Court File and Parties

Court File No.: 1/18 Date: 2019-06-12 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – H.A.

Counsel: Amy Stevenson, for the Crown Ariel Herscovitch, for H.A.

Heard: June 11, 2019

Reasons for Decision – Crown Application to Cross-Examine, at Large, a Witness Alleged to be Hostile

Conlan J.

I. Introduction

[1] H.A. is charged with numerous offences, however, for the purpose of the within ruling we need focus only on his alleged participation in an armed and disguised robbery attempt at a Royal Bank of Canada branch office in Oakville on December 23, 2016.

[2] It is alleged that H.A. and another male, A.M., attended at the bank together that day. They entered. A.M. had what was held out to be a handgun. No money was taken. The two men escaped despite A.M. wrestling for some time with an off-duty police officer.

[3] A.M. is testifying currently. He is in the middle of direct examination by the Crown. He has admitted his involvement in the attempted robbery and identified himself in relevant video footage and photographs. Thus far, despite repeated attempts by the Crown, he has failed or refused to identify the other male who took part in the attempted robbery or provide any details as to what precipitated and followed the event.

[4] On June 15, 2017, A.M. pleaded guilty to charges arising from his participation in the robbery. The facts read-in at the time included references to H.A. as the other robber. Counsel for A.M., however, was careful in stating to the Judge who took the guilty pleas that A.M. was admitting only the allegations as against himself.

[5] In November 2017, A.M. testified for the Crown in a lower Court trial involving a third person, H.K., as the accused. At that proceeding, A.M.’s answers to questions about the Royal Bank robbery were generally similar to how they have been before this Court thus far, that is, vague and replete with “I don’t remember” and “I don’t know”, even on the simplest of things like the identity of the other disguised male inside the bank in Oakville on December 23, 2016.

The Application

[6] The Crown applies, at common law, to cross-examine A.M. at large, alleging that he is a hostile witness. The Defence opposes the Application.

II. Ruling

[7] To decide this Application, this Court should consider, among other things, A.M.’s demeanour and attitude thus far at trial, how credible he is, whether and to what degree his evidence suffers from inconsistencies, and the purpose for which the Crown seeks to cross-examine him at large. R. v. Serre, 2012 ONSC 3193, [2012] O.J. No. 2967 (S.C.J.), at paragraph 18, citing R. v. Soobrian (1994), 21 O.R. (3d) 603, 96 C.C.C. (3d) 208 at 217 (C.A.).

[8] On the latter consideration, I am satisfied on balance that the Crown has a legitimate purpose for cross-examining A.M., that is to prod his memory further and/or shake his disingenuousness in order to secure helpful evidence to the case for the prosecution, which evidence A.M. may reasonably be expected to be in a position to give but is reluctant to do so.

[9] The identity of the second male inside the Royal Bank in Oakville on December 23, 2016 is highly probative, in fact crucial, to the charges that H.A. is facing. There is nothing prejudicial to the accused about allowing the Crown to pursue its objective. If the witness suddenly capitulates and names H.A. as his accomplice, then the Defence is well capable of arguing that the weight to be attached to that new testimony ought to be minimal.

[10] Inconsistencies in the evidence of A.M. is not a significant factor here.

[11] The other considerations, however, point equally to the granting of the Crown’s request. Frankly, any objective observer could only fairly describe A.M.’s evidence thus far as being absurd. Incredible. So far, he wants this Court to believe that he did not know, at the time, and does not know now, the other male that he attempted to rob the bank with. He also cannot assist the Court in any way on when, where or how the scheme was concocted or even discussed, and he is equally unable to say a word about what happened that day after he fought with a man inside the bank, fled, ran for some distance with only one shoe on and then met up with a car that reversed and had its door open and waiting for him to jump into on a nearby side street. It is preposterous. This happened just 2.5 years ago. There is no evidence of mental illness or a general memory deficit on the part of this witness.

[12] I agree with Mr. Herscovitch that the absurdity of the witness’ evidence does not, by itself, translate into a finding of hostility of the mind. It would set a bad precedent to suggest that the Crown can cross-examine at large any of its witnesses who give objectively “ludicrous” evidence, to use the word coined by Mr. Herscovitch.

[13] There is more here than that, however. We also have the demeanour and attitude of A.M. thus far in direct examination at trial. Yes, he is polite. Yes, he is respectful. But it is also true that he engages in what I would refer to as “incremental offerings”, as a style of testifying. For example, he goes from not being able to comment on what transpired at the front door of the Royal Bank building, off camera (at least to that point in his evidence), when the female customer was exiting, to saying that he “probably” said and did certain things, to something more definitive than that. This is a hallmark of a reluctant witness – one who needs to be poked and prodded to tell the whole truth. That can only be achieved, if at all, through cross-examination at large.

[14] A.M.’s demeanour in the box is clearly that of a cagey witness. Whenever the topic shifts to the identity of the accomplice inside the Royal Bank, or really almost anything that cannot be readily seen on video or in a photograph that the witness knows he cannot claim ignorance of, he jumps to the convenient “I don’t remember” or “I don’t know”, even at times before the Crown is finished asking the question.

[15] In summary, it appears clear to me, and I so find, that A.M. is simply choosing not to tell the whole truth of what he knows and clearly remembers. Due to some motivation, A.M. has chosen not to give his evidence fairly and completely.

[16] In those circumstances, the Application must succeed. It is granted. The Crown is permitted to cross-examine A.M. at large, of course subject to the normal requirements of evidence including relevance and probative value that exceeds prejudicial effect.

[17] If A.M. remains steadfast in his evidence about not knowing the identity of the other robber, I will be careful not to allow the Crown’s cross-examination of A.M. to devolve into a general attack on his credibility and an invitation, even an implied one, to think negatively about H.A. because of A.M.’s shortcomings. That would be an error, and I instruct myself accordingly.

Conlan J. Released: June 12, 2019