CITATION: R. v. Browne, 2017 ONSC 4615
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
Darryl Kloeze, Counsel for Court Services-Ministry of Attorney General
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 PRE-TRIAL RULINGS
COROZA J.
[1] The accused faced the charge of first degree murder. Jury selection began during the week of September 12, 2016. The trial ended the week of March 20, 2017.
[2] Lemon J. and I heard a number of pre-trial motions from March to June, 2016. I reserved judgment on the motions that I heard. In order to keep things moving, I released a "bottom line" ruling on the motions dated August 31, 2016, to assist counsel with preparation. I promised that complete written reasons would follow. As the trial progressed, I released final written reasons dealing with some of the issues outlined in that endorsement. These are the final written reasons for all other issues mentioned in that endorsement.
Overview
[3] The three accused were charged with first degree murder in relation to the death of Dwayne Thompson on November 1, 2012. A fourth accused, Adeyemi Ogunbitan, was discharged at the preliminary inquiry.
[4] The Crown's theory was that Mr. Greensword set up a drug deal with Mr. Thompson. The deal was going to take place at an apartment building on Darcel Avenue in Malton, Ontario. Mr. Thompson arrived with Margaret Warner and Shawn Edwards. Mr. Edwards stayed in the car with the drugs and Mr. Thompson and Ms. Warner got out of the car to meet Mr. Greensword, known to them as Scarface. On their way to the apartment building, Ms. Warner noted some males running to a white car.
[5] When Scarface did not show, they decided to leave. On the way back to the car, they were accosted by three or four males, one of whom shot Mr. Thompson four times with a handgun. Ms. Warner ran away. The Crown alleges that the murder was planned and deliberate.
[6] The Crown alleges that Mr. Browne was the shooter, Mr. Greensword is Scarface and Mr. Williams was at the scene and aided Mr. Browne and Mr. Greensword.
[7] The jury returned verdicts of manslaughter for Mr. Browne and Mr. Greensword on March 24, 2017. Mr. Williams was found not guilty. Sentencing will take place on June 28 and 29, 2017.
[8] In this document, some of the reasons were prepared before and during the trial and so may, for example, refer to uncertainty as to how evidence at trial will unfold.
The Pretrial Motions
I. Omnibus Procedural Issues Motion
[9] The parties seek various rulings in relation to the conduct of the trial, as set out below.
Prisoner Restraints
[10] The Crown applies for an order that the accused be shackled in the courtroom.
[11] I deny the application. Applying the principles set out in the cases of R. v. McNeill (1996), 1996 812 (ON CA), 29 O.R. (3d) 641 (C.A.) and R. v. Fortuin, 2015 ONCJ 116, it is clear that I have the discretion to decide whether an accused must appear in court in any form of restraint. Other than a concern about the seriousness of the allegation, there appears to be no particular concern about safety and I am not satisfied that the accused should remain shackled throughout the trial.
Position of the Accused in the Courtroom
[12] Defence counsel apply to have the accused be seated at the counsel table outside of the prisoner box in the courtroom.
[13] I dismiss the application because in my view, the physical layout of the courtroom in which this case is to be tried calls for a practical solution. The courtrooms in Brampton for jury trials all situate the prisoner’s box in the middle of the courtroom set back from counsel table. If the accused remained in the prisoner’s box, the jury will be able to easily them throughout the course of the trial proceedings.
[14] In Brampton there are tables for defence counsel, but it is my experience that each table usually fits two people. Each accused in this case is represented by two lawyers. If the accused were permitted to sit at counsel table, they would have to sit at the end of that table and such positioning would make it more difficult for the jury to observe the accused during the proceedings, given the presence of things such as video equipment, lecterns and other courtroom furnishings. This positioning would also make it more difficult for security officers to monitor the activities of the accused. Situating the accused at counsel table would require situating security officers to sit close to the jury. The jury may very well wonder why there is so much security around each of the tables and in close proximity to them. These practical issues are legitimate concerns and militate against permitting the accused to sit at counsel table.
[14] I am also satisfied that by instructing the jury fully and carefully at the outset of the trial about the importance of the presumption of innocence and the burden of proof upon the Crown to establish the alleged guilt of the accused beyond a reasonable doubt, and explaining to the jury that everyone has a particular spot to sit in this courtroom, the accused will not be in any way prejudiced by remaining in the prisoner’s dock.
[15] I am aware that there are many cases where judges have permitted the accused to sit at counsel table. In the end, I am persuaded that the traditional approach as referenced by Campbell J. in R. v. Gervais, 2001 28428 (ON SC) should prevail. I ordered that the accused shall remain in the prisoner’s dock without shackles during the course of the trial proceedings.
Erroneous Jury Questionnaire
[16] Defence counsel seek to challenge the array pursuant to s. 629 of the Criminal Code, R.S.C. 1985, c. C.46, on the basis that the sheriff wilfully misconducted himself in returning the panel. I have reviewed my endorsement of August 31, 2016. No further written reasons will be provided.
Permitting opening statement immediately after Crown
[17] Counsel for Mr. Browne applies for an order that counsel for the accused be given the option of delivering an opening address to the jury immediately after the Crown delivers their opening address.
