Court File and Parties

COURT FILE NO.: CR-18-70000285 DATE: 20190531 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Applicant AND: Indrit Zaganjori, Respondent

BEFORE: S.F. Dunphy J.

COUNSEL: Scott Graham, for the Applicant Roots Gadhia, for the Respondent

HEARD at Toronto: May 27, 2019

REASONS FOR DECISION

[1] On May 31, 2019 I heard an application by the Crown pursuant to s. 715(1) of the Criminal Code to introduce as part of the Crown’s case the evidence of a police constable given at the preliminary inquiry in this case. I rejected that application and indicated that my reasons would follow. These are those reasons.

Background Facts

[2] The background facts are these. I have withheld the name of the police constable in question in order to respect his privacy as he is currently on leave undergoing medical treatment.

[3] Early in the morning of June 29, 2016, the constable was one of several police officers responding to a 911 call in respect of an individual who was alleged to have pointed a firearm in a pub a few minutes earlier. He was involved in the search of the pub and the detention of an individual found inside matching the description given by the complainant. That individual was the accused person in this case, Mr. Zaganjori.

[4] At this time, the constable seized a key fob that was used to locate car used by the accused parked nearby. Video surveillance evidence located several hours later potentially connected the car with Mr. Zaganjori and the commission of the offence.

[5] The constable testified at the preliminary inquiry held on April 10, 2018 and was subjected to significant cross-examination by the same counsel who represented the accused at trial.

[6] In early July 2018 the constable was assessed by Dr. Danielle Blackmore and diagnosed with certain psychological disorders for which he has been receiving treatment from her since that time. The constable has been off work since shortly before that initial assessment by Dr. Blackmore.

[7] The Crown initially made its application pursuant to s. 715(1) of the Criminal Code at the outset of the trial. Dr. Blackmore supplied an affidavit attesting that testifying in any capacity, including by way of video or audio conference, would cause significant mental health injury to the constable.

[8] This short affidavit gave little to no information about the qualification of the affiant to provide the evidence tendered both in terms of her own particular area of expertise and the length and quality of her observations of the constable. Further, it did not directly address the test prescribed by s. 715(1)(c) of the Criminal Code – i.e. whether the constable is “so ill that he is unable” to testify.

[9] I was not satisfied that the level of detail provided in Dr. Blackmore’s affidavit was sufficient to permit me to find the facts needed to justify the order sought and dismissed the application without prejudice to it being brought back again with further and better evidence.

[10] The Crown re-applied before the close of its case and produced Dr. Blackmore to testify in person. I ordered Dr. Blackmore to answer proper questions put to her in relation to the application notwithstanding her assertion of doctor-patient privilege.

[11] From her viva voce testimony there can be no question that Dr. Blackmore has both the professional credentials and the depth of experience with her patient to offer an informed and useful opinion. Following his initial assessment in July 2018, the constable has attended at least 35 counselling sessions with her and submitted to a number of tests and therapies.

Issues

[12] Section 715(1) of the Criminal Code provides in its relevant parts that the evidence of “a person whose evidence was given …on the preliminary inquiry into the charge … if facts are proved on oath from which it can be inferred reasonably that the person …(c) is so ill that he is unable to…testify…may be admitted as evidence” at trial. An exception is provided if the “accused proves that the accused did not have full opportunity to cross-examine the witness”.

[13] Three issues arose at the hearing of the application:

a. Was the constable “unable to testify” at the trial? b. Did the accused have “full opportunity to cross-examine”? c. Ought I to exercise my discretion to permit his evidence to be received pursuant to s. 715(1)?

Analysis and Discussion

(a) Was the constable unable to testify at the trial?

[14] After considering all of Dr. Blackmore’s evidence, I could not conclude that the constable was unable to testify for two reasons.

[15] First, the constable was able to testify at the preliminary inquiry on April 10, 2018.

[16] Dr. Blackmore’s investigation of the clinical history of her patient contained no suggestion of a material worsening of his condition at the time of this testimony in April 2018. Indeed, the subject simply never came up. The constable was on active duty in April 2018 and testifying in court proceedings would have been a routine part of his work life. While his work was undoubtedly a source of stress in his life, he was not then “unable” to testify and there is no evidence that testifying on that occasion at least was the source of any particular level of harm to him.

[17] According to Dr. Blackmore, the mental illness from which the constable has been suffering was not something that had just arisen or even just gotten significantly worse at the time of her initial assessment in July 2018. Her description of the illness mentioned a series of contributing factors over time, including a particular incident described as a catalyst dating from the early part of 2016 (unrelated to and earlier than this case). It is clear that this mental illness has been present for some time. July 2018 did not mark a qualitative change to his symptoms so much as a recognition by the constable that the illness from which he had long been suffering was real and needed treatment.

[18] The evidence of Dr. Blackmore leads me to infer that the condition of the constable is effectively the same or better now when compared to his condition in April 2018 when he clearly was able to testify. Indeed, after ten months of therapy and treatment, one might express the guarded expectation that he might be better equipped to handle the stress involved in testifying now than he was then.

[19] Second, the viva voce evidence of Dr. Blackmore was considerably more nuanced and qualified as to the harm she anticipated to arise were the constable to testify.

[20] While her affidavit initially stated that testifying in any format “would cause significant mental health injury”, at the hearing she stated that testifying “would not impact in a positive way” and that his “recovery would be impeded and delayed”. She further noted that the prospect of testifying has already had some impact upon the constable who has expressed “distress at testifying in any format” and she has noticed an increase in his symptoms since the prospect first arose, including an incident where the constable missed a therapy session because he felt too much stress to drive.

