BARRIE COURT FILE NO.: 15-112 DATE: 20170112 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – ANDREW CARTHEW TIDEY Defendant
Counsel: M. Villamil, for the Crown K. Symes, for the Defendant
HEARD: January 10, 2017
Ruling on application to edit the accused’s statement
QUINLAN J.:
Overview
[1] The accused is charged with aggravated assault. He gave two videotaped statements to the police. The first was on the night of the incident when police treated him as a victim of a break and enter who had forcibly removed a threatening intruder from his home. The second statement was given approximately one month later after the police had received information that the accused continued assaulting the intruder, who sustained significant injuries, after he had removed him from the home.
[2] His counsel does not dispute the admissibility of the accused’s statements to the police, but seeks an order that the statements be edited to remove prejudicial and irrelevant comments.
[3] In particular, the defence seeks redaction on the following bases:
a. the opinions of the investigating officer, including his opinion as to the strength of the case, are irrelevant and result in the jury hearing the "voice of the Crown"; b. the officer’s comments about the credibility of other witnesses amount to oath- helping and are inadmissible and highly prejudicial; c. the officer’s opinion about when and how the injuries were caused has no probative value and is not necessary for context; it too results in the jury hearing the "voice of the Crown"; d. the suggestion that multiple independent witnesses have given a recitation of events that is inconsistent with that provided by the accused is not a fair representation of their evidence and is a matter for the jury to decide; e. references to the exercise of the right to counsel and right to silence have no probative value and a high risk of prejudice; f. miscellaneous information about the court process has no probative value and potential prejudice to the accused; and g. comments relating to prior discreditable conduct and after-the-fact conduct are dependent on the court's ruling on those issues, and should be subject to some or total redaction.
[4] The Crown's position is that, subject to the court's ruling on prior discreditable and after-the-fact conduct, any editing would affect the retention of the meaning of the statement, disrupt its flow and fail to provide sufficient context. Even if a certain portion of the statement is not highly relevant, this does not necessarily result in its redaction. The jury will hear some of the evidence from other witnesses, making certain of the officer’s comments less prejudicial. A jury instruction would be sufficient to remedy any concerns.
Relevant Principles
[5] The following principles can be gleaned from a review of the case law, much of which has been summarized succinctly by Ferguson, J. in R. v. Jacobson, [2004] O.J. No. 932 [S.C.J.], as supplemented by R. v. Dubois (1986), 27 C.C.C. (3d) 325 (Ont. C.A.) at 344; R. v. Kanester (1966), 4 C.C.C. 231 (B.C.C.A.) at 247; R. v. Grewall, 2000 BCSC 1451 at para. 41; R. v. Beatty (1944), 81 C.C.C., 1 S.C.C. and Regina v. Sodhi (2003), 179 C.C.C. (3d) 60 (Ont. C.A.):
a. Editing of the statement may at times be necessary because of the inclusion of irrelevant or unnecessarily prejudicial evidence but such editing must not affect the tenor of a relevant statement. Edited statements must be free from unnecessary prejudice, but the remaining portions must retain their proper meaning. b. It is necessary to ensure that the remaining portions of the statement retain their proper meaning in relation to the whole, yet be free from unnecessary prejudice that is out of balance with the purpose to be served by admitting the edited statement. c. Editing is not to be limited solely to evidence which is irrelevant or which has no probative value. There must be a balancing of probative value against prejudicial effect. In conducting this balancing act, the court can consider whether the evidence adds much to the proof of the same issue by other expected evidence. d. The jury should have as much as possible of the statement said to constitute an admission in order to place it into context for the purpose of determining its truth. e. Even though substantively irrelevant, contextual evidentiary relevance may allow admission. The extent of the admissibility of that contextual evidence and probative value must still, however, be weighed and balanced against its prejudicial effect. One of the considerations will be whether a limiting instruction will be effective. f. If the statement of an irrelevant fact can be separated from the rest of the statement without in any way affecting the tenor of it, then the trial judge in most cases would probably be able to effect the exclusion of the objectionable statement.
[6] References by an officer to the police opinion of the strength of the case or the Crown's theory of the case are not to go to the jury: Sodhi, at para. 105. Some courts have referred to such comments as the "voice of the Crown": R. v. Jackson, [2009] O.J. No. 1644 at para. 66 and 82; R. v. Minoose, 2010 ONSC 7175 at para. 42.
[7] A suggestion by an officer that if an accused were innocent, he should have no reason not to give his version of what happened could lead the jury to make the same inference. The jury could draw an adverse inference against an accused for failing to afford himself of the "opportunity" to give a statement: Jackson, at para. 65.