[18] After reviewing the principles set out in a number of cases, including R. v. L.G., 2004 53048 (ON SC) and R. v. Sandham, 2008 84101 (ON SC), the application is dismissed. Dambrot J. reviewed the jurisprudence on this issue in R. v. Dalzell, 2003 43624 (ON SC). He noted that it is a matter within the discretion of the trial judge, which discretion should be exercised only in special or unusual circumstances. Dambrot J. summarized, at para. 19 of his decision, the various considerations that had been seen by other courts as amounting to “special circumstances” that would justify permitting an early opening:
(1) In a retrial, where there was thought to be relative certainty about what the witnesses would say;
(2) In a trial where was expected to be a lengthy one or one with complex factual issues;
(3) In a trial where the defence was not expected to be apparent to the jury during the Crown's lengthy evidence;
(4) In a trial where there existed competing and significant expert evidence; and
(5) In a trial where the Crown had one central witness whose testimony was the focus of the case, and from whom: (i) in cross-examination, the defence hoped to raise a defence of self-defence; or (ii) the defence could bring out significant inconsistencies, admitted perjury and a serious potential for self-interest
[15] Some of the circumstances identified by my colleague are present in the case at bar. The trial will be lengthy. The facts will be somewhat complex. And the Crown does have one central witness, Margaret Warner, whose credibility will be of great importance to the case.
[16] However, the fact that this trial involves three accused being tried together creates completely different dynamics that must be taken into account.
[17] The concerns about the dynamics of a multi-accused trial have been exhaustively covered by RSJ Heeney in R. v. Sandham.
[18] I agree with RSJ Heeney that in a case with multiple accused, the “all or none” approach has merit.
[19] Counsel for Mr. Greensword and Mr. Williams did not advance an application to open after the Crown. If I were to allow Mr. Bryant or Ms. Morphew to address the jury immediately after the Crown, this could be unfair to the other two. Only one of the accused is alleged to have been the shooter, while the other two are alleged to have acted as joint principals or aiders in the crime. There could be antagonistic defences advanced in this case. Indeed, during one of the voir dires, Ms. Rozier provided notice that Mr. Greensword may advance a prior disreputable conduct motion to introduce bad character evidence against Mr. Browne (see: Mr. Greensword’s Notice of Response filed in court on May 10, 2016, relying on R. v. Pollock, 2004 16082 (ON CA)).
[20] I agree that if Mr. Bryant or Ms. Morphew opened after the Crown, it could create a prejudicial impression in the minds of the jury against those who chose to open in the traditional manner.
[21] I conclude that it is not necessary to the fair trial interests of Mr. Browne to grant the exceptional remedy of allowing his counsel to make an opening statement immediately following the Crown’s opening. In the end, I agree and adopt the analysis of RSJ Heeney in R. v. Sandham and, in this case, there is a real prospect of working an unfairness against the other accused persons.
Race-based challenge for cause
[22] Each accused has advanced the position that they should be permitted a race-based challenge for cause pursuant to s. 638(1)(b) of the Criminal Code. The Crown is not opposed to the application. However, they disagree on the structure of the question. I have reviewed my endorsement of August 31, 2016. No further written reasons will be released on the issue of the challenge for cause question.
Parking Motion
[23] Counsel for Mr. Browne and Mr. Williams who practice in Toronto apply for an order granting them three reserved parking spots for the duration of this trial. Counsel for Court Services Division of the Attorney General opposed the application.
[24] The position of defence counsel is that the Brampton courthouse has a genuine and serious parking problem. The parking lot is often full and over-capacity with cars having to circle the lot until a spot becomes free or park illegally and risk being ticketed and towed. Without reserved parking, defence counsel argue that they must either (a) arrive excessively early for court, (b) circle around the parking lot until a spot becomes available and therefore risk being late for court, (c) park illegally, or (d) park a great distance from the Courthouse and carry materials to the courthouse.
[25] Since this trial is going to be lengthy, counsel argue that allowing them reserved spots will prevent interference with the orderly conduct of the trial and prevent counsel from being under unnecessary burdens during this lengthy, serious trial.
[26] Counsel did not frame this as a Charter application. Counsel rely on two decisions from two very experienced jurists (R. v. Liard and Lasota, 2013 ONSC 5457 at paras. 226-237 per Corbett J. and R. v. Alexis, Funes and Kelly, 2015 ONSC 633 per Fragomeni J.). In both of those cases, my colleagues held that they have inherent jurisdiction over this matter to make the order pursuant to their ability to manage a criminal trial.
[27] Parking at the courthouse in Brampton is managed by Court Services, a division of the Ministry of the Attorney General. It is acknowledged by all counsel that Court Services is in the best position to manage parking. However, counsel point out that they have requested reserved parking and have been denied.
[28] Mr. Kloeze, counsel at the Crown Law Office - Civil appeared on this motion. Counsel filed an affidavit from the Court Services manager of the Courthouse outlining why reserved parking cannot be provided to counsel. Mr. Kloeze also advanced three arguments. First, the order sought by counsel is in the nature of a mandatory injunction against the Crown. Absent a breach of constitutional rights, such relief is not available against the Crown. Second, even if I were to hear this matter as a motion for interlocutory injunction, counsel has failed to establish that: (i) there is a serious issue to be tried; (ii) the accused will suffer irreparable harm if the injunction is not granted; and (iii) the balance of convenience favors the accused. Finally, the exercise of any inherent jurisdiction is unwarranted.
[29] I dismiss the application for the following reasons.
[30] First, the record here filed by counsel requesting the parking spots is deficient in certain respects. Counsel for the local criminal, family and civil bar were not given notice and did not have an adequate opportunity to present submissions of this issue. At paras. 248-249 of R v. Liard, Corbett J. listed other parties who may be affected by ordering reserved parking for defense counsel in a specific case. Surely, before I ordered any spots be reserved in the parking lot, I would have to know what the impact would be on other counsel who conduct business in this courthouse. Counsel for litigants involved in family proceedings, for example, deal with cases involving child apprehensions that can be characterized as significant and serious cases. I ask rhetorically: why should these counsel or parties also not have access to reserved parking?
