R. v. Browne, 2017 ONSC 5796
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 08 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Alex Cornelius and Greg Hendry, for the Crown
- and -
STEVEN BROWNE, AMAL GREENSWORD and ADRIAN WILLIAMS
Anthony Bryant and Anne Marie Morphew, for Mr. Browne
Nicole Rozier and Leah Gensey, for Mr. Greensword
Maureen Addie and Jamie Kopman, for Mr. Williams
HEARD: Sept 12, 2016 to July 31, 2017
REASONS FOR RULINGS (CHARGE TO THE JURY)
COROZA J.
[1] The accused were charged with first degree murder. Jury selection began the week of September 12, 2016. The trial ended on July 31, 2017, when I sentenced Mr. Browne and Mr. Greensword.
[2] Before my charge to the jury, I held a number of pre-charge conferences. I released an endorsement dealing with some of the objections to the charge on March 8, 2017.
[3] After closing submissions, when I heard objections from counsel, I undertook to provide complete written reasons on some of the issues raised.
[4] The reasons that follow are the final written reasons pertaining to the remaining issues that were raised about my charge to the jury and closing submissions.
Trial Overview
[5] The three accused, Mr. Steven Browne, Mr. Amal Greensword, and Mr. Adrian Williams, were charged with first degree murder relating to the death of Dwayne Thompson on November 1, 2012.
[6] The Crown's theory was that Mr. Greensword set up a drug deal with Mr. Thompson. The deal was supposed 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 observed some males running to a white car.
[7] When Scarface did not show, Mr. Thompson and Ms. Warner decided to leave. On their 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 alleged that Mr. Thompson’s murder was planned and deliberate.
[8] The Crown alleged that Mr. Browne was the shooter, Mr. Greensword was Scarface, and Mr. Williams was at the scene and aided Mr. Browne and Mr. Greensword.
[9] The jury returned a verdict on March 24, 2017. The jury found Mr. Browne and Mr. Greensword both guilty of manslaughter. Mr. Williams was found not guilty. On July 31, 2017, I sentenced Mr. Browne to 96 months of imprisonment and Mr. Greensword to 102 months of imprisonment.
Ruling 1: Jury Instructions Regarding Ms. Warner’s Hearsay Evidence
(i) Overview
[10] The Crown called evidence from Gilbert Johnson. Mr. Johnson’s evidence linked Mr. Greensword to a white rental car around October 31, 2012. The shooting occurred on November 1, 2012. The unique feature of the white car was its licence plate. Since it was a rental car, the plate affixed to the car was from Prince Edward Island. Cst. Cutler seized the car after he was given the rental agreement by Mr. Johnson.
[11] The Crown alleged that this white rental car is the same car that can be seen on the video (Exhibit 2 at trial). Ms. Warner testified that this car appeared to be watching them as she waited in the lobby of 7230 Darcel Avenue with Mr. Thompson.
[12] Ms. Warner also testified that while they were waiting in the lobby, she overheard Mr. Thompson on the phone with Mr. Edwards. Ms. Warner recalls Mr. Thompson say something about the white car having an American licence plate. There was no objection by Ms. Rozier when this evidence was led.
[13] During the pre-charge conference, I raised Ms. Warner’s evidence with counsel because I was concerned that the evidence she provided about Mr. Johnson’s conversation was inadmissible hearsay.
[14] The Crown submitted that that there was an agreement that all ante-mortem statements made by Mr. Johnson would be admitted for the truth of their contents. Alternatively, the Crown argued the statement was an excited utterance. Ms. Rozier submitted that there was no agreement. Ms. Rozier argued that while the statement could be admitted to the record for narrative purposes, it was not admissible for the truth of its contents.
