CITATION: R. v. Tyldesley, 2017 ONSC 5800
COURT FILE NO.: CR-17-005 DATE: 2017/09/29
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Crown/Respondent
– and –
Staci Tyldesley Accused/Applicant
COUNSEL: David King, for the Crown/Respondent Jeffrey Manishen, for the Accused/Applicant
HEARD: July 19, August 2 and 3, 2017
BEFORE: The Honourable Mr. Justice G.E. Taylor
Abuse of Process
Introduction
[1] Staci Tyldesley is an officer with the Hamilton Police Service. She is charged with one count of obstructing justice, one count of forgery and seven counts of fabricating evidence. The charges arise out of allegations that Staci Tyldesley and four other officers on the unit known as Addressing Crime Trends In Our Neighborhoods (“ACTION”) made out Provincial Offence Notices (“PONs”) which were not served on the persons named in the PONs. Originally all five officers were jointly charged. However, four of the officers wished to be tried in the Ontario Court of Justice without having a preliminary inquiry while Staci Tyldesley elected to have her trial in the Superior Court of Justice. The Crown severed Staci Tyldesley from the original information.
[2] Staci Tyldesley’s preliminary inquiry and the trial of the other four officers proceeded at about the same time. Staci Tyldesley was called as a Crown witness at the trial in Ontario Court and one of the other charged officers was called as a Crown witness at the preliminary inquiry.
[3] Staci Tyldesley says that this conduct on the part of the Crown was an abuse of process by reason of her rights pursuant to sections 7, 8, 11(c) and 11 (d) of the Charter of Rights and Freedoms being breached and that the only appropriate remedy to address the breaches is a stay of proceedings of all charges which she is facing.
Evidence on the Application
[4] Staci Tyldesley was a member of one of the five ACTION units of the Hamilton Police Service. The general responsibility of the ACTION units was to patrol the area of downtown Hamilton. The members of the ACTION frequently had occasion to write PONs to persons they found committing offences.
[5] Staci Tyldesley was originally charged, along with four other members of her ACTION unit, with several charges arising out of allegations that they had written PONs and then failed to serve the persons who were charged. Staci Tyldesley elected to be tried in the Superior Court after having a preliminary inquiry while the other four officers wanted to be tried in the Ontario Court. The Crown therefore severed Staci Tyldesley from the information charging the other four accused.
[6] Staci Tyldesley’s preliminary inquiry began on October 21, 2016 and concluded on December 14, 2016. The trial of the four officers in Ontario Court began on November 14. 2016.
[7] On November 9, 2016, the Crown served a subpoena on Staci Tyldesley requiring her to attend and give evidence at the trial of the other officers. Counsel for Staci Tyldesley promptly wrote to Crown counsel on the trial of the other officers (who is also the Crown counsel responsible for the present prosecution) inquiring about what questions were intended to be asked of Staci Tyldesley. That request was repeated in an email dated November 16, 2016. Crown counsel responded to counsel for Staci Tyldesley by asserting that a witness did not have a right to counsel and that he was entitled to “ambush witnesses”. Crown counsel then advised that he would ask questions about how the ACTION unit operated, some specific dates and phone conversations.
[8] On November 18 and 21, 2016, Staci Tyldesley testified, under subpoena, as a Crown witness at the trial of the other officers. No objection was taken to her testifying. On October 26, 2016, Bhupesh Gulati, one of the four officers who was charged and who was being tried separately was called as a Crown witness at Staci Tyldesley’s preliminary inquiry. No objection was raised to him doing so.
[9] Staci Tyldesley did not seek to quash the subpoena requiring her to testify at the Ontario Court trial of her fellow officers.
[10] At the trial in the Ontario Court, Staci Tyldesley was asked questions by the Crown about the operation of the ACTION unit, her note taking practices, the demeanor and general conduct of a number of PON defendants including two who were the subject of the charges against her, her emails and text messages with the other charged officers and her conversation with one Trevor Holmes who was an important Crown witness involving the charges against all officers.
[11] Staci Tyldesley was also questioned about a number of specific dates which included July 13, September 13, 15 and 16, 2014 which were dates involving charges against her. On July 13, 2014 Staci Tyldesley and one of the other officers were working together and issued PONs to two individuals at approximately the same time. The charge against the Staci Tyldesley on July 13, 2014 was withdrawn at the commencement of pretrial applications in this court. Staci Tyldesley was asked about her dealings with Dwight Perry who is a person named in three of the counts against her which are alleged to have occurred on September 13 and 16, 2014 although she was not asked specific questions in relation to these charges. Dwight Perry was also involved in one of the charges against one of the officers who were being tried in the Ontario Court.
[12] Staci Tyldesley was not asked about the charges she was facing which are alleged to have occurred on September 10, 15 and 16, 2014.
[13] When testifying about the conversation she had with Trevor Holmes on September 19, 2014, Staci Tyldesley produced a copy of her personal notes which she had made regarding this conversation. These notes had not previously been seized by the investigators or produced to the Crown.