[21] It is fair to say that Dr. Blackmore expressed worry and concern about the possibility that testifying might produce a set-back in the constable’s treatment or a worsening of his condition. However, the level of worry and concern expressed was at its core speculative. She had been unaware of his April 2018 testimony prior to appearing in court and could offer no convincing reason why one ought to anticipate any different level of stress or harm arising from testifying now as compared to then.

[22] There is relatively little case law on s. 715 of the Criminal Code and none was cited to me concerning the narrow question of what level of disability must be demonstrated to establish that a witness is “unable” to testify.

[23] Clearly “unable to testify” is not a standard requiring proof of physical impossibility such as a coma or some other total disability. Mental illness is an illness and is therefore capable of satisfying the “illness” requirement established by s. 715(1)(c) of the Criminal Code. However the anticipated harm to the mental health of the proposed witness arising from testifying should in my view be something that is reasonably likely to be of an entirely different order of magnitude than the stress and anxiety commonly experienced by witnesses who are not suffering from mental illness.

[24] It is not unusual for witnesses in criminal trials to experience some level of stress – even extreme stress – when testifying. We instruct juries every day to be mindful of the fact that testifying in open court may be a stressful experience for many people. Crime victims in particular have often suffered very significant trauma and are often subjected to very high levels of stress and anxiety when testifying. Our law allows for screens, the presence of support workers and similar accommodations but these can only partially mitigate the adverse impact upon them of testifying.

[25] While the mental illness of the constable is certainly a handicap that may impair his ability to handle the stress associated with testifying, his professional background balances that to some degree. He is no stranger to the inside of a courtroom.

[26] Every case must be determined based upon its particular facts and in this case I was not satisfied that the impediment posed by the mental illness from which the constable suffers rose to the point of rendering the constable unable to testify.

(b) Did the accused have “full opportunity to cross-examine”?

[27] The defence suggested that it was focused on a planned Charter application during the preliminary inquiry and did not cross-examine the constable during the preliminary inquiry on the issues of most interest at trial.

[28] This objection was not pressed by the defence in argument. The onus to prove that the accused did not have full opportunity to cross-examine the witness is placed squarely upon the shoulders of the accused by s. 715(1). This provision of the Criminal Code speaks only of the opportunity of the accused to cross-examine and does not mandate an inquiry into the efficacy with which that opportunity was exploited.

[29] There can be no question that the accused had the opportunity to cross-examine the constable at the preliminary inquiry. He was in fact cross-examined and at some length by the same counsel that is representing the accused at trial.

[30] The defence has not discharged the burden imposed upon the accused by s. 715(1) of the Criminal Code.

(c) Ought I to exercise my discretion to permit his evidence to be received pursuant to s. 715(1)?

[31] The use of the word “may” in s. 715(1) of the Criminal Code confers upon the trial judge a degree of discretion. Clearly that discretion cannot be exercised in such a fashion as to undermine the intention of Parliament in enacting this provision. Section 715(1) of the Criminal Code confers a substantive right and it is not one that is lightly to be interfered with where the conditions precedent to its application have been satisfied.

[32] It is clear from prior proceedings that the defence would intend to mount a very serious challenge to the credibility of significant aspects of the constable’s testimony. The ability of the defence to do so on the basis of grounds only partially explored at the preliminary inquiry would clearly be impaired and impaired materially were the constable’s evidence to be received by the jury “as is, where is”. I am mindful of the fact that this consideration is, to a degree “baked into the cake”. In drafting s. 715(1) of the Criminal Code, Parliament has weighed the question and come down on the side of requiring only that the defence was given an opportunity to cross-examine without mandating a detailed review of the sufficiency of that examination. On the other hand, Parliament also left a residual discretion in the trial judge to decline to accept that evidence where the fairness of the trial is at stake. That discretion can only be exercised after an informed balancing of the affected interests undertaken with due regard to Parliament’s underlying intention.

[33] In my view, this is a case where the balancing favours exclusion of the proposed evidence.

[34] It appears highly likely that all or substantially all of the evidence that the Crown would seek to elicit from the constable can be had from other sources. The Crown seeks to connect the accused to an individual and car captured on reasonably good quality video at the time of (and steps away from) the incident giving rise to the complaint. At the time this application was heard, the individual seen in that surveillance video had already been very firmly connected to the accused by four witnesses and the video itself shows the individual opening the car with an electronic fob. Other police constables were in a position to identify the license plate from which a vehicle registration could easily be traced. While it is possible to redact the preliminary inquiry testimony of the constable to mitigate some or most of the potential prejudice to the defence in being deprived of the opportunity to challenge his credibility at trial, the evidence itself seems likely to be of only slight probative value. Newcastle is not in need of more coal.

[35] Conversely, the defence would be deprived of the opportunity to press home to the fullest its intended attack upon the credibility of the witness. I have considered whether, given the low value of the evidence to the Crown’s case, this is a minor thing as well. However, prior to the Crown closing its case, the defence has not made its election whether or not to call evidence. Requiring the defence to put all of its cards on the table now to disclose what parts of this testimony it wants to undermine and what avenues of attack it would intend to employ to undermine it would be fundamentally unfair. In other words, I am acutely aware that I don’t know what I don’t know.

[36] While I may not fully appreciate with precision what aspects of the constable’s recorded testimony the defence would be seeking to attack, I have seen enough to understand that the intention to attack the credibility of the evidence is not speculative. This same testimony has been subjected to significant criticism by a fellow judge at a pre-trial motion where certain evidence was ordered to be excluded.

[37] On balance, the value of the evidence to the Crown case appears slight and substitutes readily available whereas the impact upon the defence has the potential to be material.

[38] For the foregoing reasons, I dismissed the application from the bench on May 27, 2019.

S.F. Dunphy J. Date: May 31, 2019