Court File and Parties
COURT FILE NO.: CJ-9224 DATE: 2018-11-02 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HER MAJESTY THE QUEEN, Applicant AND: FREDDY MAWICK, Respondent
BEFORE: The Honourable Mr. Justice C.S. Glithero
COUNSEL: Vlatko Karadzic, Counsel for the Crown, Applicant Stefan Dimitrijevic, Counsel for the Accused, Respondent
HEARD: October 23 and 24, 2018
Pretrial Motion – Section 715
Corrected decision: The correction was made on November 14, 2018. The reference to “R. v. Mawick, ONSC 6560” in the Citation on page 1 has now been corrected to read “R. v. Mawick, 2018 ONSC 6560”
Endorsement
[1] The accused is charged with fraud over $5,000 and is scheduled to proceed to trial with a jury commencing January 7, 2019. The Crown brings this application for an order, pursuant to s.715 (1) of the Criminal Code, permitting the Crown to introduce the evidence of Mr. Boris Golan at trial by reading in the transcript of his evidence from the preliminary hearing conducted in this case.
Summary of the Allegations of Fraud
[2] A full recital of the details of the alleged fraud is unnecessary for this application.
[3] In September 2014, Herbert Woodhouse, at the time age 84, was advised by mail that he had won $3.6 million U.S. as a lottery prize from the United States. In attempts to collect his prize, he corresponded over the next year with various individuals whom he had been led to believe were instrumental in claiming the prize. Part of the instructions he received required him to forward several bank drafts and certified cheques made out to different payees, on the pretext that they were required to pay necessary fees and taxes, and later that his winnings had increased and he needed to pay the fees and taxes all over again, and that those originally paid would be refunded. The total he paid was almost $250,000 Cdn. The Crown alleges that Mr. Mawick was directly implicated in these losses, to the extent of almost $150,000 Cdn. Mr. Woodhouse received nothing in return.
[4] One of the bank drafts sent by Mr. Woodhouse in the amount of $18,000 U.S. was linked by various financial institution markings to an account controlled by Boris Golan. He was told there were grounds for his arrest and he was told to appear at the police station. He attended on November 4, 2016 and provided a videotaped statement in which he acknowledged being the owner of a cheque cashing business. He further advised that the individual who provided the bank draft to him was known to him as “Freddy”. He also advised that several other cheques or bank drafts issued by Mr. Woodhouse, or on his behalf, were cashed at Mr. Golan’s cheque cashing business. Mr. Golan provided what the police thought to be a satisfactory explanation of his involvement in the matter and he was released without charge. Mr. Golan continued to cooperate with the police by providing them with further records to substantiate his account of the dealings with these cheques once he had returned to his office and had business records available to him.
[5] Additional investigation produced evidence that later in the course of the fraud the victim was instructed to send future payments to a UPS store in Mississauga and to arrange for a tracking code for these items. The owner of that UPS store, at the relevant time, advised police that Freddy would learn that packages had arrived, utilizing the tracking device, and would attend, pay a fee, and pick up the packages, which had been held there for him. That owner was unable to identify the accused in a photographic lineup as “Freddy”. Two packages had also been sent by UPS to an address on Apache Drive in Mississauga. The named street number was non-existent but was a play on numbers, which turned out to be the address of the accused, according to MTC records.
[6] Mr. Osea Fletcher was the payee on several of the cheques and bank drafts utilized in the alleged fraud. Mr. Golan indicated that Fletcher had been present at the first occasion when Freddy attended his business, that it was Fletcher who had provided proper identification on that occasion, and that Fletcher instructed and authorized Golan to deal with Freddy in negotiating these cheques and drafts on Fletcher’s behalf.
[7] Five other cheques totalling $100,000, provided by the victim and payable to Fletcher, were cashed at another financial institution. Pursuant to a production order, a copy of the account information was obtained, which contained a copy of the front of a driver’s licence of the person who cashed the cheques. It was in the accused’s name and bore his photograph and Apache address.