Position of the Defence
[14] Staci Tyldesley argues that her right to remain silent was breached by being called as a witness for the Crown at the trial of her fellow officers before the commencement of own trial. She says that the reason the Crown called her as a witness at the trial of the other officers was to obtain evidence to be used at her trial to secure a conviction. Lastly Staci Tyldesley submits that the conduct of the Crown has made it impossible for her to have a fair trial and therefore the only appropriate remedy is a stay of proceedings.
Discussion and Analysis
[15] In R. v. R.J.S., 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451, the Supreme Court of Canada was asked to address the question as to whether a person who is separately charged with an offence is a compellable witness in the criminal trial of another person charged with the same offence. The Court held that such a person is a compellable witness
[16] The Supreme Court of Canada in British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3 clarified and expanded upon its decision in R.J.S. wherein it stated that when a person who is charged with, or is being investigated for, a criminal or quasi-criminal offence, that person is compellable in another proceeding if the predominant purpose for compelling the person to testify is to obtain evidence in furtherance of the other proceeding. If it is established that the predominant purpose for compelling the person to testify is to obtain incriminating evidence against that person, then the party seeking the compelled testimony must justify the potential prejudice to the to the right of the person against self-incrimination. However, if the only prejudice is the possible subsequent derivative use of the compelled testimony, there will be no prejudice because the witness will be protected from such use by reason of section 13 of the Charter and section 5 of the Canada Evidence Act. The burden to establish that the dominant purpose is to obtain incriminating evidence against the person who is compelled to testify is on that person.
[17] In R. v. Jobin, 1995 CanLII 144 (SCC), [1995] 2 S.C.R. 78, the Supreme Court of Canada held that there is no meaningful difference between subpoenas issued in respect of preliminary inquiries and those issued in respect of criminal trials (paragraph 36).
[18] In R.J.S., Sopinka J. suggested the following non-exhaustive factors to be considered when a person asserts that a breach of their right against self-incrimination justifies an exemption from being compelled to testify in another proceeding at paragraph 326:
(1) The relative importance of the evidence to the prosecution in respect of which the person is compelled;
(2) Whether the evidence can be obtained in some other manner;
(3) Whether the trial or other disposition of the charge against the person whose evidence is sought to be compelled could reasonably be held before he or she is called to testify;
(4) The relationship between the proposed questions to the witness and the issues in his or her trial;
(5) Whether the evidence of the witness is likely to disclose defences or other matters which will assist the Crown notwithstanding the application of s. 5(2) of the Canada Evidence Act;
(6) Any other prejudice to the person, including the effect of publication of his or her evidence.
[19] Sopinka J. also directed in R.J.S. that the appropriate time to raise the issue of compellability is at the stage when the witness is asked to take the stand although the failure to do so “will in some circumstances not preclude the matter from being renewed in subsequent proceedings” (paragraphs 322 and 327).
[20] In R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, the Supreme Court stated that the threshold for obtaining a stay of proceedings for an abuse of process, is the "clearest of cases"(paragraph 68). The Court also identified two categories of abuse of process. The first category is prosecutorial conduct affecting the fairness of the trial. The second category is prosecutorial conduct which contravenes fundamental notions of justice and thus undermines the integrity of the judicial process (paragraph 73).
[21] More recently, in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, the Supreme Court of Canada articulated three requirements for a stay of proceedings to be granted under either of the categories identified in O’Connor (paragraph 32). Those requirements are:
(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome";
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits".
[22] At paragraph 22 of the Applicant’s Factum the following assertion is made:
The Ontario Court of Appeal has recently reiterated that a decision by a Crown to call as a witness a person who has his or her own charges yet to be tried as a witness against a co-accused being tried separately would give rise to a stay of proceedings on the basis of abuse of process.
The authority cited for this proposition is the case of R. v. Tsekouras, 2017 ONCA 290.
[23] In Tsekouras, the Court addressed a number of grounds of appeal one of which was the admissibility of statements made by two co-accuseds who had been separately charged. The statements were admissible pursuant to the co-conspirators’ exception to the hearsay rule. The issue was whether the accused had discharged the onus of establishing that the evidence which was prima facie admissible pursuant to a traditional exception should nevertheless be excluded because it fit within the category of a “rare” case.
[24] In responding to this argument the Crown submitted that it could not call one of the co-accused witnesses because “calling him as a witness would leave the Crown open to an argument that any prosecution of [the co-accused] after he gave evidence at the appellant’s trial would be an abuse of process” (paragraph 195). The Court held that the appellant had failed to establish that the evidence pursuant to the co-conspirators’ exception to the hearsay rule should be excluded on the basis that it did not satisfy the necessity branch of the principled exception. In rejecting this argument the Court stated at paragraph’s 208 and 211:
Second, necessity is accorded a flexible definition. It is capable of encompassing diverse situations. At its core, necessity is concerned with the unavailability of relevant direct evidence. The physical or testimonial unavailability of the declarant is not the only basis upon which necessity may be established.
