COURT FILE NO.: CRIMJ(P) 1309/18

DATE: 20200203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

B. McGuire and P. Maund for the Crown

– and –

DEVON BEALS

R. Gadhia, Counsel for the Accused D. Beals

SHAYNE BEALS

S. Taraniuk, Counsel for the Accused S. Beals

CLIVE WALTERS

A. Abbey, Counsel for the Accused C. Walters

ALEXANDER BUCKLAND

T. Kirichenko, Counsel for the Accused, A. Buckland

HEARD: January 27-28, 2020

RULING ON APPLICATIONS TO EDIT THE STATEMENTS OF ALEXANDER BUCKLAND AND CLIVE WALTERS

J.M. Woollcombe J.

A. Introduction

[1] The accused are charged with the first degree murder of Heidrah Shraim, alleged to have occurred on November 22, 2017.

[2] On November 22, 2017, the police arrested Mr. Buckland. His counsel has conceded that the videotaped statement he gave to the police following his arrest was voluntary. The Crown plans to tender it at trial.

[3] Counsel for Devon Beals, Shayne Beals and Clive Walters apply for an order that I edit Mr. Buckland’s statement and remove certain passages from it so that they are removed from the jury’s consideration. Counsel for the three co-accused take different positions respecting which parts of the statement should be excised. There are a number of passages that all parties have agreed should be removed from the statement. I will not comment upon these passages and accept the Crown’s undertaking to make best efforts to remove them from the videotaped statement and transcript. Both Mr. Buckland and the Crown are opposed to the additional proposed edits, which I will address.

[4] Clive Walters was arrested by police on January 4, 2018. During a voir dire into the admissibility of his statement, he conceded its voluntariness. While he sought its exclusion on the basis of a violation of s. 10(b) of the Charter, I ruled that the statement was admissible. The Crown plans to tender it at trial.

[5] Counsel for Mr. Walters, Devon Beals and Shayne Beals each seek an order that portions of Mr. Walters’ statement be excluded. Counsel for Mr. Buckland does not seek excision of portions of the statement. While the Crown has agreed to remove certain parts of the statement, and undertaken to make best efforts to remove these passages from the videotape and transcript, it opposes the majority of the edits sought.

[6] On the two motions to edit the statements, Mr. Taraniuk, on behalf of Shayne Beals, is the only party to have filed a factum. It relates to the edits to Mr. Buckland’s statement only. The Crown filed a casebook of authorities on the issue of editing of co-accused’s statements. Oral submissions on the applicable legal principles and the proposed edits proceeded for the full day on January 27, 2020 respecting Mr. Buckland’s statement and for the full day on January 28, 2020 respecting Mr. Walters’ statement.

[7] I shall address the relevant legal principles, followed by the contested proposed edits in relation to each of the two statements separately.

B. Legal Principles

[8] It is trite law that an accused’s statement is admissible only against him. When the Crown introduces, at trial, the statements of the accused, Mr. Buckland and Mr. Walters, each will be admissible both for and against its maker. Neither statement will be admissible against any of the co-accused. The jury will be told this both when the statements are introduced and in my final instructions.

[9] In a trial with more than one accused, it is common for an accused’s statement, while only admissible against that accused, to include statements against co-accused. When the statement contains statements that are immaterial and so prejudicial to a co-accused that it would be unfair not to edit them, they may be edited.

[10] The general principles applicable to editing have been considered in a number of authorities that were provided to me. The parties appear to agree about the legal principles.

[11] Some years ago, in R. v. McLeod, 1983 3605 (ON CA), [1983] O.J. No. 81 (C.A.), Grange J.A, for the Court of Appeal, considered whether the trial judge ought to have severed co-accused on the basis that the Crown planned to tender statements given by each of them that implicated the others. In affirming the trial judge’s decision not to grant severance, Grange J.A. made two important points.

[12] First, he held that in Canada, while there is no presumption against joint trials where statements like this exist, it is imperative that complete and proper instructions be provided to the jury as to the limits of evidence admissible against each accused, including that the statement of each accused is admissible only against him and is inadmissible against the co-accused.

[13] Second, he observed that while:

…editing is often resorted to with advantage to blot out totally immaterial and prejudicial portions of an accused’s statement, in this case, there would have been no advantage in deleting from each statement the names of the co-accused as this would have both interrupted the flow of language in the statement and would have aroused suspicion and speculation on the part of the jury.

Rather, to make sense, and so that they could render justice, the whole of the statements had to be admitted.

[14] A similar approach was followed in R. v. Olah, 1997 3023 (ON CA), [1997] O.J. No. 1579 (C.A.). There, the Court of Appel considered whether the trial judge had erred in not severing the two co-accused when one of them, Olah, had provided “powerful, compelling and convincing” statements implicating the other, Ruston. Writing for the Court, Osborne J.A. upheld the trial judge’s decision not to grant severance, observing that the trial judge had ordered Olah’s statements be edited to remove what the trial judge characterized as “gratuitously offensive comments attributed to or related to” Ruston. The Court also considered the fact that the trial judge had repeatedly instructed the jury that Olah’s statements were not admissible against Ruston and affirmed, at para. 48, the well-established principle that “the administration of justice proceeds on the assumption that juries will give effect to the instructions of the trial judge as to the use that the jury can make of evidence that is before them”.

[15] The specifics respecting how to edit a statement, and what principles guide such an exercise has been considered by a number of trial courts. The principles, set out by Davies J. in R. v. Leland (June 9, 1997) Vernon No. 30061 (B.C.S.C.), were summarized at para. 36 of R. v. Grewall, 2000 BCSC 1451, [2000] B.C.J. No. 2386 in these terms (with the case references omitted):

36 In R. v. Leland (June 9, 1997) Vernon No. 30061 (B.C.S.C.) Davies J. summarized the law as it applies to the editing of voluntary statements. After reviewing the authorities, he summarized them as follows at para. 36:

(1) Editing of a statement may at times be necessary because of the inclusion of irrelevant or unnecessarily prejudicial evidence but such editing must not affect the tenor of a relevant statement;

(2) Edited statements must be free from unnecessary prejudice, but the remaining portions must retain their proper meaning;

(3) The jury should have as much as possible of a statement said to constitute an admission in order to place it into context for the purpose of determining its truth;

(4) Even though substantively irrelevant, contextual evidentiary relevance may allow admission; and

(5) The extent of the admissibility of that contextual evidence and probative value must still, however, be weighed and balanced against its prejudicial effect.

