ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Esson, A. Berg, for the Respondent
Respondent
- and -
SEM GOLOV
L. Shemesh, for the Applicant
Applicant
HEARD: November 17, 2017, at Brampton
RULING ON DEFENCE APPLICATION FOR VIEW
PURSUANT TO s. 652 OF THE CRIMINAL CODE
André J.
1During his trial on a charge of second degree murder, Mr. Golov applied during the presentation of the Crown’s case to view the scene of the alleged murder. Specifically, his counsel contends that viewing the scene is in the interests of justice in that it would enable the jurors to assess the evidence of the sole witness to the alleged murder.
BACKGROUND FACTS
2Mr. William Maassen was fatally stabbed on August 7, 2015 on a concrete pavement at the back of a strip plaza in Mississauga. Then fifteen year old, Mr. Jack Kryslak-Gallant, had earlier asked Mr. Golov to purchase two bottles of vodka at an LCBO store in the plaza. The two met in a ravine at the back of the plaza. Mr. Kryslak-Gallant gave Mr. Golov money to purchase the alcohol. Mr. Golov later returned with the two bottles of vodka and gave them to Mr. Kryslak-Gallant. While in the ravine, two men approached Mr. Golov and Mr. Gallant and asked if they had any weed. They replied no. Thereupon one of the men, who turned out to be Mr. Maassen, touched Mr. Golov on the shoulder. Mr. Golov got up from a log on which he had been sitting and pushed Mr. Maassen with both hands. A pushing match ensued between the two. They called each other “pussy”. Mr. Maassen then left the scene. Mr. Golov asked Mr. Kryslak-Gallant if he had handled the incident appropriately. He then made a comment to the effect that he could have stabbed Mr. Maassen and no one would have known. He showed Mr. Kryslak-Gallant a knife which he had tucked in his waist.
3Sometime later, while the two were still in the ravine, Mr. Kryslak-Gallant heard voices shouting “pussy” and challenging Mr. Golov to a fight. Mr. Kryslak-Gallant then pushed his bicycle up the ravine to the concrete platform at the back of the plaza. He rode away towards the east end of the plaza. When he reached the end of the plaza, a distance he claimed to have been approximately fifty feet, he turned his head to the left and looked back for approximately two seconds. He testified that at this moment, he saw Mr. Golov strike Mr. Maassen quickly four to five times. Mr. Golov allegedly did so in the vicinity of an alley way from the front to the back of the plaza. Mr. Kryslak-Gallant then saw Mr. Maassen doubled up, both hands clutching his stomach. Mr. Kryslak-Gallant then turned left and rode to his home.
POSITION OF THE DEFENCE
4Defence counsel, Ms. Shemesh, submits that given the Crown’s failure to adduce evidence regarding the distance between the edge of the plaza and the area where the stabbing took place, it is in the interests of justice to permit the jury to view the scene of the incident. She submits that there is no prejudice if the jury is allowed to do so. Furthermore, Mr. Golov was willing not to attend at the scene to alleviate any security concerns which his presence may raise.
POSITION OF THE CROWN
5The Crown submits that it is unnecessary to permit the jury to view the scene given the plethora of photographs, maps, a surveillance video of the scene which shows Mr. Kryslak-Gallant riding away from the scene and looking back, Google maps depicting the plaza and its location, and the viva voce evidence of Mr. Kryslak-Gallant. Furthermore, that the Crown, following a request from the court, had obtained a fairly precise measurement of the distance between the eastern edge of the plaza where Mr. Kryslak-Gallant had made his observation and the pavement in front of the alley way. The Crown maintains that it is therefore unnecessary to have the jury view the plaza.
6The Crown further points out the logistical problems in having the jury view a public mall in a busy city and the attendant risk of unwanted media attention. Finally, the Crown submits that there is a risk that the jury would consider extrinsic evidence which could not be tested in cross-examination, if they are allowed to view the area where the stabbing took place.
