Court File and Parties

COURT FILE NO.: 54/16 DATE: 2017/05/23 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen AND: Frederick Oag

BEFORE: Justice Jonathon C. George

COUNSEL: Steve Monaghan Counsel, for the Crown Robert Farrington & Geoff Snow, for Frederick Oag

HEARD: May 23, 2017

Endorsement

[1] Mr. Oag is charged with manslaughter and aggravated assaulted. The alleged victims are Shane Sturgess (deceased) and Mark Desousa. We are in the middle of his scheduled four-week trial. I am told the Crown is near the completion of its case. However, before formally closing, and in the jury’s absence, I was asked to hear from counsel about an evidentiary issue that will soon arise.

[2] At this point, Mr. Oag plans to present a defence. He intends to call an expert witness, Joseph Slemko, to interpret the bloodstains found at the scene of an altercation involving Messrs. Oag, Sturgess and Desousa. He will presumably speak to the size, shape, distribution and location of those stains, and express his views as to what did or did not happen during that altercation.

[3] In accordance with the rules, the defence served his report on the Crown on April 10, 2017. Two days later - approximately a month before this trial’s commencement - the Crown advised that a written response is likely forthcoming. None was provided in advance of trial.

[4] On May 17, two weeks into the trial, the Crown served a four-page report prepared by LPS Detective Constable Grant Coon. It is essentially a response to Mr. Slemko’s case review. It notes other materials relied upon, including photographs, a police statement, and the post-mortem examination report.

[5] The Crown wants an assurance it can call Officer Coon in reply. Defence counsel seeks a ruling that the Crown not be allowed to call such evidence as rebuttal, going one step further, suggesting I shouldn’t even permit the Crown to call Officer Coon as part of its case.

[6] Respecting the first objection, I agree. This isn’t proper reply. As a general rule, the Crown is required to present its entire case before the defence is asked if it wishes to call evidence. This is grounded in basic principles of fairness. The defence needs to know the case to meet.

[7] When is reply evidence allowed? First, it must have only become relevant after the defence began to call evidence, and second, I must find the Crown could not reasonably have anticipated it. It is not just a question of ‘new’ evidence. While it is that, it must be something that could not have been foreseen.

[8] The Crown argues Mr. Slemko’s opinion is new evidence and that the only logical way to respond to it is in reply, after completion of the defence case. It contends the Crown shouldn’t be required to anticipate the defence and pre-emptively answer it. Two things. First, while I agree the opinion itself will be new, it is based solely on evidence that has already been presented at this trial. In other words, while Mr. Slemko’s testimony will be the first time the jury will hear the opinion, it will not be based on new facts or evidence. He did not attend the scene, and did not review materials other than that which were disclosed by the Crown.

[9] Second, not only is this an issue the Crown should have reasonably foreseen, it was actually notified about the evidence and who would be providing it. In fact, the potential issue of blood spatter analysis was discussed at the judicial pretrial (JPT) in June 2016.

[10] That being the case, the Crown had a decision to make. Arguably in June 2016, but for certain on April 10, 2017, it had to decide whether to call evidence on this point, from Officer Coon or someone else.

[11] The Crown had to, and may still be depending on my ruling, decide whether to call Officer Coon as part of its case. It is, and has been for some time now, armed with sufficient information to make that call. To the Crown’s concerns, Officer Coon’s testimony doesn’t have to be presented as a point by point response to Mr. Slemko’s report. Officer Coon, if qualified, could be asked about those aspects of it that requires comment. The best course, in my view, would be for the Crown to not fixate on responding per se, but to formulate questions that are informed by the content of Mr. Slemko’s report.

[12] Alternatively, in its wisdom, it may determine that it’s not necessary to call Officer Coon. It doesn’t have to. It will, in any event, have an opportunity to cross-examine Mr. Slemko and to persuade the jury to reject his evidence, or argue it’s of little or no consequence. The Crown must simply take measure of its case and determine whether this is something it needs to address.

[13] Which brings me to Mr. Oag’s second objection. Should I allow Officer Coon’s testimony to be presented as part of the Crown’s case?

[14] The defence argues that to do so would create three irremediable problems. First, there is insufficient time for the defence to consult with Mr. Slemko before conducting Officer Coon’s cross-examination. Second, not knowing Mr. Slemko’s schedule, and given he is already scheduled to be here this week, there is insufficient time for him to consider it in advance of his testimony. And third, had they had Officer Coon’s report earlier it might have impacted upon the cross-examination of officers who have already testified, particularly those who were on the scene taking photographs and Officer Hardman who took blood swabs. In the defence view, this is a trial fairness issue.