[16] Some of these criteria were comments upon by Ferguson J. in R. v. Jacobson, [2004] O.J. No. 932 at paras 5-8. He observed that editing may be of evidence that is irrelevant or if its prejudicial effect is greater than its probative value. He also held that the party seeking to edit need not prove “extreme prejudice”, but that what must be edited is unnecessary prejudice.

[17] More recently, in R. v. Thind, 2011 ONSC 4577; aff’d 2013 ONCA 719, Baltman J. summarized the relevant editing principles in this way at para. 8:

8 From my review of those cases the governing principles appear to be the following:

(1) The trial judge has the discretion to edit statements which include irrelevant or prejudicial evidence against a co-accused;

(2) Even where evidence has probative value it may be edited out if its prejudicial effect is greater;

(3) However, such edits must not change the meaning of the statement in a material manner, either by removing something of legitimate value to the Crown in its case against the declarant or by removing something of exculpatory value to the declarant; and

(4) In deciding whether to edit a statement to protect a co-accused, the Trial Judge must bear in mind that the jury will be instructed on the proper use of the statement and that we expect jurors to follow such instructions.

[18] Bearing these legal principles in mind, I turn now to the specific edits proposed.

C. Analysis

[19] I will address the proposed edits in relation to each of the accused’s statement separately, beginning with the statement of Mr. Buckman to Det. Heyes.

i) Proposed Edits to Alexander Buckman’s statement

[20] The edits proposed by counsel may be grouped into a few categories, each of which I will address. While I will refer to examples of the passages proposed to be edited, I will not excerpt every passage proposed by counsel as I discuss these categories.

Proposed edits relating to Mr. Buckland’s fears of reprisals

[21] Ms. Gadhia, Mr. Taraniuk and Mr. Abbey, on behalf of Devon Beals, Shayne Beals and Clive Walters, propose editing from Mr. Buckland’s statement a significant number of passages in which he speaks about being afraid to talk about what happened for fear of reprisals against himself and his family. While counsel acknowledge that Mr. Buckland should be able to advance a position that he was too scared to speak to the police, they submit that the number of such references by him is excessive and prejudicial to their clients.

[22] The passages objected to by some or all counsel are contained, firstly, in Mr. Buckland’s statement between pp. 97 and 119. In these passages, his comments include the following repeated statements, some of which I have excerpted:

• p. 98 (“I’m not saying nothing…My name can’t be on the streets with anything, man, I can’t…. Those fucking people I know, they’ll kill me…”);
• p. 101 (“I’m dead…they’re gonna kill me…”);
• p. 102 (“You don’t know the streets…people get killed and disappear and they’ll never be found. Like it’s bad…If you’re known as an informant you’re fucking dead…);
• p. 102 (“this shit will get me fucking killed…”);
• p. 103 (“my girl will get it, my fucking kid, my mom, everybody will fucking get it if I say something…they’re gonna fucking come back and they’re coming for me man…);
• p. 105 (“I’ll be a fucking ongoing missing persons case…people are gonna fucking die…if I say something, I’m not gonna have a life anymore…”);
• p. 108 (“I’m gonna have to go hide somewhere, I can’t. Like they’re gonna look for me…my family’s life is on the line…”);
• p. 108 (“the only way I can do this is I need to get the fuck out of here…”);
• p. 109 (“I tell you anything about what the fuck this shit is, they’re gonna fucking kill me dead, dead”);
• p. 111 (“I will tell you guys what happened if you guys will put a pistol in my fucking waist so I can defend myself if they run up on me”);
• p. 112 (“if I tell you anymore about what fucking happened, I am going to be dead…”); and
• p. 114 (“they’re gonna fucking kill me if I tell on them, simple. I say anything I’m dead”).

[23] Counsel also seek to edit out passages on p. 120 when Det. Heyes appears to try to reassure Mr. Buckland that he had never seen a retaliation, and Mr. Buckland’s responses at pp. 120-121, which include:

“You’re talking about international gang people them, just so you know…I know that motherfucker’s protected, eh…you gotta understand that these guys will make a, a fucking description of me, they will, they don’t give a fuck. They don’t care if they’ll, they’ll, they’ll, they’ll, they’ll drop me in front of fucking Square One. They don’t care…”

[24] In addition, counsel seek to edit the similar comments made by Mr. Buckland about his fear that continues in the following passages, including (without excerpting every passage):

• p. 123 (that “these motherfuckers are gonna kill me if I…tell you guys anything”);
• p. 131 (“those motherfuckers are gonna…kill me if I fucking…talk to you”);
• p. 132 (“what are you guys gonna go fucking hide me somewhere”);
• p. 138 (“You want me to tell on a fucking…murder…You want me to tell on a fucking murder which they’re gonna fucking come after me”);
• p. 140 (you motherfuckers ain’t gonna pay for me to get a place to hide out somewhere);
• p. 148 (“they want me to tell on the motherfucker that can have my whole family disappear by tomorrow);
• p. 150 (“these guys are gonna fucking kill me man, you know this, right?…if I tell on these motherfuckers , they’re gonna kill me);
• p. 161 (“I just want know my family’s safe, that’s all I care about”);
• p. 163 (“Tell you everything I fucking have if you promise my family’s safety”);
• p. 164 (“like I told him you guys can put me somewhere safe that I know that these motherfuckers can’t find me”);
• p. 166 (“as long as you promise my fam, my s, my family’s safe”);
• p. 170 (“if you let me know my family will be fucking safe”);
• p. 177-178 (“he called everybody and told everybody, keep their mouth shut or they’re dead” to which Det. Heyes responds, “Oh, I see. I gotcha now, why you’re saying that earlier to me”.);
• p. 181 (where, after Mr. Buckland says that he was “told to shut my fucking mouth”, and Det. Heyes asks, “By who? By him?”, pointing to a photograph of Devon Beals sitting on the table, Mr. Buckland responds “Mm’hmm. And if I didn’t, I’ll die. And my family”);
• p. 233 (“they were calling me, saying, you know, just shut up, don’t say nothing…don’t say nothing if you know what’s good for you…I know where your family lives…); and
• p. 248 (“these guys will come for me”).

