COURT FILE NO.: CRIM J (P) 846/11
DATE: 2018 03 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. SHEVON BAILEY
BEFORE: COROZA J.
COUNSEL: Andrea Esson and Tyler Powell, for the Crown Ingrid Grant and Owen Goddard, for Mr. Bailey
REASONS FOR RULING
[1] Mr. Shevon Bailey was charged with first degree murder. A jury returned a verdict of guilty on October 5, 2017.
[2] Pre-charge conferences were held on September 22, 25, and 29, 2017.
[3] During the course of one of the pre-charge conferences, an issue arose regarding defence counsel’s closing address. I released an endorsement disposing of this issue on October 1, 2017. I promised that I would provide written reasons to the parties. As promised, this is my written ruling.
Background
[4] George Kalogerakis was shot in the basement of his home at 142 Earth Star Trail, in Brampton. It was alleged that Mr. Bailey with two others invaded the home at 1:00 a.m. and forcibly confined Mr. Kalogerakis and his mother, Mrs. Vassilki Kalogerakis.
[5] During the home invasion, it was alleged that Mr. Bailey was brandishing a rifle. Eventually, Mr. Kalogerakis was taken to the basement and shot in the head. It was alleged that Mr. Bailey was the shooter.
[6] In a statement made to the police, Mr. Bailey suggested he had an alibi. He told the police that he was at his mother’s house with his cousin at the time of the murder, and that his stepfather and mother had seen him there. This alibi was presented to the jury by the Crown when it led the statement into evidence.
Defence Counsel’s Closing Submissions
[7] During her closing, defence counsel made reference to the alibi referred to in the statement. She commented that there was no onus on Mr. Bailey to prove his alibi, and that the Crown, by not calling Mr. Bailey’s stepfather, mother or cousin, had called no contradictory evidence. Defence counsel told the jury that they could not speculate on what these witnesses would have said had they testified. However, she urged the jury to find that that the alibi was completely un-contradicted and that it raised a reasonable doubt.
Crown Request for an Alibi Instruction
[8] In response to defence counsel’s closing, the Crown sought a direction to the jury instructing them that they could draw an adverse inference from Mr. Bailey’s failure to subject himself to cross-examination on the alibi, or to call witnesses, in support of his alibi defence. Specifically, the Crown argued that one available inference was that Mr. Bailey had not called the alibi witnesses because their evidence would not have been favourable to him: see R. v. Borde, 2011 ONCA 534, [2011] O.J. No. 3464, at para. 27.
Analysis
[9] Any decision to tell the jury that they can draw an adverse inference against an accused for failing to call a witness is always a risky proposition for a trial judge. The jurisprudence holds that it should only be done in clear circumstances and after careful reflection because “doing so risks imposing the burden of adducing evidence on the accused and shifts the onus of proof”: per Laskin J.A., dissenting in part in R. v. Aujla, 2015 ONCA 350, [2015] O.J. No. 2475, at para. 136, and R. v. Ellis, 2013 ONCA 9, [2013] O.J. No. 92, at para. 49.
[10] I acknowledge that if an alibi defence is put forward by the defence and the accused fails to call a witness or produce evidence to support the alibi, a jury can be instructed about its authority to draw an adverse inference against the accused. However, whether an adverse inference instruction should be given is within the discretion of the trial judge.
[11] One of the policy reasons for giving an adverse inference instruction is to balance the playing field. As Doherty J.A. held in R. v. Wright, 2009 ONCA 623, [2009] O.J. No. 3550, at para. 20, the common law has responded to the risk of fabrication, and the Crown's inability to effectively challenge alibi defences revealed long after the relevant events have occurred, by permitting the trier of fact to draw an adverse inference against the veracity of those defences.
[12] However, Doherty J.A. also held that one cannot lose sight of the fact that the adverse inference instruction is a qualification on constitutionally enshrined principles protecting the accused’s right to silence. The qualification can be justified only where the rationale for that qualification actually operates.
[13] In this case, the Crown argues that the effect of defence counsel’s closing is that it leaves an unbalanced portrayal of the alibi evidence with the jury. In particular, the jury would have been left with the impression that the Crown’s failure to call witnesses who could contradict the alibi is the only factor available to consider when weighing the alibi. Therefore, an instruction that suggests to the jury that Mr. Bailey’s failure to call witnesses that could corroborate the alibi is also a factor to be weighed, and that his failure to call such witnesses could lead to an adverse inference, would level the playing field between the parties.
[14] After having considered the matter, I do not agree with the Crown position. I say this for two reasons.
[15] First, I do not share the Crown’s view that defence counsel’s closing submission left the jury with the impression that the failure of the Crown to call witnesses to contradict the alibi was the only factor to consider. Indeed, it is my respectful view that defence counsel carefully crafted her submissions to avoid making that suggestion. Defence counsel’s submissions highlighted the following:
• The alibi was un-contradicted by evidence introduced during the trial;
• The jury could not speculate on what Mr. Bailey’s mother, stepfather, or cousin would have said if they were called; and
• There was no obligation on Mr. Bailey to prove his alibi.
[16] Was an unbalanced picture left for the jury? I do not think so. Defence counsel was entitled to comment on the weaknesses in the Crown’s case. Her purpose, from my reading of her submissions, was to remind the jury that the alibi stood un-contradicted. Furthermore, this is not a situation where defence counsel suggested that the failure of the Crown to call certain witnesses was because the witnesses’ evidence would have been unfavourable to the Crown. For these reasons, I believe defence counsel’s submissions were proper. It did not leave an unbalanced picture of the alibi defence with the jury.
[17] Second, the situation here must be considered in context. Arguably, it is not the defence that introduced this evidence. It was the Crown that led the statement introducing the alibi as part of its case. The suggestion that an adverse inference instruction should now be given to the potential detriment of the defence does not appear to be fair. Mr. Bailey had no control over how this evidence was led. It seems to me, it lies ill in the mouth of the Crown, having led the statement, to now argue that the jury was given an unbalanced picture because defence counsel suggested it was not contradicted and this could raise a reasonable doubt.
Conclusion
[18] In conclusion, the rationale for providing an adverse inference instruction did not operate in this case because defence counsel’s submissions did not leave an unbalanced picture of the alibi with the jury. In the end, I decided to provide the following instruction to the jury in my charge:
“Now, when I listened to the closing addresses of both counsel, they may have mentioned individuals who were not called at this trial. I do not want you to be under the impression that there is an obligation on either party to call any witness. Mr. Bailey is certainly not required to call evidence and the Crown who does bear the onus of proving this case does not have to call a specific witness. Indeed, there may be all sorts of perfectly legitimate reasons why witnesses are not called and you cannot speculate what a witness would have said if he or she were called.”
“You must decide whether the evidence led at this trial establishes proof of the essential elements beyond a reasonable doubt. Again, a reasonable doubt can arise from the evidence called or the lack of evidence”.
Coroza J.
DATE: March 9, 2018
COURT FILE NO.: CRIM J (P) 846/11
DATE: 2018 03 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. SHEVON BAILEY
BEFORE: COROZA J.
COUNSEL: Andrea Esson and Tyler Powell, for the Crown
Ingrid Grant and Owen Goddard, Counsel for Mr. Bailey
REASONS FOR RULING
COROZA J.
DATE: March 9, 2018