Court File and Parties

COURT FILE NO.: 235/18 DATE: 2019/01/29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Prosecution/Applicant

– and –

Michael John William Ball Accused/Respondent

COUNSEL: R. Dietrich and T. Shuster, for the Prosecution/Applicant A. Bryant and A.M. Morphew, for the Accused/Respondent

HEARD: January 24, 2019

Pre-Trial Application No. 8 (Part 2)

Investigative Hearsay

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

[1] This is my ruling regarding the admissibility of evidence that the Crown proposes to call in response to the allegations by the defence of inadequate police investigation. This ruling should be read in conjunction with my written decision in pre-trial application no. 8, dated August 20, 2018.

[2] In my earlier decision, I determined that the defence was entitled to challenge the adequacy of the police investigation in the six areas of challenge set out in Exhibit 40. I also commented that the Crown may be entitled to call rebuttal evidence in response to those six areas of challenge, and that if there was an issue regarding the admissibility of the proposed rebuttal evidence, the parties could ask this court to determine that issue.

[3] In this pre-trial application the Crown sets out its proposed rebuttal evidence, parts of which are contested by the defence. In this ruling, I intend to provide the parties with some general guidelines regarding the admissibility of this evidence, and also address each of the six areas of challenge.

[4] For each of the six areas of challenge I will make specific rulings if possible; however, as discussed in this decision, many of the specific rulings cannot be made at this point in the trial as the rulings will depend upon the evidence that is heard at the trial.

General Guidelines

[5] The Crown proposes to introduce much of the rebuttal evidence through Officer Kingscote ["Kingscote"]. Kingscote joined the police investigative team in this matter in April 2018, almost five years after the alleged murder of Erin Howlett ["Howlett"]. His role was to review the original investigation in light of specific issues that have been raised by the defence. Since he became involved, Kingscote has reviewed the evidence, spoken with some of the original investigating officers, conducted his own investigation, and written reports.

[6] In general terms, I find that Kingscote should not be permitted to testify as to his own opinion of the police investigation. He should not testify as to his understanding of the reasons for any of the decisions that were made by the investigating officers, and he should not testify as to the state of the investigation or the adequacy of the investigation at any given point. This would be opinion evidence, which is not admissible.

[7] Further, Kingscote should not testify as to what was told to him by other investigating officers. This would be hearsay evidence that is not admissible unless the Crown establishes a proper foundation for the admissibility of the evidence. The Crown has not attempted to do so in this pre-trial application.

[8] I accept that Kingscote may testify about the evidence that he reviewed after he became involved in the file, and he may testify about the investigation that he personally conducted. As a corollary, I find that the investigating officers may testify as to the investigations that they personally conducted in the years preceding Kingscote's involvement.

[9] In addition, I find that there are many areas in which I cannot make a specific ruling today because the nature and extent of the Crown's rebuttal evidence will depend upon the evidence that is adduced at trial by both the Crown and the defence. The Crown submits, and I accept, that at this point the Crown is unable to specifically identify all of the rebuttal evidence that it proposes to call.

[10] Similarly, I find that the admissibility of some of the Crown's rebuttal evidence may also depend upon the evidence that is adduced at trial. Therefore, a final decision in these areas of challenge will be deferred until later in the trial.

[11] Moreover, I acknowledge that it may be necessary to revisit some of my specific evidentiary rulings if the evidence at trial is not consistent with the evidence that is currently anticipated.

Challenge #1, Pabst Blue Ribbon beer can

[12] The Crown intends to call the police officer who collected the beer can from the park, and call Kingscote who will testify that he sent the beer can to the Centre of Forensic Sciences ["CFS"]. The Crown also intends to introduce the results of the examination by CFS. This is acceptable.

Challenge #2, Garbage pickup

[13] The Crown intends to call the police officer who seized the garbage from the garbage can in the park who will testify as to his investigation and introduce photographs taken of the garbage. There will also be evidence of the schedule for garbage pickup in the City of Kitchener. This is acceptable.

