Court File No. 17-45

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

TYRONE CHAMBERS and JOSHUA WARNER

REASONS FOR RULING

BEFORE THE HONOURABLE A. SKARICA AND A JURY

on November 6 2017 at HAMILTON, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER OF JUSTICE A. SKARICA,

SUPERIOR COURT OF JUSTICE

APPEARANCES:

G. Akilie, T. Shuster Counsel for the Crown

C. Hicks, S. Pashang Counsel for Tyrone Chambers

D. Bains, J. Zbarsky Counsel for Joshua Warner

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER OF JUSTICE A. SKARICA,

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

WITNESSES

WITNESS:

Examination In-Chief

Cross- Examination

Re- Examination

EXHIBITS

EXHIBIT NUMBER

ENTERED ON PAGE

Reasons for Ruling

1

Transcript Ordered: .................... November 10, 2017

Transcript Completed: .................. November 14, 2017

Ordering Party Notified: ............... November 19, 2017

MONDAY, NOVEMBER 6, 2017

CITATION: R. v. Chambers and Warner, 2017 ONSC 6913

REASONS FOR RULING

SKARICA J. (Orally):

This is the ruling regarding an application made by the Crown by notice regarding Section 715 of the Code Criminal Code in the matter of Her Majesty the Queen and Tyrone Chambers and Joshua Warner.

Overview

Tyrone Chambers and Joshua Warner are charged with second-degree murder and aggravated assault. The charges arise from the shooting of three victims in a room filled with party-goers. Yussuf Yanni was one of those party-goers who was present in the room when three people got shot on March 12, 13, 2010 in a residence in Hamilton. Mr. Yanni gave a KGB statement and another police statement shortly after the offences occurred. Further, he testified at the preliminary inquiry in 2012, and further, he testified again at the trial in the fall of 2013. He was thoroughly and skillfully cross-examined by counsel for Mr. Chambers and Mr. Warner on both occasions.

A new trial was ordered by the Ontario Court of Appeal in September 2016 after both accused successfully appealed their convictions.

Mr. Yanni's work permit expired on October 27, 2017. Yanni, who was subpoenaed by the police, informed the police by at least September of 2017 that he would be leaving Canada just before the trial started. The jury selection and trial started on October 23rd, 2017. Mr. Yanni left the country on October 21, 2017. Yanni no longer wishes to participate in the trial. The Crown makes an application under Section 715 to admit his evidence given at the original trial at this second trial.

Facts

As indicated in the overview, the accused appealed their convictions of second-degree murder and other related charges, and the Court of Appeal ordered a new trial in September 2016. See R. v. Chambers [2016] ONCA 684.

The police and Crown in September 2016 were aware that a second trial would take place. Sergeant Paul Johnston swore an affidavit in this application and also provided viva voce evidence. The gist of his evidence is that Sergeant Johnston initially had difficulty finding Mr. Yanni. On July 19th, 2017, he heard from Mr. Yanni. Yanni was, at that time, at home in Ghana and Yanni told the officer he was returning to Canada and would contact him at that time. Yanni told the officer that his work permit was expiring in Canada was expiring in October of 2017 and Yanni would either apply for permanent residence in Canada or return to Ghana.

The possibility of a video link in Ghana was discussed at that time in July of 2017. Apparently Ghana has such facilities and those facilities exist in Accra, Ghana, where Yanni resides. The officer met with Yanni in September 2017 and served Yanni with a subpoena returnable October 23rd, 2017. On September 5, 2017, the officer spoke with Yanni by phone. Yanni said he was leaving Canada on October 12th, 2017 as his work permit was expiring on October 19th, 2017. Yanni indicated he was returning to Ghana and would be on the road a lot and it would be difficult for him, Yanni, to participate by video link.

The officer met Yanni in Kitchener in person on September 27th, 2017 and obtained pictures of Yanni's work permit and passport. The work permit photo indicates that the expiry date of the permit is October 7th, 2017. Yanni indicated that video links were not feasible for him and once outside of Canada, Yanni would not participate in the trial. On October 18th, 2017, Yanni emailed the officer his KLM air ticket and left Canada on October 21st, 2017, two days before jury selection and the commencement of this trial.

The officer tried to email Yanni thereafter and after the officer emailed Yanni's workplace in Ghana, Yanni contacted the officer when this trial was underway and was very upset. Yanni indicated he would not participate in this trial. This was further confirmed by an email by Yanni to the officer sent this very morning and this is the date of the Crown's application under Section 715.