[31] It seems to me that counsel are framing this application as an access to justice issue. If that is so, it is my view that the process should involve notice to counsel through an organization such as the Peel Law Association and the Peel Criminal Lawyers Association. These associations may very well want to make submissions on the issue of whether reserved spots should be handed out to specific counsel in a given case. I am not satisfied that what has been filed here provides me with a full record to order something that could affect other persons who need or wish access to the court.
[32] Second, although persuasive, the decisions of my colleagues are not binding. I acknowledge that in those cases, defence counsel were granted reserved parking spots. However, it seems to me that Corbett J. and Fragomeni J. explicitly pointed out that the results in their cases would not necessarily bind Court Services in subsequent cases. Furthermore, like Corbett J. in R. v. Liard, I have serious reservations about whether I have jurisdiction to determine the appropriate level of parking by way of a civil injunction or some form of judicial review.
[33] Third, this is not a case where I should exercise my inherent jurisdiction in favour of ordering Court Services what to do outside of this courthouse. Assuming that I have inherent jurisdiction to tell Court Services what to do outside of the courtroom as opposed to inside the courtroom, inherent jurisdiction must only be exercised “sparingly and with caution”: R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 30.
[34] I do not accept that a lack of reserved parking for defence counsel affects the liberty of their clients in circumstances that are offensive or affects their presumption of innocence in criminal proceedings. As Mr. Kloeze points out, at other courthouses in the province, free public parking is not provided. The issue of reserved parking has never been an issue in any other courthouse in Ontario as far as I am aware and there is no evidence here that being provided with guaranteed, designated free parking spots to the exclusion of other parties, witnesses and other members of the public on a regular and daily basis is necessary to ensure a fair trial. I also do not find the failure of Court Services to provide reserved parking spots to be oppressive or an abuse of process. The application is dismissed.
II. Alternate Suspect
[35] Mr. Browne applies to introduce third party suspect evidence in this trial. Specifically he seeks to lead evidence of Adeyemi Ogunbitan's involvement in the shooting of the deceased. As mentioned earlier, Mr. Ogunbitan was originally charged with murder as a co-accused. However, he was discharged by Keaney J. at the preliminary hearing.
[36] Surveillance video seized from the scene of the shooting was seized by the police. It shows three black males entering and then leaving the lobby of the apartment building shortly before the deceased and Ms. Warner arrive. It also shows a white car driving back and forth. It is anticipated that Ms. Warner will testify that she saw three to four males running to this car prior to her arrival at the lobby with the deceased.
[37] The Crown’s theory is that two of the men in the video are Mr. Greensword and Mr. Williams. At the preliminary hearing, the Crown conceded that Mr. Browne is not the third male in the video.
[38] Mr. Browne says that it is open for the jury to find that the person seen on surveillance video is Mr. Ogunbitan. Mr. Browne also argues that Mr. Ogunbitan is linked to Mr. Greensword and Mr. Williams through cell phone evidence. It is anticipated the Crown will heavily rely upon cell phone location data to implicate all the accused. Therefore, Mr. Browne argues that he ought to be permitted to introduce evidence that suggests that Mr. Ogunbitan was involved in the offence.
[39] The law is not in dispute. Evidence that points to a third party as a party to the offences is generally admissible provided it is (1) relevant; and (2) sufficiently probative to justify its admission (see: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, and R. v. McMillan, 1975 43 (ON CA).
[40] However, an accused may not simply seek to deflect attention from the evidence against him by pointing the finger at other possible suspects. Rather, a trial judge must balance the right to make full answer and defence with the need to ensure that a trial does not spiral into a “trial within a trial.” A confusing “trial within a trial” has the potential to distort the Court’s truth-seeking process.
[41] To avoid distorting a trial’s truth-seeking process, the Supreme Court of Canada and our Court of Appeal have held that a trial judge should be disinclined to admit alternate suspect evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.
[42] In R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, the Supreme Court of Canada held that a trial judge must apply “the air of reality test” to alternate suspect evidence. The air of reality test requires me to take the proposed evidence at its greatest strength, and to determine whether the record would contain a sufficient factual foundation for a properly instructed jury to give effect to the defence. The “air of reality” test is not intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of trial.
[43] Nor, does the alternate suspect evidence have to be direct. Evidence connecting the third party to the crime charged may be circumstantial. However, if the evidence is circumstantial, the inferences must be reasonable. Provided the inference advanced is one that is reasonably available on the evidence, the proponent of the evidence will have established that the evidence is relevant.
[44] The identity of the shooter is a live issue in this case. Mr. Browne must highlight evidence on the record that is reasonably capable of supporting the inferences required for the defence to succeed.
[45] I agree with counsel for Mr. Browne that he should be permitted to present to the jury that there is the possible involvement of an alternate suspect and this can raise a reasonable doubt about his guilt. I am satisfied that there is sufficient connection between Adeymi Ogunbitan and the crimes. The connection is based on the evidence and does not amount to speculation.
[46] Of course, Mr. Browne is not obligated to do anything and it is also true that the jury does not have to be satisfied beyond a reasonable doubt that Mr. Ogunbitan is on the video or was a party to first degree murder. On this motion, Mr. Browne simply has to introduce that Mr. Ogunbitan is sufficiently connected to these offences.
[47] For the purposes of this motion, Mr. Browne filed the preliminary hearing transcripts. I have reviewed these materials.
[48] Mr. Thompson is alleged to have been shot during the evening of November 1, 2012 in the parking lot behind 7230 Darcel Avenue in Malton, Ontario.
