Court File No. 955/18

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

ADAM LAYNE

RULINGS

BEFORE THE HONOURABLE JUSTICE F. DAWSON,

on January 25, 2019, at BRAMPTON, Ontario

APPEARANCES:

J. DeVuono

Counsel for the Provincial Crown

M. Martin

Counsel for Adam Layne

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

RULINGS

1

FRIDAY, JANUARY 25, 2019

RULING

DAWSON, J. (Orally):

Three pre-trial motions must be decided in this case before the trial can proceed. After briefly setting out the background and factual allegations I will deal with the motions in the order in which they were argued. Some evidence was called on two of the three motions. I have also been referred to portions of the preliminary inquiry transcripts. Relevant documents are contained in motion records filed on the applications.

Factual Background:

Adam Layne is charged with attempted murder in relation to the shooting of David Forson on the afternoon of July 5, 2017. At the time of the shooting Mr. Forson was sitting in the driver’s seat of a white Hyundai Elantra. He had parked the vehicle on a residential street in Brampton near his girlfriend’s home. It is alleged that Mr. Layne drove up to the victim’s vehicle and, after inquiring whether Mr. Forson was the guy he had encountered at a Wendy’s restaurant the previous night, and discharged four shots at Mr. Forson from a black handgun. One of those shots struck Mr. Forson in the neck.

While Mr. Forson described the shooting and the shooter to the police after his treatment in hospital, initially he did not tell the police anything about an incident the previous night at a Wendy’s restaurant. However, on July 19, 2017 he did so. He explained that he had not told the police everything in his earlier statement because he was afraid for his safety and because he did not want to be viewed as a snitch.

Based on what I have learned so far, I understand that Mr. Forson told the police that he and his girlfriend were in a line at a Wendy’s drive-thru on Airport Road in Brampton on the evening of July 4^th, 2017. They were in the white Elantra. Mr. Forson was trying to make his girlfriend laugh and he started yelling out the names of food items while the driver of a black SUV in front of the Elantra was trying to place his order. It is alleged that the accused was the driver and sole occupant of the black SUV.

It is alleged that after Mr. Forson and his girlfriend pulled away from the drive-thru with their food their progress was stopped by the black SUV which pulled up in such a fashion that the driver could speak to Mr. Forson. Mr. Forson said that while the driver appeared calm he was obviously very angry because he continued to hold up all the traffic in the drive-thru line while he spoke to Mr. Forson. Mr. Forson said he told the driver of the SUV he was joking.

Mr. Forson said that after he was able to leave the restaurant parking lot the black SUV followed he and his girlfriend for a couple of traffic lights before turning off.

It is my current understanding that the location where Mr. Forson was parked on July 5^th, 2017 when he was shot is not far from the location of the Wendy’s restaurant.

Mr. Forson claims that when he was parked on July 5^th the same black SUV drove past his location and then backed up so that the drivers’ windows of the two vehicles were in proximity. Mr. Forson claims he recognized the driver from the Wendy’s incident and, as previously mentioned, says that before shooting him, the driver commented that Mr. Forson had been at the Wendy’s the night before.

As a result of Mr. Forson’s further disclosure the police obtained security video from the area of the Wendy’s drive-thru. They were able to get a partial plate number of that vehicle and by checking the type of vehicles registered to similar licence plate numbers, they identified and located the accused. A photo lineup was presented to Mr. Forson on July 27, 2017. He selected Mr. Layne’s photograph and said he was 110% sure Mr. Layne was the shooter. The accused was arrested and charged.

Search warrants were executed on the accused’s home and the black SUV that was registered to his mother. No firearms were located. Nothing was located which ties the accused to the shooting.

The black SUV registered to the accused’s mother is a Mazda Tribute. I am advised by Ms. Martin on behalf of Mr. Layne that the defence does not contest that Mr. Layne was operating a black Mazda Tribute SUV in the drive-thru on July 4, 2017. However, the identity of Mr. Layne as the shooter is contested and it is not conceded that he confronted Mr. Forson again as alleged on July 5^th.

At the moment it is common ground that prior to the Wendy’s drive-thru incident there was no known connection between Mr. Forson and the accused.

