COURT FILE NO.: CR-17-912

DATE: 20190202

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JORDAN OSBORNE Defendant

Counsel: Lisa Wannamaker for the Crown Magdalena Wyszomierska and Sharon Jeethan for the Defendant

HEARD: February 1, 2019

RULING ON THE USE CROWN COUNSEL MAY MAKE OF THE ACCUSED’S POLICE STATEMENT DURING CROSS-EXAMINATION

Boswell J.

1Mr. Osborne participated in the killing of Terence Pringle on the night of November 25, 2016. He and two other males entered Mr. Pringle’s basement apartment. Mr. Osborne struck Mr. Pringle a number of times with a hammer. Another male struck him with a baseball bat. Mr. Pringle died of blunt force trauma to the head and chest, according to the testimony of the pathologist who conducted his post-mortem examination.

2Mr. Osborne was arrested on November 29, 2016. At roughly 2:02 a.m. the next morning, he was interviewed by Detective Constables Reesor and Self of the Peterborough Police Service. The interview was relatively brief, lasting a little less than 43 minutes. It was video-recorded.

3The Crown brought an application, by way of a pre-trial motion, to obtain a ruling that Mr. Osborne’s statement was given voluntarily to the police. Such a ruling is a necessary prerequisite to the admissibility of the statement. The application was successful.

4The Crown elected not to play Mr. Osborne’s statement in evidence as part of its case in chief. Instead, the statement was held back to be used for impeachment purposes should Mr. Osborne elect to testify.

5Mr. Osborne has indeed elected to testify. The Crown is partway through her cross-examination of him. She commenced playing his statement for the jury. About eight minutes into the statement, defence counsel rose to object. She does not object to the Crown’s entitlement to use the statement for impeachment purposes. But she does object to the Crown’s proposal to play the entirety of the statement before the jury. She submits that doing so will permit the Crown, to some extent, to split its case.

6The Crown submits that a trial judge has the discretion to permit, during cross-examination of an accused person, the playing of his entire statement to the police, provided there are sound reasons for doing so. In this case, she says there are very sound reasons. In particular, she contends that there are so many contradictions between Mr. Osborne’s statement and his trial evidence, that, from the point of view of the transcript, she will be challenging him with virtually every page of it. The Crown argues that, as a matter of trial efficiency and comprehension, it makes more sense for the jury to have the whole picture of the statement, followed by a series of questions, as opposed to Mr. Osborne being challenged on every page of the transcript or on a stop/start basis at multiple points in the video. The Crown denies that the playing of the video is a disguised attempt to split its case.

The Governing Principles

7It is a well-settled principle of law that the Crown is not permitted to split its case against an accused person. The rule is rooted in the presumption of innocence and right of the accused to make full answer and defence: see R. v. Latimer, 2001 SCC 1, at para. 47.

8In R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, Justice Lamer, as he then was, observed that the presumption of innocence,

imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or by calling other evidence. (Para. 10).

9What flows from Dubois, and more generally from the presumption of innocence, is the requirement that the Crown put the case the accused is required to meet before the court prior to the accused being put to his election as to whether he chooses to testify.

10In R. v. Drake, 1970 CanLII 577 (SK QB), [1971] 1 C.C.C. (2d) 396 (Sask. Q.B.), McPherson J. stated, at para. 9,

There is a well-known principle that evidence which is clearly relevant to the issues and within the possession of the Crown should be advanced by the Crown as part of its case, and such evidence cannot properly be admitted after the evidence for the defence by way of rebuttal. In other words, the law regards it as unfair for the Crown to lie in wait and to permit the accused to trap himself. The principle, however, does not apply to evidence which is only marginally, minimally or doubtfully relevant. See The Queen vs. Levy & Tait (1966) 50 C.A.R. 199.

11Although Justice McPherson’s ruling was in the context of rebuttal evidence, its reasoning applies equally to the use of an accused’s police statement during cross-examination. It appears to reflect the current state of the law on Ontario: see R. v. King, [1998] O.J. No. 662, at paras. 10-11.