[8] As a result of further police investigation, Mr. Mawick was arrested on February 23, 2017. On September 28, 2017, approximately six days before the preliminary hearing began, there was an apparent attempt on Mr. Golan’s life in York Region. A shot was apparently fired and it went through the front door of his home, narrowly missing his son. The matter was reported to the York Regional Police. It was investigated, but the matter remains unsolved. Mr. Golan is of the opinion that Fletcher was likely responsible for the attempt on his life, and that this attempt was made because it was known that Mr. Golan was to give evidence for the Crown at Mr. Mawick’s preliminary hearing.
[9] His preliminary inquiry took place on October 4 and 5, 2017. Mr. Golan testified, as a Crown witness at the preliminary hearing, and identified the accused as being the “Freddy” who provided him with the relevant cheques sent by Mr. Woodhouse, or bank drafts issued on his behalf.
[10] Mr. Golan was escorted to and from court, when testifying at the preliminary hearing, by the Witness Protection Unit of the Waterloo Regional Police, and wore a bullet proof vest while testifying. He entered and exited this courthouse via private entrances and was kept out of public portions of the building. By reason of the concern arising from the attempt on Mr. Golan’s life, the Crown sought, unsuccessfully, an order excluding the public from the courtroom during the preliminary inquiry.
[11] Mr. Fletcher has never been located or charged and there is an outstanding warrant for his arrest.
Basis for the Application
[12] The Crown’s position is that Mr. Golan is out of the country and refuses to return to give evidence at the accused’s trial. Accordingly the portions of s.715(1) of the Criminal Code that are relevant for purposes of this application can be read as follows:
Where, at the trial of an accused, a person whose evidence was given … on the preliminary inquiry into the charge, refuses to give evidence, or if facts are proved on an oath from which it can be inferred reasonably that the person … (d) is absent from Canada, … and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.
[13] After other pretrial motions had been argued, new Crown counsel was assigned this case. Upon learning from the police of Mr. Golan’s absence from the country, the Crown contacted defence counsel on September 19, 2018 to discuss possible resolution and to disclose to defence counsel that Mr. Golan was out of the country and unable to be served with a subpoena. The Crown advised that if the matter could not be resolved then the Crown might bring an application pursuant to s.715 of the Criminal Code. On September 25, 2018, defence counsel advised that he had no instructions to resolve the matter.
[14] On October 9, 2018, Crown counsel called defence counsel and indicated a s.715 application would be brought.
[15] On October 15, 2018, the original trial date, the case was spoken to and October 23 and 24, 2018 were set for the hearing of this pretrial motion and the trial was rescheduled to commence January 7, 2019.
Evidentiary Basis for the Application
[16] The investigating officer in this case, Detective Constable Cimermancic, testified on the application. The preliminary hearing took place on October 4 and 5, 2017. Two weeks before that the investigating officer learned that the subpoena for Mr. Golan had not been served. On September 27, 2017, he spoke to Mr. Golan, who was not happy about having to testify at the preliminary and indicated a concern that he was being targeted as revenge for having to give evidence in this matter. Part of his concern was that he lived in the Jane and Finch area of Toronto. Another concern was that he had a meeting with TICO (the Travel Industry Council of Ontario), and that he had to attend that meeting on October 5, in order to keep his travel agent’s licence in good standing. Golan agreed to meet the officer at an agreed upon location where they discussed Golan’s concerns for his safety and that of his family. While he was assured by the officer that this accused had no history of violence, Golan indicated it was not this accused that he was worried about, but rather other people. After the meeting, the officer called back to advise Golan that the Crown had agreed to facilitate the timing of his evidence so as to avoid a conflict with the travel association meeting.