The Alternate Suspect Motion

On June 1, 2018, the Toronto Police Service arrested Emery McNichols for unlawful possession of a handgun. That handgun was submitted to the Centre of Forensic Sciences where certain tests were performed and the results were run on a number of data bases. A Firearms Case Linkage Report dated August 13, 2018 indicates that the firearm alleged to have been in Mr. McNichols’ possession, was the firearm used in the shooting of Mr. Forson. This linkage is based on markings located on shell casings found at the scene where Mr. Forson was shot.

In addition, Mr. McNichols’ description is a general, although not complete, match to the description of the shooter Mr. Forson gave to the Peel Regional Police prior to revealing the Wendy’s incident. Both the accused and the alleged alternate suspect, Mr. McNichols, are black males with shoulder length dreadlocks and goatees. In addition, Mr. Forson described the person who shot him as having cursive writing tattoos on his hands. Mr. McNichols has such tattoos.

I would point out that the pertinent firearms charges against Mr. McNichols remain outstanding. He has not been convicted. The evidence I have been provided with indicates that when the Toronto Police officers approached Mr. McNichols on June 1, 2018 they heard a “clunk” and then located the handgun in question on the ground near where Mr. McNichols was standing. The gun was not on his person when it was discovered.

Mr. McNichols has a significant criminal record, including violence, firearms possession and the use of a firearm in the commission of a robbery. I am also advised he is believed to have gang affiliations.

While Mr. Forson has no criminal record there is evidence that the Toronto Police Service has maintained that he has gang associations. Counsel for the applicant also points to statements made by Mr. Forson to the effect that he has “been followed his whole life” and to his testimony at the preliminary inquiry that there have been a number of times in his life when he feared for his safety.

In R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 the Supreme Court of Canada held that before evidence of an alternate suspect may be advanced the party wishing to do so must establish that the evidence is logically relevant by demonstrating that there is a “sufficient connection between the third party and the crime” (para 47). The connection may be shown by inference but “the inference must be reasonable, based on evidence, and not amount to speculation” (para 47). The test is whether there is some basis on which a jury, acting reasonably and properly instructed, could acquit on the basis of the proffered evidence. Such is required to give the alternate suspect defence an air of reality (para 48). See also R. v. Tehrankari, 2012 ONCA 718, at paras 35-38.

Crown counsel submits that the accused has failed to meet the test for admissibility of this evidence. She emphasizes that there is no demonstrated connection between Mr. McNichols and Mr. Forson. The Crown points to evidence led on the voir dire that the police have conducted numerous checks but have not turned up any intersection between the two men.

Crown counsel also points to defence counsel’s concession that there is no evidence of motive on the part of Mr. McNichols and stresses that while it has been determined that Mr. McNichols was not in custody when Mr. Forson was shot, there is no evidence of opportunity beyond that. The submission continues that in the absence of any motive and little probative evidence of opportunity there is no basis to apply propensity reasoning from Mr. McNichols’ criminal record and history of violence to commission of this offence.

Crown counsel also emphasizes the strength of the Crown’s cases and points out that part of Mr. Forson’s description of his assailant do not match Mr. McNichols. For example, Mr. Forson described tattoos in places where it does not appear Mr. McNichols has tattoos, such as on his neck and chest. Mr. Forson also said his assailant had “silver grills” on his teeth. I have no evidence Mr. McNichols wore such grills.

Crown counsel places particular emphasis on comments in R. v. Pierre, 2017 ONCA 140, at para 9, and R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754 (C.A.) at para 156. In each of those cases the Court of Appeal mentioned that guns can change hands amongst the criminal element and that the strength of the inference that a person found in possession of a gun that was used in a particular crime was involved in that crime, diminishes over time. In Pierre the gun was found three months later. In Backhouse it was found eight months later. In our case it was only found 11 months later.

In my respectful view, in the particular circumstances of this case, the accused has met the relatively low threshold required to advance the proposed alternate suspect defence. Unlike in Pierre, the gun in this case is not the only piece of evidence linking the alternate suspect to the crime. I also observed that in Pierre the comments Crown counsel relies on at para. 9 were made in the context of the court upholding the trial judge’s decision not to permit alternate suspect evidence on the basis that it was open to the trial judge in that case to find that possession of the gun three months after the crime had almost no probative value in the context of that case where it was the only linking evidence. The court was not stating a principle of general application.