Yanni was not offered, at any time, a plane ticket or accommodation expenses to return to Canada to testify at this trial. The police could have arranged or at least anticipated to arrange a visa extension but did not as Yanni did not request it. Further, Sergeant Johnston testified that Yanni had to apply for a visa extension, which he did not.

In cross-examination of Sergeant Johnston, Sergeant Johnston indicated that Yanni told the officer that he did not wish to testify due to one, it was bad for his reputation; two, it would make it hard for him to get a job; three, he wants to go on with his life. In cross-examination, it was established that the police made offers to help Yanni stay in Canada but Yanni made it clear that he wanted to leave Canada and that his participation in this trial was unlikely. Accordingly, Yanni is now in Ghana, is not a compellable witness by the Crown and the Crown seeks to enter his evidence given at the first trial at this second trial pursuant to Section 715.

Law

The leading case on Section 715 applications is R. v. Potvin 1989 CanLII 130 (SCC), [1989] 1 SCR 525. The Supreme Court of Canada indicates at paragraphs 30, 34 and 37 - and I'll read these paragraphs quickly, Madam Reporter, you'll forgive me. I'll give copies of this if you need it.

Paragraph 30:

It is my view that the word 'may' in Section 643(1) is directed not to the parties but to the trial judge. I believe it confers on him or her a discretion not to allow the previous testimony to be admitted in circumstances where its admission would operate unfairly to the accused. I hasten to add, however, that such circumstances will be relatively rare and that the discretion to prevent unfairness is not a blanket authority to undermine the object of Section 643(1) by excluding evidence of previous testimony as a matter of course.

Paragraph 34:

What then is the nature and purpose of the discretion conferred in Section 643(1) which enables the trial judge not to allow the evidence in at trial even in cases in which the requirements of the section have been met? In my view there are two main types of mischief at which the discretion might be aimed. First, the discretion could be aimed at situations in which there has been unfairness in the manner in which the evidence was obtained. Although Parliament has set out in the section specific conditions as to how the previous testimony has to have been obtained if it is to be admitted under Section 643(1) (the most important, of course, being that the accused was afforded full opportunity to cross-examine the witness), Parliament could have intended the judge to have a discretion in those rare cases in which compliance with the requirements of Section 643(1) gave no guarantee that the evidence was obtained in a manner fair to the accused. This would, of course, represent a departure from the traditional common law approach that the manner in which evidence is obtained, with a few well-established exceptions such as the confessions rule, is not relevant to the question of its admissibility but it would be consistent with the contemporary approach to the expanded requirements of adjudicative fairness. An example of unfairness in obtaining the testimony might be a case in which, although the witness was temporarily absent from Canada, the Crown could have obtained the witness's attendance at trial with a minimal degree of effort.

Paragraph 37:

In my view, once it is accepted that Section 643(1) gives the trial judge a statutory discretion to depart from the purely mechanical application of the section, the discretion should be construed as sufficiently broad to deal with both kinds of situations, namely where the testimony was obtained in a manner which was unfair to the accused or where, even although the manner of obtaining the evidence was fair to the accused, its admission at his or her trial would not be fair to the accused. I would stress that in both situations the discretion should only be exercised after weighing what I have referred to as the 'two competing and frequently conflicting concerns' of fair treatment of the accused and society's interest in the admission of probative evidence in order to get at the truth of the matter in issue. ... Having regard to the reservations that have been expressed over the restrictive formulation of the common law discretion in Wray ... I believe there is no need or justification for importing a similar restriction into the statutorily conferred discretion in Section 643(1). The protection of the accused from unfairness rather than the admission of probative evidence 'without too much regard for the fairness of the adjudicative process' ... should be the focus of the trial judge's concern.

And I have made that focus.

Justice Watt in R. v. Solomon [2015] ONCA summarizes the Potvin principles as follows at paragraph 40, 42, 44.

Paragraph 40:

Section 715(1) requires a party who seeks to introduce at trial evidence given by a witness at the preliminary inquiry [and that would apply to this trial evidence as well] into the charge to establish, on a balance of probabilities, that the witness gave evidence at the preliminary inquiry [or trial here] the witness is unavailable to testify at trial for any reason described in the section [and that reason is being out of the country] and (iii) the preliminary inquiry evidence [trial evidence] was given in the presence of the accused. Where these conditions have been satisfied, the preliminary inquiry evidence [or in this case the trial evidence] may be admitted at trial, unless the accused proves that she or he did not have full opportunity to cross-examine the witness at the preliminary inquiry.

