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 15 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 17, 2017
Transcript Completed: .................. November 22, 2017
Ordering Party Notified: ............... November 23, 2017
WEDNESDAY, NOVEMBER 15, 2017
CITATION: R. v. Chambers and Warner, 2017 ONSC 7033
REASONS FOR RULING
SKARICA, J. (Orally):
This is a situation where the witness yesterday, Ashley Bouchard, testified to certain events after the shooting occurred. Significantly, she indicated that right after the shooting, she saw what she describes as the two shooters leave the premises. They went down the stairs. She testified that the first man dropped a gun on the other side of the pole in Photo 3, Exhibit 2. The other man picked it up. They didn't say anything. That's contrary to the prior evidence she made at the first trial which is summarized in the case that brought us here in Chambers, cited as R. v. Chambers [2016] ONCA 684. The Court of Appeal at paragraph 83 indicates as follows, in part, "The trial judge recounted some of the evidence..." - and this is regarding post-offence conduct.
The trial judge recounted some of the evidence of Warner and Chambers' conduct after the shooting. In particular, he noted the following:
Warner and Chambers left right after the shooting.
According to A.B., [that's Ashley Bouchard, the witness we're talking about, the first man] the first man out dropped a gun and told the other one to pick it up, which the second person did.
Nicole Hamilton testified [and we're about to hear from her] "after the popping noises the man who didn't like the music dropped a gun and then picked it up." Chambers agreed that he dropped the gun and picked it up. He testified that his .380 was dull silver. Nicole said that the gun that was dropped was silver with black.
Paragraph 88, the Court of Appeal indicates:
Also, if the jury accepted A.B.'s evidence that the "the first man out dropped a gun and told the other one to pick it up" then that evidence may be probative of whether the non-shooter aided or abetted the shooter. And it may be that, if accepted by the jury, Hamilton's evidence of who dropped the gun and what that gun looked like was relevant to the identity of the shooter.
So it is clear from the Court of Appeal's comments that this is extremely important evidence that the jury must consider - Ashley Bouchard's version of what occurred and also Nicole Hamilton's version.
In addition to Ms Bouchard not indicating, as she did in the first trial, that the first man told the other one to pick it up, which the second person did, the Crown, obviously, was aware of that prior testimony and did not attempt to refresh her memory in accordance with the principles as outlined in Coffin, and at the end of the day, 4:25, ended its examination in-chief. However, no defence cross-examination has commenced.
So there's really two principles that have to be considered here. One, the principles governing the re-opening of the Crown's examination in-chief and also what are the principles I must consider in my discretion as to whether or not the Coffin case, Coffin approach should be used to refresh Ashley Bouchard's memory.
Regarding the first principle regarding re-opening, I note again the Crown has announced that it has closed its examination in-chief but no cross-examination has taken place as of yet by other counsel. I refer to the case of R. v. M.(B.P.) 1994 CanLII 125 (SCC), [1994] SCJ No. 27 where the Supreme Court of Canada indicated as follows, paragraph 19:
The keystone principle in determining whether the Crown should be allowed to reopen its case has always been whether the accused will suffer prejudice in the legal sense -- that is, will be prejudiced in his or her defence. A trial judge's exercise of discretion to permit the Crown's case to be reopened must be exercised judicially and should be based on ensuring that the interests of justice are served.
Paragraph 20:
Traditionally, courts in Canada and in England have treated the stage reached in a proceeding as correlative to prejudice and injustice to the accused. That is, a court's discretion with respect to reopening will be exercised less readily as the trial proceeds. The point is illustrated by taking the following three stages in a trial:
1 before the Crown closes its case...
I might add that we're definitely in phase one. The Crown is perhaps at the midpoint of, of dealing with this case and regarding this witness, no cross-examination has yet to take place.
In the first phase [In the first phase..." paragraph 21, which is where we're at] before the Crown has closed its case, a trial judge has considerable latitude in exercising his or her discretion to allow the Crown to recall a witness so that his or her earlier testimony can be corrected. Any prejudice to the accused can generally be cured at this early stage by an adjournment, cross-examination of the recalled witness and other Crown witnesses and/or a review by the trial judge of the record in order to determine whether certain portions should be struck.
I might add that at this point, we don't even need to recall the witness. The witness is about to return for cross-examination, so we're at the very early stages in the first phase.