(ii) The Law
[15] The purpose of tendering Mr. Thompson’s statement was to prove that the white car had a unique licence plate. Although the Crown suggested that Ms. Warner would testify to this fact, she in fact did not. Therefore, the Crown was relying on Mr. Thompson’s subjective belief of the situation. This use of Mr. Thompson’s out-of-court statement for the truth of its contents, without an opportunity to contemporaneously cross-examine him, made the statement hearsay. The evidence is, therefore, presumptively inadmissible (R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358).
[16] An excited utterance is a recognized exception to the hearsay rule (see: The Honourable Justice S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, Fourth Edition., looseleaf (Toronto: Thomson Reuters Canada Limited, 2012) vol. 1 at para. 7:120:10). Mainella J.A. in R. v. Head, 2014 MBCA 59, [2014] M.J. No. 161, summarized the traditional requirements of the rule:
[29] The traditional common-law test for the admission of a spontaneous (or excited) utterance as an exception to the hearsay rule was stated as follows by Lord Wilberforce in Ratten v. The Queen, [1972] A.C. 378 (P.C.) (at p. 391):
… [H]earsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.
(iii) Analysis
[17] In my view, the statement of Mr. Thompson is not a spontaneous or excited utterance. When Mr. Thompson made the statement, I cannot confirm that he was under such stress or pressure that meets the criteria of being an excited utterance. I have come to this conclusion because Ms. Warner’s evidence is not extensive on this issue. Ms. Warner testified that she overheard Mr. Thompson tell Mr. Edwards over the phone that the car had a different licence plate.
[18] In other words, there was minimal evidence led about Mr. Thompson’s state when he made this statement. The circumstantial guarantee of trustworthiness of an excited statement comes from stress or pressure of a triggering event that the possibility of concoction or distortion when making the statement can be safely disregarded (see: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc., 2015) at 193. I acknowledge that there is evidence that Mr. Thompson noticed the white car. However, there is very little evidence that he was under stress or pressure from some triggering event.
(iv) Conclusion
[19] Since the evidence had no probative value other than introducing it for the truth of its contents, I told the jury that Ms. Warner’s statement regarding Mr. Thompson’s observations was not admissible for its truth.
Ruling 2: Jury Instructions Regarding Cst. McTaggart’s Evidence
(i) Overview
[20] Constable Michael McTaggart is a police officer with Peel Regional Police. He was called by the Crown to identify Mr. Williams as he entered the lobby of 7230 Darcel Avenue prior to the shooting. A lobby camera captured images of three men entering the lobby just before the arrival of Ms. Warner and Mr. Thompson (Exhibit 2 at trial).
[21] Cst. McTaggart testified that he met Adrian Williams when he was working at a high school in Mississauga, Ontario during 2007-2008. According, to Cst. McTaggart, Mr. Williams was a student at the school and he would interact with Mr. Williams whenever the officer attended school.
[22] Cst. McTaggart explained that he would routinely walk the halls between 8 A.M. and 4 P.M. every day.
[23] In addition to seeing Mr. Williams at school, the officer testified that he interacted with Mr. Williams outside of school in May of 2012.
[24] During the trial, Cst. McTaggart was specifically shown the footage of Exhibit 2 between 10:04:10 p.m. and 10:04:37 p.m.
[25] Cst. McTaggart testified that he recognized Mr. Williams on the video footage.
[26] He was also shown a copy of a still photograph of the footage and he circled the man he believed to be Adrian Williams. This was marked as Exhibit 39.
[27] Cst. McTaggart testified that he believed that Mr. Williams was in the video footage because of his gait, his facial expression, his forehead, his skin tone, and his nose. He did not elaborate on this evidence.
[28] During cross examination, Cst. McTaggart conceded the following points.
[29] First, he admitted that the footage of the individuals entering the lobby is quite brief.
[30] Second, he agreed that all he had done was “glimpse” the video while he was seated in the witness box.
[31] Third, he also agreed that he may have been shown the footage contained in Exhibit 2 by another police officer the morning after the shooting on November 2, 2012. He believed that the officer showed him the footage because Lincoln Alexander is a school in the vicinity of 7230 Darcel Avenue, and Cst. McTaggart was familiar with the students who attended that school. Cst. McTaggart was aware there had been a shooting on November 1, 2012.