[25] I understood Ms. Gadhia to recognize that the passage on pp. 101-102 was a representative example of what Mr. Buckland said that could be appropriately left unedited, were the other passages excised, as this would enable the jury to hear of Mr. Buckland’s general fear, without hearing the prejudicial specifics and the repeated references to his fears about reprisals.

[26] On behalf of Shayne Beals and Clive Walters, Mr. Taraniuk and Mr. Abbey adopted the submissions made on behalf of Devon Beals respecting the editing out of references to Mr. Buckland’s fear of reprisals.

[27] Mr. Kirichenko, counsel for Mr. Buckland, takes the position that there should be no editing of his statement to remove his utterances about his fear of reprisals. Counsel submits that Mr. Buckland’s “whole story” should be before the jury. He wants the jury “to get to know” Mr. Buckland, and his fears, even if they might appear to be irrational or illogical. He says that this will ensure that the jury can decide the case based on a complete picture what Mr. Buckland was thinking when he spoke to the police.

[28] The Crown’s position is that Mr. Buckland’s statements about his fears are part of the narrative of his statement and should not be excised. The Crown submits that the jury needs to see that Mr. Buckland moved from making general assertions about fears of being killed to making more specific allegations respecting his fear of Devon Beals, including the passages the co-accused seek to excise at pp. 178 and 181. It is the Crown’s position that Mr. Buckland was hesitant to mention names early on in the statement, and that it is for the jury to decide whether what he describes as threats he felt, or his belief that his safety was in jeopardy, were the reason for him saying what he did in the statement. The Crown says that the jury needs to see the evolution of what Mr. Buckland said and how he said it in order to assess the content.

[29] The Crown submits that portions that the co-accused seek to have excised are important to its case against Mr. Buckland. They are important because of the words spoken by Mr. Buckland and because of the manner in which he says them and conducts himself. The Crown’s theory is that this was a planned and deliberate murder and that Mr. Buckland aided in that planned and deliberate murder. The Crown submits that in his statement, Mr. Buckland “watered down” details as to what happened, including saying that the plan was for a fist fight not a knife fight, omitting any reference to a meeting at Devon Beal’s place before the murder (which the Crown submits Mr. Buckland was present for and during which plans were made about the killing) and saying that Devon Beals acted in self-defence. The Crown suggests that Mr. Buckland left out these details because he was afraid, and that the passages in which he expressed first general fear, and then his specific fear of Devon Beals, provide an explanation for omitting key parts of what happened.

[30] I do not accept the co-accused’s position that there are an excessive number of references to Mr. Buckland’s fear of reprisals and that some of these, particularly those relating to Devon Beals, need to be edited out because their prejudicial effect outweighs their probative value.

[31] I begin by observing that Mr. Buckland’s statement, tendered by the Crown, is admissible both against and for him. He is entitled to rely on it in his defence. His counsel has made clear that he would like the jury to hear the evidence about the threats he perceived as they will be relevant to his defence. It is critical that any editing not undermine Mr. Buckland’s right to make full answer and defence, including his right, once the Crown tenders his statement, to rely on it to advance his defence. I am concerned that the proposed editing could impair Mr. Buckland’s ability to advance, as part of his defence, that at the time he was interviewed by Det. Heyes, he felt significant and genuine fear for himself, and for his family, of reprisals from Devon Beals and others, and that these fears influenced what he said in the statement. This, alone, gives me a reason not to edit as the co-accused ask.

[32] Furthermore, I think the proposed editing the statement would change the character of the narrative. It appears to me that in the statement, Mr. Buckland starts by speaking about general fears, and then, as he continues, describes more specific fears about Devon Beals. There is, at least arguably, an evolution over his statement both in the words he speaks and the manner in which he describes his fears and what he says happened. The Crown is entitled, in my view, to rely on the evolving narrative to support arguments that Mr. Buckland held back details as to what happened because he was fearful, and thus to submit to the jury that they should find he never provided a full and accurate account as to what happened.

[33] I appreciate that Mr. Buckland’s repeated allegation of threats by others, including Devon Beals, is not evidence that they made the threats. It is evidence going only to his perception and state of mind. The jury will be instructed that nothing Mr. Buckland says about the co-accused, including the allegations he makes of being threatened by them, is evidence against them. The law presumes that after this instruction, they will not use Mr. Buckland’s statements about threats of reprisals as evidence against his co-accused.

[34] Accordingly, none of the proposed edits respecting Mr. Buckland’s fears of reprisals, apart from those that are being excised on consent, will be edited out. I will instruct the jury as to the relevance of this evidence and the fact that Mr. Buckland’s allegations of threats by others are not admissible to prove that those threats in fact occurred.

Proposed edits of opinions offered by Det. Heyes relating to the credibility of Samantha Fishman

[35] It is important to appreciate that Ms. Fishman was Mr. Buckland’s girlfriend at the time he gave the statement. She was pregnant and was expecting his baby. It is anticipated that the Crown will call her at trial.

[36] Ms. Gadhia, for Devon Beals, and Mr. Taraniuk on behalf of Shayne Beals submit that there are numerous passages in the statement in which Det. Heyes tells Mr. Buckman his views about a statement that Samantha Fishman has given to police. I understand Mr. Abbey to adopt these submissions on behalf of Clive Walters. The defence position is that the officer’s views about Ms. Fishman’s credibility are of no probative value and are, in fact, highly prejudicial. The prejudice flows, they submit, from the fact that the officer’s comments that he thinks she is believable will artificially and improperly enhance her credibility in the eyes of the jury. Counsel argue that the statements of Det. Heyes are a form of oath-helping for Ms. Fishman.

[37] Edits proposed by the three defence counsel include passages on pp. 172, 173, 174, 175, 176 and 233-234. Generally, these are all passages in which Det. Heyes refers to what Samantha Fishman has told police and his statements to Mr. Buckland that Ms. Fishman has no reason to lie.