[49] There was no evidence of robbery. The Crown theory is that he was ambushed. Margaret Warner testified at the preliminary hearing that she saw three to four black males exit the building at Darcel and run to the car just prior to the shooting. However, the video filed by the Crown at the preliminary hearing only shows three individuals and it was conceded by the Crown that Mr. Browne was not one of the people on the video. If Margaret Warner testifies to this at the trial and the jury accepts that there were only actually three people at the scene, which is an available inference, then the fact that Mr. Browne is not on the video permits him to raise a reasonable doubt as to whether he was a party at all to the shooting, by suggesting that Mr. Ogunbitan may be on the video.
[50] Mr. Ogunbitan’s connection to the crime is supported by the cell phone records. At the preliminary inquiry, the Crown led evidence of the cell phone records of the accused on November 1, 2012. Throughout the day there was contact between all of the accused. Critically, there was phone contact between Mr. Browne’s cell phone and Mr. Ogunbitan’s cell phone just prior to the shooting (see Applicant’s Application Record, Tab 6, Preliminary Hearing, May 13, 2014 at p. 16). It appears that a phone associated to Mr. Ogunbitan was in the area of the shooting and was used to contact Mr. Williams and Mr. Browne. At around 9:57:53 p.m., both Mr. Ogunbitan’s phone and Mr. Browne’s phone appeared to be turned off because they did not receive any communications until a later point in time. The Crown alleges that the deceased was shot around this period of time.
[51] The evidence called at the preliminary hearing also suggests that the phones alleged to have been used by all three accused and Mr. Ogunbitan in the area of the shooting then converged after the shooting at an address in Toronto. Mr. Williams is connected to that address in Toronto.
[52] Moreover, as Ms. Morphew points out in her notice of application, Ms. Warner associated a white four door car to the assailants. She testified that all of the car doors were open, and the jury could find that this is indicative of the presence of four persons. While the Crown theory is that Mr. Browne is the shooter, the jury does not have to accept that this is the case. The jury can accept that Mr. Ogunbitan is connected to this crime, and I am of the view that there is an air of reality to the alternate suspect evidence. It is for these reasons that Mr. Browne's application to admit third party suspect evidence is granted.
III. Post-Offence Conduct
[53] Mr. Greensword and Mr. Browne move to prevent the Crown from leading the following pieces of evidence characterized as post-offence conduct:
One of the participants in the homicide was identified as having dreadlocks. The Crown says that Mr. Browne had dreadlocks before November 1, 2012 and cut his hair sometime after the shooting, at the urging of Mr. Greensword. When Mr. Browne was arrested in February 2013, his hair was cut short.
Cassandra Hudson, a girlfriend of Mr. Greensword around November 2012, told the police that in November of 2012 she visited Mr. Greensword in jail. At that time, Mr. Greensword directed her to tell Mr. Browne to cut his hair. The Crown concedes that this statement is only admissible against Mr. Greensword. As I understand their argument, it is the direction to Ms. Hudson that is relevant. Ms. Hudson allegedly made this assertion to the police in a videotaped interview of March 18, 2013. According to the Crown, that video has been lost by the police.
Cell phone numbers in use by the accused at the time of or before the offence were no longer in use after the murder, and Mr. Browne and Mr. Greensword had assumed new phone numbers.
[54] The Crown took the position that this motion should be deferred to a pre-charge conference. I disagreed with the Crown and decided that this application should be heard at this time, before trial. It is important to exercise a gate-keeping function to exclude prejudicial evidence that may cause a mistrial. Of course, prior rulings are always open to being revisited if the circumstances warrant it.
[55] Post-offence conduct or after-the-fact conduct is really circumstantial evidence. As a general rule, conduct by the accused person, occurring after the alleged crime has happened, is admissible if it is relevant to a live material issue in the case.
[56] To be admitted, the evidence must support inferences that the material fact in issue is more likely true, or less likely true.
Mr. Browne’s change of hairstyle
[57] The Crown submits that they will call Ms. Success Akonzee, the former girlfriend of Mr. Browne, to testify as to the state of Mr. Browne’s hair before the date of the offence. The Crown will then introduce a video and surveillance photographs of his hair after the date of the offence, to demonstrate that his hair was short.
[58] Ms. Morphew submits that she is prepared to concede that Mr. Browne does not look the same in terms of his hairstyle as he looked on November 1, 2012. However, defence counsel submits that the fact that the Crown cannot point to a specific date that Mr. Browne changed his hairstyle weakens any inference that Mr. Browne cut his hair to escape detention. Ms. Morphew submits that Ms. Akonzee appears to suggest that he cut his hair three weeks after the shooting, sometime in December. Therefore, the temporal connection between act of cutting his hair and the shooting is remote.
[59] This is a close call. However, I agree with the Crown that the temporal link, although weak, is not absent. The inference does not disappear because Mr. Browne cut his hair three weeks after the shooting, as opposed to one day after the shooting. Identity is a live issue in this case. The identity of the shooter and those at the scene is very much contested. Evidence about a change in Mr. Browne’s appearance after the shooting is material. There is one eyewitness to the shooting, Ms. Warner who may be able to describe the appearance and hair style of the shooter. That hair style of the shooter may match Mr. Browne’s hairstyle around the time of the offence. The appearance of Mr. Browne before the shooting and after the shooting is relevant to a live issue in this trial.
[60] Justice Doherty in R. v. Figueroa, 2008 ONCA 106, 58 C.R. (6th) 305 at para. 33 said the following:
As with any kind of circumstantial evidence, the inferences to be drawn from post-offence conduct will depend on the nature of that conduct, the fact that is sought to be inferred from that conduct, the position of the parties, and the totality of the evidence. Inference drawing is situation-specific and is not amenable to a set of preset rules that categorize certain kinds of post-offence conduct as always relevant to, or never relevant to, a particular fact in issue [emphasis added].