[32] Fourth, he agreed that when he originally saw this video on November 2, 2012, he was unsure if he could identify Mr. Williams as one of the men. Therefore, he conducted some additional research. He explained that when he first saw the video he had an “idea” that it may have been Mr. Williams but he had to do some additional research because he wanted to be 100 percent certain.
(ii) The Law
[33] The credibility and weight that should be given to eyewitness testimony is an issue that the jury must determine: (see: Mezzo v. R., 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802 at para.70).
[34] However, the jurisprudence holds that where the Crown relies on eyewitness identification, the trial judge has a duty to caution the jury regarding the well-recognized frailties of eyewitness identification evidence: see R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694; Mezzo at para. 70, citing R. v. Turnbull; R. v. Whitby; R. v. Roberts, [1976] 3 W.L.R. 445 (C.A.); R. v. Hibbert, 2002 SCC 39 [2002] 2 S.C.R. 445 at paras. 78-79 (per Bastarache J., dissenting, although not on this point); R. v. Canning, 1986 CanLII 20 (SCC), [1986] 1 S.C.R. 991.
(iii) Analysis
[35] I was concerned about Cst. McTaggart’s evidence. Although it was admitted without objection, I was concerned about the fact that Cst. McTaggart’s evidence appeared to be the most important part of the Crown’s case against Mr. Williams, and there were a number of problems with the evidence. I recognize that as an identification witness, Cst. McTaggart could provide an opinion that he recognized Mr. Williams.
[36] However, usually, a voir dire should be held before such evidence is admitted (see: R. v. Berhe, 2012 ONCA 716). Ms. Addie, counsel for Mr. Williams, did not request a voir dire. Ms. Addie submitted she turned her mind to it, but for tactical reasons decided not to pursue a voir dire. Therefore, the evidence was admitted before the jury.
[37] Having heard the evidence, I decided to strongly caution the jury from using this evidence.
[38] First, taken at its highest, Cst. McTaggart’s testimony provided a very general description of why he thought Mr. Williams was featured in the video (Exhibit 2). I accept that the jury was entitled to take into account the prior relationship he had with Mr. Williams. However, Cst. McTaggart did not elaborate on the features such as the gait and facial expression that assisted him in identifying Mr. Williams as one of the men in the video.
[39] Second, it appears to me that there is a gap in the evidence as to what additional research Cst. McTaggart did to alleviate his own concern that Mr. Williams was in the footage. Was it a photograph? What kind of photograph? I took into account that the original circumstances under which Cst. McTaggart viewed the footage were very suggestive. He acknowledged he was told that there was a shooting and he was asked to review footage because the school he was working at was close to the shooting.
[40] In my opinion, viewed on its own, Cst. McTaggart’s evidence had little, if any, value as evidence that identified Mr. Williams in the video footage. There were serious concerns with the reliability of this evidence. I decided to instruct the jury in accordance with the decision in Hay.
[41] In Hay, Rothstein J. held:
[41] Although the duty to assess the credibility and weight of an eyewitness’ evidence sits with the jury and, in some circumstances, the testimony of one eyewitness will support a conviction, the jury should not be permitted to convict on the basis of eyewitness testimony that could not support an inference of guilt beyond a reasonable doubt. In other words, a jury should not be instructed that it may convict based on eyewitness testimony alone where that testimony, even if believed, would necessarily leave reasonable doubt in the mind of a reasonable juror; see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21-25; R. v. Reitsma, 1998 CanLII 825 (SCC), [1998] 1 S.C.R. 769, rev’g (1997), 1997 CanLII 3607 (BC CA), 97 B.C.A.C. 303; R. v. Zurowski, 2004 SCC 72, [2004] 3 S.C.R. 509; United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. Indeed, where the Crown’s case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror, the trial judge must direct an acquittal upon a motion for directed verdict (Arcuri, at para. 21).