[38] Similar arguments were advanced about the need to excise passages from:

• p. 104 (that Det. Heyes said that they had talked to “your girl” and what she had said);
• pp. 216 (what Det. Heyes said to Mr. Buckland about Ms. Fishman being a “good person” and her being “honest” and “truthful”);
• p. 222 (that Det. Heyes told Mr. Buckland about her having “no reason to lie”);
• p.227 (Det. Heyes’ reference to what she is saying to police);
• p. 233-234 (Det. Heyes asking Mr. Buckland about how Ms. Fishman feels about “this”);
• p. 249 (Det. Heyes telling Mr. Buckman that Ms. Fishman is trying and “she’s being good”);
• p. 303 (Det. Heyes telling Mr. Buckland that what Ms. Fishman is saying); and
• p. 306 (Det. Heyes telling Mr. Buckland that Ms. Fishman “was honest”).

[39] The Crown’s position is that the references made by Det. Heyes to Ms. Fishman, and to what she said, are not “oath-helping”. They are better understood as one of the tools used by the officer to try to elicit from Mr. Buckman answers to the officer’s questions. Further, the Crown submits that it is only when Mr. Buckman appreciated what Ms. Fishman had told the police that he began to respond to Det. Heyes’ questions. The Crown submits that it is not Det. Heyes’ questions and comments about Ms. Fishman that are important, it is Mr. Buckland’s response, which can only be appreciated by the jury if they know what he was responding to.

[40] I do not think the references to Ms. Fishman having spoken to police, or the officer’s comments about her veracity, should be edited from Mr. Buckman’s statement. I reach this conclusion for the following reasons.

[41] First, I view the fact that Mr. Buckman was told that his girlfriend had spoken to the police, and was told parts of what she had said, as important context from which to assess his responses to questions. Both Mr. Buckland and the Crown should be able to make submissions to the jury about the veracity of Mr. Buckland’s statement and the manner in which it evolved as a result of what he was told about what Ms. Fishman had said. Assessing his responses requires that the jury understand what he knew about what she had said. In my view, editing as the co-accused suggest would markedly change the character and narrative of Mr. Buckland’s statement.

[42] Second, given that there is very little of significance about the co-accused that is put to Mr. Buckland as having been said by Ms. Fishman, I do not see a potential for the jury to mis-use the passages sought to be excised against them.

[43] The prejudice from the passages sought to be excised, if any, is the potential for the jury to give undue weight to Ms. Fishman’s evidence because Det. Heyes told Mr. Buckland that he believes what Ms. Fishman told police, and that she has no reason to lie. While I appreciate that Det. Heyes repeatedly told Mr. Buckland that he viewed Ms. Fishman as truthful, the jury must be told, both when the statement is introduced and in the charge, that nothing Det. Heyes says in the statement, including his opinions about her veracity, is evidence for them to consider. They will be instructed that her evidence is what she says in court, and not what other witnesses are told she has said. In my view, these instructions, which the law presumes that the jury will follow, will ensure that they do not, improperly, ascribe any weight to Det. Heyes’ view about Ms. Fishman’s credibility. This will overcome any risk of prejudice from the jury improperly finding her credibility to be bolstered by the officer

[44] Accordingly, the passages that counsel seek to excise in which Det. Heyes speaks about Ms. Fishman’s statement, and her credibility, will not be removed and the jury will be instructed in the manner I have set out.

Proposed edits relating to other opinions offered by Det. Heyes

[45] Ms. Gadhia seeks other edits including, for example, a passage at pp. 54-55 of the statement in which Det. Heyes spoke to Mr. Buckland about people making good decisions and bad decisions. I see nothing prejudicial about these comments and decline to edit them.

[46] She also seeks to edit a comment at the bottom of p. 105 in which Det. Heyes told Mr. Buckland that he knows he is a good man, but then said, “What I need to get to the bottom of is why other people think it’s okay to bring in other people”. The submission made is that Det. Heyes was putting forward his theory of the case and that this could improperly shape how the jury view this. I see this comment as quite innocuous and certainly not prejudicial. I decline to excise it.

[47] Mr. Abbey, on behalf of Mr. Walters, submits that the passage of the statement at p. 302 should be excised. In this passage, counsel says that Det. Heyes was trying to find out from Mr. Buckland what “Quicks” (acknowledged to be Mr. Walters) was doing. Counsel submits that Mr. Buckland’s answers are vague and that he really did not provide an answer. He submits that this passage is very prejudicial to Mr. Walters and, of course, not admissible against him.

[48] The Crown did not respond to this particular request for excision in his submissions.

[49] I am concerned that editing as counsel suggests will render meaningless the portions of the discussion that follow about who drove away after the stabbing. Moreover, I do not see the statement of Det. Heyes as particularly prejudicial. All he said was, “Right and then Quicks fucking does his thing with him…”. It seems to me that there is nothing specific alleged to have been done by Quicks in this passage. I am confident that the instruction to the jury that nothing Det. Heyes says is evidence against any of the accused will ensure that this evidence is not mis-used by them.

Proposed edits related to Mr. Buckland’s propensity for violence

[50] Ms. Gadhia seeks to have edited from the statement passages in which Mr. Buckland refers to his own propensity for violence. Mr. Kirichenko agreed that these passages ought to be removed, as well as those references in the statement to drugs and to a domestic dispute. The Crown agreed with the proposed edits in this area and undertook to make best efforts to remove the following passages from the videotape and transcript:

• pp. 59-60 (his references to fighting back and it being “street revenge”);
• p. 62 (a reference to him using his hands);
• p. 64 (a reference to his former domestic partner);
• p. 65 (a reference to a domestic dispute);
• pp.66-67 (further discussions about a domestic dispute); and
• p. 68 (after Mr. Buckland says “I don’t know who that is…” to the end of the page where there is a discussion about drugs).

Proposed edits relating to Shayne Beals

[51] Mr. Taraniuk submits that six passages in Mr. Buckland’s statement, in which he refers to Shayne Beals, should be edited out. He submits that in these passages, Mr. Buckland suggests that Shayne Beals was at the location of the homicide either after it took place, or at the time it took place, and that these statements are not admissible against Shayne Beals. He says that the admission of these passages would be highly prejudicial to Shayne Beals and that the prejudice cannot be cured by a limiting instruction.