[61] In this specific situation, as a matter of human experience and common sense, Mr. Browne’s change in hairstyle is reasonably capable of supporting the inference that he was criminally involved in the death of Mr. Thompson. The jury could accept that Mr. Browne was at the scene of the shooting, saw the deceased with Ms. Warner and could have suspected that Ms. Warner was a witness to that shooting. Ms. Warner was not harmed by any of the men that she saw at 7230 Darcel. Indeed, Ms. Warner fled the scene with Shawn Edwards immediately after the shooting. A change in appearance from his distinctive hairstyle (dreadlocks) to a closely cropped hairstyle could be indicative of an attempt to escape detection by ensuring that he did not match any identification of Ms. Warner at the scene. That is not to say that his change in appearance is the only inference reasonably open to the jury. There may be other possible explanations but, at this point in the trial, not on this record. It is for the jury to decide which, if any, of the competing reasonable inferences should be drawn from the after-the-fact conduct.
[62] I conclude that the Crown may lead evidence that Mr. Browne’s hairstyle changed after November 1, 2012.
Mr. Greensword’s direction to Ms. Hudson
[63] Applying the same analysis, the specific inferences to be drawn from Mr. Greensword’s direction to Ms. Hudson are very strong. There are two inferences to be drawn. First, a direction by Mr. Greensword to Ms. Hudson to direct Mr. Browne to change his appearance is certainly evidence of association between the Mr. Greensword and Mr. Browne. This is important because it is a live issue as to who was at the scene of the shooting and the Crown theory is that both men are parties to the shooting. Second, once the association between both men is established, if the jury accepts that Mr. Greensword was ordering Mr. Browne to do something, his direction is an admission against interest that is admissible against him. It seems to me that the jury could accept that Mr. Greensword was directing Mr. Browne to change his hairstyle because he knew there was an eyewitness (Ms. Warner) and that Mr. Browne’s distinctive hair style should be changed to escape detection. The jury could find that Mr. Greensword ordered Mr. Browne to cut his hair because he was worried that he could also be identified if Mr. Browne was placed at the scene.
[64] It is for these reasons that the Crown (subject to the lost evidence ruling below) may also lead Cassandra Hudson’s evidence that Mr. Greensword directed Mr. Browne to cut his hair.
The Change in Phone Numbers
[65] Again, the question of whether the fact that both men changed their cell phone numbers after November 1, 2012 is one of relevance. I am of the view that the evidence is relevant. A jury could accept the inference that both men changed their cell phone numbers because they were involved in the shooting.
[66] The Supreme Court in R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, confirms that after-the-fact conduct can take many forms and that there are no closed categories. Examples of such conduct include fleeing from the scene or the jurisdiction, attempts to resist arrest, failure to appear at trial, acts of concealment such as lying, assuming a false name, changed of appearance, or attempting to hide or dispose of incriminating evidence (para. 19).
[67] The key issue here is relevance. In my view, it is very relevant that both men reported different phone numbers after the shooting. Of course there may be other inferences available at trial. However, at this point, I am satisfied that if the jury accepts that both men changed their phone numbers after the shooting, this may be viewed as an act of concealment or disposing of evidence. I observe that a very important part of this case is the use of cell phone communications between the accused, and between Mr. Greensword and the deceased.
[68] The Crown may lead evidence that the phone number of Mr. Browne and Mr. Greensword changed after the shooting.
IV. Lost Evidence
[69] Counsel for the accused argue that the evidence of Cassandra Hudson should be excluded because of a violation of their Charter rights. They argue that the police lost the DVD of her interview of March 18, 2013 with Cst. Wighton and this amounts to unacceptable negligence.
[70] The Crown concedes that the police lost the DVD of March 18, 2013. However, the Crown argues that there are substitutes to alleviate any prejudice to the accused. The Crown emphasizes that there is a handwritten and electronic synopsis of the interview. In the synopsis, there is a reference to Ms. Hudson’s assertion regarding the haircut.
[71] Cassandra Hudson was with Mr. Greensword on February 20, 2013 when he was arrested for the offence. On March 18, 2013 she was interviewed by Cst. Wighton. Another officer, Cst. Bird, was assigned to monitor the interview and ensure that it was recorded. Cst. Bird monitored the interview and made some non-verbatim notes. Neither officer has any substantive notes of the interview.
[72] During the testimony of both officers on this voir dire, they agreed that they were working as a team. Both officers took responsibility for the DVD.
[73] The file manager for this particular homicide is a very experienced officer – Detective Hackenbrook. He testified that he never received a DVD in relation to the interview.
[74] The DVD has never been disclosed to the accused. However, a document entitled a “video taped synopsis” has been disclosed. The synopsis addresses a number of topics. Again, the topics are addressed in a summary fashion. They include the following topics: (1) background information on MS. Hudson’s relationship; (2) personal opinions as to the contents of various photographs that were shown to her; (3) information about Mr. Greensword’s associates; (4) phone numbers and the use of phones; and (5) her knowledge of drugs and firearms.
[75] Ms. Hudson was never re-interviewed by the police after March 18. 2013. She was also not called as a witness at the preliminary hearing.
[76] It is the position of the accused that the DVD has been lost by unacceptable negligence. They advance the primary submission that if Ms. Hudson is called as a witness in this trial, their ability to effectively cross-examine Ms. Hudson has vanished. I note that on his application, the accused are not required to prove prejudice (i.e., that they cannot make full answer and defence) to establish s. 7 violation.
