CITATION: R. v. Browne, 2017 ONSC 5053
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 03 06
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
ENDORSEMENT
Factual Overview
[1] Mr. Browne is charged with first degree murder. The Crown theory is that Mr. Browne shot Dwayne Thompson, on November 1, 2012. Mr. Thompson was found dead at the scene of the shooting; the police seized two cellular phones belonging to him.
[2] One of the phones (with the phone number 416-312-3225) contained a contact list. One of the contacts was "CJ" with a phone number of 647-204-8942.
[3] The 8942 number was activated on September 7, 2012, and was in contact with the 3225 number on October 18, 20, 29, and 31, 2012 and November 1, 2012.
[4] The Crown submits that the CJ on this contact list is not Mr. Browne. There is evidence that Mr. Browne is also known as CJ. However, the Crown points out that Mr. Browne was in custody between 2010 and October 20, 2012 and he had no access to any cell phones at that time.
[5] A Crown application to exclude the phone contact CJ from the 3225 records was dismissed by me on February 13, 2016.
[6] All counsel agree that they would prefer to avoid references at trial to Mr. Browne being held in custody for almost two years. In order to prohibit this evidence from being introduced, counsel for Mr. Browne is prepared to admit that Mr. Browne was out of the area for two months up to October 20, 2012 and that while he was away he did not have access to a cell phone.
[7] The Crown is prepared to accept the admission. However, the Crown submits that Mr. Browne should admit that he was away for a longer period of time. Without this admission, the Crown submits that it has no choice but to call evidence that Mr. Browne was actually away from 2010 to October 20, 2012 and he had no access to a cell phone because he was in jail.
[8] Counsel for Mr. Browne objects.
[9] On February 16, 2016, I released the following short endorsement:
"For written reasons that will be delivered at a later date, I am not persuaded by the Crown submission that an extended period of Mr. Browne not having the ability to use a cellphone is relevant. Even if I am wrong, the cost of introducing such evidence outweighs any benefit. It would require the Crown to lead evidence that Mr. Browne was in custody and evidence as to access to cell phones in jails. In my view, at this stage of the trial, this is prejudicial."
[10] As promised, these are my further written reasons.
The Purpose of this Evidence
[11] One of the pillars of the Crown case against Mr. Browne is DNA evidence. Mr. Browne cannot be excluded as a source of DNA found on Mr. Thompson's fingernails. The Crown theory is that this is a piece of evidence that would permit the jury to infer that he was involved in a first degree murder as a principal.
[12] Counsel for Mr. Browne has challenged the reliability of this evidence. Furthermore, counsel has confirmed with the Crown witness from the Centre of Forensic Sciences that she cannot provide an opinion as to when the DNA was placed on the fingernails or what method of transfer occurred. Indeed, a great deal of time was spent cross-examining the witness on the concept of secondary transfer.
[13] As I see it, the Crown is concerned about a submission that could be made by the defence that there is an innocent explanation for the presence of Mr. Browne's DNA on the fingernails. In order to confront this potential submission head on, the Crown asserts that the two men were not known to each other prior to the shooting. Indeed, the Crown led evidence from Mr. Browne's ex-girlfriend that she did not recognize a picture of the deceased, Mr. Thompson.
[14] The presence of a contact number attributed to "CJ" on the 3225 number is important evidence on this issue. The defence may submit that "CJ" is in fact Mr. Browne and that he had a prior relationship with the deceased. The defence may then argue because they had a prior relationship there may be an explanation for the DNA. In other words, this evidence could raise a reasonable doubt.
[15] It is quite understandable why the Crown would attempt to call evidence to refute that claim.
Extended Period of Non-Access is Irrelevant
[16] There are five potential numbers that are associated to Mr. Browne, which is of significance to the Crown's case.
647-862-9200 (activated September 3, 2012) (Exhibit 87)
647-438-0056 (activated September 10, 2012) (Exhibit 110)
647-537-2507 (activated November 8, 2012) (Exhibit 86)
647-537-4060 (activated November 8, 2012) (referenced in the testimony of Success Akonzee, Mr. Browne's ex-girlfriend)
647-204-8942 (activated September 7, 2012) (the number relevant to these reasons, referenced in the Contact List of Exhibit 7 and 7A)
[17] I agree with Ms. Morphew that the 2507 and 4060 numbers are of no significance in relation to the issue. These phones were activated after the homicide and when Mr. Browne was out of custody.
[18] The Crown theory is that Mr. Browne was using the 9200 phone at the time of the alleged murder. The Crown has led evidence of that phone hitting off cell phone towers in the Darcel area around the time of the shooting. The 0056 phone appears to be another phone that Mr. Browne was using, according to the testimony of his ex-girlfriend who was confronted with the records of this phone (Exhibit 110). Ms. Akonzee testified that she believed that this phone was texting her on October 31, 2012 and that she was having a conversation with Mr. Browne.
[19] The controversy lies with the CJ contact number (8942) in the deceased's phone (3225).
