CITATION: R. v. Browne, 2017 ONSC 4582
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 07 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: COROZA J.
COUNSEL: Alex Cornelius and Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
REASONS FOR RULING
Jury Request for a View
The Issue
[1] The accused were charged with first degree murder. Dwayne Thompson was killed on November 1, 2011, at an apartment complex located at 7230 Darcel Avenue, Mississauga, Ontario. The Crown theory was that Mr. Greensword lured the deceased to the apartment building and he was shot four times by Mr. Browne. The Crown also alleged that Mr. Williams acted as a co-principal or an aider to the shooting.
[2] During their deliberations, the jury sent a note requesting permission to take a view of 7230 Darcel Avenue. After hearing submissions from counsel, I refused that request and notified counsel I would release written reasons at a later time. These are those reasons.[^1]
Background to the Request
[3] My charge was completed around 5:00 p.m. on March 17, 2017. The charge took two days to read out. It is a lengthy charge. This has been a long trial. Over 30 witnesses were called and there have been 136 exhibits filed.
[4] That same day, just after the dinner hour was declared between 5:45 p.m. and 7:00 p.m., the jury sent a note asking if they could attend the scene of the crime.
[5] The jury also requested that they retire for the evening. I brought the jury into court, told them they could retire and I had brief discussions with counsel about the request for a view. I advised counsel to think about their positions overnight and to provide their positions the next morning.
Positions of the Parties
The Crown Position
[6] The Crown submitted that I should not permit the view. Mr. Cornelius raised the issue of the logistics of the view. The Crown consultation with the Peel Regional Police suggested that providing security for the jurors, the parties, the Court and the accused would be difficult. According to the Crown, because the scene at 7230 Darcel Avenue is not a confined space it would be difficult to ensure protection for any of the jurors. The Crown argued that it would not be in the interests of justice to order a view.
Mr. Browne
[7] Mr. Bryant submitted that the observations of a jury while taking a view is real evidence. Allowing the jury to take the view would be to introduce evidence in this trial that had not been tested, had not been commented upon by counsel in their addresses and had not been commented on by me as the trial judge. Mr. Bryant finally reminded me that any response to the jury ought not to discourage the jury from asking further questions on issues of reliability of the evidence.
Mr. Greensword
[8] Ms. Rozier submitted that the difficulty in taking a view of this scene is that the apartment complex is not a static and closed-off environment. Counsel submitted that the Crown’s concerns were legitimate and she also pointed out that there is no way of testing or recording what the jurors are observing while at the scene.
Mr. Williams
[9] Ms. Addie adopts the position of the Crown and Mr. Bryant and Ms. Rozier.
The Law
[10] Counsel all agreed that s. 652 of the Criminal Code permits a trial judge to order a view until verdict if it is in the interests of justice.
[11] After hearing the helpful submissions of counsel, I was of the view that, at the deliberation stage of the trial, a view should not take place.
[12] There are a number of Ontario cases that deal with s. 652 of the Code.[^2] Usually, the application to take a view is made by one of the parties to the proceeding. However, there is very little Ontario authority related to the issue of a deliberating jury requesting a view.
[13] In R. v. Wu, 2002 8304 (ON CA), the trial judge, in a heroin importing case, ordered a view of the airplane that the drugs were shipped in. The jury attended at the Pearson International Airport and took a view during deliberations. I have been unable to find the trial judge’s reasons for making the order. However, the Court of Appeal appears to have recognized the authority for the trial judge to make the order in dismissing the appeal, although the appeal was not on this basis. The Court of Appeal used the fact that a view of the plane was ordered as a factor in dismissing the ground of appeal related to re-enactment evidence during the trial. There is no analysis on the issue of the deliberating jury taking a view.
[14] In British Columbia there is appellate authority that has dealt with the issue of a jury taking a view during deliberations. Remarkably, it bears some similarity to the circumstances in this case. In R. v. Welsh, 1997 2570 (BC CA), the appellant was convicted by a jury of a number of offences related to driving and possession of stolen property.
[15] The incident occurred at a local park. The appellant was driving a vehicle which struck and injured a person, who was one of a group of young people in the park near a boat launch.