[77] However, in very able submissions, Ms. Morphew and Ms. Rozier argue the following factors should lead me to conclude that the accused have suffered actual prejudice as a result of the loss of the DVD:
(a) it is unknown, on this record, what actually came out of Ms. Hudson’s mouth on March 18, 2013 because the synopsis and notes are not verbatim accounts;
(b) it is unknown what the atmosphere of the interview and approach of the police (i.e. threatening and aggressive) was like;
(c) it is unknown if any leading questions were put to the witness by Cst. Wighton;
(d) it is unknown if there were any internal inconsistencies in her statement; and
(e) it is unknown whether the statement amounts to a prior inconsistent statement.
[78] The Crown argues that the logical conclusion from the evidence on this voir dire is that it appears to be that Cst. Bird lost the DVD. The Crown points out that there are no entries in the notes of the police officers about any mechanical issue with the recording of the DVD and the file manager Detective Hackenbrook testified that no DVD was ever turned over to him.
[79] The Crown acknowledges that given the frailties of human nature, occasionally evidence will be lost. However, the Crown points out that not every piece of lost or destroyed evidence results in a breach of the duty to preserve evidence. The Crown submits that there is no unacceptable negligence here and there is no evidence that the police deliberately set out to destroy the DVD.
[80] The Crown argues that Cst. Bird did not submit the DVD in a timely manner, the officer forgot about the DVD and that DVD was subsequently lost.
[81] The Crown submits that if I do find a breach of the s. 7 rights of the accused, then the remedy of exclusion of Ms. Hudson’s evidence is not appropriate. The Crown urges me to provide a remedy that is less drastic. Mr. Hendry argues that an instruction to the jury about the lost DVD and a subsequent instruction to the jury that this loss can be taken into account in their determination of Ms. Hudson’s credibility and reliability would be appropriate. The Crown also submits that it may be appropriate to order that Ms. Hudson be cross-examined in advance of trial to create a record of her evidence prior to her testimony before the jury.
[82] The law is not in dispute. Where evidence has been lost or destroyed, if Crown can satisfy trial judge that evidence not lost or destroyed owing to unacceptable negligence, the Crown’s duty to disclose has not been breached and there is no breach of s. 7. I do not think it can be seriously contested that the DVD has been lost. It has never been disclosed. Whether the DVD actually recorded the interview is not the issue. On this record, I do not make a finding that Cst. Bird and Cst. Wighton set out to interview Ms. Hudson without attempting to record it. I find that they did.
[83] The key question here is did the police take reasonable steps in the circumstances to preserve the DVD for disclosure? The perceived relevance of evidence at the time of loss is an important factor.
[84] The context of this interview is that the Peel Regional Police were investigating the most serious offence in the Criminal Code – murder. It seems to me that a number of resources were devoted to this investigation. At the time they took the statement from Ms. Hudson, both officers knew testified and agreed that this was relevant and very important evidence.
[85] Did the police take reasonable steps to preserve the DVD? It seems to me that the answer to that question is no. I am persuaded by the submissions of counsel for the accused that there is unacceptable negligence here. It has been established on this record from the testimony of Cst. Bird, Cst. Wighton, and Det. Hackenbrook that the DVD has not been disclosed.
[86] On this record, I am still not certain what happened to this DVD. The loss has gone unexplained. The accused has convinced me that the DVD has been lost due to unacceptable negligence to establish the breach.
[87] Det. Hackenbrook testified that he was not sure if a DVD was actually created. That is because he did not have a note of ever receiving a DVD from Cst. Bird. Det. Hackenbrook took responsibility for the fact that it was his job as the file manager to follow up with the officer and he admits that he did not do that in a timely fashion. It appears that the first time that anyone directed their minds to this lost DVD was at the preliminary hearing in March of 2014. Det. Hackenbrook accepted responsibility for the fact that the DVD was missing.
[88] While I acknowledge Det. Hackenbrook’s position, it seems to me that the conduct of Cst. Bird and Cst. Wighton, who were involved in the interview and responsible for submitting the DVD, should be examined closely here. Both officers have a very poor recollection of the events surrounding the interview. Although both officers testified as to the general practice of creating a DVD during an interview, both officers have no recollection as to what happened to this particular DVD.
[89] I find that the responsibility of submitting this DVD to Det. Hackenbrook was the responsibility of Cst. Bird. I did not find that officer to be an impressive witness. Clearly, Cst. Bird was a poor historian of the events and, as a scribe of the interview, did not take reasonable steps to preserve the DVD. Cst. Bird’s only answer as to why the DVD is missing is that he cannot recall leaving it for Det. Hackenbrook as part of his disclosure obligation.
[90] Again, on this record, I do not find that Cst. Bird and Cst. Wighton deliberately set out to interview Ms. Hudson without making a recording. However, the conduct of both officers during and after the interview was negligent. It was also unacceptable. It may very well be that Cst. Bird started to record the interview. I have no reason to find that he did not. However, what happens after the interview is unexplained. For whatever reason, no DVD was ever forwarded to Det. Hackenbrook and any explanation has not been shared with the Court.
[91] I acknowledge that during the course of any homicide investigation, officers carry out a number of important tasks. There is no question that officers conducting such investigations are busy and working under enormous strain and pressure. In this case there were many tasks. For example, Det. Hackenbrook as the file manager clearly had a number of interviews to collect and then to disclose to the Crown. If I was certain on this record that a DVD was actually disclosed to Det. Hackenbrook, I may very well have accepted the Crown argument that there was no negligence here.
[92] However, after hearing the evidence of Cst. Bird, it seems to me that there was a very lackadaisical attitude towards ensuring that a DVD of a witness statement taken during a homicide investigation had been properly preserved. I have no hesitation in making a finding that there was unacceptable negligence. The degree of care required to preserve this evidence was high given the seriousness of the charge, and Cst. Bird and Cst. Wighton failed to discharge their duties in relation to this interview by a wide margin.