In the present case, I also have evidence that Mr. McNichols matches the general description of the shooter, evidence that both Mr. McNichols and Mr. Forson have gang associations and evidence that Mr. Forson has been concerned for his safety in the past, prior to the incident at Wendy’s. This combination of factors is significant in distinguishing this case from Pierre.

I would also point out that the respondent’s submissions effectively call on me to weigh evidence in a manner that goes beyond any limited weighing of evidence which it would be appropriate to engage in to determine what reasonable inferences may be available to the trier of fact. As this is a judge alone trial I will be the trier of fact, but at the moment I just carefully limit myself to the question of admissibility.

This case involves a question of identity and the correctness of Mr. Forson’s identification of the accused, who it seems was at the Wendy’s on July 4^th, as the shooter on July 5^th. Mr. Forson was not forthcoming with the police at the beginning and he has made a number of different statements. Both his credibility and reliability will almost certainly be in issue. There is likely to be an issue whether his description of the shooter is based on his observations on July 5^th or July 4^th. This could impact the probative value of those parts of his description that are arguably inconsistent with Mr. McNichols’ appearance, for example. It would be premature to deal with such issues at this point in the trial process.

While motive, opportunity and propensity are often the basis on which alternate suspect motions are evaluated, and I have considered them here, I am not persuaded that all must be present. Clearly, absence of opportunity will usually be determinative. I do not have that here. Lack of motive is conceded. I observe that we often instruct jurors that a person may be convicted of a crime even in the absence of a motive. I do not see absence of motive as determinative, although I have considered it.

While it may be true that handguns are passed around or disposed of after a crime, I point out that, unlike in some of the cases I have been referred to, I have no expert evidence about that in this case. While the 11 month gap between the shooting in this case and Mr. McNichols’ alleged possession of the same gun is significant and affects the weight of this evidence, I cannot completely discount it given the other connecting factors I have referred to. Mr. McNichols appears to fit the general description of the shooter, perhaps more so than some of the photographs used in the photo lineup. His photo was not involved in that lineup. He also has tattoos of cursive writing on his hands. The connection of the criminal milieu and Mr. Forson’s acknowledgement of his fear of others is also a factor. I have considered all of the factors in the context of the known frailties of eye-witness identification. At this stage I have put very little weight on propensity reasoning.

As there is an air or reality to the alternate suspect defence the accused is permitted to develop the evidence accordingly.

I wish to add that I have not overlooked the residual discretion I possess to exclude relevant evidence on the basis of assessing probative value against prejudicial effect. Here, as we are concerned with defence evidence, that discretion should only be exercised where probative value is substantially exceeded by prejudicial effect: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62 at para. 43.

While there is some prejudicial effect associated with the added complexity and additional time that will be required, I do not anticipate that to be considerable. This is also a judge alone trial and for that reason both reasoning and moral prejudice are attenuated: R. v. J.W., 2013 ONCA 89 at para 57, R. v. Roks, 2011 ONCA 526 at para 94.

While the probative value of the proposed evidence is limited having regard to the factors raised by Crown counsel, in this judge alone trial the prejudicial effect is significantly attenuated and the Seaboyer test for discretionary exclusion is not met.

The Admissibility of Opinion Evidence to Identify a Motor Vehicle

During the course of their investigation the police obtained surveillance video from a home security system located on a street near where the shooting occurred. That video was recorded on the afternoon of July 5^th. A still frame or screen capture from the video shows a black SUV rounding a curve near the time of the shooting. The police wanted to identify the type of vehicle involved. The photo in question was marked as Exhibit 1 on this motion.

The police e-mailed a copy of the still frame to Simranjit Randhawa at Mazda of Brampton and asked him if he could identify the vehicle. Mr. Randhawa advised the police that the vehicle in question was a Mazda Tribute. As previously indicated, the accused’s mother is the registered owner of a black Mazda Tribute which it appears the accused was operating on the evening of July 4, 2017.

Crown counsel originally sought to have Mr. Randhawa qualified as an expert witness or, in the alternative, to provide lay opinion recognition evidence. At the hearing Crown counsel sought only the latter.