12Where an accused person has given a statement to the police, the Crown often chooses to introduce it into evidence as a substantive part of its case in chief. There may be a number of reasons for this: to introduce inculpatory utterances; to demonstrate the demeanour of the accused; to adduce utterances that the Crown seeks to prove false through other evidence; or to demonstrate the manner in which the accused responded to certain questions.

13Other times the Crown will elect not to tender an accused’s statement in its case in chief, but rather hold it for use in cross-examination should the accused decide to testify. Given the rule against case-splitting, however, as a general rule the Crown’s use of the statement in cross-examination is “limited to impeachment by challenging oral testimony with material contradiction in the statement”: R. v. G.A., [2017] O.J. No. 6820 (S.C.J.) at para. 152. See also R. v. Khan, [2011] B.C.J. No. 1776 (B.C.C.A.) at paras. 98-100.

14It will be helpful, at this point, to provide a general overview of Mr. Osborne’s police statement.

The Statement

15Mr. Osborne began his statement by making a general denial of having any involvement in the offences. He professed ignorance as to why he was being held by the police. He declared that he had been at home watching television and smoking marijuana with his roommate, following which he simply went to bed. These utterances are blatantly at odds with his trial testimony.

16The investigating officers pressured him with some of the evidence they had already collected. He broke down quite quickly. He was asked if he went to Mr. Pringle’s with the intent to kill him or just to scare him. He said it was just to scare him. He proceeded to say he went there to rough him up and he used a hammer. He hit him in the head four times with the hammer. On the last of those strikes, the hammer broke Mr. Pringle’s skull.

17The interview progressed with Mr. Osborne describing who went with him and how they gained access to Mr. Pringle’s apartment through a window. He described how he and one of the other attackers struck Mr. Pringle with a hammer and baseball respectively. His description of the encounter with Mr. Pringle and the blows he struck differs somewhat from his account in his trial testimony. He went on to say that he heard Mr. Pringle groaning as they exited his apartment, which is also different than what he said at trial.

18The statement basically proceeded chronologically. Mr. Osborne spoke of returning to his residence on Bethune Street. He said he bleached the hammer, which he denied doing in his trial testimony. He talked about hiding evidence the next day and claimed he burned all his clothes – again differing from his trial testimony.

19He was taken through the plan for the attack, why it was done and what the arrangements were. This part of his statement is, in my view, largely consistent with his trial testimony. He described what each of the intruders was wearing and who went into the apartment. He was then asked if he had any drugs in his system. He gave answers easily capable of being interpreted as inconsistent with his trial testimony.

20It will be up to the jury, of course, to determine whether there are inconsistencies between what Mr. Osborne told the police and what he said at trial. I do not entirely accept that there are inconsistencies evident on every page of the transcript, but having carefully reviewed the 37 pages comprising the interview transcript, it appears to me that a good case can be made that inconsistencies appear on at least pages 2, 3, 5, 6, 7, 8, 9, 12, 14, 16, 17, 18, 19, 20, 27, 28 and 33. Some of them may be minor. Some may be duplicative. Others are arguably quite significant.

Discussion

21It is rare for Crown counsel to propose to play an entire out-of-court statement in cross-examination for impeachment purposes. Frankly, I have never seen it done. There are good reasons to avoid it. Among them:

(a) The constitutional imperative of preventing the Crown from splitting its case;

(b) The introduction of irrelevant and/or duplicative evidence; and,

(c) Time wasting.

22My (unexpressed) gut reaction to defence counsel’s objection to the Crown’s proposed method of proceeding was to agree that it was an odd and likely improper use of Mr. Osborne’s statement. But, having listened to counsel’s thoughtful arguments and having carefully reconsidered the content of the statement, I am persuaded that this is a rare case where the playing of the statement in its entirety, during cross-examination, should be permitted. I have reached this conclusion for the reasons that follow.