I might indicate before reading further that all those conditions have been satisfied here and I'm satisfied that not only was the witness cross-examined at the trial by counsel but those cross-examinations, from what I've read, were done skillfully and were done in compliance with giving an opportunity to fully cross-examine the witness.

Going on to paragraph 42:

Even when the statutory conditions for admission contained in Section 715(1) have been met, the section's discretionary language enables a judge to exclude the previous testimony in circumstances where its admission would operate unfairly to the accused: R. v. Potvin. ... As explained in Saleh, at paragraphs 74 and 75:

The exclusionary discretion in Section 715(1) is directed at two principal types of mischief: unfairness in the manner in which the preliminary inquiry evidence was obtained, and unfairness in the trial itself caused by the admission of the preliminary inquiry evidence. A trial judge should only exercise this discretion after weighing two competing and frequently conflicting concerns: fair treatment of the accused; and society's interest in the admission of probative evidence to get at the truth of the allegations in issue.

The focus of the trial judge's concern must be on the protection of the accused from unfairness, rather than the admission of probative evidence without too much regard for the fairness of the adjudicative process.

Saleh, at paragraph 78, cautions trial judges that the circumstances in which evidence previously given may be excluded in the exercise of discretion under Section 715(1) are comparatively rare. In deciding whether to exclude preliminary inquiry evidence [and in this case, trial evidence] a trial judge may consider the crucial nature of that evidence and the crucial nature of the credibility of the witness who gave the evidence: Saleh, at paragraph 77. In Potvin, the Supreme Court of Canada rejected the proposition that the very importance of the evidence in a case required its exclusion, holding, at page 553, that such a proposition 'is at odds with the purpose of Section [715(1)] in ensuring that evidence, even important and highly probative evidence, is not lost because of the unavailability of a witness at trial.'

Finally, Saleh, at paragraphs 79 and 80, summarized three other points which had emerged from the jurisprudence. First, the principled approach to the hearsay rule has a place in the interpretation and application of Section 715(1), although it may exert a greater influence on the issue of necessity than on that of reliability. Second, Section 715(1) is not an exhaustive code governing the admissibility of preliminary inquiry testimony at a subsequent trial. Where preliminary inquiry testimony fails to satisfy the requirements for admissibility under Section 715 [and it refers to Section 715(1), I'm just referring as Section 715 to save time] it remains open to the trial judge to consider whether the testimony may be admissible under common law principles, for example, under the principled exception to the hearsay rule. Third, compliance with Section 715 does not displace the operation of other admissibility rules, such as the discretion to exclude evidence the prejudicial effect of which exceeds its probative value, evidence that involves an inordinate amount of time not commensurate with its value, or evidence whose effect on the trier of fact would be out of proportion to its reliability.

In R. v. Saleh [2013] ONCA, Justice Watt indicates at paragraph 74 and 75 as follows:

The exclusionary discretion in Section 715 is directed at two principal types of mischief: unfairness in the manner in which the preliminary inquiry evidence was obtained, and unfairness in the trial itself caused by the admission of the preliminary inquiry evidence. ... A trial judge should only exercise this discretion after weighing two competing and frequently conflicting concerns ... fair treatment of the accused; and society's interest in the admission of probative evidence to get at the truth of the allegations in issue.

The focus of the trial judge's concern must be on the protection of the accused from unfairness, rather than the admission of probative evidence without too much regard for the fairness of the adjudicative process.

Paragraph 76:

Section 715 is a statutory exception to the hearsay rule. It does not follow, however, that the principled approach to the hearsay rule has no place in the interpretation and application of the provision: see R. v. Li. ... That said, the principled approach may exert a greater influence on the issue of necessity than on that of reliability.

Paragraph 78:

The circumstances in which evidence previously given may be excluded in the exercise of discretion under Section 715(1) are comparatively

rare. The discretion to permit unfairness does not provide the trial judge with an open licence to undermine the object of Section 715(1) by excluding previous testimony as a matter of course.

