Court File and Parties

COURT FILE NO.: CR-16-50000291-0000 DATE: 20170516 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DEREK OPPONG, AKIDO THOMAS, AND RAHEEM THOMAS-STEWART

Counsel: Paul Zambonini, for the Crown Talman Rodocker, for Derek Oppong Neil Singh, for Akido Thomas William Jaksa, for Raheem Thomas-Stewart

HEARD: May 8, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON APPLICATIONS REGARDING TESTIMONY OF D.H.

[1] On May 19, 2015 Mr. Oppong, Mr. Stewart, and Mr. Thomas-Stewart allegedly committed various offences against D.H.. Mr. D.H. is a member of a street gang. The gang is called IDS, or InDaStreets. IDS is related to the Jamestown Crips. The Crown alleges that Mr. Oppong, Mr. Stewart, and Mr. Thomas-Stewart are also members of IDS. The Crown further alleges that Mr. Oppong, Mr. Stewart, and Mr. Thomas-Stewart assaulted and kidnapped Mr. D.H.; and that Mr. Oppong ordered another member of the gang to execute Mr. D.H..

[2] Mr. Oppong, Mr. Stewart, and Mr. Thomas-Stewart are now charged with various offences in relation to the alleged kidnapping and attempted murder of Mr. D.H.. They are all charged with kidnapping, forcible confinement, and assault. Those offences are alleged to be for the benefit of a criminal organization. Mr. Oppong is also charged with attempted murder. The jury has not yet been picked.

[3] The Crown will call D.H. as a witness. The Crown makes two applications in respect of D.H.: first, that he be permitted to testify by way of closed-circuit television (CCTV) pursuant to s. 486.2(2) of the Criminal Code; and second, that the Crown be permitted to lead his statement taken shortly after the alleged incident pursuant to s. 715.1 of the Criminal Code.

[4] On May 11, 2017 I indicated in court that I was granting both applications, with reasons to follow. These are those reasons.

BACKGROUND

[5] At the time of the alleged assault D.H. was 16 years old. He was a member of IDS. IDS is affiliated, or at least identifies with, the Jamestown Crips. Mr. D.H. readily admits that he sold drugs and frequently carried a gun. Apparently, several communal firearms belonging to the gang were stashed in a BBQ grill. The BBQ grill was at the home of A.M. A.M. was a young person and another gang member. Mr. D.H. learned that the gang believed that he had stolen one of the firearms. They wanted it back or paid for. Mr. Thomas and Mr. Thomas Stewart, he says, assaulted and pistol whipped him. They then took him to another location. Mr. Oppong met with them there. He then took Mr. D.H. to a field. A.M. was with him. Mr. Oppong told Mr. D.H. to either return the firearm or pay $2500.00. Mr. Oppong then directed A.M. to shoot Mr. D.H.. Mr. D.H. managed to run away. He fled to a nearby house and called 911. Mr. D.H. is now in the witness protection program.

[6] On this application, Detective Lee, the officer-in-charge of the case outlined the Crown’s allegations. Mr. D.H., he testified, is in the witness protection program. He indicated that Mr. D.H. had expressed to him that he was concerned about testifying in court. He also played a phone call between another police officer and Mr. D.H.. In that telephone call Mr. D.H. indicated that he would have trouble breathing and could not give a proper account if the accused were in court.

[7] Mr. D.H. testified that he would have a better chance of saying what happened if he were not in the same room as Mr. Oppong, Mr. Thomas, and Mr. Thomas-Stewart. He said he feared them because they tried to kill him. He would be distracted and focus on them. He testified that he knew them from the neighbourhood. They were in the same gang – IDS. He would not be able to testify if he saw them because he would be focussed on them. In cross-examination he agreed that he had trouble staying awake. He said he was intimidated by the accused although he agreed that in a telephone call with Detective Lee he told the officer that he was not afraid of them.

ANALYSIS

(a) Should D.H. Be Permitted To Testify By Way Of CCTV?

[8] Mr. Rodocker argued on behalf of all accused that that Mr. D.H. should not be permitted to testify by way of CCTV. Mr. D.H. was defiant, confrontational, self-serving, and contradictory. He told one police officer that he was afraid of the accused. He told Detective Lee something different. He doesn’t want to be in the same room as the accused. If is ability to testify is compromised, it is because he is a bad witness, not because of the accused or their associates.

[9] I respectfully disagree. Mr. D.H. is clearly a problematic witness, for the reasons mentioned by Mr. Roddocker. Certainly Mr. Zambonini was candid with the court about Mr. D.H.’s flaws as a witness. For example, during his short testimony before me he contradicted himself. That, however, is not the test. The test is whether an order would facilitate giving a full and candid account or otherwise be in the interests of the proper administration of justice. In my view, it would be in the interests of the proper administration of justice. That was because there was an attempt by members of IDS to intimidate Mr. D.H. right in the courtroom.

