COURT FILE NO.: 18-97
DATE: 20200302
ONTARIO
SUPERIOR COURT OF JUSTICE
WARNING
S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.
BETWEEN:
HER MAJESTY THE QUEEN
– and –
James Wise
Defendant
Jason Pilon and Jason Neubauer, counsel for the Crown
Ian Carter and Jon Doody, counsel for the Defendant
HEARD: January 22, 2020
REASONS FOR RULING – JURY VIEW
LACELLE, J.
[1] James Wise is charged with the first-degree murder of Raymond Collison.
[2] The Crown applies under s. 652 of the Criminal Code for an order directing the jury in the trial to have a view of the scene where Mr. Collison’s remains were found and two other locations nearby.
Background
[3] By way of background, both the accused and Mr. Collison were residents in a small rural community.
[4] Mr. Collison was last seen alive on August 28, 2009. In the timeframe before he went missing, he had been living in a trailer on a property near where the accused was living.
[5] At the time of Mr. Collison’s disappearance, the accused resided in a trailer home and worked out of a garage which was situated on the same property as his trailer home.
[6] Mr. Collison’s remains were found in a culvert almost five years after he was last seen alive. The remains were discovered by teen-agers who were biking in the area. The location of Mr. Collison’s remains was a few kilometres from where the accused and Mr. Collison were living at the time that Mr. Collison was last seen.
[7] When Mr. Collison’s remains were found, there was a fan belt around the neck area of his remains. It was ultimately determined that Mr. Collison had been shot in the head with a .22 calibre firearm. He had also been shot in other parts of his body.
[8] The central issue in this case is the identity of Mr. Collison’s killer.
Evidence and other information relevant to the proposed jury view
[9] The three locations for the proposed jury view are the location where Mr. Collison’s trailer was located, the location of the accused’s residence and garage, and the location where Mr. Collison’s remains were found. It is proposed that the jury would be able to view the first two scenes from the bus that would transport them from the courthouse. The jury would be permitted to disembark the bus for their view of the roadway and culvert area where Mr. Collison’s remains were found. It is proposed that the accused would be transported to these scenes in an unmarked police vehicle.
[10] All these locations are within a few kilometres of one another. They are about an hour’s driving distance away from the courthouse.
[11] DC Hyndman testified on the voir dire for this application. He estimates he has been to the scene of the culvert 30 or more times. He confirmed that police have taken photos and videos, as well as aerial shots of the area. Police also obtained a 3D computer generated model which provides unique perspectives on the culvert area where Mr. Collison was found. For instance, the 3D depiction shows an imagined view of the culvert from under the road where the remains were located. The photos, videos, and 3D model were viewed by the court during the voir dire. The defence does not oppose the admissibility of any of this material.
[12] DC Hyndman also testified about his own impressions of the area where the culvert is located. It is at an intersection of two roadways that are surrounded by farmland. The area is sparsely populated. DC Hyndman’s observation has been that traffic in the area is light, even for a rural area, since the roads involved are “back roads”. He estimates that roughly 6 cars per hour might travel through the area.
[13] DC Hyndman also observed that when in the area of the intersection above the culvert, it is possible to hear people before you see them. He could hear traffic from as far away as Winchester, which is 8 kilometres away. He described the intersection area as being very open, estimating he could see a kilometre or more in every direction. He doubted that he would be visible to cars in the distance, however, given the distance between them.
[14] DC Hyndman inspected the culvert closely during the investigation. He says to get a real sense of its size, he had to get right down in the ditch. He expected it to be bigger than it was. This perspective allowed him to appreciate how difficult it would be to get somebody as far down the culvert as the spot where most of Mr. Collison’s remains were found.
[15] As far as access to the culvert was concerned, DC Hyndman could not say whether it would be accessible to a person in a wheelchair.
[16] DC Hyndman testified that there have been no changes to the culvert in the past five years.
The legal principles
[17] The order for a jury view is discretionary. Section 652(1) permits a view to be ordered “where it appears to be in the interests of justice”. The onus is on the applicant to meet that test.