As for the availability of [the co-accused] to provide relevant direct evidence, the circumstances are different, but the result the same. As a separately indicted accused [the co-accused] was competent and could be compelled to give evidence for the Crown. But, leaving to one side his willingness to testify and to do so truthfully, about which we know nothing, requiring him to testify at the appellant's trial would invite an application by [the co-accused] at his own trial to stay proceedings for abuse of process.
[25] The Court in Tsekouras was not dealing with the issue of whether a separately indicted co-accused, if called to testify at the trial of another co-accused is entitled to a stay of proceedings. The Court, in my view, stated only that the appellant had failed it to satisfy the onus to show that the admissibility of evidence pursuant to a traditional exception to the hearsay rule should be held to be inadmissible because the evidence did not satisfy the necessity requirement of the principled exception. The Court made no mention of the cases from the Supreme Court of Canada in which the issue of the compellability of a co-accused to testify at the trial of another co-accused was dealt with directly. I therefore reject the statement at paragraph 22 of the Applicant’s Factum as an accurate statement of the law.
[26] I also reject the submission that by calling Staci Tyldesley as a witness at the trial of her fellow officers in Ontario Court, the Crown’s predominant purpose was to obtain incriminating evidence to be used against Staci Tyldesley at her trial. The evidence elicited from Staci Tyldesley covered many topics. Some of those topics were perhaps unnecessary for the purpose of the trial of the other officers. However, no objection was taken to any of her testimony as being irrelevant. Although some of the questions put to Staci Tyldesley were related to charges that she was facing, she was not questioned in great detail about the evidence relevant to her charges. She was questioned about her interaction with Austin Douglas and Amber Brownell on July 13, 2014. One of the charges that she was facing at the time was in relation to a PON made out to Amber Brownell but one of the other officers was also charged in relation to a PON allegedly issued to Austin Douglas. She was asked about Dwight Perry but only in relation to his general demeanor and conduct towards the police. She was questioned about her emails and text messages to and from her fellow officers. This evidence was of potential relevance to the charges against the other officers.
[27] With respect to her conversation with Trevor Holmes, Staci Tyldesley was asked to produce and did produce a copy of her personal notes made in relation to this conversation. The Crown would not have obtained these notes if it did not call Staci Tyldesley as a witness in the trial in Ontario Court. However, Staci Tyldesley is protected from these notes being used as evidence at her trial on the authority of R.J.S..
[28] I have considered the factors suggested by Sopinka J. in R.J.S. but I note that they are directly relevant to whether a person who is facing a charge should be relieved from testifying at the trial of a co-accused. In my view, the first and fourth factors would operate in favour of Staci Tyldesley in seeking to be relieved of the obligation to testify. The second and third factors would favour compelling Staci Tyldesley to testify. The six a factor would have been a relevant consideration at the time of the trial in Ontario Court but it is no longer a factor because Staci Tyldesley has re-elected to be tried by a judge without a jury.
[29] Counsel for Staci Tyldesley argued that by calling her as a witness at the trial of the other officers, she has been required to disclose her defence to the charges which she is facing. However, I was provided with no particulars about what defence was disclosed and how it will result in an unfair trial. To the contrary, it seems to me from reviewing the transcript of Staci Tyldesley’s testimony at the Ontario Court trial that her defence was likely already apparent to the Crown.
[30] Counsel for Staci Tyldesley made it abundantly clear during oral submissions that no remedy short of a stay of proceedings was being sought. Even if I had found a breach of Staci Tyldesley’s Charter rights I would not conclude that this is one of the clear cases demanding a stay of proceedings. Rather, lesser remedies such as the exclusion of evidence would suffice to remove any prejudice. By reason of the operation of section 13 of the Charter and section 5 of the Canada Evidence Act, Staci Tyldesley is protected from having her testimony given at the trial in Ontario Court presented as evidence at her trial and any evidence which was obtained as a result of her testimony such as her notes of her conversation with Trevor Holmes are also protected from being used at her trial.
[31] I do not want to be taken as approving of the conduct of the Crown in the days leading up to Staci Tyldesley testifying at the trial of her fellow officers. I have no doubt that this was a stressful occasion for her. The request by her counsel for an opportunity to prepare her for testifying was a reasonable request and in my view should have been answered with a detailed list of the topics to be addressed rather than the impertinent comment that the Crown is permitted to “ambush witnesses” followed by three general subject areas to be canvassed. That said, I am not prepared to find this conduct to amount to an abuse of process on the part of the Crown.
Conclusion
[32] For these reasons, the application to stay the indictment for an abuse of process is dismissed.
“G. E. Taylor”
G. E. Taylor, J
Released: September 29, 2017
CITATION: R. v. Tyldesley, 2017 ONSC 5800 COURT FILE NO.: CR-17-005 DATE: 2017/09/29
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Staci Tyldesley
Abuse of Process
G. E. Taylor, J
Released: September 29, 2017