(iv) Conclusion
[42] It is for the aforementioned reasons that I instructed the jury that they should be very cautious of Cst. McTaggart’s identification evidence, and that standing alone, this evidence could not assist them in returning a guilty verdict for Mr. Williams.
Ruling 3: The Change in Mr. Browne’s Hairstyle
(i) Overview
[43] The Crown theory was that Mr. Browne was the gunman. Ms. Warner testified that the gunman wore his hair in dreadlocks that were sticking out of a hat. During the trial, the Crown alleged that Mr. Browne deliberately cut his hair short after November 1, 2012 to escape detection after the shooting. The Crown alleged that prior to November 1, 2012 Mr. Browne wore his hair in dread locks.
[44] In a ruling on August 31, 2016, I permitted the Crown to lead this evidence. The Crown then called 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. Ms. Akonzee did not assist the Crown and her evidence was not helpful.
[45] Ms. Akonzee testified that around October 20, 2012, Mr. Browne had his hair styled in dread locks. However, according to Ms. Akonzee, his hairstyle changed to a shaved cut but she could not remember when it changed.
[46] During cross-examination, Ms. Morphew confronted Ms. Akonzee with her statement made to the police in March 13, 2013. She agreed that she told the police that it was December that Mr. Browne had changed his hair. However, she insisted that she had no recollection of the date he changed his hair.
[47] Ms. Akonzee explained that she did not like Mr. Browne’s hair in dread locks and she told him repeatedly to cut his hair. She threatened to leave him. It was some point after she had been repeatedly telling him that that Mr. Browne did, in fact, cut his hair.
(iii) The Law
[48] After the fact conduct is circumstantial evidence that refers to anything said or done by an accused after the commission of the offence alleged.
[49] I acknowledge that this evidence is presumptively admissible. However, the trial judge still has a role as the evidentiary gatekeeper, to determine the relevance and purpose for which the proposed evidence is tendered. It is important in the charge to help the jury understand the relevance of specific after the fact conduct to live issues in a trial. I would have to outline in my charge how the jury can use this evidence and at the same time ensure that unreasonable inferences are not put to the jury (see R v White, 2011 SCC 13, [2011] 1 SCR 433).
(iii) Analysis
[50] The initial ruling to permit the Crown to lead this evidence as after-the-fact conduct was a close call. However, by the time that Ms. Akonzee testified the landscape had changed. In fact, the temporal connection between the act of cutting his hair and the shooting was not identifiable.
[51] Inference drawing is situation-specific and the record did not permit the Crown to argue that Mr. Browne cut his hair as a form of after-the-fact conduct. The fundamental problem with Ms. Akonzee’s trial evidence is that the witness could not provide a specific date or time when Mr. Browne cut his hair.
[52] After hearing her evidence, all the jury was left with was that Mr. Browne cut his hair sometime after October 20, 2012. We do not know if that was before or after November 1, 2012. I am not certain that Ms. Akonzee adopted her prior statement to the police that Mr. Browne cut his hair in December (about a month after the shooting). In the end, Ms. Akonzee’s testimony was that she had no recollection when Mr. Browne cut his hair.
[53] It is for this reason that I told the jury in my charge that this could not be used as after-the-fact conduct and it had no probative value.
Ruling 4: Objections to the Crown’s Closing Address
(i) Overview
[54] In his closing address, Mr. Cornelius, counsel for the Crown, referenced two issues that drew an objection from defence counsel. First, Crown counsel argued that there was a fourth man involved in the shooting. He argued that Adeymi Ogunbitan was that man. Second, Crown counsel argued that Mr. Thompson died in the following manner:
• First, when the gun was head to his temple area, he tried to move the gun from his temple and he was shot in the face;
• Second, after he was shot in the face, Mr. Thompson ran and his assailants ran after him. The shooter then shot Mr. Thompson in the back stopping him in his tracks;
• Third, the shooter then shot Mr. Thompson in the head and the gunman ran back to the car.