[16] After deliberating for about an hour and forty minutes, the jury sent a note to the judge asking for a view of the scene where the accident was alleged to have occurred. The trial judge brought the jury back in the courtroom and the judge asked two questions. Interestingly, one of the questions asked was the following:
THE COURT: And the other thing I wanted to ask you is that the photographs, the large photographs, are not of sufficient assistance?
MADAM FOREPERSON: There's a question of scale that some people are having difficulty comprehending. So even though in the parking lot the lines and everything kind of justify the size of the car, the objects that are actually drawn on the maps are drawn very tiny. So it gives the perception of there being a different amount of space than there perhaps is.
[17] The trial judge then ordered a view of scene. The judge, jury, counsel and the accused all attended at the location described by witnesses in their evidence. Shortly after the jury returned to the courthouse following the view, guilty verdicts were rendered.
[18] One of the grounds on appeal was that the trial judge erred in ordering the view.
[19] Finch J.A. held that the judge did not err in permitting the jury to take the view. He held that s. 652(1) authorizes the judge to direct a view "at any time after the jury has been sworn and before it gives its verdict". Although he recognized it may be unusual to order a view during the jury's deliberations, in his view, the section clearly authorizes such a procedure where it appears to a judge to be in the interests of justice. The jury asked for a view to assist in its deliberations and neither counsel objected to a view being taken.
Analysis
[20] A plain reading of the section reveals that a deliberating jury may be permitted to take a view if requested. The decision to take a view is entirely a matter for the discretion of the trial judge.
[21] It is clear to me that two very important questions emerge from the jurisprudence in this area: (1) Will the taking of the view be helpful to the jury?; and (2) Is it in the interests of justice?
Will the Taking of the View be Helpful?
[22] Mr. Bryant pointed out that my colleague Nordheimer J. in HMQ. v. Johnson, 2010 ONSC 5189, at para. 5, held that in order for a view to be helpful to the jury, it must be shown that there is some very real and demonstrable advantage that the taking of a view will bring to the proceeding in terms of the jury’s understanding of the evidence.
[23] I am unable to conclude that in this case there would have been a real and demonstrable advantage to the jury in taking a view of this apartment complex. The jury had heard evidence about the apartment complex since September 2016. That evidence came from four sources. First, the jury had a number of photographs of the scene taken by Det. Linton, a Scenes of Crime Officer. Second, the jury had surveillance video from the lobby of 7230 Darcel Avenue, Mississauga, Ontario. Third, the jury heard from a number of tenants of the apartment building, including the superintendent. Each of these witnesses described the layout of the building. Finally, each of the officers who responded to the scene also testified as to the layout of the apartment complex.
[24] All of these witnesses were thoroughly examined and cross-examined about the layout, the lighting and the configurations of the lobby and the parking lot of 7230 Darcel Avenue.
[25] I was therefore unable to conclude that at that stage of the proceedings the jury would benefit or find a view of the scene helpful. The evidence was complete. The evidence clearly outlined the layout of the apartment complex, the scene of the shooting and the configuration of the apartment complex. There were aerial photographs, videos, maps, and diagrams entered into evidence for the assistance of the jury. The jury had been told that there will be no further evidence and that they were required to base their decision on what they saw and heard in the courtroom. I concluded that taking a view at that stage of the trial would not provide the jury with real and demonstrable help.
Is it in the Interests of Justice to take the View?
[26] The term “the interests of justice” has been defined by Doherty J.A. in R. v. Bernardo (1997), 1997 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.), at p. 131. Doherty J.A. held that the term takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case-by-case basis. The interests of justice encompass broad based societal concerns and the more specific interests of a particular accused.