[17] The officer didn’t yet physically have the subpoenas, so he couldn’t serve Golan that day. On September 29, 2017, the investigating officer got a call from York Regional Police advising that Golan was the victim of an attempted murder at his residence the previous day, but was uninjured. The officer contacted the victim protection section of the Waterloo Regional Police.
[18] On September 30, 2017, the officer again spoke to Golan, who expressed the belief that it may have been Fletcher who shot at his home, and Golan advised he appreciated that he was the only witness who could tie both Fletcher and Freddy to the fraudulent scheme. He explained that the bullet had gone through his front door and just missed hitting his son by a foot. Golan also advised the officer that a black person, who appeared suspicious, had come into his store three weeks earlier, appeared to be sizing up the size of a bullet proof section of glass in the store, and asked Golan about Nigerian currency negotiations. Then the person left the store but kept looking back towards it and appeared to have something large in one of his pockets, that Golan then wondered as perhaps being a gun.
[19] On October 2, 2017, Golan agreed to meet the officer at a location agreed between the two and was served with a subpoena at that time. Golan’s wife was also present and both of them expressed their fear and concern. Golan was wearing a bullet proof vest. Golan was angry with the police force subpoenaing him and indicated to the police that his life had been turned upside down. Mr. Golan mentioned the possibility of leaving the country for safety reasons.
[20] Mr. Golan testified on the first day of the preliminary, October 4, 2017, and identified the accused, who was sitting in the prisoner’s dock, as being Freddy. While at court, Mr. Golan advised the investigating officer that he was afraid and that he was leaving the country for safety reasons, but did not say what country he was moving to. In his evidence before me, the officer testified that he could not remember whether Golan told him this before or after he gave his evidence on October 4, 2017, but it was on that day at court. The officer further testified that he could not remember whether Golan said the move was to be temporary or permanent, nor could he remember whether he had advised Crown counsel of that information concerning Golan’s intention to leave the country. He also testified before me that he was told by an officer with the witness protection unit that it was believed that the move out of the country was to be temporary. In answer to a question by the court near the end of his evidence it was clarified that this later information was obtained long after and shortly before the hearing of this application.
[21] The officer next spoke to Golan on October 23, 2017. Golan indicated he was living in a hotel with his family out of the country. The investigating officer did not ask him where he was. Golan inquired and was told that Fletcher had not yet been apprehended. Golan repeated his fears and unhappiness that his life had been upset, as a result of his involvement in this matter, explained that his kids were missing school as a result of being out of the country. Golan’s wife came on the phone and also blamed the officer for endangering the family by involving them in the case. The officer did not advise Crown counsel of this conversation in which Golan reported that he was out of the country.
[22] The investigating officer met with the former Crown counsel on January 4, 2018, but did not advise him that Golan had reported on October 23, 2017 that he was out of the country.
[23] The officer met with York Regional Police in respect of the attempted murder case on March 8, 2018, but did not ask as to the knowledge of York Regional Police of Golan’s whereabouts.
[24] The officer telephoned Golan again on August 20, 2018 as the officer had learned from the former Crown that there were subpoenas available and that he was to serve them. He called Golan at his Ontario cell phone number, left a message, and then received a call back from Golan that same day. Golan advised the officer that his Toronto area house was up for sale. When contacted, Golan indicated he did not want to testify, repeated that he was out of Canada, that he had been back to Canada since they last spoke, but had left again and repeated that his life had been turned upside down. He refused to tell the officer where he was. He advised that his children were missing school and were being treated by a psychologist. The officer advised Golan he was needed as a witness and Golan indicated he wanted to discuss the matter with his wife.
[25] On August 23, 2018, Golan left a message that he did not expect to be back for trial, but he would advise the officer if that position changed.
[26] It was on August 24, 2018 that the investigating officer first advised the new Crown counsel, Mr. Karadzic, of the conversations with Golan. On September 7, 2018, the two of them met for the first time about this case.