[10] Section 486.2(2) of the Criminal Code states:

486.2 (2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

[11] Subsection (3) sets out the factors that a judge must consider on the application. I set out the ones that apply here:

(3) In determining whether to make an order under subsection (2), the judge or justice shall consider

(a) the age of the witness;

(b) the witness’ mental or physical disabilities, if any;

(c) the nature of the offence;

(d) the nature of any relationship between the witness and the accused;

(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and

(h) any other factor that the judge or justice considers relevant.

[12] I note that s. 486.2 was amended in 2016. I agree with Mr. Zambonini that a plain reading of the current and former sections show that Parliament lowered the threshold required to make an order. The former provision stated:

486.2 (4) Despite section 650, if an accused is charged with an offence referred to in subsection (5), the presiding judge or justice may order that any witness testify

(a) outside the court room if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and

(b) outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.

(5) The offences for the purposes of subsection (4) are

(a) … a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization;

[13] It is thus no longer necessary that the trial judge be of the opinion that an order is necessary to protect the safety of a witness. By adding that an order may be made for the proper administration of justice Parliament increased the discretion accorded to trial judges.

[14] In R. v. Allen, 2007 ONCJ 135 Duncan J. of the Ontario Court of Justice was faced with a similar argument on a murder preliminary inquiry. I adopt his comments at para. 27:

The main objection is that the entire truth seeking process suffers by permitting the witness to "mail it in" - to give evidence at a distance without his being brought into the presence of those he is accusing and the solemn and majestic atmosphere of the courthouse. It is said that there is a right to confrontation that is infringed or at least diluted by the video-link process. However such right of confrontation as exists in Canada is a qualified right and can be subject to exceptions designed to achieve some valid purpose in the administration of justice: R. v. Levogiannis (1990), 62 C.C.C. (3d) 59 (Ont.C.A.). Witness protection would undoubtedly qualify as a valid purpose. The Court in Levogiannis cited with approval the case of R. v. R.(M.E.) (1989), 49 C.C.C. (3d) 475 where the Nova Scotia Court of Appeal held that an order permitting a child's evidence to be received by video-link did not offend the accused's right to face his accuser. The Court said:

The right to face one's accusers is not in this day and age to be taken in the literal sense. In my opinion, it is simply the right of an accused to be present in court, to hear the case against him and to make answer and defence to it.

[15] Whether Mr. D.H. is a good witness or a poor witness with a poor attitude is not relevant in and of itself. That evaluation is only something that matters against the backdrop of whether an order would facilitate a full and candid account or would otherwise be in the interests of the administration of justice.

[16] In my view, the key factor in this case is s. 486.2(3)(e): protection from intimidation. Furthermore, I find that the proper administration of justice requires that Mr. D.H. be permitted to testify by CCTV. Members of IDS took steps to intimidate Mr. D.H. in a courtroom of the Superior Court of Justice. That cannot be permitted to occur. It is my duty as a judge to prevent such interference. I will certainly do so here.

[17] As Detective Lee was testifying, four men entered the courtroom. Detective Lee is an experienced police officer and the officer-in-charge of the case. He testified that he recognized three of the men. All three men are members of IDS. They are Shane Campbell, and twin brothers named Ernest and Alec Tomasi.

[18] Sergeant Nasser testified on a later but related application. He testified after the evidence was closed on the Crown’s application. Nonetheless Crown counsel became aware that Sergeant Nasser was waiting outside the courtroom when the men entered it. He asked whether Sergeant Nasser knew any of the men and whether he overheard the conversation of these men. He did. He testified that he knew one of the men who came into the courtroom. That man was Shane Campbell. He knows Mr. Campbell to be a member of IDS. He knows Mr. Campbell well and Mr. Campbell knows him. Mr. Campbell knows Sergeant Nasser by name and stated: “Mr. Nasser in the flesh”. He commented that he is not used to seeing Sergeant Nasser in a suit. As the men left, he heard words to the effect of “they’ve moved him away he’s gone” and “he’s on camera”.

[19] I did not stop Sergeant Nasser’s testimony although it related to a different application. Defence counsel did not object. Defense counsel cross-examined Sergeant Nasser about the incident. In my view, it is well within my discretion to accept this evidence as part of my duty to control the proceedings in the courtroom.

[20] I also observed the men enter the courtroom. I do not know any of them. I did notice that at least one of the men was wearing a very large pendant. It appeared to be a pendant resembling the distinctive IDS pendant in Sergeant Nasser’s expert report. The men left after a short time.

[21] A judge cannot simply close his or her eyes and pretend to be limited to what goes on in the witness box. Judges have a duty to maintain order and decorum in their courts. Detective Lee’s evidence – and later Sergeant Nasser’s evidence – helped put my own observations in context.

[22] Any member of the public has the right to be in a courtroom. The presence of gang members a courtroom in the Superior Court, one of whom was wearing what appeared to be a very noticeable gang symbol, is different when it is a brazen attempt to intimidate a witness. The comments overheard by Sergeant Nasser indicate a serious and likely unfriendly interest in Mr. D.H.. They did not appear to be in court merely to support Mr. Oppong, Mr. Thomas, and Mr. Thomas-Stewart. I also think it unlikely that they were in court because they find the proceedings riveting. I draw the inference that they intended to send a message of intimidation directly to Mr. D.H..

