COURT FILE NO.: CR-19-56
DATE: 20210621
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – L.S.
Ms. Mary Ward, for the Crown Mr. Andrew Edgar, for L.S.
HEARD: June 3 and 4, 2021
REASONS FOR RULING DEFENCE APPLICATION FOR THE COURT TO CALL A WITNESS AT TRIAL
Conlan J.
I. Introduction
The Charges
[1] The accused, L.S., is charged with two counts, both stemming from an alleged incident in Oakville, Ontario on September 2, 2017 – (i) that he sexually assaulted A.M., contrary to section 271 of the Criminal Code, and (ii) that he committed the related offence of sexual interference, contrary to section 151 of the Criminal Code.
The Trial
[2] After the hearing of a pretrial application concerning the voluntariness of the accused’s statement to the police, the trial proper before this Court, without a jury, commenced on May 31, 2021. In a helpful manner, Mr. Edgar, counsel for the accused, identified the issues for this Court to focus on as including the accused’s knowledge (or lack thereof) of the complainant’s age at the time of the alleged incident.
[3] The trial continued on June 1, June 2, June 3, and on June 4, 2021.
[4] Thus far, this Court has heard from the following witnesses called by the Crown: (i) A.M., the complainant, (ii) D.R., who was at the time a friend of the complainant but who was not present at the scene of the alleged incident, (iii) A.A., who was at the time a friend of the complainant and who was present at the scene of the alleged incident, and (iv) Halton Regional Police Constable R. Amore, who led the investigation.
[5] As well, a few exhibits have been filed including a CFS Report dated May 7, 2018.
The Application
[6] On June 3, 2021, near the conclusion of the case for the Crown, the defence advanced two oral applications. One was for an adjournment of the remainder of the trial, which application was granted, unopposed by the Crown, and which is not the subject of these reasons.
[7] The other, which is the subject of these reasons, was for an order that the Court call a young lady named A.C. as a witness at the trial. That application was opposed by the Crown, and it was dismissed by the Court, with reasons to follow. These are those reasons.
[8] For context, it should be noted that the Crown, at one point, intended to call A.C. as a witness at trial. The Crown changed its position on that during the trial. Mr. Edgar indicated that he learned of the firm decision of the Crown to not call A.C. as a witness at trial on June 3rd, although that possibility was raised by the Crown earlier than that.
[9] As authority for the relief requested on the application, Mr. Edgar relied on the decision of the Supreme Court of Canada in R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701. In particular, the defence took this Court to paragraphs 295 and 299 of that decision, set out below.
295 It has long been recognized in Canada and in England that in criminal cases a trial judge has a limited discretion to call witnesses without the consent of the parties. This step may be taken if, in the opinion of the trial judge it is necessary for the discovery of truth or in the interests of justice. This discretion is justified in criminal cases because "the liberty of the accused is at stake and the object of the proceedings is to see that justice be done as between the accused and the state" (Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 826).
299 The American law is essentially the same as the Canadian and British law. A trial judge has the discretion to call witnesses whom the parties do not choose to present: McCormick on Evidence (4th ed. 1992), vol. 1, at pp. 23, 26; Annot., 67 A.L.R.2d 538; Annot., 53 A.L.R. Fed. 498. United States v. Lutwak, 195 F.2d 748 (7th Cir. 1952), at pp. 754-55, aff'd 344 U.S. 604 (1952), rehearing denied 345 U.S. 919 (1953), refers to the discretion in these words, at pp. 754-55:
Indeed, it is generally recognized that where there is a witness to a crime for whose veracity and integrity the prosecuting attorney is not willing to vouch, he is not compelled to call the witness, but that the court, in its discretion, may do so and allow cross examination by both sides within proper bounds.
Another statement of the discretion is found in United States v. Marzano, 149 F.2d 923 (2nd Cir. 1945), at p. 925:
It is permissible, though it is seldom very desirable, for a judge to call and examine a witness whom the parties do not wish to call.... A judge is more than a moderator; he is charged to see that the law is properly administered, and it is a duty which he cannot discharge by remaining inert.
A similar statement was made, obiter, in United States v. Liddy, 509 F.2d 428 (D.C. 1974), at p. 438, certiorari denied 420 U.S. 911 (1975):
The precepts of fair trial and judicial objectivity do not require a judge to be inert. The trial judge is properly governed by the interest of justice and truth, and is not compelled to act as if he were merely presiding at a sporting match. He is not a "mere moderator". As Justice Frankfurter put it, "(f)ederal judges are not referees at prize-fights but functionaries of justice". ... A federal trial judge has inherent authority not only to comment on the evidence adduced by counsel, but also -- in appropriate instances -- to call or recall and question witnesses. He may do this when he believes the additional testimony will be helpful to the jurors in ascertaining the truth and discharging their fact-finding function.
