DATE: 20190204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAHMAL RICHARDSON and KYLE SPARKS MacKINNON
Susan Adams and Kerry Hughes for the Crown
James Lockyer and Craig Zeeh for Jahmal Richardson
D. Sid Freeman for Kyle Sparks MacKinnon
Heard: November 21, 2018
Reasons Re Use of a Screen Pursuant to s. 486.2
MacDonnell, J.
[1] Between November 2018 and January 2019, Jahmal Richardson and Kyle Sparks MacKinnon stood trial in this court on an indictment charging them jointly with two counts of murder, one count of attempted murder and two counts of wounding. The charges stemmed from an incident that occurred in front of the New Ho King restaurant, on the west side of Spadina Avenue south of College Street, at about 3:15 a.m. on January 31, 2016. The allegation of the Crown was that for no apparent reason the defendants opened fire on three unarmed men - Quinn Taylor, David Eminess and Stewart Douglas. Mr. Eminess died at the scene of the shooting and Mr. Taylor died a few hours later. Notwithstanding being shot in the head at point blank range, Mr. Douglas survived.
[2] The Crown proposed to call Mr. Douglas to testify with respect to what happened. Prior to jury selection, the Crown applied for an order that Mr. Douglas be permitted to testify behind a screen that would allow him not to see the defendants. On November 26, 2018, I granted the application. At the time of the ruling I provided oral reasons and I indicated that I would expand on those reasons in writing. These are the expanded reasons.
[3] Pursuant to subsection 486.2(1) of the Criminal Code, on application by the Crown a witness shall be permitted to testify behind a screen where the witness is able to communicate the evidence but may have difficulty doing so by reason of a mental disability, unless the use of the screen would interfere with the proper administration of justice.
[4] Pursuant to subsection 486.2(2), a witness may be permitted to testify behind a screen where the use of the screen would facilitate the giving of a full and candid account of the acts complained of or would otherwise be in the interests of the proper administration of justice. In determining whether to make an order under this subsection, the court is required to consider the factors set forth in subsection 486.2(3). Unlike subsection (1), neither subsections (2) or (3) specifically direct the court to consider whether the use of a screen would interfere with the proper administration of justice. However, an order under ss. (2) is discretionary, and the potential for such interference is necessarily a factor for consideration in determining how the discretion should be exercised.
[5] Although this application was framed formally as an application under ss. 486.2(1), in its written materials and in oral argument the Crown relied on the criteria underlying both subsections (1) and (2) and the parties argued the application on that basis.
[6] In support of the application, the Crown filed a transcript of the evidence that Mr. Douglas gave at the preliminary inquiry. Based on that, it was expected that he would testify at trial that in the early morning hours of January 31, 2016, without provocation, a man pulled out a handgun, held it to Mr. Douglas’s head, and fired.
[7] Mr. Douglas has been diagnosed as a paranoid schizophrenic. He has been under the supervision of the Ontario Review Board since April 25, 2006, when he was found not criminally responsible on a charge of assault. He resides in the community but he attends CAMH on a regular basis. The Crown filed the Hospital Report presented to the Ontario Review Board on March 1, 2017, which sets forth, among other things, Mr. Douglas’s psychiatric history up to the date of the Review Board hearing.
[8] Lisa Dmytruk, an Occupational Therapist at CAMH, testified on this application. She has been meeting with Mr. Douglas between one and three times a week for the last four years. She is very familiar with his psychiatric history and with the exacerbating impact that the shooting has had on his mental illness. Prior to testifying, she prepared an affidavit to which she attached a selection of Progress Notes from Mr. Douglas’s CAMH records.
[9] Ms Dmytruk described the symptoms of schizophrenia that to one degree or another continue to afflict Mr. Douglas. Over the years, the medical team at CAMH has been able to stabilize his condition with medications, but “despite these medications, Mr. Douglas still suffers from significant anxiety and paranoia because of his mental illness…, in particular when he is faced with stressful situations.” She testified that in times of stress, the symptoms of his schizophrenia tend to interfere with his ability to engage and process thoughts and conversations.
[10] Ms Dmytruk noted that being shot in the head “continues to cause Mr. Douglas significant anxiety”, and that while he seemed to be managing the physical consequences of his injuries, “he does not manage the prospect of facing the alleged shooter in court as well”. The approach of the trial, and Mr. Douglas’s awareness of his obligation to once again testify, had elevated his stress level, resulting in an increase in the negative symptoms of schizophrenia, specifically greater difficulty in processing and making use of information. The medical team had sought additional support from the victim witness program to help manage Mr. Douglas’s anxiety, but Mr. Douglas remained extremely fearful of his involvement as a witness. Ms Dmytruk stated: “The stress and anxiety is amplified by his mental health diagnosis as a paranoid schizophrenic. As court dates approach, [his] anxiety manifests in a number of ways – his hands shake, he becomes quiet, he resists speaking about the incident, he becomes easily distracted and he has difficulty with comprehension”.
[11] Similar observations had been made of Mr. Douglas by the medical team in the lead-up to the preliminary inquiry. The team tried to help in this respect by increasing the level of support provided to Mr. Douglas and allowing him to vent his concerns and frustrations. I have read the transcript of his evidence at the preliminary inquiry. It appears to me that he was able to overcome his fears and to give a full and candid account of the material events. Significantly, however, he was permitted to testify behind a screen, in a position where he was able to maintain eye contact with Ms Dmytruk, who was present in the courtroom.
[12] In the face of the testimony of Ms Dmytruk and the psychiatric records on which she relied, it was not strenuously argued by the defendants that the Crown had failed to establish the preconditions for an order under either ss. 486.2(1) or ss. 486.2(2). I was satisfied by the circumstances in which Mr. Douglas came to be shot in the head, the evidence of Ms Dmytruk and the medical records that by reason of his mental disorder Mr. Douglas might have difficulty giving evidence. I was also satisfied, taking into account the factors set forth in s. 486.2(3), that permitting him to testify behind a screen would facilitate the giving of a full and candid account.
[13] The issue that remained was whether the use of the screen would interfere with the proper administration of justice. In that respect, both defendants submitted that the use of the screen would be prejudicial to their clients. It was submitted that one aspect of that prejudice would be the danger that the jury would make an assumption that Mr. Douglas has a reasonable fear of the defendants, perhaps for reasons that had not been disclosed. It was also submitted that there was a danger that the jury might infer that the reason why Mr. Douglas did not identify either of the defendants in court was because he was behind a screen and could not see them.
[14] It was my view that both of those concerns could be overcome with appropriate jury instructions. The use of a screen, while not the usual situation, is not an uncommon procedure in criminal trials and there are specimen jury instructions to guide trial judges in that respect. Further, I was advised that there would be no dispute that none of the eyewitnesses could identify either of the defendants and I stated that if it became necessary to inform the jury of that I would do so.
[15] Accordingly, Stewart Douglas was permitted to testify behind a screen.
MacDonnell, J.
Released: February 4, 2019