[27] On October 10, 2018, the officer had his next telephone contact with Golan and asked him if he would be available to receive a subpoena. Golan indicated that he was overseas but would not say where he was. He advised the officer he had been in the United States for a while but then had left again, which confirmed information the officer had received from York Regional Police. Golan advised the officer he could not come back to Canada because of fears for himself and the safety of his family, that they were not living a normal life, that his house in the greater Toronto area was up for sale, and expressed concern as a result of not knowing who had shot at his house.
[28] The officer advised the Crown of these conversations and, as instructed, contacted Golan again on October 18, 2018. He advised Golan that the October 15, 2018 trial date had been adjourned and rescheduled for the New Year. The officer asked if Golan would be available for a trial in the New Year and Golan indicated that he was not returning unless the police could solve the attempted murder case. He reiterated that, as a result of their inability to do so, he had had to start a new life and that he did not want to testify but would come back if the police could prove that Fletcher, or whoever was responsible for the attempted murder, had been arrested and put in jail. He was asked whether he would be willing to testify by video link but responded that if he gave evidence by video link it would still be held against him, so he was not open to that idea. He reiterated that his son had been almost killed, that his life was turned upside down, that his wife and kids were being treated by a psychologist. He did indicate, however, he was willing to speak to the officer again, if the officer telephoned him.
[29] In cross-examination on this application, the officer admitted that he had been advised of which country Mr. Golan’s father resided in, and that he had other information indicating a familiarity with that same country, on the part of Golan. He agreed that he had not reached out to police authorities in that country to see if Mr. Golan’s whereabouts could be ascertained. Similarly, he agreed he made no efforts to reach out to other police forces in Canada, or in the United States to try and locate Mr. Golan. Similarly, no inquiries had been made of immigration officials, and no efforts were made to obtain banking records or telephone records in an effort to try and locate Mr. Golan.
[30] He also agreed that he had not attended at, nor sought the assistance of any other police authorities, to attend at Mr. Golan’s house to see if in fact it was for sale or had sold, nor were any efforts made to contact any realtors, nor were any efforts made to have anyone attend at any of Mr. Golan’s known places of business, or at the school of his children, to see if information as to his whereabouts was available.
[31] The officer indicated in cross-examination that he was aware that a subpoena would be ineffective outside of Canada.
Legal Principles
[32] The onus on an applicant under s.715(1) of the Criminal Code is stated therein as being satisfied “where facts are proved on an oath from which it can be inferred reasonably that the person” is absent from Canada. That language would almost seem to suggest that the onus is met if the test for circumstantial evidence is met, namely that the conclusion may be logically and reasonably drawn as a result of particular facts. However, in R. v. Saleh, 2013 ONCA 742, [2013] O.J. No. 5554, the Court of Appeal held at para. 69 that “A party who invokes s.715(1) to introduce at trial evidence given by a witness at the preliminary inquiry into the charge must establish, on a balance of probabilities ,
(i) that the witness gave evidence at the preliminary inquiry; (ii) that the witness is unavailable to testify at trial for any reason described in the section; and (iii) that the preliminary inquiry evidence was given in the presence of the accused.”
(Emphasis added)
Accordingly, the onus is to establish the prerequisites on a balance of probabilities.
[33] In R. v. Potvin, [1989] S.C.J. No. 24, the Supreme Court of Canada determined that s.643(1) (the predecessor of s.715(1) of the Criminal Code) was Charter compliant, but also gave directions with respect to the judicial discretion that exists, even if the technical requirements of the section are met. At para. 34, the court held that such discretion can be utilized where there has been unfairness in the manner in which the earlier evidence was obtained, or may also arise where admission of the evidence would, for some other reason, impair the fairness of the trial. The court gave two examples of the first kind of situation where previous evidence would be excluded as a matter of discretion, because of unfairness in the manner in which it was obtained. The first example given would be where a witness is temporarily absent from Canada, but could have been produced at trial with minimal effort. A second example, cited by the court, was “a case in which the Crown was aware at the time the evidence was initially taken that the witness would not be available to testify at trial but did not inform the accused of this fact so that he could make the best use of the opportunity to cross-examine the witness at the earlier proceeding.”