Mr. Randhawa was called on the voir dire. He testified that he is 32 years of age. He has a two-year diploma from Sheridan College and a Bachelor’s Degree both in areas involving investigations and justice.

Mr. Randhawa testified that he worked as a “sales associate” selling Mazda motor vehicles. He explained that while the Mazda Tribute was discontinued before he began his sales employment with Mazda, he has seen many Mazda Tributes in the course of his employment. He estimated that he had personally taken in about 20 Mazda Tributes as trade-ins. He also had seen many more which had been traded in. He had no training in connection with the Mazda Tribute but said he was very familiar with it.

Mr. Randhawa said that he formed his opinion that the black SUV depicted in Exhibit 1 was a Mazda on the basis of the emblem he could see on the front grill. He also looked at pictures of Mazda Tributes on the internet. He testified that the vehicle depicted was a base model because it had no fog lights or sunroof.

Mr. Randhawa was cross-examined about the difference between the Mazda Tribute and the Ford Escape, both of which were developed off the same platform. He explained that the Ford logo which can be found on the front of the Ford Escape is different than the Mazda logo, and explained how. He said he could not say exactly what year the Mazda Tribute depicted was, only that it was a 2008 to 2012 model. He said there were no major changes to the exterior during that time period.

The witness was presented with photographs of a Toyota 4Runner in cross-examination. There are some similarities in appearance between the photos of the Toyota 4Runner and Mazda Tribute, particularly in the area of the front grill. Mr. Randhawa was nevertheless able to explain the differences that led him to confirm his testimony that Exhibit 1 depicted a Mazda Tribute. He explained that on the Tribute a length of chrome went over top of the Mazda emblem, while on the 4Runner the chrome trim goes through the area containing the Toyota emblem. He was able to answer various other questions in cross-examination which demonstrated an ability to differentiate between the vehicles. Further examples of this ability were demonstrated in re-examination.

Crown counsel submits that cases which permit someone who is familiar with an individual to give recognition evidence based on a photo or video ought to be applied by analogy. Defence counsel submits that it is questionable whether the same principles apply to recognition or identification of an object and that, in any event, the test formulated in the recognition cases relied upon by the Crown has not been met here.

Turning briefly to the recognition cases, in R. v. Brown, 2006 CanLII 42683 (ON CA), [2006] O.J. No. 5077, Rosenberg, J.A. dealt with a submission that persons who knew the appellant in that case should not have been permitted to give recognition evidence at trial based on their viewing of a videotape because it amounted to non-expert opinion evidence (para 37). Justice Rosenberg dismissed that argument, noting that in R. v. Leaney (1989), 1989 CanLII 28 (SCC), 50 C.C.C. (3d) 289, at p.303, the Supreme Court of Canada held that such non-expert opinion evidence was admissible if the witness was in a better position than the trier of fact to identify the perpetrator by virtue of their prior acquaintance with the accused (para 39). See also R. v. Rae, 2013 ONCA 556.

This principle was reaffirmed in R. v. Berhe, 2012 ONCA 716. In that case, at para 21, the test was referred to as the “prior acquaintance” and “better position” test. It is this test which defence counsel submits is not satisfied based on Mr. Randhawa’s evidence.

In R. v. Lee, [2018] O.J. No. 2720 (S.C.J.) at paras. 43-45, Boswell, J. said that he saw no reasons not to extend these principles to the recognition of motor vehicles.

In my respectful view there is considerable authority that the general approach represented in cases such as Brown and Leaney extends beyond the recognition of persons. Discussion of the areas where lay opinion evidence has long been permitted can be found in Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4^th ed. (Markham: LexisNexis Canada, 2014), at pp 770-783 and in David Watt, Watt’s Manual of Criminal Evidence, 2017 (Toronto: Thomson Reuters Canada, 2017), at pp. 492-506.

These writings make it clear that lay opinion evidence has long been permitted in relation to the identification of people, places, voices and things. Such evidence has also long been permitted in relation to the identification of handwriting, and in civil cases, to go to the question of competence and testamentary capacity. In relation to handwriting, it has been held that the frequency of the witness’ experience with the subject’s handwriting goes to the weight of the recognition evidence: The Law of Evidence in Canada, at pp 780-781.