[55] Defence counsel objected to this part of the Crown’s closing address.
(ii) The Law
[56] The jurisprudence holds that a closing address is an exercise in advocacy. It also holds that Crown counsel is entitled to advance his or her position forcefully and effectively (see R. v. Daly, 57 O.A.C. 70 (C.A.); R. v. Mallory, 2007 ONCA 46, [2007] O.J. No. 236; and R. v. Boudreau, 2012 ONCA 830, [2012] O.J. No. 5597).
[57] However, all counsel, whether prosecuting or defending, are not permitted to give evidence in their closing submissions (see R. v. Tomlinson, 2014 ONCA 158, [2014] O.J. No. 930).
[58] If there has been a misstatement of evidence or counsel has given evidence, a trial judge has a duty to correct the misstatement or transgression.
(iii) Analysis
[59] On the first issue, I agree with the Crown that his reference to four assailants was proper. On the second issue, I agree that Crown counsel improperly gave evidence as to the manner in which Mr. Thompson died. In my view, this transgression by the Crown could be dealt with in a straightforward manner.
Objection No. 1: Reference to Four Assailants
[60] There are two reasons why, after hearing from the Crown, I agreed that he was not improperly misstating evidence about there being a possible fourth assailant.
[61] First, although the Crown in its opening address only ever made reference to three assailants, it had the right to modify its theory or strategy as the trial progressed (see R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198 at para. 19).
[62] In my view, there was an air of reality to suggest that there were four assailants. The evidence demonstrating this point includes the following:
(a) There is evidence suggesting that the white car had four doors that were left open when Ms. Warner and Mr. Thompson exited the lobby. A fourth door is indicative of a fourth person being present.
(b) Mr. Neville Henry, a tenant in the building, described seeing four people in the parking lot before he heard gun shots. I recognize that Mr. Henry was asked about this in cross-examination, and he clarified that he thought two of the people he saw were a man and a woman who were depicted on the video. It is up to the jury to resolve this issue at trial. However, for the purposes of this ruling, it was open to the Crown to argue that the four people he was talking about were involved in the shooting.
(c) Ms. Warner initially testified that she saw three or four men running to the car when she first approached the rear lobby at 7230 Darcel Avenue. Again, while Ms. Warner was confronted repeatedly during cross-examination by all counsel with a prior inconsistent statement that suggested she was uncertain as to whether she really saw four people, it will be up to the jury to assess any alleged prior inconsistent statement.
(d) A set of phone records belonging to Mr. Ogunbitan was entered as exhibit 89A and B at trial. These phone records suggest association with the phones linked to the three accused around the time of the shooting. The Crown led evidence to demonstrate that the phones were in the vicinity of 7230 Darcel Avenue at the time of the shooting and then around 186 Kingsview Avenue in Toronto.
(e) A photograph (Exhibit 105) was entered into evidence by Ms. Morphew through Cst. Cutler. That officer identified the subject of the photograph as Mr. Ogunbitan. Cst. Cutler testified that he arrested Mr. Ogunbitan on April 9, 2013 for the offence of conspiracy to commit murder.
(f) Gilbert Johnson, an acquaintance of Mr. Greensword was also shown the same photograph by Ms. Morphew and he testified that he recognized the subject in the picture as an acquaintance of Mr. Greensword.
(g) The Crown conceded that Exhibit 2 (video footage) did not show Mr. Browne. That concession meant that there were possibly four men in involved in the shooting.
[63] In my view, there was an air of reality permitting the Crown to make the argument that there were four assailants. An examination of the phone records and the trial evidence substantiated the Crown’s assertion.