[34] While the court stressed throughout the importance of a full opportunity to cross-examine the witness during the earlier evidence, it stressed that the key thing is a full opportunity to cross-examine, not the fact that full cross-examination has taken place, or has not. Specifically, the court indicated that an accused is not so deprived where counsel conducted the cross-examination for tactical reasons in a manner different than would be conducted at trial. In other words, the requirements of the section are met where the accused had the opportunity to cross-examine the witness at the time the earlier evidence was given, but either chose not to or to do so only to a limited extent. Nevertheless, there is a discretion in the trial judge to decline to admit the evidence if the circumstances surrounding that earlier opportunity to cross-examine, such as where it is known but not disclosed that the witness will not be available for trial, creates an unfairness.
[35] The first example given by the Supreme Court, a situation where only minimal efforts were made to get the witness to trial, mirrored the decision of the Ontario Court of Appeal in R. v. Nelson, [1988] O.J. No. 374. In that case, the court did not treat the matter as an example of discretion, but rather held the earlier evidence to be inadmissible at trial because of a failure on the part of the prosecution to show that reasonable diligence had been undertaken in order to sustain the conclusion that a witness was unable to attend trial.
[36] In the later case of R. v. Harris, [1991] O.J. No. 1509, the Ontario Court of Appeal did rely on the discretion a trial judge has to refuse a s.715 application, and allowed an appeal in circumstances where it found that the Crown had proven all the prerequisites required by the section, but nevertheless admission of the previous evidence would have been unfair to the accused as there was not sufficient explanation as to why the complainant witness could not attend and give evidence at trial.
[37] There is a fair amount of overlap between the principles of s.715, which is a statutory exception to the hearsay rule, and the twin requirements of the principled approach to hearsay evidence. R. v. Orpin, [2002] O.J. No. 1541 is a Court of Appeal decision holding that the necessity requirement under the principle approach to hearsay evidence had not been met in circumstances where the investigating officer was simply told by the witness that she did not want to come to court to testify, as the court decided that there ought to have been evidence of efforts made on the part of the officer to persuade the witness to testify, before it could be said that the necessity requirement was satisfied.
[38] The Court of Appeal decision in R. v. Li, 2012 ONCA 291, [2012] O.J. No. 1989 is relied upon by both counsel. There, the unavailable witness had cooperated with the police in terms of being served with the subpoena for the preliminary hearing. No efforts were made to serve that witness with a subpoena for trial until approximately three weeks before trial, by which time the witness was out of the country. The witness, when contacted, indicated a willingness to attend trial, but a financial inability to do so. An initial ruling refused the application under s.715, as a result of the lack of any evidence that the prosecution had exercised due diligence by addressing the financial matters. The issue is then reconsidered in light of additional police evidence of efforts made to have the witness attend and of the witness’ refusal. On appeal, it was held that the trial judge had erred in admitting the evidence by reason of a failure to consider the possibility of receiving the evidence using video technology, as provided for under s.714.2(1) of the Criminal Code. It was held that a failure to explain the video conference option to the witness, especially where the witness had inquired whether there was any other way to give the evidence other than by attending personally at the trial, was an error which ought to have led to the exclusion of the evidence.
[39] Saleh is also an example where an appeal was allowed partly on the basis of the unfair effect on the trial of admitting preliminary hearing evidence. There, two witnesses had been present at the time a murder was committed and both refused to testify at trial. The earlier evidence given by the two of them contained important contradictions as between them. The trial judge admitted the preliminary hearing evidence of the one witness, but not the other, and this in the judgment of the Court of Appeal, had created unfairness. Importantly, the court also held that it was an example of trial unfairness where the witness, whose preliminary hearing evidence was admitted, was a manifestly unreliable witness and where other evidence relevant to that witness’ evidence was discovered only after the preliminary hearing had been completed. At para. 77 the judgment identified a factor for a trial judge to consider in exercising his or her discretion in an application to admit evidence under s.715(1) is the crucial nature of the evidence itself, that is where the witness has a crucial evidentiary role and trial fairness dictates that the witness should be present so a proper assessment of credibility can be made.
