Court File and Parties
COURT FILE NO.: CR-16-1727 DATE: 20171120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Darilynn Allison/David D’Iorio, for the Crown
- and -
ADRIAN SOUTH Steven Hinkson, for the Accused
HEARD: November 20, 2017
RULING ON PERMITTING JURY CLOSER VIEW OF ACCUSED
BALTMAN J. (Orally):
[1] The accused is on trial for first degree murder. The sole issue is the identification of the intruder who shot Mario Barnes in his basement apartment. The only witness to provide any meaningful eyewitness evidence, albeit limited, is Ossel Green, who stated that the shooter had “colourful eyes”. He identified a photograph of Mr. South as being the shooter, which has been entered as an exhibit.
[2] The Crown has closed its case and it appears the Defence is not calling any evidence. However, the Defence wants the jury to be allowed to get closer to Mr. South, to observe his eyes. Mr. Hinkson submits that as currently situated (in Courtroom #404 of the Davis Courthouse in Brampton), the jury is not in an optimal position to properly view Mr. South’s eyes, thereby preventing them from properly assessing the evidence. He asks that either Mr. South approach the jury box where they can see him more closely, or have the jurors walk past the prisoner’s box where Mr. South is currently seated.
[3] I am giving brief reasons for my ruling at this time. I may, if necessary, expand upon them at a later date.
[4] The Crown argues the relief sought is tantamount to “taking a view” under s. 652 of the Criminal Code, which permits a view by the jury of any “place, thing or person.” As such, the Crown maintains this application should have been canvassed with the pre-trial judge, or at least been raised well before the Crown closed its case. It argues that it could thereby have determined whether it should call its own evidence on this issue including, potentially, expert evidence to the effect that Mr. South is now taking medication that can alter a person’s eye colour.
[5] I reject the Crown’s assertion that this request constitutes “taking a view” under s. 652. That provision is directed toward a more formal exercise where, by definition, the trier of fact cannot adequately make the necessary observation within the courtroom.
[6] The Crown’s alternate position is that this amounts to calling evidence. That is also incorrect. In McWilliams’ text “Canadian Criminal Evidence”, 5th edition, chapter 23:20.70, the authors discuss the accused as “Real Evidence”. They begin with the indisputable premise that whether or not the accused testifies, a trier of fact “may use their own assessment of an accused’s personal appearance in evaluating whether he or she is the individual responsible for the alleged offence where identity is in issue…”. This permits the trier to compare the accused’s in-court appearance with the person depicted in evidence. As the authors note, “the triers’ view of the accused may confirm or contradict other evidence of identity or simply be neutral”. An accused is not required to get on the witness stand for that purpose.
[7] In a related footnote, the authors further note that by “view” they mean “a ‘view’ in the sense of a visual observation without resort to s.652(1) of the Code dealing with the formal taking of a view”.
[8] I agree with the defence that because of the size and configuration of the courtroom we are currently in, and the angle of the jury box compared to how Mr. South is positioned in the prisoner’s box, the jury is not in an optimal position to properly view Mr. South’s eyes, therefore preventing them from fully assessing the evidence. To the extent the Crown argues that the jury is currently the same distance away from Mr. South as the shooter was from the victim (which is not conceded by the defence), or that Mr. South’s current appearance may differ from how he looked at the relevant time, that may go to the weight given to any observations, but it should not preclude the triers from getting close enough to properly see Mr. South.
[9] I would add that Crown counsel’s resistance strikes me as artificial; she could not refute my suggestion that if we happened to be in a smaller courtroom, where the jury was physically closer to the accused and in a better position to view him, that might obviate the need for this application. The accused’s right to a fair trial should not turn on which courtroom happens to be assigned to his case.
[10] Consequently, the jury shall be allowed a closer physical view of Mr. South. If counsel cannot agree on how that can best be physically accommodated, I may be approached.