[52] As I understand Mr. Taraniuk’s position, it is that there is little other Crown evidence that places Shayne Beals at the scene. While counsel acknowledges that Ms. Fishman is anticipated to do so in her evidence, he says that the credibility and reliability of her evidence will be challenged. He also acknowledged that the evidence of Mr. Fiseha will identify Shayne Beals as being present, but says that his evidence is also subject to significant frailties. He says that Det. Heyes really “helicoptered” Shayne Beals into their conversation and that Mr. Buckland never said that Shayne Beals had been part of the homicide or what his role had been. He submits that when the other evidence against Shayne Beals is so weak, the danger of the jury improperly relying on the inadmissible statements about Shayne Beals made by Mr. Buckland is heightened. He submits that there is no probative value in these utterances and that the potential for prejudice is high.

[53] The passages that Mr. Taraniuk seeks to exclude are:

• p. 172 (Det. Heyes asking, “or was it Shayne?” and Mr. Buckland responding, “No he was already there”);
• p. 224 (an exchange in which Det. Heyes asked Mr. Buckland about whether Shayne was with the group and Mr. Buckland’s responses include “he came after everything happened”, “he’s always in other peoples’ cars” and “He came to the scene afterwards. And I looked at him like you’ve gone too far, get the fuck out of here. And he jumped into his car the same time I jumped in. He came after it happened.”);
• p. 231 (a passage in which Det. Heyes says, “these guys put you in that situation”, to which Mr. Buckland responds, “It wasn’t Shane. It was all Dev”);
• pp. 245-247 (an exchange in which Det. Heyes asked about where Shayne was when Mr. Buckland and others were at the scene, what kind of car he was driving and includes Det. Heyes saying “So he shows up, parks his car. You’re there, shit happens” and Mr. Buckland’s response is inaudible);
• p. 272 (exchange following Det. Heyes having suggested to Mr. Buckland that Danny was on the floor, Mr. Buckland having responded that he doesn’t know who that is in which Mr. Buckland says, “I don’t know who that is”, which Det. Heyes follows up with “Shayne?” and Mr. Buckland responds, “Maybe”);
• pp. 275-276 (further exchange between Det. Heyes and Mr. Buckland about where Shayne’s car was parked at the scene and what Mr. Buckland recalls about his car).

[54] While Mr. Taraniuk initially sought to have a passage at p. 174, in which Detective Heyes says, in reference to the return to their complex, “and Shayne was there as well”, he later resiled from this position and agreed that it need not be excised.

[55] Mr. Kirichenko opposes the proposed edits.

[56] The Crown’s position is that the edits should not be made. Crown counsel rejects the submission that Det. Heyes “helicoptered” discussion of Shayne Beals into the statement and says that Det. Heyes introduced Shayne Beals’ name because he had information that Shayne Beals was present and was entitled to ask Mr. Buckland about him. The Crown accepts that the jury must be told that nothing Mr. Buckland said in the statement about Shayne Beals is admissible against him, but submits that there is very little risk of prejudice to Shayne Beals from the statement because Mr. Buckland does not implicate Shayne Beals to any significant extent.

[57] The Crown also submits that it would be misleading to the jury to edit out the references to Shayne Beals. If the statement is edited as proposed, it would create the impression for the jury that Mr. Buckman described there being three people present at the scene, and not four. Left with the impression that Mr. Buckland never mentioned Shayne Beals, the jury might well find, when other witnesses such as Ms. Fishman place Shayne Beals at the scene, that Mr. Buckland lied to the police by failing to mention Shayne Beals. Were they to draw an adverse inference against his credibility because of this, the editing might well serve to undermine Mr. Buckland’s ability to make full answer and defence.

[58] Moreover, the Crown submits an adverse credibility finding against Mr. Buckland on this basis could impair the Crown’s ability to suggest that he was truthful in his statement after Det. Heyes told him that his girlfriend had provided them with information.

[59] For the reasons that follow, I decline to excise from Mr. Buckland’s statement the references to Shane Beals sought by Mr. Taraniuk.

[60] First, I do not accept the suggestion that Det. Heyes somehow improperly introduced Shayne Beals’ name into the interview and that he should not have done so. This idea of “helicoptering” his name into their discussion misconceives the role of the police in interviewing a suspect, and the reality of what Det. Heyes did. The officer obtained information from others respecting Shayne Beals and asked Mr. Buckland about him. There is nothing nefarious about this.

[61] Second, the statements made about Shayne Beals by Mr. Buckland are not nearly as prejudicial as Mr. Taraniuk suggests. For the most part, they are merely references to Shayne Beals’ presence, rather than suggestions that he did anything specific. Certainly, there is no allegation by Mr Buckland of criminal wrong-doing. While I appreciate that Shayne Beals may take the position that his presence has not been proven by the Crown, it is significant that it is anticipated that there will be other witnesses, including Ms. Fishman and Mr. Fiseha, who will place Shayne Beals at the scene and provide more information about his role than Mr. Buckland does in the statement. The fact that Mr. Buckland says a limited number of things about Shayne Beals, will not, in my view, cause any significant prejudice.

[62] Third, I think any potential for prejudice caused by Mr. Buckland speaking about where Shayne Beals was at various points is precisely the sort of prejudice that can be cured by a clear instruction to the jury, both when the video is played and in the charge. I will make clear to the jury that nothing said by either Det. Heyes or Mr. Buckland about other co-accused is evidence against them. As I have already said, juries are presumed to be able to follow such an instruction. There is no reason to think they would be incapable of doing so.

[63] Fourth, I see a real risk of Mr. Buckland’s credibility being unfairly undermined in the eyes of the jury were they to understand, albeit improperly, that he never said anything about Shayne Beals to the police. He might well be perceived by the jury as unreliable about this, which could unfairly impugn his credibility. This could, in turn, undercut his defence, as advanced through the statement. It could also undermine the force of the parts of the statement that the Crown seeks to rely upon to prove its case.