In R. v. Li [2012] ONCA 291, the Ontario Court of Appeal indicated as follows, paragraph 52, and 53:

In O'Connor, although the appellant conceded necessity because the witness was in the United States, applying the principled approach, the court imposed the strict test for necessity that was articulated in 1992 in Finta and excluded the evidence. O'Connor A.C.J.O. stated, at paragraph 57...

...and I'll skip that for now as I'll return to it in a moment.

Paragraph 53:

It is not necessary to decide in this case whether the Finta standard for necessity ought to be read into Section 715(1)(d). However, consistent with the view expressed in Wilcox, the considerations that inform the application of the principled approach in cases like O'Connor -- and, specifically, the attention given to technological means of taking evidence in that case -- may also inform the exercise of the discretion under Section 715(1).

Paragraph 59:

In this case, the Crown failed to take minimal efforts to get the witness's evidence before the court through teleconference or videoconference, a factor that the trial judge did not weigh when exercising his residual discretion under Section 715.

Paragraph 60:

It appears that on the facts of this case, the trial judge's discretionary consideration of the minimal efforts that must be taken by the Crown under Section 715(1) overlapped with the necessity analysis of the principled approach. If the Crown does not use sufficient effort to try to get the witness to testify before the jury where the witness may have done so, the court is more likely to find that although he was not in Canada, it was not necessary to read in his preliminary inquiry evidence.

Finally, and most recently, my colleague Justice Ken Campbell indicated in R. v. Lawlor [2015] ONSC 6700 at paragraph 39:

In my view the trial judge committed no error in holding that the hearsay statements of the two men were not admissible pursuant to the principled approach to hearsay evidence. More particularly, in my opinion the admission of the hearsay statements was simply not reasonably necessary, even under the relaxed discretionary standard for defence-tendered hearsay evidence. The mere fact that the two men lived in New York did not, in and of itself, establish that the admission of their hearsay statements was reasonably necessary. Before the admission of such hearsay statements would properly be viewed as being reasonably necessary, the party tendering the hearsay evidence would have to demonstrate that they made reasonable efforts to try to secure the testimony of the hearsay declarants.

Now referring to the statement made by O'Connor in the case of R. v. O'Connor, which I skipped earlier:

It is not sufficient for the Crown to simply show that a witness is not compellable because he or she is out of the jurisdiction to satisfy the necessity requirement. Efforts should be made to pursue other options (teleconferencing or taking commission evidence are two) before one reaches the conclusion that admitting evidence by way of hearsay statement is necessary. Necessity cannot be equated with the unavailability of a witness. Rather, it must be shown that hearsay is the only available means of putting the evidence before the court...

Application of Law to These Facts

It is a reasonable inference that the police, Crown, became aware of Yanni's unavailability for trial and his reluctance to participate in this trial by at least September of 2017. Yanni was not scheduled to leave Canada until mid-October. There was time to do commission evidence pursuant to section 714.1 while Yanni was still in Canada and under subpoena. There was time to apply to the court for such an order. Pre-trial motions in this matter were held in late August 2017 and at that time, the Crown and police were aware of a potential problem developing with Yanni's evidence.

Further, Sergeant Johnston has not offered to pay for a ticket and accommodations to have Yanni return to Canada, at the present time. I note from the Crown material that a one-way ticket to Ghana costs about $2,500, a not inconsiderable sum.

Further, in my opinion, the facts reveal a cat and mouse game played by Yanni with the police to ensure that he was able to leave Canada unmolested, two days before trial and thus avoid testifying at this trial, despite being under subpoena. These events, subsequent to his testimony at the last trial are relevant to his credibility; see Jones- Solomon at paragraph 51.

Further, listening to the tapes of the last trial would hamper the jury in assessing the witness' demeanour and credibility without seeing that witness.

Decision

Given that one, the Crown has failed to establish necessity and that two, under all the unique circumstances of this case, this is one of those rare cases where it would create unfairness to the accused to admit this evidence at this second trial. Accordingly, the Crown's application to introduce Yanni's evidence at this trial is denied.

...END OF EXCERPT

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Leanne Osborne, certify that this document is a true and accurate transcription of the recording of R. v. Tyrone Chambers and Joshua Warner in the Superior Court of Justice held at 45 Main Street East, Hamilton, Ontario taken from Recording(s) No. 4799-600-20171106-095313-30-SKARICT which has been certified in Form 1.

November 19, 2017 ______________________________

(Date) (Signature of authorized person)

This certification does not apply to Reasons for Ruling which were judicially edited.