[27] Nordheimer J., in Johnson, at para. 6, provides a helpful list of factors that one should consider whether a view is in the interests of justice including:
(i) logistical problems associated with the scene itself including accessibility, distance, safety concerns for those attending the view, the likelihood of public attention to the process and the disruption to normal day-to-day activities in the area where the view is to take place;
(ii) logistical problems with the view itself including transporting the jury, the judge, counsel, court staff and the accused. If the accused is in custody, this may pose a special challenge as the accused is entitled to be present at the view;
(iii) security concerns at the scene including the likelihood of the jury being exposed to information or actions of others that are not relevant to the jury’s task and the degree to which such exposure might be prejudicial;
(iv) the extent to which photographs, recordings, models and other aids can adequately convey the necessary information to the jury, and;
(v) the nature of the evidence that the view is directed at helping the jury understand. [Citations omitted.]
[28] Many of the factors outlined by Nordheimer J. were set out by all counsel in this case. I agree with all counsel that there were significant problems in taking a jury for a view at the deliberation stage of the proceedings. I conclude that it was not in the interests of justice. Any assistance that can be given to the jury by a trial judge is of course required in a jury trial. However, I am of the view that, in this case, any assistance that the jury may have received by ordering a view is significantly outweighed by the prejudice to all parties if that order were made. It was clearly not in the interests of justice to order a view. I say this for the following reasons.
Four years have Elapsed
[29] First, a period of over four years has elapsed since the events in question, and since the witnesses made their observations and the forensic evidence was collected at the scene. The witnesses’ testimony regarding their observations, video footage of the scene, and photographic evidence were before the jury. This evidence reveals how these locations appeared at the time of the shooting. A view could provide a misleading picture because the scene may have since changed. Indeed, there has been evidence that as of 2013 (a year after the shooting), Det. Linton went back to the scene to take more measurements and he noticed that that the parking spots which had not been numbered on November 1, 2012 were now painted over with numbers.
Debate on whether a View is Real Evidence
[30] Second, it has always been a principle of criminal law that at the conclusion of the case, after the jury has retired to consider its verdict, it is improper to allow further evidence to be adduced, even at the request of the jury. The rationale for the rule is quite obvious; were additional oral evidence to be admitted, for example, it would necessarily be subject to cross-examination and rebuttal evidence, followed by a fresh summing-up by the presiding judge. (See R. v. Kluke (1987), 22 O.A.C. 107 (C.A.). Mr. Bryant’s position that a view is real evidence is supported by strong authority (See McWilliams’ Canadian Criminal Evidence (Justice S. Casey Hill, Professor David Tanovich & Lou Strezos) at 23:30 Demonstrative Evidence). If that is the case, then it would be improper to allow further evidence into the jury room after the verdict. There is, however, a contrary line of authority that suggests that the taking of a “view” under s. 652 is merely an aid to understanding the evidence. Goodman J. in Millard, supra, has observed that the recent trend in Ontario courts is that a “view” is not evidence and may serve to only assist the jury in understanding the evidence.
[31] Strictly speaking, I do not have to resolve this issue. However, it is a factor to take into account. Regardless of how I characterize the nature of a view, it is my concern that any inferences which could be drawn by the jury from taking a view, especially when these inferences cannot properly be challenged may clearly prejudice the accused, particularly with respect to a matter which is a very important point in the case.
[32] It is important to recall that the specific question by the jury suggests that the jury would like to take a view to assess the reliability of some of the evidence. Practically speaking, at the deliberation stage of the trial, we cannot ask the jury probing questions as to what they were internalizing during the view and how this assisted in their assessment of the “reliability of the evidence”. Jury secrecy rules do not permit us to make these inquires after deliberations have begun. My specific concern for the accused is that there were many issues raised about Margaret Warner’s evidence during the trial. Margaret Warner is the main eyewitness to the shooting. Counsel repeatedly questioned her about her vantage point at different parts of the scene, including the lobby, the parking lot and the area where Mr. Thompson was shot. There were also a number of questions about the surveillance camera, including pointing out that there are gaps in time in the footage, the reasons for which have been explained by Mr. Smit.
[33] There were also questions about the area of the parking lot that the surveillance camera from the lobby did not cover. It seems to me that all of the accused made the submission that the video could not help the jury determine what was going on outside of the lobby while Ms. Warner and Mr. Thompson were waiting in it. For example, there was extensive cross-examination of Darcy Hall on the basis that he could not be seen checking his car, even though he lived at apartment 133, right next door to the rear lobby where the surveillance camera was situated.