[64] Mr. Taraniuk suggests that Mr. Buckland could never be impugned for being inaccurate about the number of people who were at the scene, given the anticipated evidence of the Crown witnesses will not be consistent on that issue. It may be that the Crown’s witnesses are not consistent. But, the problem remains that Ms. Fishman is anticipated to say that there were four there and that Mr. Buckland’s phone was used to call Shayne Beals. From what I know of the anticipated evidence, which is limited, I see potential for Mr. Buckland’s credibility to be undermined if the jury thinks he never mentioned Shayne Beals. I see that potential as remaining even if, as Mr. Taraniuk conceded, the passage from p. 174 is not excised, because the jury would still be left with an inaccurate and distorted picture as what Mr. Buckman said about Shayne Beals.

[65] The passages Mr. Taraniuk seeks excised respecting Shayne Beals will remain in Mr. Buckland’s statement and the jury will be told that they may not rely on anything either Det. Heyes or Mr. Buckland says about Shayne Beals as evidence against him.

ii) Proposed Edits to Clive Walters’ Statement

[66] While I have ruled Mr. Walters’ statement admissible, Mr. Abbey, on his behalf, submits that there should be substantial editing of his statement. Both Ms. Gadhia, on behalf of Devon Beals and Mr. Taraniuk, on behalf of Shayne Beals, also seek editing. The Crown opposes many of the excisions sought.

[67] I begin with the passages that Mr. Walters seeks to exclude. Initially, in the chart of proposed edits I was given, Mr. Abbey sought a significant number of edits. During his submissions, he abandoned many of them. In respect of quite a few edits proposed by counsel, the Crown agreed during submissions to make best efforts to remove various passages from the videotape and the transcript. I will not review every one of these but note that they include:

• pp. 19-20; pp.29-30; p. 244, l. 25 - p. 245, l. 9; p. 264, ll. 1-13 (discussions about whether and with what Mr. Walters has been previously criminally charged);
• p. 190, l. 28 - p. 191, l. 1 and p. 191, ll. 3-13; p. 196, l. 29 – p. 197, l. 1; p. 198, ll. 1-9 (references to Mr. Walters having stolen from the Beer Store);
• p. 195 (Det. Heyes’ comment suggesting that Devon Beals has a drinking problem);
• p. 213, l. 5 – p. 214, l. 2; p. 240, l. 26 – p. 241, l. 1-27 (all references by Det. Heyes to a polygraph test and his view that Mr. Walters would fail a polygraph); and
• p. 262, ll. 20-26; p. 264, ll. 20-26 (discussions between Mr. Walters and Det. Heyes about counsel).

[68] In respect of those proposed edits that remain, I have grouped them into categories.

Proposed edits relating to Det. Heyes’ opinion about Ms. Fishman’s credibility

[69] Mr. Abbey seeks excisions from the statement of Det. Heyes’ comments to Mr. Walters about what Ms. Fishman told the police, of his view of her credibility and of his opinion that she had no reason to lie. Counsel for Devon Beals and Shayne Beals join in objecting to these passages. I have excepted a representative sample of the passages counsel proposes to excise:

• p. 134-135 (Det. Heyes’ statements that Mr. Buckland has no reason to lie and that “Sammy has no reason to lie”);
• p. 158 (Det. Heyes’ statement that Ms. Fishman has given a statement and implicated Mr. Buckman and that she has no reason to lie);
• p. 159 (Det. Heyes saying that he is going to play Ms. Fishman’s videotaped statement so Mr. Walters can see what she is saying);
• p. 160 (Det. Heyes telling Mr. Walters that Ms. Fishman has given up her boyfriend, who is the father of her child);
• p. 172 (Det. Heyes’ comment that “this young lady has a lot more to lose than you do because there are four people involved”);
• p. 174 (Det. Heyes’ comments that he believes Ms. Fishman because “she sewers her boyfriend by saying, no, Alex gave Dev the knife…”);
• p. 180 (Det. Heyes’ comment that ”I’m believing her” after a portion of Ms. Fishman’s statement has been played for Mr. Walters); and
• p. 225 (Det. Heyes suggesting to Mr. Walters that he cannot understand why Ms. Fishman would lie and that he finds it hard to believe that she would);

[70] The defence position is that the comments of Det. Heyes about Ms. Fishman’s credibility improperly bolsters her credibility in the eyes of the jury and are prejudicial to the defence. Counsel submit that the officer’s comments that he believes Ms. Fishman are likely to cause the jury to find her more credible. In essence, this is a repetition of the argument made in respect of similar comments by Det. Heyes to Mr. Buckland.

[71] I have reached the same conclusion as I did with respect to these comments by Det. Heyes in Mr. Buckland’s statement, for the reasons I have already set out.

[72] In my view, what is important is not the comments of Det. Heyes, but the response of Mr. Walters. The jury needs to be able to assess those responses in the context of knowing what Ms. Fishman said. Further, the potential for the jury to give more weight to what Ms. Fishman said, on the basis that Det. Heyes thinks she is credible, can be cured by instructions. At the time Mr. Walters’ statement is introduced by the Crown, and again in the charge, I will instruct the jury that nothing Det. Heyes says in the statement, including his opinions about her veracity, is evidence for them to consider. This instruction will ensure that they do not make any credibility assessments on the basis of Det. Heyes’ view about Ms. Fishman’s credibility, and will overcome any potential for prejudice.

Proposed muting of the passages of Ms. Fishman’s videotape that are played for Mr. Walters

[73] Mr. Abbey, Ms. Gadhia and Mr. Taraniuk all propose that when Mr. Walters’ videotaped statement is played for the jury, the parts where he is shown Ms. Fishman’s statement ought to be muted so that the jury cannot hear what she said in her statement. Counsel ask that the transcript then be edited so that the jury is unaware of what it is that Ms. Fishman said in the portions of her statement that were played to Mr. Walters.

[74] The defence position, as I understand it, is that Ms. Fishman will be a witness at the trial and that her evidence is what she says before the jury, not what she said in her statement to police. Their position is that the portions of the videotape that were played during Mr. Walters’ interview are not probative, and that playing them improperly bolsters Ms. Fishman’s credibility.