Governing Principles
7Section 652 of the Criminal code provides that:
The judge may, where it appears to be in the interests of justice, at any time after the jury has been sworn and before it gives its verdict, direct the jury to have a view of any place, thing or person, and shall give directions respecting the manner in which, and the persons by whom, the place, thing or person shall be shown to the jury, and may for that purpose adjourn the trial.
8A trial judge has the discretion to allow a jury to take a view of a location where an alleged offence occurred: see R. v. Vallis (1989), 21 M.V.R. (2d) 236 (B.C.C.A.); R. v. Gatien (1999), 44 W.C.B. (2d) 219 (Que. C.A.).
9The onus is on the person moving for a view to establish that it would be in the interests of justice to do so: see McWilliams’ Canadian Criminal Evidence, Fifth Edition, eds. Justice Casey Hill, David Tanovich and Louis P. Strezos 23:30.60.
10In R. v. Bernardo (1997), 121 C.C.C. (#d) 123 (Ont. C.A.), at page 131, Doherty J.A. noted of the phrase “interest of justice”:
The phrase "the interests of justice" is used throughout the Criminal Code. It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case-by-case basis. The interests of justice encompass broad based societal concerns and the more specific interests of a particular accused.
11In R. v. Johnson, 2010 ONSC 5189, at para. 5, Nordheimer J. noted the following:
…However, since the governing criterion is that the taking of a view must be in the interests of justice, it suggests that the person seeking to have the jury take a view must go much further than simply showing that it would be helpful in the most superficial meaning of that word. Indeed, I conclude that the applicant must establish that there is some very real and demonstrable advantage that the taking of a view will bring to the proceeding in terms of the jury's understanding of the evidence they will hear.
12Nordheimer J. proceeded to note at para. 6 that:
In considering whether a view is in the interests of justice, it appears to me that a judge needs to consider a variety of different matters including:
(i) logistical problems associated with the scene itself including accessibility, distance, safety concerns for those attending the view, the likelihood of public attention to the process and the disruption to normal day-to-day activities in the area where the view is to take place;
(ii) logistical problems with the view itself including transporting the jury, the judge, counsel, court staff and the accused. If the accused is in custody, this may pose a special challenge as the accused is entitled to be present at the view (see R. v. Predac, [1983] O.J. No. 149 (C.A.));
(iii) security concerns at the scene including the likelihood of the jury being exposed to information or actions of others that are not relevant to the jury's task and the degree to which such exposure might be prejudicial;
(iv) the extent to which photographs, recordings, models and other aids can adequately convey the necessary information to the jury, and;
(v) the nature of the evidence that the view is directed at helping the jury understand.
13A view must be relevant to a material issue in the trial and having regard to the interests of justice. The probative value of the evidence gleaned from the view must outweigh its prejudicial effect: see McWilliams Canadian Criminal Evidence, Fifth Edition, supra. In determining whether the probative value of the evidence from a view outweighs its prejudicial effect, a court must consider the following factors:
The necessity of receiving evidence outside the courtroom having regard to the degree of assistance to the triers of fact likely to be gained from a view, the adequacy of alternative sources of information and the centrality of the thing to be viewed to the prosecution.
Will the granting of a view be fair to the parties with minimum prejudice?
Would the view be inconvenient, expensive, unsafe or disruptive?
ANALYSIS
14Mr. Golov’s counsel submits that a view of the scene of the incident is necessary to enable the jury to assess the distance from the end of the plaza where Mr. Kryslak-Gallant made his observation to the end of the alley way where Mr. Maassen was stabbed. This view is necessary, she submits, given that no one made a video of the view from the spot where Mr. Kryslak-Gallant turned his head to the left and made his observations.
15Applying the test for a view set out in Johnson, has Mr. Golov established, on a balance of probabilities, that there is some very real and demonstrable advantage that the taking of a view will bring the proceeding, in terms of the jury’s understanding of the evidence they have heard?
16I am not persuaded that I can answer this question in the affirmative for the following reasons.