[8] It is preferable to edit statements in certain circumstances, rather than to make them the subject of a limiting instruction: Sodhi, at para. 117; R v. Hong, 2015 ONSC 2036 at p.37.
The January 10, 2013 Statement
[9] The defence seeks redaction of one portion of the accused's first statement to the police. That portion relates to his reference to comments by his tenants, one of whom is the stepdaughter of the complainant, on Facebook that he had written "goof" on their baby’s crib. This evidence forms part of the Crown's application for admission of prior discreditable conduct.
[10] This portion of the statement constitutes irrelevant and highly prejudicial bad character evidence. For reasons that will be set out in my ruling on prior discreditable conduct, I am satisfied that the Crown has not established on a balance of probabilities that the evidence in relation to the crib is admissible. Accordingly, that portion of the January 10 statement, commencing at page 16 line 22 and ending at page 18 line 20 must be redacted.
Portions of the February 6, 2013 Statement to be Redacted
[11] Having considered the principles set out above, I am satisfied that the following portions of the February 6, 2013 statement should be redacted. They are more prejudicial than probative. None of the passages add to the context and their removal does not affect the tenor of the statement, which retains its proper meaning without them. The editing does not affect any admissions made by the accused. The fact that they involve proper interviewing techniques does not bear on the issue. The portions as set out below should not be before the jury.
The officer's opinion that the accused is not being truthful
[12] The officer’s opinion would not be admissible at trial were he to give evidence. His comments in that regard add nothing to the statement and allow “the voice of the Crown” to be before the jury. I am satisfied that the following portions of the statement require redaction:
a. page 27 lines 1 to 2 b. page 33 lines 23 to 25, ending at "because" c. page 34 line 22 to page 35 line 4, ending at "truth" d. page 47 lines 20 to 24 e. page 48 lines 6 to 10
The officer’s opinion concerning the credibility of “independent witnesses” and the strength of the case
[13] This questioning brings with it the proposition that independent witnesses have no reason to lie. I agree with the position of the defence that this amounts to oath-helping and is highly prejudicial in that it paints the accused as someone who, on the other hand, may have a reason to lie. The officer's opinion of the strength of the case is not relevant and exposing the jury to such statements again allows “the voice of the Crown" to enter the jury room. The following portions require redaction:
a. page 4 lines 24 to 25, ending at "diligence" b. page 8 lines 9 to 11 c. page 13 line 24 to page 14 line 12 d. page 16 line 24 to page 17 line 15, ending at "about" e. page 17 line 22 to page 19 line 1 f. page 35 line 4, commencing at "independent", to line 16 page 36 line 22 to page 37 line 19
The officer’s opinion concerning when and how the injuries were caused
[14] When and how the injuries were caused is a live issue. I agree with the defence position that the mechanism of injury is the scope of expert evidence. The officer’s opinion as to how the injuries were caused has no probative value and is not necessary for context. The Crown has confirmed that it does not appear that the medical doctor will go so far as to say the number of blows that were required to produce the injuries sustained by the complainant. As such, I find that the following portions of the statement are more prejudicial than probative and require redaction:
a. page 25 lines 16 to 17, the portion that reads “unless you're Superman" and "from four or five times" b. page 46 lines 15 to 20, ending at "and" c. page 47 lines 9 to 10 and lines 13 to 19 d. page 51 lines 15 to 17, ending at "injuries" e. page 54 lines 21 to 25
The evidence of "independent witnesses"
[15] The Crown agrees that the suggestion that multiple independent witnesses gave events that were inconsistent with the information provided by the accused is not a completely accurate representation of the evidence. Again, although it is a legitimate interviewing technique, here, where it is not accompanied by an admission or a denial by the accused of the specific accounts, I accept that it could be unfairly prejudicial to the jury’s credibility assessment of the accused. In addition, one section inviting the accused's comments about how he would feel when a witness testified is not probative. The following portions require redaction:
a. page 12 line 26 to page 14 line 12 b. page 29 line 25 to page 30 line 9 c. page 41 lines 8 to 17 d. page 52 lines 8 to 10, ending at "him"
Right to counsel and right to silence
[16] Based on the principles outlined above, the following portions, dealing as they do with the accused’s discussion of his right to counsel and exercise of his right to silence, require redaction. The accused's decision not to repeat his account of the events after he was charged is within his rights. His failure to repeat the account is irrelevant to the issue of guilt or innocence. There is a risk that a jury may infer guilt as a result. The following portions are not required for context and there is no basis for them to remain and be subject to a limiting instruction:
a. page 11 lines 11 to 17 b. page 12 lines 6 to 15 c. page 14 lines 13 to 20 d. page 28 line 20 to page 29 line 13, ending at "anything" e. page 31 lines 10 to 11 f. page 56 line 8 to 20
Miscellaneous information about the court process
[17] The following portions, described by the defence as “miscellaneous information about the court process", include comments about the possibility of the accused fighting with some of the witnesses. None of the passages have probative value and some could be prejudicial:
a. page 56 line 21 to page 60 line 19 b. page 61 line 9 to page 62 line 11
After-the-fact conduct
[18] Subject to my ruling on after-the-fact conduct, the defence seeks to redact the officer’s discussion with the accused about a text message. My reasons will be given in another ruling.