[18] The parties agree that the leading case for the court’s consideration is the decision of Nordheimer J. (as he then was) in R. v. Johnson, 2010 ONSC 5189. In that decision, Nordheimer J. held at para. 5 that “the applicant must establish that there is some very real and demonstrable advantage that the taking of the view will bring to the proceedings in terms of the jury’s understanding of the evidence they will hear”.
[19] Johnson sets out a list of factors to be considered in determining whether a view is in the interests of justice. They include:
(i) logistical problems associated with the scene itself including accessibility, distance, safety concerns for those attending the view, the likelihood of public attention to the process and the disruption to normal day-to-day activities in the area where the view is to take place;
(ii) logistical problems with the view itself including transporting the jury, the judge, counsel, court staff and the accused. If the accused is in custody, this may pose a special challenge as the accused is entitled to be present at the view;
(iii) security concerns at the scene including the likelihood of the jury being exposed to information or actions of others that are not relevant to the jury's task and the degree to which such exposure might be prejudicial;
(iv) the extent to which photographs, recordings, models and other aids can adequately convey the necessary information to the jury, and;
(v) the nature of the evidence that the view is directed at helping the jury understand.
[20] Other courts, such as in R. v. Golov, 2017 ONSC 6918 at para. 13, have also considered whether the probative value of the view outweighs any prejudicial effect. Citing McWilliams Canadian Criminal Evidence, Fifth Edition, eds. Justice Casey Hill, David Tanovich and Louis P. Strezos 23:30.60., Golov suggested a court should also consider:
a. The necessity of receiving evidence outside the courtroom having regard to the degree of assistance to the triers of fact likely to be gained from a view, the adequacy of alternative sources of information and the centrality of the thing to be viewed to the prosecution.
b. Will the granting of a view be fair to the parties with minimum prejudice?
c. Would the view be inconvenient, expensive, unsafe or disruptive?
[21] The parties have also directed me to the following cases, each of which I have reviewed and considered: R. v. Vallis, [1989] B.C. J. No. 2046 (B.C.C.A.), R. v. Browne, 2017 ONSC 4582, R. v. Millard, 2016 ONSC 2816, R. v. Singh, 2018 ONSC 846, R. v. MacDonald, [2006] O.J. No. 4285 (S.C.J.), R. v. Polimac, [2006] O.J. No. 4760, R. v. Rideout, 1999 CanLII 18942 (NL CA), [1999] N.J. No. 294 (C.A.), R. v. Welsh, 1997 CanLII 2570 (BC CA), [1997] B.C.J. No. 2343 (C.A.), R. v. Q.A.D., [2003] O.J. No. 6257 (S.C.J.), R. v. Shafia [unreported], and R. v. Montsion, [unreported, Ottawa, ON, September 20, 2019].
The positions of the parties
The Crown
[22] The Crown submits that it is important for the jury view to occur since a full appreciation for the scene cannot be conveyed by photos, videos, or descriptions of the area from persons who have been there. The Crown says there are features of the scene at the micro and macro level that supports two aspects of the Crown’s theory: 1) that the disposal of Mr. Collison’s body was carefully planned; and 2) the killer had intimate knowledge of the area. The Crown argues that only being at the scene where Mr. Collison’s remains were found will allow the jury to appreciate how remote and isolated the area is, how hidden and sheltered the culvert is, and how much effort went into getting the victim into the culvert.
[23] The Crown acknowledges certain logistical hurdles exist to a jury view. Consequently, it has provided a proposed scene view protocol and operations plan prepared by the Ontario Provincial Police. The Crown submits that the logistical hurdles and security issues related to the proposed view may be overcome. Insofar as the accused’s access to the scene is concerned, the Crown submits that there is no evidence that the accused requires a wheelchair or depends on it for his mobility, notwithstanding his consistent attendance of the pre-trial motions in a wheelchair.
The defence
[24] The defence opposes the order sought by the Crown. The defence emphasizes that these applications are rarely granted. It relies on the holding in Johnson at para. 5 that the degree of assistance that a view will provide to the jury “should be fairly high in order to warrant the taking of that unusual step”. It says that the applicant has not explained why photos, videos or models of the scene would not sufficiently depict the area in question. It submits that the relative proximity between various points is easily ascertainable through many sources, including viva voce evidence, and use of photographs, aerial views, and Google maps.