17First, there is a surveillance video which has been tendered as an exhibit in the trial which clearly shows Mr. Kryslak-Gallant riding in an easterly direction towards the end of the plaza where he turned his head and looked back. This video clearly gives the jury an appreciation of the distance he rode before doing do. The video does not show the full distance travelled by Mr. Kryslak-Gallant at the back of the plaza but there are photographs which have been marked as exhibits that show where the pathway and the ravine meets the concrete pavement at the back of the plaza.
18Second, there are surveillance videos and photographs that show the slope of the concrete pavement. These videos and photographs will enable the jury to determine whether or not it was a factor in Mr. Kryslak-Gallant’s view of the alleged incident. To that extent, a view of the scene will not be demonstrably advantageous to the jury in any way.
19Third, I am concerned that attending the scene of the stabbing carries a risk of the jury introducing untested evidence in its deliberations which could not be tested in cross-examination. Mr. Kryslak-Gallant was riding a bicycle when he viewed the alleged stabbing. It is unknown how far he was from the ground when he made his observations. The angle of his view when he turned around is also unknown. To have the jury attend the scene and walk to the edge of the plaza before looking back for an undetermined period at the location of the alleged stabbing may introduce untested evidence which may not accord with that called during the trial.
20Fourth, while the back of the plaza may be unchanged since August 7, 2015, the lighting conditions at the scene may be different from that which existed when Mr. Kryslak-Gallant rode away on his bicycle.
21Fifth, I am satisfied that the photographs, surveillance videos and Google maps adequately convey the distance which the defence is concerned about. I also note that during the presentation of the video evidence, it was possible to obtain “close up” images of the scene by using the “zoom” function on the equipment.
22Additionally, the Crown has disclosed to the defence the distance between the eastern edge of the plaza and the end of the alley way. The Crown has elected not to call this evidence but there is nothing stopping the defence from doing so. To the contrary, the Crown has indicated that this information could be entered into evidence as an agreed statement of fact. It is therefore not necessary to exercise my discretion to order a view of the scene for the jury to appreciate the distance between the edge of the plaza and the edge of the alley way.
23Sixth, I am mindful that a view would pose logistical challenges including the likelihood of public attention to the process and the disruption to normal day-to-day activities in the area where the view would take place. The proposed view is not of a room in a residence or business; it is of the back of a busy plaza in a large city. The area of the view would have to be cleared of members of the public, parked vehicles may have to be removed as would any other obstructions, whether a garbage bin or other container.
24Similarly, the entry to the path in the ravine would have to be cordoned off. The absence of the accused would alleviate rather than eliminate, some of the security concerns since the authorities would also have to ensure that no one attempts to contact any jury member.
25Defence counsel relies on a few cases where the court ordered a view. In R. v. MacDonald, [2006] O.J. No. 4285 (S.C.J.) the court ordered a view where the topography could not be duplicated by mechanical means. This is not the case here, since photographs and video evidence adequately show the scene of the stabbing and the area where Mr. Kryslak-Gallant claimed he saw the incident. In R. v. Nasrallah, 2012 ONSC 2124, both parties consented to the view given that the distances which were in issue were distorted by the surveillance cameras. Similarly, in R. v. Palmer, [2006] O.J. No. 4760 (S.C.J.), the topography of the scene of the death could not be duplicated in the courtroom thereby warranting a view in the interests of justice.
26In R. v. Q.A.D., [2003] O.J. No. 6257 (S.C.J.), Ewaschuk J. held at paragraph 7 that the proper test to be applied on an application to view is that “the taking of the view is helpful to the jury”. In my view, a more stringent test is required; one which takes into consideration the factors set out in Johnson and an assessment of the probative/prejudicial effect of the view.
CONCLUSION
27For the above reasons, I conclude that it would not be in the interests of justice to permit the jury to view the scene of the stabbing that resulted in Mr. Maassen’s death.
28Accordingly, the application is denied.
André J.
Released: November 20, 2017
CITATION: R. v. Golov, 2017 ONSC 6918
COURT FILE NO.: CRIMJ(P) 1931/16
DATE: 2017 11 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
SEM GOLOV
RULING
André J.
Released: November 20, 2017