CITATION: R. v. Browne, 2017 ONSC 5066
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 10
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, for Mr. Williams
ENDORSEMENT
[1] Over the last few days, in order to keep things moving, I have made a number of short rulings delivered orally in court. I promised I would release written reasons to the parties when time permitted. These are the reasons.
[2] This endorsement covers the following topics:
(i) Eliciting Admissions of Accused during Cross-Examination
(ii) Conversion of Two Photographs from Lettered Exhibits to Numbered Exhibits
(iii) The Proper Scope of Re-Examination by Crown Counsel
(iv) The Proper Scope of Cross-Examination by Defence Counsel
Eliciting Admissions of Accused during Cross-Examination
[3] The Crown called Mr. Farah Saeed. Mr. Saeed rented out a basement to Mr. Greensword in November 2012.
[4] During cross-examination, Ms. Rozier confirmed with the witness that Mr. Saeed communicated with Mr. Greensword by phone.
[5] Mr. Saeed confirmed he gave a statement to the police during their investigation. However, he could not recall if he gave Mr. Greensword’s phone number to the police.
[6] When Ms. Rozier attempted to refresh the memory of the witness with his prior statement, the Crown objected. Mr. Hendry submitted the Crown had not led any evidence of a phone number in examination-in-chief. Since the Crown had not led this evidence, he took the position that Ms. Rozier was improperly eliciting an admission of the accused that was improper.
[7] I agreed with the Crown position.
[8] There is, in my view, a long line of authority that stands for the proposition that self-serving or prior consistent admissions made by an accused are not admissible during the cross-examination of a third-party witness called by the Crown.
[9] The rationale for the rule against introducing self-serving statements made by an accused during cross-examination of third parties is that of fairness. If an accused were permitted to lead admissions through a third-party witness, they could not themselves be tested by cross-examination on these admissions.
[10] There are exceptions to this rule. For example, the evidence may be admissible if the admission or statement could be said to be a “res gestae” or spontaneous statement. (See the review of the authorities in R. v. Edgar, 2010 ONCA 529, at paragraph 30).
[11] In my view, to allow Ms. Rozier to introduce this phone number to advance Mr. Greensword's defence runs contrary to the controlling authorities. The provision of the phone number to Mr. Saeed is an admission. There is no evidence that this admission falls into one of the recognized exceptions. If counsel wishes to introduce the phone number that was given to Mr. Saeed, it must be introduced during the presentation of defence evidence.
Conversion of Two Photographs from Lettered Exhibits to Numbered Exhibits
[12] Success Akonzee is Mr. Browne’s former girlfriend. During the examination-in-chief of Ms. Akonzee the Crown showed her two photographs.
[13] The first photograph depicted the deceased, Dwayne Thompson. Ms. Akonzee testified that she did not recognize Mr. Thompson.
[14] The second photograph depicted Adrian Williams. Ms. Akonzee testified that she believed that Mr. Williams was an associate of Mr. Browne and that she saw him in the presence of Scarface, but she could not recall where she had made this observation.
[15] She acknowledged that the police had previously shown her these photographs and she recognized her initials on the back of each photograph.
[16] Mr. Bryant submitted that the photographs should remain marked as lettered exhibits as opposed to numbered exhibits. Counsel argued there was no basis to make them numbered exhibits.
[17] I ruled that both lettered exhibits should become numbered exhibits.
[18] In summary, I am satisfied that both photographs are relevant to a fact in issue in the proceeding and have a sufficient measure of authenticity to warrant their inclusion in the exhibits for the jury.
[19] The relevance of the first photograph is that the jury could conclude that Mr. Browne and the deceased were not known to each other. The jury could accept the Crown’s argument that since Ms. Akonzee and Mr. Browne were in a relationship around October and November 2012, she would have met his friends and associates. As I understand the Crown argument, the significance of her non-identification is that it establishes that Mr. Browne and the deceased were not friends or acquaintances. This could be important in their assessment of whether there is an innocent explanation (such as prior contact) for the presence of Mr. Browne's DNA on the deceased's fingernail clippings.
[20] I am not saying that the jury will accept the inference that the Crown wishes it to draw. However, whether the jury accepts the inference is not a question of admissibility of this evidence. In my view, the photograph should be part of the trial record for the jury to consider.