Portions of the February 6, 2013 Statement not to be Redacted
[19] Having considered the principles set out above, I am satisfied that the following portions of the statement should not be redacted. They are necessary to understand the context of the statement. Their removal would affect the tenor of the statement and in some instances the statement would not retain its proper meaning were they to be removed. In some cases, the editing affects an admission made by the accused. I find that these passages are more probative than prejudicial and should remain. Where necessary, a limiting instruction can be given.
[20] Near the beginning of the statement, the officer explained to the accused that he had received additional information, beyond that given by the accused in his first statement, which led him to have grounds to arrest the accused for aggravated assault. He advised the accused of the injuries sustained by the complainant. I find that part of the passage at page 4 line 18 to page 5 line 8 is necessary to give context to the balance of the statement and the admissions of the accused. It is necessary for the jury to know that the accused was advised that there was other evidence to give context and allow the jury to assess his responses throughout the statement. It is also necessary for the jury to know that the accused had been advised of the injuries sustained by the complainant so that they can assess his responses and his admissions; that evidence will come through the medical doctor at the trial, lessening any potential prejudice. The portion where the officer stated that the police performed their job and their due diligence has been redacted for the reasons set out above.
[21] The officer’s comments that the accused did not tell him everything that happened in the driveway formed the basis for much of the questioning in the statement. It was the focus of the interview. It is necessary that the officer’s position be indicated so that the accused's responses and admissions can be placed in context. The accused's initial response related to his view about the credibility of the tenants and the complainant. I see no basis to redact that response. The officer then continued by discussing the "independent witness". That portion is necessary to give context to the accused's response regarding witnesses at the scene. Accordingly, the portions found at page 15 lines 10 to 16 and page 15 line 25 to page 16 line 23 should not be redacted.
[22] A discussion ensued about how the injuries could have been sustained by the complainant. I have dealt with the redaction of the officer’s view as to the degree of force required for the reasons set out above. I find that the accused's response to the officer's comment that there was a broken jaw is relevant. He put forward suggestions that the complainant might have already been injured or might have hit his head on the ground. These comments provide context for his subsequent admission that "there was definitely blows exchanged". It is necessary that the portion at page 25 line 17 to page 26 line 8 remain, subject to the edit noted above in relation to "Superman" and the "four or five times".
[23] Subject to the further review of the videotape by the defence, it appears that the portion of the statement at page 35 lines 20 to 21 is a continuation of the officer’s rendition of the evidence of the "independent witness" and as such there is no basis for its excision. The officer’s indication as to the reason for the canvass, being the information from the "independent witness", provides context for the discussion that follows and is not prejudicial. Accordingly, page 35 lines 20 to 26 shall remain.
[24] Near the end of the statement there is a discussion following the officer’s attempts to elicit further information. There is nothing prejudicial in that section. The accused's reference to getting set up for a lengthy court process provides context for his further statement about the tenants’ likely response to the charge. I am satisfied that there is no basis to redact the portion of the statement at page 42 lines 2 to 10 and lines 14 to 25.
[25] The discussion about the "other stories" elicited a response concerning the tenants and the complainant and then the accused's view that the "independent witness" could know the complainant. I find that the portion at page 48 line 14 to page 49 line 22 is relevant. It provides context for what follows, being the accused's statements that "everyone who knows the story" would find it ridiculous and underscores his assertion that nothing objectionable happened in the driveway.
[26] It is necessary that the officer’s comment that he was told everything but what happened in the driveway and his provision of the information from the “independent witness" to remain to give context to the accused's response regarding witnesses at the scene. There is no basis to redact those portions. Accordingly, the portions at page 51 lines 9 to 14 and lines 17 to 20 shall remain.
[27] The accused told the police officer that he didn't know the injuries sustained by the complainant, then referenced them and asked how anyone could know what caused such an injury. Those statements provide context for the accused’s following admission that he had not seen blood when the altercation began but did when it was over. To remove those portions of the statement would significantly alter the context of the statement. Accordingly, page 54 line 26 to page 55 line 11 shall remain.