23There is little case law on the point. There is no absolute bar to the playing of the entirety of an accused’s statement in cross-examination insofar as I am aware. In my view, the use of such a statement in cross-examination is subject to the trial judge’s general discretion to control the proceedings, including cross-examination.

24The first, and most important, consideration is whether the playing of the statement will permit the Crown to do the impermissible: split its case. In this instance, I am persuaded that it will not. I say this for the following reasons:

(a) The accused is entitled to know the case he has to meet before he testifies. In this instance, he was obviously in possession of his statement through his right to disclosure. He knew its contents, knew it had been ruled voluntary and knew the Crown was entitled to use it to impeach his credibility, should he chose to testify;

(b) There are very numerous portions of the statement that may be properly used by the Crown for impeachment purposes without offending the rule against splitting its case;

(c) While the question of who caused Mr. Pringle’s death technically remains a live issue, it is hard to imagine, on the current evidentiary record, any trier of fact not concluding that Mr. Osborne’s acts contributed significantly to Mr. Pringle’s death. The real meaningful live issue in this case is Mr. Osborne’s state of mind at the time Mr. Pringle was killed. And in this respect, the only utterances Mr. Osborne made in his police statement are exculpatory. They are not part of the Crown’s case at all; and,

(d) Mr. Osborne has given testimony that he was incredibly high at the time of the killing, on a combination of cocaine, alcohol and marijuana. He has given trial testimony that he was so high that he lost control of his actions – essentially he was too high to form the state of mind for murder. The Crown seeks, in playing the statement, to (1) point out specific contradictory utterances about the substances he ingested and his level of intoxication; and, (2) to demonstrate Mr. Osborne’s general state of recall of the particulars of the incident, some four days after it occurred. This is not evidence that was particularly relevant to the Crown’s case. It became relevant and probative of Mr. Osborne’s mental state only after his testimony in chief. And it is Mr. Osborne’s ability to recall and recount the particular details of the events of the night in question that Crown counsel will argue is inconsistent with his position that he was so high on cocaine, alcohol and marijuana that he was unable – or at least did not – form the intent to kill. Essentially the whole of his interactions with the investigators is necessary to demonstrate this contradiction.

25I am also persuaded that playing the statement in extenso will not be a waste of court time. The statement is not long to begin with, coming in at a total of about 43 minutes. The passages that Crown counsel intends to put to Mr. Osborne as inconsistent with his trial testimony are numerous would in any event require the Crown to either (1) play large portions of the video; or (2) read large portions of the transcript to Mr. Osborne. Playing the video in its entirety, followed by a series of focused questions, may in fact be the most efficient way of putting so many and varied inconsistencies to Mr. Osborne.

26There are portions of the interview that are either irrelevant or non-probative of any live issue. But they are only a small portion of the video and I am of the view that it will be better for the jury to review the entirety of the statement in order to put the statement into context and to be in the best position to consider its harmony, or lack thereof, with Mr. Osborne’s trial evidence.

27Defence counsel raised one further compelling argument. In particular, if Mr. Osborne’s statement had been introduced in the Crown’s case in chief, it would have been tendered through the evidence of the officer who took the statement. Defence counsel would have had an opportunity to cross-examine the officer as to whether conduct of the interrogators may have produced answers of questionable reliability. Allowing the Crown to play the whole of the statement in cross-examination of Mr. Osborne, deprives defence counsel of that opportunity.

28This argument may well be dispositive in many cases. In this case, however, as I have already noted, the only serious live issue is Mr. Osborne’s state of mind at the time of the attack. And as I also noted, wherever this issue came up in Mr. Osborne’s police statement, he made exculpatory utterances. The inability to cross-examination the taker of the statement is, in the circumstances of this case, minimally prejudicial to Mr. Osborne.

29In the result, I find that this is a rare instance where the court should exercise its discretion to permit Crown counsel to play the entirely to Mr. Osborne’s police statement during his cross-examination.

Boswell J.