In relation to lay opinion generally, Watt’s Manual states, at p. 492, s.30.01, that the standard that is likely to be applied when determining admissibility is “helpfulness”. The weight of the evidence is for the trier of fact.

Given these text book authorities it seems to me that the test in Berhe may be applied in the current circumstances. There is a need for some evidence as to the type of vehicle seen in Exhibit 1. It would be helpful to the court to have the evidence of someone with sufficient acquaintance with the type of vehicle in question in identifying it. I observe that the question in this case is whether the vehicle in Exhibit 1 is a Mazda Tribute. If it is not, it does not matter what type of vehicle it is. While it might enhance the weight of the proposed evidence if Mr. Randhawa had greater experience in identifying other vehicles, what is most germane in this case is his familiarity with Mazda Tribute motor vehicles. I am satisfied, based on a review of the authorities and his voir dire evidence, that he has considerable experience with such vehicles and is in a better position than the average trier of fact to opine on whether the vehicle in Exhibit 1 is a Mazda Tribute. In my respectful view, in the circumstances of this case, any lack of experience in identifying other makes and models goes to the weight of his evidence.

In this case Crown counsel might also have asked the witness to describe or produce diagrams or photos of the Mazda emblem as found on the front of Mazda Tributes and to provide photographs of such vehicles. That would allow the court to make its own comparison. In my view the failure to also take that approach does not undermine the admissibility of the “prior acquaintance/better position test”.

The lay opinion evidence of Mr. Randhawa is admissible.

Application to Permit Mr. Forson to Testify Via Closed Circuit Television

The Crown applies pursuant to s.486.2(2) of the Criminal Code for an order permitting Mr. Forson to testify via CCTV from outside the courtroom. The accused opposes the application.

Section 486.2(2) provides that in any proceedings against an accused the judge may, on application by or on behalf of a witness, order that the witness testify outside the courtroom or behind a screen or other device that would allow the witness not to see the accused if the judge is of the opinion that the order would “facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interests of the proper administration of justice.” In 2015 this section was amended to make it somewhat easier to obtain this type of order. The prior version of the section required a showing that such order was “necessary” to obtain a full and candid account.

There is no suggestion here that a screen or other device would be adequate. The evidence also demonstrates that the real concern is with persons associated with the accused seeing the complainant and not with the complainant seeing the accused. That difference was not raised in argument as a basis for denying the order sought.

Detective Constable Bradley Bothman was called as a witness on the application. No objection was taken to the hearsay nature of the evidence he gave, although defence counsel did submit it would have been preferable to have an affidavit from Mr. Forson.

The evidence of Constable Bothman and the application must be evaluated against the background of the other evidence which demonstrates that the accused was shot at four times the day after he had angered the accused, or someone, during a relatively minor incident at a Wendy’s drive-thru. From Mr. Forson’s perspective, it took little provocation for the accused to try to end his life almost a full day after that minor incident. Obviously, Mr. Forson is aware that his testimony is the necessary ingredient which could lead to the accused’s conviction for a very serious crime.

Detective Constable Bothman testified that Mr. Forson was born on November 7, 1994 and is currently 24 years of age. The officer testified that Mr. Forson has been interviewed five times. Although he was not forthcoming in the beginning, Mr. Forson has never been hostile or abusive with the police.

Detective Constable Bothman said he dealt with Mr. Forson and was with him leading up to the preliminary inquiry. Mr. Forson was permitted to testify at the preliminary inquiry by means of a video link, using the child friendly courtroom.

The officer testified that Mr. Forson was and remains very fearful of the accused and his associates. Mr. Forson does not maintain a specific residence. He changes his location frequently as he is afraid of being found and harmed or killed. According to the officer, Mr. Forson conceals his identity by wearing hats and hoods. He will not tell anyone where he works or disclose other information that might help him to be located.

Detective Constable Bothman testified the complainant has recently become even more reclusive. He no longer uses a cell phone and the officer usually communicates with Mr. Forson by e-mail.

At the preliminary inquiry Mr. Forson requested special arrangements for his attendance at the courthouse. He did not want to use the public entrance, wanted to wait in a private room before his testimony and did not want to be seen by any members of the public. As the officer put it, Mr. Forson is afraid the associates of the accused will come for him because he has been speaking the truth to the police. According to the officer, Mr. Forson’s level of fear has not changed. Based on his increasingly careful behaviour, it may be getting worse.