[93] The DVD was relevant and the police conduct here was unreasonable, I find a breach of the s. 7 rights of the accused.
[94] Both accused seek a remedy of exclusion. I am not persuaded by their submissions that this is on the only remedy available. The nature of any remedy is dependent on the impact resulting from the loss of evidence. It seems to me that the biggest impact is that the accused lose the value of the DVD as a tool to potentially impeach Ms. Hudson’s credibility if she is called as a witness.
[95] A factor to take into account here is that even with the loss of the DVD, the defence did not pursue this disclosure immediately and did not seek to call Ms. Hudson at the preliminary hearing. Up to that point, Mr. Browne was represented by different counsel. Indeed, it appears that Mr. Browne only asked for a copy of the DVD on November 12, 2015. When he made the request, Mr. Browne had only recently retained Mr. Bryant and Ms. Morphew. Mr. Browne’s former counsel did not make the request for the DVD up to and after the preliminary hearing. This is a factor that is relevant to the issue of remedy.
[96] Section 24(1) of the Charter allows me to grant a remedy that I consider ‘appropriate and just in the circumstances.’
[97] In my view, exclusion is too drastic of a remedy. I do not think that the loss of the DVD will compromise the fairness of the trial if I can put the accused in the same position they would have been if the DVD had not been lost.
[98] Therefore, I agree with the Crown that remedies that are short of exclusion are warranted here. Any remedy that I grant should include the following.
[99] First, a direction to the jury that relevant evidence has been lost and they may very well draw an adverse inference against the Crown for failing to preserve the evidence.
[100] Second, an opportunity for the accused to cross-examine Ms. Hudson in the jury’s absence to create a record for impeachment purposes. There is no question that had she been called at the preliminary hearing, she would have been cross examined. Therefore, I am satisfied that a process that includes an examination to “discover” her evidence is warranted.
[101] Third, an opportunity to cross-examine the police officers involved in the loss of the DVD to demonstrate to the jury that an adverse inference can be drawn for the failure to preserve relevant evidence.
[102] Finally, an instruction to the jury on the failure to preserve evidence that is relevant to Crown’s obligations and the burden of proof in a criminal case (see: R. v. Bero, 2000 16956 (ON CA).
[103] The application to exclude the evidence of Ms. Hudson is dismissed. While I agree that the police conduct was unacceptable, exclusion of the evidence is not the appropriate remedy. The alternative remedies to cure any prejudice are the following.
[104] First, I will order that Ms. Hudson attend court and be examined by all counsel in the absence of the jury. This will assist counsel for the accused in creating a record for impeachment purposes. It will also provide a preview of what Ms. Hudson will testify to.
[105] Second, if requested by the defence, the Crown will also call the police officers involved in the taking of the statement (Cst. Bird and Cst. Wighton) and the file manager (Detective Hackenbrook) to explain the loss of the video.
[106] Finally, I am prepared to instruct the jury along the lines of Doherty J.A.'s comments at para. 67 in R. v. Bero: that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the video before it was lost.
V. Crown’s Discreditable Conduct Application Re: Mr. Browne
[107] The Crown seeks admission of evidence relating to Mr. Browne's possession of and pointing of a handgun at former girlfriends. The Crown says the probative value of the evidence exceeds its prejudicial effect.
[108] The Crown's theory is that Mr. Browne was the triggerman and that he shot Mr. Thompson.
[109] The Crown seeks to lead evidence from two former girlfriends of Mr. Browne: Success Aknozee and Cashma Charlery.
[110] In a police interview on January 4, 2013, Ms. Aknozee stated that Mr. Browne pointed a firearm at her earlier that day after a dispute arose. She said that three weeks earlier, she had seen him with another firearm and he had also shown it to her in a FaceTime conversation.
[111] Ms. Aknozee partially recanted this allegation at the preliminary inquiry.
[112] In a police interview on February 21, 2013, Ms. Charlery said that she started a relationship with Mr. Browne on November 13, 2012. During their relationship, she saw him with two different handguns. She described one as a "grandfather" gun and the other as a modern gun. She could not provide a specific time but it is clear that she was alleging that she saw Mr. Browne with firearms during a time period of two to three months after the offence.
[113] The Crown argues that the evidence is relevant and material to the trial as it can establish the following facts:
Mr. Browne had access to handguns
Mr. Browne had pointed a firearm at another person
[114] The Crown says each fact goes to the issue of the identity of the shooter.
[115] Ms. Morphew acknowledges that Mr. Browne was in a relationship with Ms. Akonzee and Ms. Charlery. However, she argues that the evidence has no probative value.
[116] The law is not in dispute. Bad character evidence is presumptively inadmissible and the onus is on the Crown to show on a balance of probabilities that the probative value of the similar fact evidence outweighs its potential for prejudice.
[117] Is the evidence material? In my view, the evidence is material in several ways. It relates to the following issues: (i) the Crown theory that Mr. Browne is the shooter; and (ii) rebuttal of a potential defence of that he was not at the scene or the shooter. In other words, this evidence addresses the issue of identification.
[118] The Crown argues that in the immediate aftermath of the offence, the fact that Mr. Browne had access to firearms leads one to the conclusion that the evidence is probative. As I understand his argument, Mr. Hendry submits that the Crown is not seeking to elicit evidence of Mr. Browne’s access to firearms in the distant future. Counsel argues forcefully that the closer to the date of the shooting the stronger, the inference is that he possessed a gun on the evening of the shooting and used it to kill Mr. Thompson.
[119] The jurisprudence filed by counsel on this application is exhaustive. I do not need to repeat at length the specific cases. However, some common principles can be extracted from these cases.
