case demand that I at least permit the Defence to call Officer Dobbs. According to Officer Dean, although Officer Dobbs did not seize any drugs, he was in the bedroom with him when he arrested Mr. Hussein. On the evidence the jury has heard thus far, Officer Dobbs was part of the search team and would have had an opportunity to plant drugs if the jury finds there is some credence to that suggestion. Given the defence, whether he is the type of officer who could do such a thing is something the jury should assess.
[27] Finally, Officer Dobbs is not a witness that the jury would think Mr. Stastny is vouching for as credible. Given the defence, which the jury is well aware of, it would be readily apparent to the jury that Officer Dobbs would not be favourably disposed towards Mr. Hussein in that he is suggesting misconduct on the part of some or all of the search team. There would be no mala fides towards the triers of fact in this trial.
Can Mr. Stastny Cross-Examine Officer Dobbs?
[28] The next issue I must consider is whether or not, if Mr. Stastny decides to call Officer Dobbs, he can cross-examine him and if so, can he do so from the outset.
[29] Mr. Stastny relies on a decision of Panet J.; R. v. Hankey, [2008] O.J. No. 5266, where the defence applied for an order requiring the court to call an eyewitness at a second degree murder trial. In that case the witness had given two statements to police that Panet J. found to be admissible and favourable to the accused. The witness was unpredictable with respect to his evidence, he had expressed strong hostility toward the accused for killing his friend and Panet J. found it could not be expected that defence counsel would be able to interview him or prepare him to give evidence.
[30] Justice Panet found that having the court call the witness would give his evidence an appearance of greater reliability than other witnesses and so he dismissed that application. However, he concluded that permitting the defence to call the witness and then giving the defence latitude with respect to the presentation of the evidence of this witness would be in the interests of justice. As a result, Panet J. permitted the defence to call and cross-examine the witness as that would address the unpredictability of the witness and the fact he could not be prepared as a defence witness due to his hostility toward the accused.
[31] In coming to this conclusion Justice Panet relied on R. v. Rose (2001), 53 O.R. (3d) 417 (CA) and R. v. Felderhof (2003), 68 O.R. (3d) 481 (CA) for the proposition that as part of the power to manage a trial, a trial judge has the general discretion to allow leading questions whenever it is considered necessary in the interests of justice.
[32] In the circumstances of the case before him, Panet J. found (at para. 37):
Given the importance of Mr. Baldwin’s evidence to the accused, in my respectful view, it would be manifestly unjust for the accused to have to call Mr. Baldwin without knowledge in advance of his evidence and to be without the means to control the evidence to be given by this witness. Given the evidence of deep hostility of this witness to the accused, justice would not be served by requiring an Application under s. 9 of the Canada Evidence Act after demonstrated hostility by Mr. Baldwin to the accused. … In my view, fairness in the trial process will be achieved by an order that, if Mr. Baldwin is called by the defence as a witness, counsel for the accused shall have the right to ask leading questions and to cross-examine. [Emphasis added]
[33] I also find some support for the position taken by Panet J., in the Court of Appeal’s decision in R. v. Boyce, [2014] O.J. No. 910. The facts of that case were quite different from the case at bar in that the question was the application of s. 9(2) of the CEA. However, in considering the matter, the Court of Appeal relied on an earlier decision of the court for the proposition that cross-examination under s. 9(2) should be permitted if it would serve the ends of justice.
[34] Finally on this issue I considered R. v. Figliola, [2011] O.J. No. 277 (CA), another decision referred to by Mr. Amarshi. In that case the Court was considering the application of the principles in Soobrian and in doing so confirmed an earlier decision of the Court for the proposition that the common law right of a party to cross-examine his or her own witness at large with leave of the trial judge, if in the judge’s opinion the witness is “hostile,” is not affected by s. 9(1) of the CEA (at para. 51).
