COURT FILE NO.: 13-4226, 18-078
DATE: 2018/06/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown
- and -
SHAQUILLE COLLINS Accused
J. Booy and J. McKenzie on behalf of the Crown
A. Craig on behalf of S. Collins
HEARD: May 22 and 23, 2018
A.J. Goodman J.:
APPLICATION TO ADMIT EVIDENCE FOR SUBSTANTIVE USE BY JURY- KGB APPLICATION - RULING
[1] During the course of trial, the Crown attorney sought to introduce two distinct sets of Agreed Statements of Facts (“ASF”) that were tendered in support of Shaquille Collins’ (“Collins”) co-accused’s respective guilty pleas. These two ASF were related to Shamar Tynes (“Tynes”) guilty plea in youth court on August 1, 2014 and Christopher Newton’s (“Newton”) guilty plea on May 14, 2018.
[2] I granted the Crown’s application, what has been often referred to as a “KGB application”, R. v B. (K.G) 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 and provided an oral ruling as to the scope of the ASF to be admitted into evidence for its substantive use by the jury, with reasons to follow. These are my Reasons.
Background:
[3] Originally, Tynes and Newton were both charged with the first degree murder of James Bajkor and the attempted murder of Justin Beals along with Collins. Tynes, who was a youth at the time, pleaded guilty to manslaughter in Youth court. During the course of that proceeding, Tynes swore under oath to an ASF in support of the underlying facts to substantiate his plea.
[4] Newton, an adult co-accused pleaded guilty to manslaughter at the outset of this trial. During the course of that proceeding, Newton swore under oath to an ASF in support of the underlying facts to substantiate his plea.
[5] There was no qualification to any of the facts read in on both occasions respectively.
[6] Both Tynes and Newton were called by the Crown as witnesses in this prosecution. During the course of their testimony, both witnesses recanted much of their testimony as it related to certain segments of their ASF.
Positions of the Parties:
[7] The Crown applies for the introduction of each witness’ ASF in its or their entirety. The Crown submits that both Tynes and Newton agreed to all of the facts that were read in at the time of their guilty pleas without reservation or qualification. Both individuals took no issue whatsoever with regards to any or all of the other background details at the time of their pleas.
[8] While this is Crown application, Ms. Craig on behalf of Collins does not vigourously oppose the KGB application and the Crown’s ability to use the two ASF for its substantive use at this trial. It is conceded that necessity and reliability have been made out. The issue is the scope of ASF to be admitted as substantive evidence for the truth of its contents in relation to the evidence of Tynes and Newton.
Legal Principles:
[9] The leading authority for the admissibility of these type of statements for their substantive nature in found in the seminal cases from the Supreme Court of Canada in R. v. B. (K.G.) and R. v. Khelawon, [2006] 2 S.C.R. 865.
[10] In this case, reference is also made to the R. v. Youvarajah, 2013 SCC 41, [2013] S.C.J. No. 41 and R. v. Kanagalingam, 2014 ONCA 727, [2014] O.J. No. 4946 (C.A.), for the principles and procedures in the introduction of a statement or ASF based on a guilty plea of another for its substantive use at a subsequent trial.
Discussion:
[11] Given that there is no serious dispute about the introduction of the tow ASF based on the establishment of necessity and threshold reliability, I need delve greatly into this topic.
[12] I have adopted the principles flowing from Youvarajah and further explained in Kanagalingam at paras. 31-34, 43-47.
[13] The fact pattern here is case is very similar to the situation in Kanagalingam where the witnesses pled guilty based on agreed statements of facts prepared by their lawyer in consultation with the Crown attorney.
[14] On the evidence adduced at the voir dire, the following indicators of procedural reliability have been established: The ASF was sworn to by Tynes and Newton at their respective guilty plea proceedings and were given under oath; The ASF was signed, sworn to during courtroom proceedings which was recorded by the court reporter in its entirety and produced during the course of the voir dire; Tynes and Newton were both represented by counsel at the guilty plea proceedings; at a minimum, Counsel read or discussed the ASF to Tynes and Newton prior to their respective guilty plea or at least, I am satisfied that each individual spoke with counsel about what should go into the ASF before it was finalized; Tynes and Newton fully understood what was in the ASF and he knew he could change the content if he wished and finally both Tynes and Newton explained that he pleaded guilty because he didn't want to be found guilty of a more serious offence and do more time. Both were aware he could choose to continue to plead not guilty.