[14] The Crown intends to call Kingscote to give evidence that police departments do not have unlimited financial resources, and that there has to be a nexus between any piece of information or evidence and the alleged crime in order to justify an investigative expense. This evidence from Kingscote is acceptable provided that Kingscote does not offer his opinion as to why there was no further investigation into the garbage that was collected from the garbage can.

Challenge #3, Jeff Baechler's contact with Howlett

[15] The Crown intends to deal with this allegation by referencing evidence that is otherwise admissible at this trial. This is acceptable.

Challenge #4, Howlett's hair sample testing

[16] The Crown intends to call Officer Moser who will testify that he made inquiries regarding the possibility of testing hair samples. This is acceptable. Also, evidence that CFS did not have an accredited facility to analyse hair samples is acceptable.

[17] I find that Kingscote's opinion that the testing of hair samples would be of no value because there were findings made on the post mortem examination regarding drugs found in Howlett's body is not admissible as it constitutes opinion evidence. That issue may, however, be the subject of argument.

Challenge #5, Video surveillance from Cambridge Surplus

[18] The Crown intends to call the police officers who were involved in the investigation of KW Surplus and Cambridge Surplus to explain the investigative steps that were taken. This is acceptable.

Challenge #6, Daniel Warwick's contact with police

[19] The Crown intends to call the officers who took statements from Daniel Warwick ["Warwick"] to explain the interactions between the police officers and Warwick, and the investigative steps taken by the officers. This is acceptable.

[20] The significant issue that arises under this challenge relates to the fact that the Crown wishes to respond to this challenge by calling evidence to show that Warwick initially lied to police officers because he feared for his safety as he was afraid that Michael Ball ["Ball"] might shoot him. This leads the Crown to request permission to introduce evidence that Ball owned or possessed multiple firearms and weapons and that Ball was the subject of firearms charges. The defence submits that evidence of Ball's ownership and use of firearms is bad character evidence and is inadmissible.

[21] In oral submissions, Crown counsel acknowledged that the Crown was in fact requesting that evidence of Ball's propensity or character be admitted into evidence. However, the Crown submitted that there were many reasons that supported the Crown's request. In particular, the Crown submitted that this evidence was in response to the defence allegation of inadequate police investigation; that this evidence related to the credibility of Warwick that would be attacked by the defence; and that this evidence was in response to the propensity evidence that the defence intended to introduce regarding the drug use of James Baechler ("Baechler") and Howlett.

[22] In my view, this is an issue that cannot be decided at this point. It will be necessary for me to hear a substantial amount of evidence from at least Warwick, Baechler, and Cody Cook before I will be able to decide whether this evidence is admissible. Moreover, this request by the Crown to introduce evidence of the bad character of the accused should be the subject of a separate application. In that application the Crown must specifically identify the proposed evidence, the purpose of the proposed evidence, and the grounds for the acceptance of evidence that is presumptively inadmissible.

[23] Therefore, I make no ruling today on this issue. Either party may raise it at an appropriate time during the trial.

Challenge #7, Photo lineup

[24] The Crown intends to call the officer who prepared the photo lineup and may also call or cross-examine Mary Scroggins as a witness. This is acceptable.

Challenge #8, Investigation of James Baechler

[25] The Crown intends to call the officers who met with or investigated Baechler. The Crown may also call officers who dealt with the other male persons who are listed in challenge #8. This is acceptable.

[26] Kingscote will not be permitted to give his opinion as to whether Baechler, or Ball, or the other male persons were, or should have been, considered to be suspects. Further, Kingscote will not be permitted to give hearsay evidence about what he was told by any other officer. Finally, Kingscote will not be permitted to give a summary of all of the police evidence that corroborates Warwick's statements to police.

Conclusion

[27] This ruling provides general guidelines and some specific rulings regarding the admissibility of the proposed Crown rebuttal evidence. These rulings may need to be reviewed or revised during the course of this trial.

Justice J. R. Henderson

Released: January 29, 2019

COURT FILE NO.: 235/18 DATE: 2019/01/29

ONTARIO SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

– and –

Michael John William Ball

PRE-TRIAL APPLICATION No. 8 (Part 2) investigative hearsay

J. R. Henderson J.

Released: January 29, 2019