Although the officer is not aware that Mr. Forson has any diagnosed mental illness, he testified the complainant has changed and has become distant with his own family. In 10 years of policing the officer said he has never seen anyone seek the level of security Mr. Forson has.

Of particular significance, Detective Constable Bothman said that the complainant has stated that, due to his fear, he does not think he will be able to say all that he wants to say if members of the public are looking at him while he testifies. Mr. Forson has advised that while the accused knows what he looks like, the associates of the accused and other members of the public do not. He is insistent it be kept that way for his own safety.

What is proposed is that Mr. Forson be permitted to remain in another room and give his evidence by way of closed circuit television. One of the child friendly courtrooms in this building could be used for that purpose. The accused and all trial participants would be able to see and hear Mr. Forson’s evidence. However, members of the public would be confined to one area of the body of the court and the television monitors would be positioned so that members of the public could not see Mr. Forson. However, they would be able to hear everything that is part of the trial. Counsel would have the choice of being in the room with Mr. Forson or conducting their examination from the courtroom. As required by s.486.2(5) arrangements will be made so that the accused and his counsel can communicate while watching the testimony.

Section 486.2(3)(a)-(h) sets out a list of factors which must be considered on an application under s.486.2(2). I do so now.

First, the age of the witness. Mr. Forson is not under the age of 18. If he were the order would be mandatory under s.486.2(1). As indicated, Mr. Forson is 24. He is still relatively young although clearly an adult. I see his youth as favouring the making of the order sought to some limited degree.

Second, the witness’ mental or physical disabilities. I have no evidence of physical disability or of diagnosed mental disability. However, it certainly sounds like profound fear is impacting Mr. Forson’s actions and there is an inference available that his mental health is being negatively impacted, based on his increasingly reclusive behaviour. This tends to favour the making of the order.

Third, the nature of the offence. I have already described the offence. Attempted murder is one of the most serious offences known to our law. Someone shot at Mr. Forson four times at close range with one bullet striking him in the neck, a vital area of the body. Clearly Mr. Forson believes it is the accused who is responsible. The nature of the offence is chilling. It provides an evidential basis for inferring that the concerns of Mr. Forson are real, reasonable and objectively justifiable. The callous nature of the offence also gives rise to legitimate concerns on the part of the administration of justice concerning the ability of the court to obtain a full and candid account.

Fourth, the relationship between the witness and the accused. There is no known prior relationship, although there is a strong inference that Mr. Forson has reasonably concluded that the accused previously wanted him dead. While I acknowledge the presumption of innocence, it is simply unrealistic to fail to consider inferences that are available in terms of how the witness may see the relationship.

Next, whether the witness needs the order for their security or to protect them from intimidation or retaliation. As defence counsel established when cross-examining Detective Constable Bothman, there is no evidence in the this case of any actual threat or intimidation of Mr. Forson after the shooting. I agree with counsel that this is a significant factor. In some of the cases I have been referred to where an order was made there was such evidence. Here it is absent.

However, given the circumstances of the offence, an allegation that the accused found or encountered the witness the day after a relatively minor dispute at Wendy’s, and then shot at the witness four times from close range, I draw the inference that there is some ongoing danger to Mr. Forson. Common sense cannot be left out of the equation. The allegations in this case are consistent with revenge for being disrespected. It is reasonable to infer that if the accused is guilty, which remains to be determined, he likely has associates who may pose a risk to Mr. Forson.

While defence counsel curtailed the officer’s evidence when he tried to suggest gang activity, the officer did testify that the police had assessed the situation and had provided information to Mr. Forson for him to take into account in relation to his “safety plan”. The nature of the offence and surrounding circumstances indicate that the order sought would enhance Mr. Forson’s actual safety and his sense of safety. While I cannot say there is a strong need for the order I conclude a significant level of need is demonstrated.

I also wish to add that the inclusion of this criteria in s.486.2(3)(e) suggests that the purpose of an order under s.486.2(2), as envisaged by Parliament, goes beyond concerns focused simply on the witness being able to see the accused while testifying. It is very difficult to envisage why Parliament would have included this provision, and also ss.486.2(3)(f) and (f.1), if there was no concern about the accused or others being able to see the witness. This is a factor in my decision on this application.