[15] During the guilty plea proceedings, the complete ASF was read to Tynes and Newton respectively, while he was under oath. Both individuals admitted that the entire ASF was correct. Newton was asked if there was anything he wished to change and he said no. Both Tynes and Newton signed the ASF and it was entered as an exhibit during their guilty plea proceedings.
[16] No witness has raised any claim with respect to solicitor-client privilege.
[17] Defence Counsel has a full opportunity to cross-examine both Tynes and Newton on his testimony and the ASF at trial before the jury.
[18] Accordingly, both necessity and threshold reliability have been established.
[19] However, as mentioned, the nub of the issue here is the scope or breadth of the ASF to be admitted for the truth of its contents.
[20] The Crown urges the Court to admit the entirety of the multi-page ASF as it was agreed to and sworn under oath as to its entirety. Defence counsel submits that, notwithstanding that Tynes and Newton each swore to the truth of the entire ASF, a significant portion of the ASF is background information, Crown theory and/or clearly not within the personal knowledge of the particular witness.
[21] While it is entirely appropriate for the Crown attorney to present the background information and relevant facts in an ASF during the course of a guilty plea, in order for the presiding jurist to have sufficient facts to accept such a plea, in this situation, I agree with Ms. Craig’s argument.
[22] In the case of R. v. Stephens, 2015 ONCA 167, the Court of Appeal had occasion to address this particular issue, amongst other reasons. Specifically at para. 21, the court held:
Third, B.K.'s agreed statement of facts contains many statements damaging to the appellants that were not matters upon which B.K. could testify to directly as they amounted to inadmissible hearsay. Important details of the alleged kidnapping that were not within B.K.'s personal knowledge were recited. In some instances, the agreed statement of facts indicates that B.K. had learned some of these details from others involved. But even in these instances, it is not indicated who precisely told B.K. this information. For example, it is stated that B.K. "was told" that the purported kidnapping victims had been "threatened with physical violence and was told that Alexander and the others had firearms, though he did not see them." Unless one of the appellants told B.K. about the guns, this hearsay would not be admissible under the exception for party admissions.
[23] In my opinion, the Court of Appeal’s ruling is not only conclusive and binding but rather, it makes eminent sense.
[24] The portions of the ASF are being tendered for its substantive nature, for the truth of tis contents. It can be used not only to test the credibility of each particular witness, but can be used by the jury for the truth of its contents in weighing all of the evidence adduced at trial.
[25] As a general principle, as with any witness who testifies, it seems to me that the admissibility evidence is what a witness personally heard or observed, testimony within their own personal knowledge. Of course, there are exceptions to this general rule, which do not apply here.
[26] Thus, while I have admitted the ASF into evidence for its substantive use by the jury, in accordance with Stephens and the general principles of admissibility, I have edited the ASF to reflect what the particular witness knew, saw or heard, or what he could reasonably know, see or hear at the relevant time. Matters beyond the witness’ personal knowledge, background information or Crown theory of the case will not be admitted. In my view, this balancing process permits proper cross-examination of the witness by all counsel and avoids inadmissible hearsay.
Conclusion:
[27] For all of the brief aforementioned reasons, the Crown’s application is granted, subject to the editing of each ASF in accordance with my ruling.
A.J. GOODMAN, J.
Released: June 6, 2018
COURT FILE NO.: 13-4226, 18-078
DATE: 2018/06/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SHAQUILLE COLLINS
Accused
APPLICATION TO ADMIT EVIDENCE FOR SUBSTANTIVE USE BY JURY- KGB APPLICATION - RULING
A. J. GOODMAN, J.
Released: June 6, 2018