[35] I observe that in Soobrian and Figliola, the concern of the Court was that the effect of the cross-examination by the Crown of a witness called by the Crown was not only to shred the credibility of that witness but also to create a factual matrix in which the jury might well conclude that the witness was a liar and was lying for the very purpose of covering up for the accused’s wrongful deeds and that the accused, therefore, were liars themselves and guilty. That would not be the effect in the case at bar if I permit the cross-examination of Officer Dobbs, as the sole purpose would be to impeach his credibility.
[36] It is clear that the adversity provisions of s. 9 do not apply. As I have already stated, there is no expectation that Officer Dobbs, if called, would give different evidence at this trial from what he testified to at the trial of Mr. Costain. In other words, there likely is no prior inconsistent statement.
[37] The question then is whether or not I can determine now whether or not Officer Dobbs is hostile to the Defence in the common law sense, before he has testified in this trial. Such a finding would permit Mr. Stastny to cross-examine Officer Dobbs as if he were a witness for the Crown; i.e., at large. (See R. v. Dooley, 2009 ONCA 910, [2009] O.J. No. 5483 at para. 150.)
[38] As for the meaning of hostile, the Court in Figliola referred to R. v. Coffin (1956), 114 CCC 1 (SCC) where Kellock J. described a hostile witness as one who does not give his or her evidence fairly and with a desire to tell the truth because of a hostile animus toward the prosecution. (at para. 50)
[39] In this case Mr. Stastny asks that I make a finding now that Officer Dobbs is hostile because his position is contrary to the interests of Mr. Hussein’s. The problem with this submission is that Officer Dobbs has not yet given evidence in this case and so I cannot yet conclude that Officer Dobbs would not give his evidence fairly with a desire to tell the truth. Furthermore, unlike the case in Hankey, there is no specific evidence yet that Officer Dobbs is hostile to Mr. Hussein. I conclude then that I cannot, at this stage, make a formal finding of hostility, which would permit Mr. Stastny to cross-examine Officer Dobbs at large.
[40] However, there is no doubt Officer Dobbs’ anticipated evidence is quite different from the position of the Defence. There is no dispute that Officer Dobbs would resist any questioning that might put in issue his conduct in connection with the arrest of Mr. Costain. Furthermore, there is no doubt that despite the Charter and CEA protections he will have, he will want to say as little as possible on the subject of the ABH charge. In fact Ms. Negandhi submitted that he would be prejudiced if questions were permitted on this subject.
[41] Furthermore, I have no doubt that Officer Dobbs will react the same as the others have when it is suggested that he or someone on his team planted the cocaine in Mr. Hussein’s apartment. He will adamantly deny this, leaving the Defence with very little to challenge his credibility overall. I have no doubt that given the areas that Mr. Stastny wishes to explore, that Officer Dobbs would be resistant to his position and questions.
[42] Although the expected answers from Officer Dobbs can likely be elicited by Mr. Stastny by asking open ended questions, the only opportunity for the Defence to challenge this evidence will be to have some latitude in questions in support of the Defence position that the drugs were planted. As I will come to, if I permit this type of cross-examination it will still have to be curtailed by the principles from R. v. Ghorvei (1999), 138 CCC (3d) 340 and the collateral fact rule.
[43] Mr. Amarshi also referred me to a decision of Aitken J.; R. v. Serre, 2012 ONSC 3193, where Justice Aitken considered s. 9 of the CEA. Aitken J. noted, at para. 17, that even where a witness can be cross-examined at large following a finding that the witness is hostile, the witness cannot be challenged on his general credibility as a person; only their testimony can be challenged. No authority was cited for this proposition and I assume it was based on the common law principles that are now found in the preamble of s. 9(1) of the CEA.
