COURT FILE NO.: 235/18
DATE: 2019-04-09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Prosecution/Respondent
– and –
Michael John William Ball Accused/Applicant
COUNSEL:
R. Dietrich and T. Shuster, for the Prosecution/Respondent
A. Bryant and A.M. Morphew, for the Accused/Applicant
HEARD: April 8, 2019
PRE-TRIAL APPLICATION NO. 16 (DEFENCE WITNESSES)
Pursuant to section 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict, or until further order of the court.
THE HONOURABLE JUSTICE J. R. HENDERSON
INTRODUCTION
The accused, Michael Ball (“Ball”), brings this application at the start of the defence case for an order regarding the manner in which James Baechler (“Baechler”) and Chris Smith (“Smith”) are to be called to give evidence and the manner in which they are to be examined at this trial.
It is the primary requests of the accused that the Court should call Baechler and Smith as witnesses for the Court, and make them available for cross-examination by the defence and by the Crown. In the alternative, if the accused calls Baechler and Smith as defence witnesses, the accused asks for an order that permits the defence to cross-examine these witnesses. In the further alternative, the accused asks for an order that declares Baechler to be a hostile witness so as to permit the cross-examination of Baechler at large.
THE BACKGROUND
Ball is charged with the first degree murder of his former girlfriend Erin Howlett (“Howlett”). The trial commenced approximately 12 weeks ago, and the Crown has closed its case. The Crown did not call any eyewitness evidence as to how Howlett died. The Crown’s case against Ball relies on, inter alia, various statements made by Ball; Ball’s conduct and attitude toward Howlett; Ball’s alleged motive and opportunity; and the evidence of Daniel Warwick (“Warwick”) who testified that he assisted Ball in disposing of Howlett’s body.
In Pre-trial Application No. 8 I found that the accused was entitled to call evidence that tended to show that Baechler, Smith, and Warwick were in the presence of Howlett when she died. That is, I accepted that if a jury found that any of these three suspects were present at the time of Howlett’s death, or if the jury had a reasonable doubt about same, then the jury may have a reasonable doubt as to Ball’s guilt.
For ease of reference, Pre-trial Application No. 8 was called a third-party suspect application. The Crown chose to call Warwick as part of the Crown’s case at trial, but chose not to call Baechler or Smith.
The accused wishes to have Baechler and Smith testify at the trial. However, defence counsel submits that the defence should be permitted to cross-examine both Baechler and Smith considering that counsel will be submitting that Baechler or Smith, or both, were present when Howlett died.
The factual matrix is somewhat complex. Ball and Howlett were in an intimate relationship in the spring of 2013, but that relationship deteriorated in May or June 2013. That being said, Howlett continued to attend at Ball’s residence and buy illegal drugs from him.
The evidence that was introduced at Pre-trial Application No. 8 suggests that Baechler and Howlett started an intimate relationship in approximately mid May 2013. Smith was Baechler’s best friend and he lived on Brubacher Street, close to Ball’s residence on Chestnut Street. Baechler spent time with Smith and Howlett at Smith’s residence on Brubacher Street.
Howlett was last seen alive on June 27, 2013 at Ball’s residence on Chestnut Street. There is an issue as to when or if Howlett left Chestnut Street that evening. The Crown’s theory is that Ball killed Howlett at Chestnut Street sometime after 9:45 p.m. The defence theory is that Howlett left Chestnut Street at approximately 6:00 p.m. and went to another location where she died. The defence suggests that it is possible, given Howlett’s pattern of conduct and her relationship with Baechler, that Howlett went to Smith’s residence or to Baechler’s residence when she left Chestnut Street.
Both Baechler and Smith testified at the preliminary hearing and were vigorously cross-examined by defence counsel. Smith did not testify at the first trial. Baechler was called by the defence as a witness at the first trial, but defence counsel was not permitted to cross-examine Baechler. It is apparent that the examination of Baechler was somewhat fractious at the first trial.
At the present trial, the jury has been alerted to the potential involvement of Baechler and Smith during the course of the Crown’s case. In particular, the Crown referenced Baechler in the Crown’s opening address on three occasions; Officer Rumble testified that he interviewed Baechler on July 6, 2013; there is evidence of text messaging between Howlett and Baechler on June 26 and 27; Howlett’s brother testified that he spoke with Baechler after Howlett disappeared and that Baechler was doing his own investigation into Howlett’s disappearance; Officer Rumble interviewed Ball who informed him that Smith was the person who told Ball that Howlett’s body had been found; there are many extractions from Smith’s cell phone that have been filed as exhibits; and Smith may have been the person to whom Howlett was selling illegal drugs on behalf of Ball on June 1, 2013.
Both Baechler and Smith have made various statements that suggest that they have always aligned themselves with Howlett’s family and the Crown. In particular, Baechler has made several posts on his Facebook account to the effect that he was supporting the Howlett family and that he hoped Ball would rot in jail. Further, it is alleged that Smith unlawfully entered Ball’s residence and stole items from Ball.
ANALYSIS
Regarding the primary request of the accused, I accept that a trial judge has a discretion to call a witness at a trial if “this course is necessary in the interest of justice”. See the decision in R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701 at para. 297, and the approval of Finta in R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113 at para. 39.