[15] Respecting the third problem, there is an obvious solution. Crown witnesses can be recalled for questioning on issues that arise from Officer Coon’s report and or testimony. Respecting the second problem, I don’t understand how Officer Coon’s report would impact upon Mr. Slemko. His report has been prepared and disclosed. His opinion presumably won’t change. He will testify to whatever he sees fit, and even if I didn’t allow Officer Coon’s testimony, the Crown will surely base its questioning on Officer Coon’s report. Another easy fix – email or fax the report to Mr. Slemko. While granted not so easy, another option would be to, albeit hastily, arrange for Mr. Slemko’s attendance to hear Officer Coon’s testimony.

[16] I do, however, accept that preparation is a potential issue. Defence counsel must be afforded an opportunity to speak with Mr. Slemko in advance of Officer Coon’s cross-examination. Acknowledging the sensitive timing issues, what is the proper remedy?

[17] Section 657.3(3) (4) and (5) of the Criminal Code of Canada provides that:

657.3(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses, (a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by (i) the name of the proposed witness, (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and (iii) a statement of the qualifications of the proposed witness as an expert; (b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties (i) a copy of the report, if any, prepared by the proposed witness for the case, and (ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and (c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).

(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party, (a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness; (b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and (c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so.

(5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following: (a) adjourn the proceedings; (b) order that further particulars be given of the evidence of the proposed witness; and (c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony.

[18] The defence has complied with subsection (3)(a). Notice that this was a potential issue was provided at the JPT. The defence has also complied with subsection (3)(c). As of April 10, the Crown knew of the name and qualifications of the defence expert, and had received his report.

[19] Has the Crown complied with subsection (3)(b)? Clearly no. Officer Coon’s report was not provided in advance of trial. But these are unusual circumstances and this fact must be placed in its proper context. First, the Crown did, on April 12, indicate to the defence that a response was forthcoming. Second, Officer Coon was on the Crown witness list provided at the trial’s commencement. Surely then, and perhaps as far back as April 12, the defence knew that, at least, Officer Coon was a potential witness, and what generally he would be testifying about. Arguably a stretch, but this is perhaps marginally compliant with subsection (3)(a), which I note doesn’t address service of the report itself.

[20] This situation is somewhat novel as, given my decision on the reply issue, I am, in effect – should the Crown ultimately decide to call Officer Coon - forcing it to respond to something not yet in evidence. I accept the Crown would not have otherwise called him as a witness. I accept also that this is an issue the Crown has been wrestling with. It clearly wants to respond to Mr. Slemko’s report, even though the Jury hasn’t yet heard from him, and its main concern is, and has been, how to best and most logically, do that.

[21] In the event I am being too generous with the Crown, or had there been a blatant flouting of the rules (which there wasn’t), I would still have to consider subsection (4), which seems to require that I grant a remedy short of exclusion. The defence submits that were this a judge-alone trial an adjournment may indeed have been the best option. However, if you look at the language in the section it draws no distinction between available modes of trial. The fact there is a jury is a reality we must contend with, which would surely impact the length of any adjournment, were that indeed an appropriate remedy. But it does not foreclose the application of subsection (4).

[22] I reproduced subsection (5) to show that, even when the rules are complied with, if in the court’s view the opposing party hasn’t had sufficient time to respond, the same remedies are available (i.e. adjournment, provision of further particulars, and the recalling of witnesses).

[23] It is worth pointing out that the section does not prescribe 30 days as a rigid unalterable notice period. Of course, all attempts should be made to comply, but it is 30 days “or within any other period fixed by the justice”. This provision is consistent with the Superior Court’s Criminal Proceedings Rules which allows the court to dispense with compliance “where and to the extent it is necessary in the interests of justice”; see r. 2.01. While the rules should not be relied upon to relax a statutory requirement, given the language in s. 657.3, it is a decent analogy and is instructive.

[24] In these circumstances, even if not in compliance with the rules, the Crown should be permitted to call Officer Coon. To allow it would simply not create an irremediable unfairness. If the Crown chooses to do so, my expectation is that it be prepared to call him at some point today, unless counsel agree to a different schedule. I will give them a moment to discuss that.

[25] I will consider a brief delay to allow a further opportunity for defence counsel to speak or otherwise communicate with Mr. Slemko. Given the nature of Officer Coon’s response, which I have reviewed, I can’t imagine a lengthy adjournment would be required. My hope is some attempt has been made over the course of the past three days to bring Mr. Slemko up to speed, and to at least have sent to him a copy of the response.

[26] Should the defence wish, Officer Hardman may be recalled.

“Justice J. C. George” Justice Jonathon C. George Date: May 23, 2017