[44] I have concluded, after considering the submissions of counsel and the authorities I have been referred to, that permitting Mr. Stastny to cross-examine Officer Dobbs from the outset is necessary in the interests of justice. If Mr. Stastny wants to further pursue the credibility of Officer Dobbs, he has no option but to call the officer. Although the Crown had no obligation to call this officer, Mr. Amarshi candidly admitted that this decision was strategic; no doubt because of the outstanding ABH charge. Although I do not criticize Mr. Amarshi, this decision has deprived Mr. Stastny of the opportunity he would otherwise clearly have had to cross-examine Officer Dobbs at large. I cannot order the Crown to call this officer nor is this a case where I would do so. I am of the view, however, that I have an inherent jurisdiction to permit Mr. Stastny to ask leading questions and cross-examine Officer Dobbs if it would serve the ends of justice to do so. In all of the circumstances, in my view, the interests of justice and the fairness of this trial require an order permitting Mr. Stastny to cross-examine the officer.
The Scope of the Cross-Examination of Officer Dobbs
[45] I turn then to the question of how far should I allow Mr. Stastny to question Officer Dobbs about the details of the arrest of Mr. Costain and the alleged assault.
[46] Officer Dobbs, of course, has not been convicted of the ABH charge. The fact he has been charged in and of itself “cannot degrade his character or impair his credibility”; see R. v. Gonzague (1983), 4 CCC (3d) 505 (CA) at 510-11.
[47] The law is clear, however, that an ordinary witness, as opposed to an accused, may be cross-examined with respect to prior discreditable conduct for the purpose of assessing credibility; see R. v. Davison, [1974] O.J. No. 2146, leave to appeal to SCC refused 6 O.R. (2d) 103n. The Supreme Court of Canada in R. v. Titus (1983), 2 CCC (3d) 321 held that a witness may be cross-examined regarding an outstanding indictment that has not yet come to trial.
[48] In R. v. Chartrand, [2002] O.J. No. 4791, the trial judge only permitted the cross-examination of a witness on the fact of outstanding charges. On appeal, the Court found that the trial judge erred in not allowing defence counsel in cross-examination to explore the details of the incidents giving rise to the other pending assault charges (at para. 7).
[49] Mr. Stastny relies on the decision of Justice K. Campbell in R. v. Jama, 2012 ONSC 7095 at para. 14, where relying on several authorities including Chartrand, he observed that the scope of cross-examination of witnesses in relation to prior acts of discreditable conduct provides generous latitude for questioning. This case, however, involves an outstanding charge and Officer Dobbs denies committing any offence.
[50] Mr. Amarshi referred me to the case of R. v. Tahal, [1999] O.J. No. 2563 (CA) where on appeal the Court upheld the decision of the trial judge to prevent the defence from cross-examining a police officer on four unrelated undercover drug purchases, none of which involved the appellant, where it was alleged that he had planted evidence and framed the accused, even though in three of those cases the accused was acquitted by a jury and in the fourth case, the charges were withdrawn. In that case, however, the Court found that the prejudicial effect of cross-examination on these other cases substantially outweighed its probative value and that it would “inevitably complicate and prolong the trial and deflect the jury’s attention away from the main issue” (at para. 12).
[51] Mr. Stastny concedes that he cannot question Officer Dobbs about the negative findings of credibility made by Justice Clements, in light of the Court of Appeal’s decision in Ghorvei. In that case the Court found (at para. 31) that such a finding of credibility is effectively an opinion of the witness’ credibility in an unrelated case and it would be difficult for the trier of fact to put that finding in context without a factual foundation for the opinion which would require a review of the entire record of the proceeding in which the finding was made.
[52] However, as I have already stated, Mr. Stastny would like latitude in cross-examining Officer Dobbs as to the details of the alleged assault so that the jury can draw its own conclusion in this case. He also wants to introduce the chronology of how the charge against Officer Dobbs arose so the jury is aware that although he initially alleged that Mr. Costain assaulted him, he is now the one who is charged with the assault of Mr. Costain as a result of the SIU investigation.
[53] The first question is whether I should permit that chronology to be reviewed again with Officer Dobbs and, if so, how far should Mr. Stastny be permitted to go?