[75] In reply, Mr. Abbey suggested that rather than playing what was said by Ms. Fishman in the video, Det. Heyes could, in his evidence, testify what she said at the relevant times. Mr. Taraniuk made a similar submission in reply, suggesting that the danger is really about the jury hearing Ms. Fishman’s voice and so making what she said more compelling, even with a limiting instruction. With respect, I do not understand how removing Ms. Fishman’s voice, and having the officer tell the jury precisely what she said in the videotape that was played for Mr. Walters, would make a real difference. I cannot see a difference in potential prejudice between having the jury hear exactly what Ms. Fishman said in her videotaped statement and hearing Det. Heyes tell them what she said. The prejudice alleged, as I understand it, is the risk that the jury will improperly rely on what Ms. Fishman said as true, when it is not her in court evidence.

[76] The Crown submits that there is a limited purpose in playing the videotaped statement of Ms. Fishman for the jury when they see that videotaped statement of Mr. Walters. That purpose is to put Mr. Walters’ responses into context. Editing out her videotaped statement, or having Det. Heyes summarize what was said, would require the jury to assess Mr. Walters’ reactions and responses absent their true and full context. The Crown provided specific examples of places in the statement in which he submitted that Mr. Walters’ answers to Det. Heyes (which defence counsel want left in) would be meaningless if the jury was unaware of what he had just heard Ms. Fishman say.

[77] I observe that the defence has offered no authority to suggest that showing the jury an admissible statement made by an accused, which includes the accused being played another person’s statement that was played in that interview, is impermissible, unfair or, as they suggest, a type of “oath-helping”. While Mr. Taraniuk makes the argument that not muting the passages of Ms. Fishman’s videotaped statement that were shown to Mr. Walters sets a “dangerous precedent”, it seems to me that each case needs to be assessed on its own facts. He offers no jurisprudence in support of his position.

[78] I do not see the playing of Ms. Fishman’s statement during Mr. Walters’ interview as “backdooring” the evidence, as was suggested by Ms. Gadhia. Her position appears to be that for the jury to hear the passages of Ms. Fishman’s statement, which were played to Mr. Walters, is a veiled attempt to have the jury consider the statement for its truth. I do not accept this. That is not the reason the statement is proposed to be played. And the jury will be told that such a purpose is impermissible.

[79] The probative value of the jury seeing and hearing the parts of Ms. Fishman’s statement that were played to Mr. Walters is that they can assess what he said, and did not say, in light of the specific information he was provided with. There is a danger that if the videotape is not played for the jury, they will be denied the proper context in which his statements were made. I will provide three examples of this.

[80] First, the defence all want the jury to hear a statement by Mr. Walters on page 172, after a passage of Ms. Fishman’s statement has been played, in which he says, “I wasn’t involved”. If the jury hears this, they will not know what he is saying he was not involved in. The denial becomes blanket and meaningless. However, if the statement is played, and the jury knows what he has just heard Ms. Fishman talking about, Mr. Walters can be cross-examined on what he was referring to when he said, “I wasn’t involved”.

[81] Second, the defence all want excluded the passages of Ms. Fishman’s videotape on pp. 169-172. In these, she explains that in the car, Devon Beals said “I wanna fuck this guy up and all this stuff” and that “Quicks was just like do it, do it, do it”. In the discussion with Det. Heyes after, both Mr. Taraniuk and Mr. Abbey want the jury to hear Mr. Walters’ response to Det. Heyes’ suggestion that Mr. Walters was “egging” Devon Beals on and his response “I didn’t egg nobody on”. The Crown says that the allegation made by Ms. Fishman in the passage that was played to Mr. Walters was much more specific than that Mr. Walters “egged him on”. In my view, it is important for the jury to know exactly what had been alleged about Mr. Walters and his response to the specific allegation. The Crown should be able to cross-examine him on these details as well, if Mr. Walters chooses to testify. Absent the jury hearing what Ms. Fishman says, they will not be able to fairly assess what Mr. Walters said.

[82] Furthermore, Det. Heyes specifically put to Mr. Walters, at p. 181, this allegation that he said “do it do it do it" to Devon Beals, an allegation that Mr. Walters denied. The jury will not know, if they have not heard the videotape played to him, that Det. Heyes was quoting what Ms. Fishman had said, and what Mr. Walters had heard her say, on her videotaped statement. Without having heard this passage, I am not confident that the jury will be able to fairly assess Mr. Walters’ response to this quotation.

[83] Third, it is agreed that Mr. Walters’ comment, on page 180, “I didn’t even know a knife was involved”, in response to Det. Heyes’ suggestion that Devon Beals took the knife from Mr. Buckland, should be before the jury. But, this denial also follows Mr. Walters having heard a passage of Ms. Fishman’s statement in which she provided details about Devon Beals obtaining the knife from Mr. Buckland’s pocket, Devon Beals saying, “he would cut the seatbelts and stuff” and them getting out of the car. The Crown’s position is that this denial of a knife being involved is a lie on the part of Mr. Walters. For the jury to place this in context, they should know the details of what Ms. Fishman said about the presence of the knife and about Mr. Walters’ presence in the car.

[84] In addition to being able to assess particular statements made by Mr. Walters in context, I also think that the jury needs, when assessing what he says, to be able to consider the fact that his version of events changed over the course of his statement. One possible explanation for this is that he has heard what Ms. Fishman said about his presence and role and realized that denying being there was not credible. As a result, he amended his story. For instance, early on, Mr. Walters denied being in the car. Later, after hearing Ms. Fishman’s description of him being there, at p. 181, he said that he does not recall being in the car. Then, by p. 190, he asserted that if he was in the car, he does not remember because he was drunk. While I appreciate that the Crown’s theory is only one explanation for what appears to be an inconsistency in Mr. Walters’ evidence, it is important for the jury to be able to assess this theory knowing precisely what content of Ms. Fishman’s statement Mr. Walters was made aware of over the course of his time with Det. Heyes.

[85] I decline to mute Ms. Fishman’s videotape as it is played to Mr. Walters. The jury will be reminded when this statement is played that nothing they hear Ms. Fishman saying in her videotaped interview is admissible evidence against any of the accused.