[23] I simply do not accept Rodocker’s submission that the entry of gang members into the courtroom can be controlled. Again, I adopt Duncan J.’s comments in R. v. Allen, 2007 ONCJ 135, supra, at para. 23:

I also tend to agree with the defence that increased security would probably be sufficient to deal with any witness safety concern. But beefed up security has its own drawbacks. It turns the courthouse into an armed fortress, prejudicing the sanctity of the premises and the appearance of dispassionate justice by the atmosphere created. It is no doubt costly. It inconveniences many unnecessarily and impedes the functioning of the entire building. It creates a risk of harm to bystanders should there be an incident. Most importantly, even though the possibilities may be negligible and the means speculative, it is far from fail-safe. On the other hand, a video-link avoids all of these problems and at the same time provides a perfect solution to the underlying problem of witness safety.

[24] Moreover, I do not know who all the gang members are. The police do not know who all the members are, as Detective Lee and Sergeant Nasser both demonstrated. But Mr. D.H. likely does. And even if their purpose is not to cause a security incident in court, it is obvious that they would seek to intimidate Mr. D.H.. Whether or not Mr. D.H. is actually intimidated doesn’t matter. The attempt to intimidate in open court is an attempt to interfere with the course of a criminal proceeding. That will not be tolerated under any circumstances.

[25] A screen is simply not enough under these circumstances. The proper remedy here is to permit Mr. D.H. to testify by CCTV. I do not accept that CCTV will in any way impede cross-examination: R. v. Levogiannis, [1993] 4 S.C.R. 475 at para. 33.

[26] The cases relied on by the defence are distinguishable from the facts in this case.

[27] In R. v. STFA, 2016 ONSC 4679 the 18 year-old complainant asked to testify by CCTV. She did not wish to be in the presence of the accused and his counsel. She became combative in cross-examination and even walked out of the courtroom. Although she testified that she was afraid of the accused, it appeared she was actually more fearful of his lawyer. She was afraid that she would have an outburst in front of the jury if she were required to be in the same room. DelFrate J. found that her fears were not well-grounded. She was permitted to testify behind a screen. In my view, that case is distinguishable. That was a sexual assault case where emotions were running high.

[28] In R. v. Jimaleh, 2016 ONSC 6300 the complainant was shot five times. He did not die. When he testified he was very concerned for his safety. He wished to testify by CCTV. Backhouse J. accepted that the complainant was fearful for his life. She found, however, that testifying by CCTV would impede cross-examination too much. She permitted the complainant to testify from behind a screen.

[29] The trial judge in one case found that the complainant’s fears were not well realistic and in the other that cross-examination would be impeded. Security and intimidation was not a concern. That makes these cases very different. Mr. D.H. is permitted to testify in this case by CCTV.

(b) Should The Crown Be Permitted To Lead D.H.’s Statement?

[30] Mr. Rodocker again made submissions on behalf of all counsel. His argument was that Mr. D.H. is an aggressive and mischievous witness. He did not pay proper attention to the video during the preliminary inquiry. If the video is played in front of the jury, as he put it, the bell cannot be “un-rung” if Mr. D.H. does not properly adopt the statement.

[31] I respectfully disagree. Whether Mr. D.H. adopts the statement is a question of fact to be determined in the circumstances of each case. Here, what will have to happen is that I will instruct Mr. D.H., outside the presence of the jury, of his duties as a witness. As trial judge, I will monitor Mr. D.H. and enforce those duties on him. In my respectful view, Parliament has given a trial judge the discretion to do this. Section 715.1 of the Criminal Code states:

715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

[32] Where a young person is the victim of or witness to a crime it may have a traumatic effect that is different from the effect on an adult. Section 715.1 permits a trier of fact to take into account what might be the best and most realistic opportunity to take the evidence of a child witness: R. v. C.C.F., [1997] 3 S.C.R. 1183 at paras. 18-19. As Cory J. for the Court put it at para. 21:

It can thus be seen that the primary goal of the section is to create a record of what is probably the best recollection of the event that will be of inestimable assistance in ascertaining the truth. The video record may indeed be the only means of presenting a child's evidence.

[33] The Crown must demonstrate that the videotape was made within a reasonable time after the alleged offences: R. v. S.G. (2007), 221 C.C.C. (3d) 439, [2007] O.J. No. 2203 (Sup.Ct.); R. v. G.W., 2014 ONSC 507, [2014] O.J. No. 360. In this case, given the short time-frame between the alleged offences and the statement, the threshold is easily met.

[34] In my view, the Crown may play the video-tape for Mr. D.H.. If Mr. D.H. properly adopts it, then it may be admitted into evidence. If questions arise as to whether Mr. D.H. properly adopts, then defence counsel may certainly make further submissions on the point.

DISPOSITION

[35] The Crown’s applications are granted.

R.F. Goldstein J.

Released: May , 2017