[25] The defence objects to the viewing of scenes, such as the accused’s garage, that have not been proven to be involved in the offence to be tried. It says that the case law permitting a view has done so only where it was undisputed that the area to be viewed was involved in the offence. It says there is a very real danger that allowing the jury to visit the proposed locations and grouping them in a single visit would serve as an endorsement by the court of the Crown’s theory. This prejudice could not be outweighed by any probative value derived from the view.
[26] Finally, the defence emphasizes the difficulties a scene view would pose for the accused, who uses a walker or wheelchair. It is not clear how he would be able to move about the scene.
Analysis
[27] I am not satisfied that the Crown has established, on a balance of probabilities, that there is “some very real and demonstrable advantage” from the proposed views to the jury’s understanding of the evidence.
[28] As regards views of Mr. Collison’s trailer and the accused’s residence and garage, it is proposed that the jury would view these locations from the bus. I do not see this as offering a real and demonstrable advantage to the jury’s understanding of the significant features of these locations given the photos and videos which will be available to the jury. The proximity of these locations to the location where Mr. Collison’s remains were found may be conveyed and understood by other means.
[29] The focus of the Crown’s submissions, however, relates to viewing the intersection of Steen and Thompson Roads and the area of the culvert where Mr. Collison’s remains were found. I am also not satisfied that a view of this location is in the interests of justice because it would offer a real and demonstrable advantage to the jury in understanding the evidence.
[30] In arriving at this conclusion, I have considered the advantage that might be gleaned by the jury from a view in its understanding of the topography of the area, its remoteness, and the size of the culvert. Given the extensive material available to the Crown to visually capture the features of the area, including the culvert, it is not clear to me that a view would so enhance the jury’s understanding of these issues that a view is warranted.
[31] The topography of this site is not as unusual as those described in Polimac and MacDonald, where views were ordered. Given the visual depictions of the area, and the factual description which may be given by DC Hyndman, I find this scene’s topography and its relevance to the issues in this case may be readily understood without personally viewing the scene. The 3D model is particularly helpful in this regard. Similarly, the remoteness of the area is well captured in visual images (which include an aerial video of the surrounding area) and in the factual observations which may be included in DC Hyndman’s testimony or by other witnesses. Insofar as the size of the culvert is concerned, this may also be readily communicated in the evidence available to the prosecution. For instance, photograph 0054 in Exhibit 4 shows the removal of Mr. Collison’s remains by two adult males standing in close proximity to the opening of the culvert where Mr. Collison’s skull was found. This photograph alone conveys significant information about the culvert’s size relative to an adult male.
[32] I have also considered that while the logistical hurdles presented by a view (including security concerns) may be overcome, as they have in other cases, this does not render a view more valuable to the jury’s understanding of the evidence. In any event, in the circumstances of this case, I find that a view would be disruptive. Whatever advantage might be gained from a view does not warrant the considerable effort and resources that would be required to address the logistical issues a view would present in this case.
[33] In view of my conclusion and the reasons for it, the dispute between the parties as to whether the accused has mobility issues that would need to be accommodated during the view need not be resolved.
[34] As was observed by Kelly J. about the proposed view in Montsion at para. 21
[i]t may be that it would add something, in the sense that there is no substitute for looking at a scene with one’s own eyes, but that is not enough to meet the applicable test. If it were, views would be routinely available. But they are not. Leaving the courtroom to view a scene is an unusual step that can raise logistical and security issues requiring the allocation of substantial resources.
[35] I am not satisfied that a view of any of the proposed locations is in the interests of justice. The Application is therefore dismissed.
The Honourable Justice Laurie Lacelle
Released: March 2nd, 2020
COURT FILE NO.: 18-97
DATE: 20200302
ONTARIO
SUPERIOR COURT OF JUSTICE
WARNING
S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.
HER MAJESTY THE QUEEN
– and –
James Wise
reasons for RULING – JURY VIEW
The Honourable Justice Laurie Lacelle
Released: March 2nd, 2020