[64] Second, the Crown’s decision to refer to Mr. Ogunbitan in his closing submission was a reasonable decision, which flowed directly from my ruling on the third party suspect application brought by Mr. Browne. It is Ms. Morphew that introduced Mr. Ogunbitan to the jury and provided the necessary context for the Crown’s submission; the Crown was required to address this evidence. Therefore, it would seriously undermine the Crown’s case if I did not permit the Crown to address the issue about Mr. Ogunbitan.
Objection No. 2: How Mr. Thompson Died
[65] On the second issue, the Crown’s argument was powerful. I agree, however, with defence counsels’ contention that when examined closely, the Crown’s argument amounted to speculation.
[66] The Crown’s position relied on the following two facts:
• Mr. Thompson’s body was found 160 feet away from the area that Ms. Warner purportedly told the police where they were confronted by the men emerging from the white car; and
• A projectile was found in a different area than where the body was found.
[67] As I have set out above, Mr. Cornelius argued in his closing address that the first shot did not kill Mr. Thompson. Mr. Cornelius went on to argue that Mr. Thompson was shot twice in the back while trying to escape, and then the gunman fired a fourth and final shot to Mr. Thompson’s head.
[68] As I understood his address to the jury on this point, Mr. Cornelius was arguing that the assailants intended to kill Mr. Thompson, and given the way Mr. Thompson was shot, the inferences that could be drawn from the evidence inference was overwhelming that this was a planned and deliberate murder.
[69] In my view, Mr. Cornelius could only advance the theory that Mr. Thompson was killed in this manner if those inferences were reasonably available from the primary facts, considered in the context of the rest of the evidence.
[70] With respect to the inferences, it seems to me that the evidence of Ms. Warner and the Crown’s own expert, Dr. Pollanen, do not assist in proving any of the inferences required to give the primary facts, as set out above, relevance.
[71] Ms. Warner testified that she heard three shots in rapid succession with very little gap in between. She also testified that after the first shot, she heard Mr. Thompson’s body “drop”. The suggestion from her evidence is that he was ambushed and executed right on the spot. Of course, Ms. Warner could be mistaken. However, that does not mean the Crown can advance a theory that runs contrary the evidence given by their own witness.
[72] The only other evidence that could lend support to the Crown’s theory is the testimony of Dr. Pollanen. Dr. Pollanen testified that he could not provide an order of when the gunshot wounds occurred. Although he testified that one could not exclude a hypothetical that Mr. Thompson traveled 49 to 50 meters after being shot in the jaw and the face, Dr. Pollanen also testified that if the gun shots happened in rapid succession, Mr. Thompson would have been incapacitated quickly.
[73] I set out the frank concession made by Dr. Pollanen during Ms. Morphew’s cross examination:
Q. And so if we assume that all four shots occurred in quick succession, Mr. Thompson would have essentially, if he was somewhat upright, dropped quickly and been rapidly incapacitated?
A. Yes.
[74] It is my respectful view that the primary facts alone could not reasonably support the inferences required to validate Mr. Cornelius’ theory on how Mr. Thompson died. While Mr. Cornelius’ theory was possible, based on the record before me, the theory called for speculation. It is for this reason that I told the jury to ignore this aspect of the Crown’s closing address.
(iv) Conclusion
[75] Overall, I believed that the Crown’s closing address was balanced and fair. It did not contain the type of highly inflammatory and prejudicial rhetoric that could warrant a mistrial if it was not corrected (see R. v. A.T., 2015 ONCA 65, [2015] O.J. No. 455). Any transgressions were dealt with a short corrective instruction that I delivered before I started the main charge.
Ruling 5: Ms. Addie’s Closing Address
(i) Overview
[76] Counsel for Mr. Browne and Mr. Williams objected to Ms. Addie’s closing on behalf of Mr. Williams.
[77] There were two major transgressions. First, Ms. Addie referred to Mr. Williams as a drug runner in an attempt to explain away the various cell phone records and the number of calls around the time of the shooting. As I understand her position, Mr. Williams may have been at the scene but it was not to commit murder. Second, in referring to the phone records, counsel mentioned that Mr. Williams may have been speaking to Mr. Browne and Mr. Greensword.