Regarding the exercise of my discretion pursuant to the Coffin principles, those principles are outlined - I'm going to refer to three appellate court decisions. The first one is R. v. Baier [2016] BCCA 426 where the B.C. Court of Appeal indicates at paragraph 27:
On appeal, Mr. Baier contends the police statement should not have been before the court. However, it is permissible for a party who has called a witness who gives evidence inconsistent with a prior statement [that's what's occurred here] to have the witness review the statement if the purpose is to not to contradict, but to refresh the witness's memory in the hope that the prior statement might be adopted, [reference to Coffin and Muise]. Moreover, in such situations the trial judge has discretion to permit some leading questions of the witness regarding the prior statement without the need to invoke the procedure in Section 9(2) of the Canada Evidence Act.
In J.A.T., a decision of the Ontario Court of Appeal [2012] ONCA 177, the Court of Appeal indicates at paragraph 93:
As a general rule, the party who calls a witness is not permitted to ask the witness leading questions, in other words, questions that, by their terms, suggest the answer the witness should give. [Then further on indicates] A trial judge also has a general discretion to allow leading questions whenever it appears necessary in the interests of justice.
Finally, in R. v. Muise there is a direct quote from the leading case of Coffin and it indicates - and this is a decision of the Nova Scotia Court of Appeal at [2013] NSCA 81. The Nova Scotia Court of Appeal indicates at paragraph 25:
The Supreme Court of Canada held in Reference Re R. v. Coffin ... that a trial judge has discretion to permit leading questions during direct examination whenever it is considered necessary in the interests of justice. It also held that a witness may refresh his or her memory by reference to his or her earlier depositions and that Section 9 of the Canada Evidence Act applies only when such refreshing is attempted to discredit or contradict a party's own witness. Kellock J. wrote:
It is quite true that the initial answers made by the witness as to these three matters were not "accepted" by counsel for the Crown but while, as a general rule, a party may not either in direct or re‑examination put leading questions, the court has a discretion, not open to review, to relax it whenever it is considered necessary in the interests of justice, as the learned judge appears to have considered was the situation in the case at bar ... Moreover, the authorities make it clear that a witness may be allowed to refresh his memory by reference to his earlier depositions and that it is only where the object of the examination is to discredit or contradict a party's own witness that Section 9 of the Canada Evidence Act applies. In the present case it is evident that the object was to show that the mention by the appellant to the police of having left the Lindsay party in the company of two other persons was an afterthought which had not occurred to him when he gave his earlier account to the witness Petrie. Counsel did not wish, therefore, to discredit Petrie but to obtain from her the evidence she had given in her depositions if, on bringing the depositions to her attention, her memory would permit her to adopt them.
And further on, there's a reference to another case. At page 496, Coleridge J., said:
A witness from flurry or forgetfulness may omit facts and on being reminded may carry his recollection back so as to be able to give his evidence fully and correctly, and a question for that purpose may properly be put.
In my opinion, the Crown here is not attempting to contradict the witness or discredit that witness. It merely wishes to have the witness refresh her memory by reference to the earlier depositions.
In my opinion, my discretion, as outlined in Coffin, should be exercised to allow the Crown to permit the refreshing of the memory of the witness. I do not feel that it would cause prejudice or cause trial unfairness as indicated in M.(B.P.). This is before any cross-examination has started, once the Coffin procedure has been adhered to, any prejudice to the accused can be cured by cross-examination of the witness.
So accordingly, in the circumstances, I'm going to permit the Crown to - one other case I should refer to before I do that is a decision recently of a case by the Alberta Court of Appeal in Langlois [2014] ABCA 352, where the Court of Appeal basically reaffirms all of these principles regarding Coffin and indicates at paragraph three - and this actually referring to P.(M.B.):
Moreover, and in any event, a trial judge has discretion to permit the recall of a witness or the re-opening of the Crown's case. ... Such discretion is limited, of course, by questions of trial fairness. ... The purpose of the general rule precluding the Crown from splitting its case is to prevent unfair surprise, prejudice and confusion.
In my opinion, there's no unfair surprise as all counsel were aware of the prior statements. The prejudice, if any, could be cured by cross-examination, and there's no confusion, in my opinion, by allowing the Crown to refresh the witness' memory.
As I've indicated before, this is a case of murder and, in my opinion, the jury should have before it as much evidence as possibly available so that they can determine what the truth is and accordingly, deliver justice to both the public and to the two accused.
So the Crown can refresh the memory of the witness.
...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. 4799-600-20171115-094444-30-SKARICT which has been certified in Form 1.
November 23, 2017 ______________________________
(Date) (Signature of authorized person)
This certification does not apply to Reasons for Ruling which were judicially edited.