[54] After hearing the evidence of Sgt. Smith, I was initially inclined to permit further questioning of Officer Dobbs with respect to this chronology. However, there is no doubt that I must instruct the jury to ignore Sgt. Smith’s opinion about the possible outcome of the trial of Officer Dobbs. Sgt. Smith was not involved in the arrest of Mr. Costain. His opinion is irrelevant. Although the evidence of Sgt. Smith made it clear that he strongly supports Officer Dobbs, this in fact is consistent with the Defence theory that these officers will stick together and support each other.
[55] The jury is already aware, as a result of the questions of the other officers and in particular Officer Dean, that Officer Dobbs was criticized by the media in a case of an accused that he arrested and that subsequent to that case he was charged with ABH. In my view, if I permit further questions about the chronology there is a real danger that the jury could infer that Officer Dobbs has already been disbelieved and, as a result, is now facing this ABH charge. This would be a violation of the principle in Ghorvei. The jury must assess the credibility of Officer Dobbs on the evidence in this trial and not be influenced about opinions concerning his credibility from others.
[56] For these reasons, in terms of the chronology, I will not permit Mr. Stastny to ask further questions of Officer Dobbs concerning the timing of the charges or elicit the fact that the charges against Mr. Costain were stayed and that a SIU investigation followed, as in my view that would indirectly fly in the face of Ghorvei.
[57] In coming to this conclusion I have considered the fact that I will have to instruct the jury that because this is an outstanding charge Officer Dobbs is presumed innocent as a matter of law but that the jury can consider the evidence of Officer Dobbs as to what occurred at the time of the arrest of Mr. Costain in assessing his credibility.
[58] Turning then to the final and perhaps most difficult question; how far should Mr. Stastny be permitted to go in cross-examining Officer Dobbs on the underlying facts that resulted in the ABH charge?
[59] I am prepared to give Mr. Stastny some latitude in this regard given the importance of this evidence to the Defence. He can ask Officer Dobbs about the fact the alleged assault occurred when he was arresting Mr. Costain, the fact that he used force in that arrest, that Mr. Costain suffered certain injuries (the details if he has this information) and that many (12) blows were administered by the officer after Mr. Costain was lying on the pavement. I will not permit Mr. Stastny to ask whether or not Officer Dobbs instructed anyone to turn off the police dash cam cameras that were recording his interaction with Mr. Costain. This would draw further attention to the video that the jury will not be permitted to see.
[60] I will also permit Mr. Stastny to challenge Officer Dobbs’ answers to these questions with further questions. However, as the Court of Appeal said in R v. Gassyt, [1998] O.J. No. 3232 at para. 39, the cross-examination will have to be kept within reasonable limits. Since the conduct of Officer Dobbs that gave rise to the ABH charge is relevant only on the issue of his credibility; the facts underlying the ABH charge are clearly collateral.
[61] For that reason I will not permit Mr. Stastny to delve into a level of detail that he suggests would permit the jury to make its own conclusion on whether or not Officer Dobbs used excessive force in the arrest of Mr. Costain. The same policy reasons that drove the Court’s decision in Ghorvei would apply. If I allowed Mr. Stastny to “paint the video in words”, Officer Dobbs would have to give his full defence to the charge in reply so that the jury had the necessary foundation to make a decision. This would distract the jury and result in a trial within a trial and offend the collateral facts rule.
[62] It is a well settled principle of law that on collateral matters, the Defence would be bound by Officer Dobbs’ answers and could not call other witnesses or evidence to contradict him. This includes using the video to impeach Officer Dobbs since under no circumstances can that be played before the jury.
[63] If counsel have any questions as to the scope of my ruling, they should be raised before Officer Dobbs testifies.
[64] When I gave my Ruling in this matter orally on September 28, 2015, I advised counsel that I would release my Ruling in writing, once the criminal trial of Officer Dobbs, which is referred to in this Ruling, was completed. Counsel have now advised me that the trial has been held and that Officer Dobbs was acquitted by Justice Croll of this Court.