(ii) The Law
[78] Criminal trials involving joint accused are challenging. Sometimes, evidence is tendered that is prejudicial to a co-accused and requires a limiting instruction (see R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.)).
(iii) Analysis
[79] The fundamental problem with Ms. Addie’s closing remarks is that these submissions were not grounded in any evidence. Counsel may have had a good faith basis for exploring these issues with witnesses called by the Crown, but she did not. To raise the involvement of Mr. Williams in the drug trade and suggesting certain cellphone numbers belonged to Mr. Browne and Mr. Greensword for the very time in her closing address was extremely prejudicial.
(iv) Conclusion
[80] In the end, Mr. Bryant for Mr. Browne and Ms. Rozier for Mr. Greensword did not ask for a mistrial. While the remarks were highly inflammatory and prejudicial, the impugned aspect of the address could be remedied by a short, sharp instruction telling the jury to ignore this part of Ms. Addie’s closing. I was satisfied that the jury would be able to understand the instruction and that there was no evidence of Mr. Williams being in the drug trade and that Ms. Addie was only referring to her client’s position and not the other lawyers.
Ruling 6: Providing the Jury Further Written Instructions in Jury Room
(i) Overview
[81] Late in the evening of March 23, 2017, the jury asked a question about aiding. I answered the question and the jury then retired for day. I had typed out my answer before delivering it to the jury.
[82] Mr. Bryant, counsel for Mr. Browne, suggested that I should permit a copy of my answer to go the jury room. The Crown opposed this suggestion. I considered the matter overnight and then sent a copy of my answer to the jury the next morning.
(ii) The Law
[83] In R. v. Poitras, 2002 CanLII 23583 (ON CA), [2002] O.J. No. 25 (C.A.) at paras. 45-47, Doherty J.A. held that written material can be given to the jury when they are deliberating. I reproduce important passages from the decision:
[45] More recently, however, many Canadian judges have come to recognize that written material in various forms can assist juries in their difficult task of understanding, remembering and applying legal instructions. [See Note 5 at end of document] In some Canadian jurisdictions, particularly British Columbia, judges now often provide written materials to juries. [See Note 6 at end of document] This practice has been part of the American criminal trial process for many years and in some states is mandated by statute. [See Note 7 at end of document]
[46] Judges must explain a variety of legal principles to a jury. Some of these principles are complex, particularly where there are multiple accused, different theories of liability and various defences advanced at trial. Complex instructions will sometimes be lengthy. Any judge who has tried to instruct a jury in a complex criminal case knows how difficult that task can be. Surely, it can be no less difficult for 12 lay people to understand, recall and apply those instructions. Juries need whatever help judges can give them. For many years, educators have accepted as self-evident the proposition that appropriate written material enhances the comprehension of oral instruction. Social science research suggests that this proposition has application to jury instructions.
[47] The time has come to embrace the use of written material to enhance juror comprehension of oral instructions, particularly where those instructions must be lengthy and complex. There is no legal impediment to the use of written material as an adjunct to oral instructions.
[Emphasis added].
(iii) Analysis
[84] In my view, no prejudice results to any party by providing my answer to the jury in writing.
[85] Any confusion about the charge should be clarified by a trial judge. I attempted to do that. Providing the jury with my answer in writing flowed naturally from the written copy of the charge and was required in this case. I was not persuaded by the Crown’s argument that this could unnecessarily highlight these instructions over others.
(iv) Conclusion
[86] I made copies of my answer to the jury’s question on aiding and sent the material to the jury room for their consideration, along with the written copy of my charge.
Coroza J.
Released: August 9, 2017
CITATION: R. v. Browne, 2017 ONSC 5796
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 08 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
STEVEN BROWNE, AMAL GREENSWORD and ADRIAN WILLIAMS
REASONS FOR RULINGS (CHARGE TO THE JURY)
COROZA J.
Released: August 9, 2017