[40] In R. v Mirabi, [2008] O.J. No. 867, Hill J. determined that an accused had not had a full opportunity to cross-examine as he was unrepresented, counsel for the co-accused did cross-examine, but the preliminary hearing justice never afforded Mirabi the same opportunity. At para. 41, Justice Hill noted that the issue of whether an accused has had a full opportunity to cross-examine is a case specific inquiry. Accordingly, he concluded that the accused had met the onus set out in the concluding words of the subsection. Justice Hill found it unnecessary to consider the residual discretion to exclude the evidence, as the application of the section had been defeated when the accused met the burden of proof placed on him by the final phrase in the section.
[41] I also consider the case of R. v. Kaddoura, 1987 ABCA 226 where at para. 20, the court held that if the Crown is forewarned before the preliminary hearing of the intention of the witness to permanently depart Canada after testifying at the preliminary, the defence must be promptly so advised so as to be able to take that factor into account in conducting the cross-examination.
Discussion
[42] With respect, it seems to me that sometimes the principles applicable to s.715 applications are dealt with by reference to the prerequisites of the section, and sometimes the same considerations are dealt with by application of the judicial discretion described in Potvin.
[43] As to whether the Crown has established, on a balance of probabilities, that the witness is absent from Canada, I take into account the following evidence:
(a) the only evidence that the witness is out of the country comes from that witness himself by way of indications to the officer – there is no supporting evidence; (b) the fact that he is successfully contacted via an Ontario cell phone number is not proof of his location; (c) this witness was cooperative with the police when questioned; (d) the cooperation continued in that the witness provided documentary evidence to the police even after he had been cleared of any involvement in the charge; (e) the witness continued to cooperate with the police by meeting to discuss his concerns about testifying at the preliminary; (f) the witness continued to cooperate by meeting with the officer voluntarily so as to be served with the subpoena for the preliminary; (g) the witness has always readily spoken to the police officer by telephone and does not appear to have evaded the police or to have refused to speak to them; (h) the witness has indicated an understandable reason for not wishing to attend, given the evidence of the shot being fired at his house shortly before the preliminary hearing, and given his indication to the police that a suspicious character had also checked out his store; and (i) the police made no efforts to verify that the witness was out of the country by attending his home, places of business, the schools of his children, or checking with any other government agencies or police forces for any information as to his either being in Canada or out of Canada.
[44] Defence counsel cross-examined the officer at length with respect to other steps that could possibly have been taken to verify whether or not the witness was absent from the country. As the Crown pointed out during submissions, it is difficult to prove a negative. It is a question of the degree to which the police ought to be required to verify information from a witness who they believe, in any event, as a result of the witness’ cooperation and utility in the investigation.
[45] A minimal amount of effort would have been necessary to verify that the house was for sale, that the witness was not present and actively running his businesses, or that the children were no longer in their school. What it comes down to is that the police simply accepted the word of the witness, albeit a witness who had been consistently cooperative and helpful to them. In my opinion, it would not be necessary for the police to utilize every possible investigative tool to prove the absence of the witness from Canada. But some measure of diligence is required, as indicated in the cases referred to above. Within the scope developed in the jurisprudence I am not satisfied that the onus of proving the absence of the witness has been met.