Proposed muting of passages of Mr. Buckland’s videotape that are played for Mr. Walters

[86] The same argument as was made respecting the muting of Ms. Fishman’s videotape, and editing of the transcript, was also made in respect of the passages of Mr. Buckland’s videotaped statement that were played by Det. Heyes. While the Crown intends to introduce this statement, and to play it for the jury prior to the introduction of Mr. Walters’ statement, it is the defence position that having it played while Mr. Walters’s videotaped interview is played is “oath-helping” for Mr. Buckland.

[87] I view the potential prejudice of the jury hearing passages of what Mr. Buckland said in his statement, as they were played to Mr. Walters, as insignificant. Mr. Buckland’s statement is going to be played to the jury first. They will, therefore, be aware of exactly what he said.

[88] The probative value of the jury hearing what Mr. Walters heard Mr. Buckland say is the same as them hearing what Mr. Fishman said. It enables the jury to consider Mr. Walters’ responses to Det. Heyes in their proper context, knowing what he knew, and had been told, when he said what he said.

[89] For instance, in the passage in Mr Buckland’s statement played to Mr Walters at pp. 253-258, he described the scene and their departure after. In response, in a passage that counsel wants before the jury, Mr. Walters describes himself as a peacemaker. Absent the jury knowing what has been played for him, I think it is difficult for the jury to assess the credibility of what he says to Det. Heyes.

[90] I also think that for the jury to assess the credibility of Mr. Walters’ statement as a whole, they need to know what he was told in the interview, including what he heard others had said. As I have mentioned, the jury could conclude that Mr. Walters’ story changed to try to fit with what others were saying, particularly when he came to realize that some of his earlier utterances could be proven false. Assessing his credibility requires them to have the narrative and context.

[91] Accordingly, I decline to mute the passages of Mr. Buckland’s statement that were played in Mr. Walters’ interview.

Additional proposed edits of counsel

[92] Mr. Abbey asks that a passage of Mr. Walters’ statement at p. 214, ll. 5-20 be edited. In this passage. Det. Heyes explained that the police have been looking for Mr. Walters and he responds by saying that he moved out to Scarborough because he was not supposed to live with his mother, who was on a housing subsidy. A related discussion took place on p. 247, ll. 23-26. Mr. Abbey says that there is prejudice as it may suggest that Mr. Walters’ mother could have been charged with fraud.

[93] While the Crown did not make submissions on this passage, it seems to me that the timing and location of Mr. Walters’ move may be post offence conduct from which the Crown might seek an inference drawn. There is potential for it to have probative force. By contrast, I do not see it as being prejudicial for Mr. Walters, even if there might have been repercussions for his mother of him living with her. I decline to edit these discussions out.

[94] All defence counsel seek removal of Det. Heyes question, shortly after on p. 214, “So why didn’t you come in to see the police then?” The defence say that this violates Mr. Walters’ right to remain silent. The Crown made no submissions about it.

[95] I agree that the question and answers that follow are not probative. They suggest to the jury that Mr. Walters ought to have gone in to speak with the police and implicitly invite an adverse finding against him for failing to do so. I agree that the question should be edited out. The answers that follow should be removed as well, up to p. 215, l. 12.

[96] Mr. Abbey also seeks to edit out the discussion between Det. Heyes and Mr. Walters at pp. 245, l. 18 – p. 246, l. 13. There is an initial discussion which Mr. Abbey submits should be before the jury in which Mr. Walters explains that he had worked at the hospital but is not there any longer because they did not like that he missed work. However, in the subsequent discussion which Mr. Abbey wants excluded, Det. Heyes comments on Mr. Walters missing work and Mr. Walters says that he called in sick too much. Det. Heyes comments that he has performance issues. Mr. Walters disagrees. The defence position is that this is prejudicial and of no probative value.

[97] The Crown made no submissions on these proposed edits.

[98] I see no probative value in this passage. There is potential for prejudice to Mr. Walters from having called in sick too much and from Det. Heyes’ suggestion that he had performance issues. The discussion is irrelevant to the issues for the jury. This passage should be excised.

[99] Ms. Gadhia seeks to edit out references made by Mr. Walters, when asked if he knows Devon Beals, to having seen him on television and on CP24 (at pp. 62, 63 and 265). She is concerned that this may signal to jurors that the homicide attracted media attention and could lead them to look online for information about this case.

[100] The Crown opposes editing of these passages on the basis that Mr. Walters’ response is evidence of a provable lie.

[101] I will instruct the jury that they are not permitted to do any online research about this case. I see there being some significant probative value to the Crown pointing to this evidence as something Mr. Walters said that the Crown says is not true. The possible prejudice identified can be overcome with instructions to the jury. These references will not be edited.

[102] Mr. Taraniuk seeks to have edited what he characterizes as a “soliloquy” by Det. Heyes on p. 243, l. 10 – p. 244, l. 16. In this passage, Det. Heyes expresses his view of what happened. After the passage, in a portion that Mr. Taraniuk suggests should be included, he says to Mr. Walters that he does not think that Mr. Walters has it in him to intentionally murder someone, to which Mr. Walters responds, “I would never hurt anybody in any way, form or fashion”.

[103] The Crown made no submissions on why this passage was probative or whether it ought to be excised.

[104] In my view, there is little probative value in the jury hearing Det. Heyes’ summary of what he believes is the case against Mr. Walters at this point, given the way the interaction ends with Mr. Walters responding to only the final comments of the officer. This is another example of Det. Heyes setting out his views. But, I see the prejudice of him doing so at this point to be that he appears to be weaving together the evidence and presenting a coherent theory. I am concerned that the jury will hear this theory from the officer and, despite being told it is not evidence, that it will linger in their minds as they hear the rest of the evidence. There is, therefore, potential for prejudice. There is nothing probative about the exchange. As a result, I have decided that this passage should be excised.

Woollcombe J.

Released: February 3, 2020

COURT FILE NO.: CRIMJ(P) 1309/18

DATE: 20200203

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Name

HER MAJESTY THE QUEEN

• and –

Beals, Beals, Walters and Buckland

Defendants

RULING ON APPLICATIONS TO EDIT THE STATEMENTS OF ALEXANDER BUCKLAND AND CLIVE WALTERS

WOOLLCOMBE J.

Released: February 3, 2020