In both the Finta and Cook decisions, the Supreme Court of Canada reaffirmed that the adversarial process is an important part of our judicial system. If a trial judge were to call witnesses at a trial, there is a risk that the adversarial process could be compromised. Accordingly, as stated at para. 296 of Finta, “The discretion should only be exercised rarely and then with extreme care, so as not to interfere with the adversarial nature of the trial procedure or prejudice the accused.”
I agree that the remedy requested by the defence should only be granted if the remedy is necessary to ensure that there is a fair trial. That is, this remedy is closely associated with an accused’s right to a fair trial as set out in section 7 of the Canadian Charter of Rights and Freedoms.
Regarding trial fairness, defence counsel believes that the testimony of these third-party suspects is essential to the defence. Moreover, the defence submits that it would be unfair if the accused were required to call these third parties, but not be permitted to cross-examine them. That is, it is not expected that the third parties would concede that they should be considered suspects. Therefore, the defence suggests that there should be some concessions given in the defence examination of these witnesses.
On the other hand, there is a competing submission from the Crown that if a trial judge called these witnesses for the Court, the perception of the jury about these witnesses would be distorted. That is, the jury may consider that the evidence of these witnesses is more important than that of other witnesses, or the jury may perhaps believe that the evidence of these witnesses should be treated in a more neutral manner.
In my opinion, the above submissions with respect to fairness both have merit. However, it must be remembered that this remedy should not be granted unless it is necessary.
In my view, in the present case, it is not necessary to grant this remedy. The alleged unfairness to the accused can be addressed by way of another type of order. The proposed order, outlined below, should alleviate the unfairness to the defence, and at the same time preserve the adversarial process.
For these reasons, I will not grant the primary request of the accused.
The alternative request by the accused is for an order permitting the defence to call Baechler and Smith and to cross-examine these witnesses. In the case of R v. Clancey, [1992] O.J. No. 3968, at para. 29, Watt J. confirmed that, at common law, a judge presiding in a criminal trial has a discretion to relax the general rule which prohibits the putting of leading questions in examination-in-chief of a witness summoned by a party. That discretion exists apart from any statutory provisions, such as section 9 of the Canada Evidence Act.
Therefore, I find that this court has a discretion at common-law to permit the summoning party to cross-examine its own witness in certain cases. This discretion exists over and above the provisions of section 9 of the Canada Evidence Act.
In my view, the present case is one in which I should exercise my discretion to make this type of order. It is clear that on certain issues Baechler and Smith will not agree with or be favourable to the position of the accused. That is, Baechler and Smith will not agree that they should be considered to be suspects in the death of Howlett. It would be foolish to think that defence counsel could elicit any useful answers on these issues if the questions were not put to these witnesses by way of cross-examination.
Moreover, I find that the provisions of section 9 of the Canada Evidence Act do not adequately deal with this situation. Section 9(2) authorizes a trial judge to permit cross-examination of the party’s own witness if it can be shown that the witness previously gave a statement that is inconsistent with the testimony at trial. That scenario is unlikely to arise in this case, as both Baechler and Smith have consistently said that they were not involved in Howlett’s death.
Further, section 9(1) authorizes a trial judge to find that a witness is “adverse”, that is opposed in interest, and upon doing so the trial judge may permit a party to call evidence to contradict its own witness and to cross-examine that witness on a prior statement.
In my view, the remedies available pursuant to section 9 would not adequately address the issue that is before the court in this case. Therefore, I am prepared to authorize defence counsel to conduct some cross-examination of Baechler and Smith.
In terms of trial fairness, I agree with the submissions of the Crown that if I were to permit the defence to cross-examine Baechler and Smith “right out of the box”, there could be a perception by the jury that I have made a ruling that suggests that these witnesses are not to be trusted or that they are less reliable than other witness.
Therefore, I find that defence counsel may choose to call Baechler and Smith as defence witnesses, but that defence counsel will be required to follow the usual practice for questioning a party’s own witness, except that defence counsel will be permitted to cross-examine Baechler and Smith on the following topics:
The witness’s relationship with Howlett,
The witness’s relationship with Michael Ball,
The witness’s activities of June 26 to July 1, 2013,
Any communications between the witness and Howlett on or after June 20, 2013, regarding the witness’s plans for June 26 to July 1, 2013.
I will add that as the examination of Baechler and Smith proceeds, counsel may bring a further motion to cross-examine on other topics, or may bring a further motion to cross-examine at large.
Regarding the third request made by the accused in this application, for an order declaring Baechler to be a hostile witness, I find that it is not necessary for me to make a decision at this point in the proceeding. Moreover, I find that there will likely be a more fulsome evidentiary record that may support this request after Baechler has testified in whole or in part.
Therefore, I will not grant the defence request to declare Baechler to be a hostile witness at this time. Counsel may renew this request at a later date if they choose to do so.
Finally, I propose to give a mid-trial instruction to the jury with respect to my ruling that defence counsel may cross-examine Baechler and Smith about certain topics. I will hear further submissions from counsel as to the proposed content of that instruction.
Justice J. R. Henderson
DATED: April 9, 2019
COURT FILE NO.: 235/18
DATE: 2019-04-09
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Michael John William Ball
PRE-TRIAL APPLICATION NO. 16 (DEFENCE WITNESSES)
J. R. Henderson J.
Released: April 9, 2019