[34] By going to the scene, the jury may be able to recreate in their minds what the camera did not capture. At this stage of the trial when the evidence is in, it is inappropriate for that to occur because a view is not supposed to be evidence nor is evidence to be taken in the course of a view. I am uneasy about allowing jurors to go to the scene and not allowing further evidence to be called or further submissions to made after the view, to revisit any of the issues explored during the trial.
Logistical Issues
[35] Third, allowing all the jurors, the parties and the accused to attend 7230 Darcel Avenue would have been logistically challenging. This is an apartment complex. The scene would have to be closed off by the police, with members of the public being prohibited from entering the parking lot while a deliberating jury takes a silent tour. Ms. Rozier commented that it would be difficult to instruct the jury to disabuse themselves of matters which may be extraneous to their deliberations for which the view was requested. It would also be necessary to take a great deal of care to protect the privacy interests of the members of the jury. However, as Ms. Rozier pointed out, how do you prevent tenants from taking photos or video with their phones from the balcony? How do we record in some fashion what the jurors will have seen for the reviewing court?
Conclusion
[36] Given the many problems inherent in taking a jury for a view, including the very real prospect that they may be exposed to improper influences or material, I consider that the degree of assistance that a view would have provided to the jury is low, fraught with too many risks and could undermine the fairness of this trial.
[37] It is for these reasons that I refused the jury’s request.
[38] In the end, I answered the jury’s question in the following manner:
Members of the jury, thank you for your question.
[repeat question]
I must tell you that it is not possible to go to 7230 Darcel Avenue during your deliberations. Let me explain why.
These events took place four years ago and you cannot always be sure if the place is the same now as it was when the events with which we are concerned took place.
But even if the place were in the same condition now as then, once you go there to evaluate the evidence as you have heard and seen, in light of what you see, you become a witness not a juror.
But more importantly, none of the parties can do anything to test what you see so it is not fair to any of the parties. It would not be fair to the parties if you were to consider evidence not tested by the Court process.
The oath or affirmation you have taken in effect means that you have promised not to investigate the case in any way outside of your jury room.
Let me remind you what I told you in my opening instructions to you. To determine whether the Crown has proven the case against each defendant beyond a reasonable doubt, you will decide what the facts are in this case. To do that, you will consider only the evidence that you hear and see in the courtroom. In general, there are three sources for evidence.
First, the evidence includes what each witness says in response to the questions asked. The questions the lawyers ask are not evidence unless the witness agrees that what is asked is correct. The answers are the evidence.
Secondly, the evidence also includes any things that may be made exhibits. The exhibits have gone in with you. I will remind you that you have exhibits that outline the scene such as Exhibit 1 that includes a number of photographs. Please go back to my charge and my instructions about what factors and limitations you must consider when you look at these photographs.
Third, the admissions about matters of fact. When admissions are made, no evidence is required about a fact that is admitted. Whatever the lawyers admit as a fact is a fact in this case. Remember what I told you about ensuring that you know who is making the admission and what the limitations are when assessing an admission of fact in a joint trial.
This case must be decided on these sources. Nothing else.
I do not want you to take from my response to the request that I am discouraging you from asking any questions related to the clarification of the evidence that you saw and heard in this courtroom.
Now, if there is a specific question you have about any of the evidence that you saw and heard in this courtroom, please feel free to ask questions in the same procedure outlined in my charge. I will do the best I can to answer your questions.
Coroza J.
DATE: July 31 , 2017
CITATION: R. v. Browne, 2017 ONSC 4582
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 07 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: COROZA J.
COUNSEL: Alex Cornelius and Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
REASONS FOR RULING (RESPONSE TO JURY’S REQUEST FOR A VIEW)
COROZA J.
DATE: July 31, 2017
[^1]: Eventually, after eight days of deliberations, the jury returned verdicts of guilty of manslaughter for Mr. Browne and Mr. Greensword. Mr. Williams was acquitted.
[^2]: My colleague Goodman J. in R. v Millard and Smich, 2016 ONSC 2816, has reviewed the various authorities and I will not repeat his comprehensive analysis relating to s.652.