[21] The relevance of the second photograph is that of association. The Crown’s theory is that Mr. Williams was involved in the shooting death of Mr. Thompson. Evidence of association may be used by the jury as a piece of circumstantial evidence. Again, the weight of this evidence may be very light. However, that is not a factor relating to the admissibility of this photograph.
[22] I am also satisfied that the witness was able to provide some evidence of authenticity. With respect to the first photograph, Ms. Akonzee acknowledged that she was shown the photograph on a prior occasion. She recognized her initials on the back of the photo. The witness acknowledged that she told the police she did not recognize the individual. The value of the photograph is that it purports to show someone who she has never recognized. In my view, this provides a sufficient foundation authenticating the photograph. There is no evidence that the photo was altered in any way. It is up to the Crown if they want to call further evidence to establish that the photograph depicts Dwayne Thompson. I observe that the jury has already been shown autopsy photographs of Mr. Thompson and a video of Mr. Thompson in the lobby of the Darcel building. The jurors are entitled to compare all of this evidence and draw their own conclusions.
[23] With respect to the second photograph, Ms. Akonzee testified that she was shown this photograph on a previous occasion. She recognized her initials on the back of the photograph. Again, she testified that she recognized the individual in the photograph as an associate of Mr. Browne. There is no evidence that this photograph has been tampered with or altered. This evidence is more than enough to establish authenticity.
[24] It is for these reasons that I conclude that these photographs are relevant to a fact in issue in the proceedings and have a sufficient measure of authenticity to warrant their inclusion in the trial record as numbered exhibits.
[25] However, edited copies of the photographs should be produced before these photographs go into the jury room. There is writing on the back of one of the photographs that could be prejudicial to the accused. The Crown did not object to edited copies being provided to the jury.
Proper Scope of Re-Examination by the Crown
[26] At the conclusion of cross-examination of Ms. Akonzee, Mr. Hendry requested a ruling from the court that he was entitled to explore two specific areas during re-examination.
(i) Previous Phone Numbers Used by Mr. Browne
[27] First, the Crown sought to permission to question Ms. Akonzee about whether she had knowledge of other phone numbers Mr. Browne may have used. According to Mr. Hendry, Ms. Akonzee provided these phone numbers in a prior statement in January 2013.
[28] Ms. Akonzee, during cross-examination by Ms. Morphew, testified that during October and November 2012 she used to speak with Mr. Browne on a cellphone. She also confirmed that they would exchange text messages. She testified that Mr. Browne would talk with her using different numbers.
[29] Mr. Bryant and Ms. Morphew objected to the proposed area of re-examination. Counsel argued that the Crown was effectively splitting their case. Mr. Bryant submitted that this area could have been covered in examination-in-chief.
[30] In my view, the Crown is not splitting their case. The purpose of the rule prohibiting the Crown from splitting their case is to prevent surprise, prejudice or confusion to defence counsel. In my view, this is not what the Crown is attempting to do. The area that Mr. Hendry wishes to explore is well within the proper scope of re-examination. I say this for the following two reasons.
[31] First, the general purpose of re-examination is an attempt by a party to clarify or explain answers given in cross-examination that are relevant. The proposed area is an attempt to unpackage the answer provided by Ms. Akonzee during cross-examination. The jury is entitled to know if Ms. Akonzee can identify the phone numbers.
[32] Second, the issue of phone numbers was raised by Ms. Morphew in cross-examination, with great emphasis placed on a specific phone number reflected in Exhibit 110 (Telus Phone records). The theme of her cross-examination on these records was to suggest to Ms. Akonzee that she was communicating by text message with Mr. Browne on October 31, 2012. Ms. Akonzee agreed with that suggestion.
[33] Essentially, Ms. Morphew has put the Crown on notice that which numbers were used by Mr. Browne is a live issue. Therefore, the Crown is permitted to respond to this issue by asking the witness if she recalls the specific phone numbers that were used by Mr. Browne in October and November of 2012. The Crown is entitled to clarify and elicit what those numbers were.