[20] The Crown's position comes down to this: If the jury understands that Mr. Browne was away for two years as opposed to a couple of months, the jury is more likely to find as a fact that Mr. Browne was not using three phones upon his return and therefore the jury would be less likely to find that Mr. Browne was the user of the 8942 number.
[21] I agree with the Crown that relevance is a matter of everyday experience and common sense. I also agree with the Crown that we assess relevance in the context of the entire case and the positions of counsel.
[22] In my view, the Crown argument that "the greater the amount of time that [Mr. Browne] is away, the greater the inference that he was the CJ being referenced in [Mr. Thompson's phone] is misplaced.
[23] I am not at all convinced that this assertion is a matter of logic or human experience. I am not convinced that the greater the time away, the less likely that Mr. Browne would not use three phones at the same time or in succession. There is no connection or nexus between the length of time that Mr. Browne was away and the number of phones he may have used after his release. In my view it is not possible to infer the existence of one fact from the existence of the other. [R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709 at p. 731.]
[24] As I see it, the Crown's argument has always been that any defence attempt to suggest that the CJ found on the contact list of Mr. Thompson's phone is Mr. Browne is misleading. It is misleading, the Crown argues, because Mr. Browne who is also known as CJ was in jail from 2010 to October 20, 2012.
[25] As I set out in my previous ruling, this issue is one of authentication. In other words, who actually sent the messages and made contact in October is a live issue. The Crown submits that the jury should accept it could not have been Mr. Browne.
[26] In my view, the issue refers to a very specific time frame. Was Mr. Browne sending or calling the deceased on October 20, 29, 31 and November 1? Indeed, the Crown can point to the fact that the phone was activated on September 7 and there is an admission that Mr. Browne did not have access to a cell phone in September up to October 20, 2012 because he was out of the area. Of course, the defence may point to the fact that after October 20, 2012 he had access to a cell phone. It will be up to the jury to decide if there is evidence that Mr. Browne was the CJ using that phone. No doubt, the parties will point to this evidence in their closings.
[27] Given the very narrow time frame of the activation of the 8942 number and communications with Mr. Thompson, it is my respectful view that to expand the time frame of admitted non-access is not relevant to the positions of the parties and the context of the entire case.
Is it Worth Hearing This Evidence?
[28] If I am wrong in my assessment of relevance, I would still prohibit the Crown from calling this evidence at this stage of the trial. Trial judges do have the discretion to exclude relevant, material and otherwise admissible evidence where the prejudicial effect of the evidence exceeds its probative value.
[29] If I were to permit the Crown to call this evidence, I am of the view that the costs to this trial would outweigh the perceived benefit. As I understand the perceived benefit, the Crown wants to ensure that their submission to the jury that CJ on Mr. Thompson's phone could not be Mr. Browne is strongly supported by the a lengthy period of time away. Again, given the narrow time frame that this phone was in use, it seems to me that the Crown can still make that argument with reference to the admission that he did not have access to the cell phone for two months, which would include the activation date of the number.
[30] On the other side of the ledger, there are significant costs if I permit this evidence to be led by the Crown.
[31] The first is the impact on trial time. I do not share the Crown's optimism that this evidence can be called quickly. While a record clerk can testify as to the dates that Mr. Browne was in custody, I suspect that such a witness could not give evidence as to the ability of a prisoner to access a cell phone or the inner workings of "three way calls" in the custodial facility. I agree with Ms. Morphew's submission that calling a record keeper would not establish that Mr. Browne could not have had access to a cell phone. Other witnesses would potentially have to be called. The jury would be listening to an issue that would consume more time in an already lengthy trial that has proceeded sporadically over the last six months.
[32] The second concern is that the evidence must reveal to the jury Mr. Browne was in jail. Up to this point all counsel have responsibly and fairly stayed away from that fact. Ms. Akonzee was carefully examined by the Crown and all counsel without reference to the fact that Mr. Browne was in jail. At this point in the trial, if counsel were to now reveal that Mr. Browne was in jail, I am concerned that the jury would perceive that they were misled in some fashion.
[33] The third concern is that the jury may feel that being in jail for two years is a serious matter. While the ability of a trial judge to craft a limiting instruction to alleviate any prejudice cannot be denied, I agree with Ms. Morphew that there is a risk that the jury would infer guilt from general disposition or propensity. Given the timing of this issue, I am concerned that to introduce this fact at this point in the trial could overwhelm the jury and, notwithstanding the ability to deliver a limiting instruction, would distract them.
Conclusion
[34] Evidence which is directly relevant to the Crown's theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect. In my view, the probative value of introducing the fact that Mr. Browne was in custody between 2010 and 2012 does not outweigh the prejudicial effect.
[35] I would prohibit the Crown from leading evidence of his greater period of non-access.
Coroza J.
DATE: March 6, 2017
CITATION: R. v. Browne, 2017 ONSC 5053
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 03 06
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
ENDORSEMENT
COROZA J.
DATE: March 6, 2017