[120] First, I must be a judicial gatekeeper when assessing this application. Second, I must consider the strength of the evidence that the Crown seeks to tender. Third, I must consider to what extent does the proposed evidence support the inference sought to be made from it. Finally, I must consider to what extent the matters, to which the evidence tends to prove, are at issue in the proceedings.
[121] When assessing the prejudicial effect I should examine the following:
(i) How discreditable is the evidence?
(ii) To what extent does it support an inference of guilt based solely on bad character?
(iii) To what extent does it confuse issues?; and
(iv) What is the accused’s ability to respond to it?
[122] It should be emphasized that prejudice in this context does not mean that the evidence might increase the chances of conviction, but rather that the evidence might be improperly used by the trier of fact.
[123] Evidence of bad character of an accused is prima facie inadmissible; however, if it is adduced for a purpose other than to support the inference that the accused is guilty by reason of his bad character, this evidence would be admissible if its probative value outweighs its prejudicial effect.
[124] After examining the materials filed, I have come to the following conclusions.
(1) The evidence of guns is not strong since it is admitted by former girlfriends. One of them has recanted on a previous occasion. I also find that the statement made by Ms. Charlery is somewhat vague and the FaceTime photograph is blurry. One cannot make out clearly what is in that photograph.
(2) While evidence that Mr. Browne may carry or have access to guns is relevant to the issue of whether he had a gun on the date of the shooting, it does not greatly support that inference. Evidence of the accessibility of guns by him in general does not necessarily lead to the conclusion that Mr. Browne had access to a gun on that particular day. It is an inference which can be drawn but it is not a particularly strong one. At best, this evidence demonstrates that he had access to guns two or three months after the shooting.
(3) The issue of whether Mr. Browne was in possession of a firearm on November 1, 2012 is a significant issue in this trial. While the proposed evidence is relevant to a significant matter at trial, the extent to which it supports the inference sought to be drawn by the Crown is somewhat tenuous. It is important to point out that the Crown intends to call Margaret Warner who can directly testify concerning the circumstances of the shooting. That evidence, if believed, is far more compelling than the fact that he may have had access to guns two to three months after the event, in proving that he had a gun on his person on November 1, 2012, and ambushed and killed Mr. Thompson.
Prejudicial Effect
[125] The proposed evidence may be highly discreditable to the accused when put before a jury. Evidence of his access to firearms and actually threatening his girlfriends is an extremely discreditable assertion.
[126] The fact that he had access to firearms two to three months after the shooting creates the real risk of an inference of guilt being drawn against Mr. Browne based solely on bad character.
[127] The fact that the proposed evidence comes from two of his former girlfriends requires the need for the accused to respond to it. However, I agree with Ms. Morphew’s submission found at para. 33 of her Notice of Response (see May 18, 2016, Exhibit B, Tab 1) that the admission of this evidence effectively forces Mr. Browne to provide the proper evidential context to evaluate the proposed evidence. This may result in applications to introduce the co-accused and Mr. Ogunbitan’s access to, use of and possession of firearms. This has the potential to distract the jury from its ultimate task. I agree that if I allow the Crown’s application, the jury may have to understand that possession of a firearm is not a discriminating feature of this subset of the population.
[128] I conclude that the admission of the proposed evidence has significant prejudicial effect. This evidence has the risk of portraying Mr. Browne as an armed and dangerous man and may lead a jury to improperly infer his guilt based on general evidence about his use of guns. While this risk may be reduced by a specific limiting instruction to the jury, I am of the opinion that the evidence should be excluded on the basis that its prejudicial effect far outweighs its tenuous probative value.
[129] The Crown's application is dismissed.
VI. Calling Detective Duivestyn Multiple Times
[130] The Crown seeks permission to call Detective Duivesteyn multiple times during their presentation of the case. The officer is a member of the Forensics Identification Service (FIS) and was involved during the entire investigation. The officer's role included examining numerous cars, clothing and taking a sample of Mr. Browne's DNA.
[131] The Crown proposes to call the officer to the witness stand up to three separate times in order to assist the jury in understanding the evidence as it is presented.
[132] The defence rely on Nordheimer J.’s decision in R. v. Lucas, 2009 69335 (ONSC).
[133] This is really a question of trial management. It seems to me that I should not dictate how the Crown should present their case except in rare circumstances. I do not find that proceeding in the manner that the Crown seeks to call this officer will result in any prejudice to the accused. I also dismiss the application for the following reasons.
[134] First, counsel knows his brief better than I do. I do not know the nuances of the evidence of this witness and I do not know counsel’s strategies on this evidence.
[135] Second, I should defer to the decisions of all counsel in relation to the manner of presentation because I am not the trier of fact in this trial. Counsel should be granted considerable leeway to choose the manner and method of presenting their case in order to persuade the jury.
[136] The application is granted. However, Crown counsel will produce a brief outline to the Court and the defence in advance of calling the witness. The outline will include a breakdown of which areas the witness will testify about on a particular day.
[137] The Crown also seeks an order that if a party wishes to re-examine the officer on any area that has already been covered on a previous occasion, then the party would have to seek leave of the court prior to recall. At this time, I decline to make a specific order. Such an order prematurely restricts the ability of defence counsel to cross-examine a witness as they see fit. Of course, once cross-examination takes place, a trial judge has the right to restrict cross-examination that is repetitive.
Coroza J.
RELEASED: July 31, 2017
CITATION: R. v. Browne, 2017 ONSC 4615
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; Michael Moon and Nicole Rozier, for Mr. Greensword; and Maureen Addie, Counsel for Mr. Williams
REASONS FOR PRE-TRIAL RULINGS
COROZA J.
RELEASED: July 31, 2017