(ii) Circumstances of the Identification of Scarface
[34] The Crown theory is that Mr. Greensword is Scarface. The theory of the Crown is that the deceased was lured to 7230 Darcel by someone named Scarface to complete a drug transaction. Ms. Akonzee testified that she recognized Mr. Greensword as being Scarface. She also testified that she had met Scarface on one previous occasion.
[35] Ms. Akonzee was shown photographs of Mr. Greensword by the police on a previous occasion and she identified the individual in the photographs as Scarface, an associate of Mr. Browne. During her cross-examination Ms. Rozier took the witness carefully through the circumstances of her identification.
[36] Mr. Hendry submits that the cross-examination by Ms. Rozier was misleading. He argues that there is more to Ms. Akonzee’s identification than being shown a photograph by the police and an identification based on one meeting. Mr. Hendry argues that the jury is entitled to know the other reasons Ms. Akonzee gave to the police during her interview of March 13, 2013. The Crown submits that in her prior statement, Ms. Akonzee explained to the police that she heard Scarface had been in jail and was an associate of Mr. Browne. Mr. Hendry took me to passages of the statement that provide a more fulsome explanation of the circumstances of her identification of Scarface.
[37] After reviewing these passages, I am not persuaded by the Crown's submissions.
[38] In my view, references to the specific passages in the March 13, 2013 statement do not add anything to Ms. Akonzee's identification. It is not clear to me after reading these passages whether this information about Scarface being in jail came to her firsthand or is from another source. If it came from another source, it is arguably hearsay. In any event, the content of the passages I was directed to adds nothing to the identification narrative. The references to Scarface add nothing to her assertion that she only met Scarface once. The circumstances of that meeting have been covered exhaustively by Ms. Rozier in cross-examination.
[39] In my view, this proposed area of re-examination is more prejudicial than it is probative.
Introduction of Investigative Hearsay
[40] Cst. Cutler was called by the Crown. The witness was taken to specific dates of the investigation.
[41] During cross-examination by Ms. Rozier, the witness confirmed that he had attended the scene of the shooting at 7230 Darcel Avenue in November 2012. He also confirmed that he was assigned to speak to individuals who lived there. Specifically, the officer acknowledged that he spoke to Jerome Parchment and Wayne Lindsay. Ms. Rozier submitted that the jury should be permitted to hear what occurred during these conversations. Stripped to the essentials, both of these individuals told the police that they are familiar with Dwayne Dixon, who is also known as Scarface.
[42] The Crown objected to the introduction of this evidence. I ruled that this was inadmissible hearsay and could not be elicited by Ms. Rozier.
[43] What is the relevance of the name Dwayne Dixon who allegedly goes by the name Scarface? Presumably, it could cause doubt as to whether the Crown theory is correct. Again, the theory of the Crown is that it is Mr. Greensword who is the Scarface that lured Mr. Thompson to his death. Evidence that tends to show that a specific, known third party was a perpetrator of the crime is relevant to raise reasonable doubt about the guilt of the accused.
[44] However, to be admissible there must be other evidence that links a third party to the offence. Otherwise, evidence about a third party has no probative value and is inadmissible. Where the defence plans to allege a third party suspect, the proper procedure is to hold a voir dire: (See R. v. Dhillon (2002), 2002 CanLII 41540 (ON CA), 166 C.C.C. (3d) 262 (Ont. C.A.).)
[45] Ms. Rozier’s questions were improper. Counsel has never brought an application to hold a voir dire into the admissibility of this evidence. If I permitted this line of questioning there would be a significant risk to the accused. The jury has never heard of Dwayne Dixon up to this point. If I were to permit this line of questioning, it seems to me that I would have to give the Crown an opportunity to introduce evidence of further investigative hearsay and elicit police officers' opinions to explain how the police came to the conclusion that it was Mr. Greensword who should be arrested.
[46] To allow this question risks turning the cross-examination into a “third party suspect” application. At this stage of the trial, this is prejudicial because the issue could not be explored in an orderly manner fair to both sides. It could also confuse the jury. It is for these reasons that I prohibited Ms. Rozier from going further in this area.
Coroza J.
DATE: February 10, 2017
CITATION: R. v. Browne, 2017 ONSC 5066
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 10
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, for Mr. Williams
ENDORSEMENT
COROZA J.
DATE: February 10, 2017