Sub-clauses (5) and (5.1) of s.486.2(3) have no application as they deal with protection of the identities of witnesses in relation to undercover work, national security work or intelligence gathering work. However, as I have mentioned, this suggests that one of the purposes of an order under s.486.2(2) is to protect the identity of the witness.

I turn next to s.486.2(3)(g). This clause refers to society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process. In my respectful view, this consideration strongly favours the making of the order in this case. Mr. Forson is the victim of a most serious crime. Despite his concerns about being stigmatized in the community as a “snitch” and his reasonable fears for his life and safety, he has come forward to cooperate with the authorities and testify in court. Given the current reluctance of community members to cooperate with the authorities when a serious crime occurs, this consideration favours making the order. Given the nature of the offence and reasonableness of Mr. Forson’s reasonable fears, I conclude it would send the wrong message to take an overly conservative stance in determining whether to grant the order requested. This is particularly so when, although perhaps not perfectly, the fair trial interests of the accused can be accommodated. There is nothing in what is proposed that will have a significant negative impact on the fair trial rights of the accused.

This last comment is something I concluded I may also take into account pursuant to s.486.2(3)(h) as “any other factor” which the judge considers relevant.

Ms. Martin submits that it will be difficult to cross-examine the witness if he is not in the courtroom because there are numerous prior statements, preliminary hearing transcripts and videos that she may wish to put to Mr. Forson. I agree that there will be some added difficulty in conducting the case if the order sought is granted. However, with planning, patience and the expenditure of some extra time I am satisfied that a fair trial can be had and that Mr. Layne’s right to make full answer and defence can be accommodated.

Due to the time constraints I have been working under I have not made reference to the cases I have been referred to. There are about an equal number where orders were made and not made. I agree with Crown counsel’s submission that in each instance it comes down to how the presiding judge sees the facts of a particular case viewed in the light of the criteria set out in s.486.3(3).

One case I have found to be particularly helpful is the discussion of Jaffe, J. when dealing with this issue at the preliminary inquiry in this case: R. v. Layne (21 March 2018), Brampton, Information 3111-998-17-8704-00 (Ont. Prov. Ct.) I am in substantial agreement with Justice Jaffe’s thorough analysis.

There is some overlap in my consideration of the factors that must be considered under s.486.2(3). I have made every effort to avoid “double counting” due to this observation.

Balancing all the factors I have referred to I conclude the order sought is both necessary to obtain a full and candid account from Mr. Forson and in the interest of the proper administration of justice. I accept that Mr. Forson is very fearful, and with good reason having regard to all the circumstances. Persons in his position must be supported and encouraged to come forward and participate in the justice system. Each case is different. In this one I make the order sought.

I wish to add that even in the absence of s.486.2(2) I would have made the requested order pursuant to my inherent jurisdiction to control the process of my own court or under s.486.1 of the Criminal Code. I would have done so having regard to the same factors and for the same reasons.

I further observe that I consider this order to be appropriate and in accordance with the application of the Dagenais/Mentuck test: see Dagenais v. Canadian Broadcasting Corporation, 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. I have determined that the order sought is necessary to prevent a serious risk to the proper administration of justice as without the order a full and candid account of a serious crime is unlikely. The proposed order minimally impairs the open court principle. The courtroom will be open and everything will be able to be heard by all in attendance. The public will be prevented from seeing the face of the complainant but there will be no other impairment of the open court principle. In my view the salutary effects of the order, in the circumstances I have described, outweigh any deleterious effects on the open court principle, to the fair trial rights of the accused, or to the efficacy of the administration of justice. Those are all minimally impacted.

Mr. Forson will be permitted to testify by means of closed circuit television. I will confer with counsel about the logistics of the witness’ examination and cross-examination.

Form 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Heather L. Marceau certify that this document is true and accurate transcript of the recording of R. v. Layne, in the Superior Court of Justice, held at Brampton, Ontario, taken from Recording 3199_305_20190125_103755__30_DAWSONF.dcr which has been certified in Form 1.

August 3, 2020

(Date) Signature of Authorized Person