[46] Moreover, as indicated in the cases above, advances in technology and the introduction of s.714.1 of the Criminal Code introduces the spectre of evidence being presented from an absent witness electronically as a much preferred alternative to simply reading in the transcript of evidence earlier given, without the advantage of being able to observe the witness while testifying in both chief and cross-examination. Here, the effort was minimal in terms of attempting to utilize electronic means. The evidence before me is that the witness was asked about it and indicated an unwillingness, in effect because it would still become known he had given evidence, and whatever revenge might take place if he were to testify at trial might just as easily take place if he were to assist the Crown by giving evidence by electronic means. There was, however, no further efforts on the part of the officer to persuade the witness of the utility of providing evidence electronically. It ought to have been explained that steps could be taken to preserve secrecy as to the location of the witness at the time evidence was taken electronically, and protective measures available when here in Canada. As indicated in Li, reasonable efforts have to be made to attempt to obtain the evidence in that manner. On that basis, I am not satisfied that the Crown has met the onus of proving on a balance of probabilities that the evidence is unavailable, by reason of the fact that the witness is apparently physically out of the country. The witness gave evidence at the preliminary hearing despite the fact that the shooting at his home had occurred just days before. If made to understand the importance of testifying and the steps that could be taken to protect him and to protect his whereabouts, the evidence might well be available.
[47] Moreover, in the circumstances of this case, I am persuaded on a balance of probabilities that the accused did not have a full opportunity to cross-examine the witness in the sense developed by earlier cases. Here, the officer knew a couple of days before the preliminary hearing that the witness was thinking of leaving the country. As of the date of the preliminary hearing, he knew that the witness intended to leave the country the next day. His evidence is that he can’t remember whether the witness told him that before giving his evidence on the first day of the preliminary, or after giving his evidence that day, but it was while he was still at court. Regardless, in my opinion, the Crown ought to have been so advised and the prosecution ought to have then advised the defence of that development.
[48] In my opinion, a review of the transcript of the cross-examination of the witness at the preliminary hearing reveals that defence counsel questioned the witness on important areas in a way so as to set up the elicitation of inconsistencies at trial, and as such, with more impact. For example, at the preliminary hearing, the witness indicated he had seen Freddy seven or eight or ten times at the store, whereas his original position with the police was that he had only seen Freddy two or three times. These inconsistencies could be important in a case where identification is in issue, and where the first identification of the accused was made as he sat in the dock.
[49] I understand that failure to fully cross-examine a witness for tactical reasons does not detract from what constitutes a full opportunity to cross-examine. On the other hand, tactical decisions are made on the basis of the circumstances as they are known to the questioner. I am satisfied that it is more likely than not that if defence counsel had been made aware that the witness was going to absent himself from Canada, he would have cross-examined the witness differently and more comprehensively than he did because of the prospect of a s.715(1) application. I think it more likely the officer would have discussions with the witness prior to his giving evidence, rather than afterwards. Even if the revelation by the witness to the officer of the intent to leave Canada was made after he testified that day at the preliminary hearing, had it been disclosed, efforts could have been made to have the witness re-attend for further cross-examination. For these reasons, I conclude that the respondent has demonstrated that he did not have a full opportunity to cross-examine and but for that reason, the s.715(1) application ought to be dismissed.
[50] While unnecessary given my conclusion above, I turn briefly to the issue of discretion. Mr. Golan is a crucial witness as to the alleged involvement of the accused. His credibility will be important at trial. In such circumstances, it seems to me that the failure to take better efforts to locate him to verify his absence from Canada, to acquire his evidence utilizing s.714.1 of the Criminal Code, and the failure to advise the accused of the intention of the witness to leave the country, all warrant an exercise of discretion in favour of the respondent. The failure to advise of the imminent absence of the witness triggers the first type of situation described in Potvin, namely where the evidence was obtained in an unfair manner, by in effect failing to tell the accused that this might be his only shot at a full cross-examination. Similarly, the failure to make better efforts to utilize s.714.1 of the Criminal Code, in respect of a vital witness whose credibility is at issue, in my opinion, impacts negatively on the fairness of the trial.
[51] For these reasons, on the basis of the evidence before me, the application is dismissed.