Some other federal cases recognizing this discretion are: Young v. United States, 107 F.2d 490 (5th Cir. 1939); Estrella-Ortega v. United States, 423 F.2d 509 (9th Cir. 1970); United States v. Pape, 144 F.2d 778 (2nd Cir. 1944); Steinberg v. United States, 162 F.2d 120 (5th Cir. 1947); United States v. Browne, 313 F.2d 197 (2nd Cir. 1963).
[10] It was proposed by Mr. Edgar that A.C. would be called as a witness by the Court. She would be cross-examined first by the defence, and then by the Crown, with the defence having the right to then re-cross-examine the witness.
[11] A.C., like D.R., was at the time a friend of the complainant but was not at the scene of the alleged incident. A.C. gave a statement to the police. As Mr. Edgar explained, the defence wanted to question A.C. at trial about having received text messages from A.M., the complainant, which stated that A.M. and A.A. were drinking with the accused and the other male, and which stated that the guys wanted to have sex. Further, the defence wanted to question A.C. at trial about having received a telephone call from the girls, during which A.M. could be heard laughing and having fun.
[12] The first issue, this Court accepts, could be relevant to the credibility of the complainant, based on the evidence that she gave at trial. The second issue, although more tangential in my view, I accept could also be relevant to the credibility of the complainant.
The Hearing of the Application
[13] Neither side called any viva voce evidence on the application. It was argued briefly, limited to oral submissions, and on the basis of the Finta decision.
II. Analysis and Conclusion
[14] Finta is a fascinating case. The accused was a captain in the Royal Hungarian Gendarmerie. He was legally trained. He was stationed at Szeged, Hungary, as the commander of an investigative unit. 8,617 Jewish persons were detained there and were ultimately deported to concentration camps as part of the Nazi regime’s barbaric “final solution”.
[15] The accused was charged under Canada’s Criminal Code with a variety of offences including war crimes and crimes against humanity. He was acquitted at trial. A majority of the Court of Appeal for Ontario dismissed the Crown appeal from that acquittal. A further appeal and cross-appeal went to the Supreme Court of Canada.
[16] At the Supreme Court of Canada, seven Justices presided. Justice Cory, writing for His Honour and for Justices Gonthier and Major, dismissed both appeals, upholding the acquittal and finding that certain sections of the Criminal Code did not violate the Charter.
[17] Chief Justice Lamer concurred with Justices Cory, Gonthier, and Major that the appeals should both be dismissed, but for different reasons on the cross-appeal. The Chief Justice would have dismissed the accused’s cross-appeal as being moot.
[18] The other three Justices dissented in part.
[19] Mr. Edgar has properly brought the Court’s attention to two paragraphs specifically, 295 and 299, both of which are indeed found in the majority reasons authored by Justice Cory.
[20] To understand the issue completely, however, one must read all of paragraphs 291 through 304 of Justice Cory’s reasons, under the heading “Trial Judge’s Calling Evidence of Dallos, Kemeny and Ballo Himself”. Those paragraphs are reproduced below.
(6) Trial Judge's Calling Evidence of Dallos, Kemeny and Ballo Himself
291 The trial judge found that the evidence of Dallos was essential to the narrative as he was in a unique position to observe directly the command structure in the brickyard.
292 With respect to the evidence of Ballo and Kemeny, the trial judge ruled that their evidence was essential to the unfolding of the narrative on which the prosecution was based. In his decision to call the evidence himself he also considered their evidence to be significant in relation to the confinement, to the question as to who was in command of the brickyard, and to the quality of evidence of the other survivors who testified that Finta was the commander. Additionally, he considered the fact that the evidence of Kemeny and Ballo could potentially support an inference quite different from that left by all the other survivors. Kemeny was the only living witness who, as one of the Jewish leaders, was involved in the administrative centre of the brickyard, including the preparation of the list of names of those who were to be deported from the brickyard. The transcript of her testimony at Finta's trial in Hungary revealed that she could not identify Finta as the commander of the brickyard. Indeed, she went further and said that she never heard his name. Ballo was the only witness who testified regarding the house in the area of the brickyard, guarded by a Gendarme, in which a German officer had his seat. This could have been viewed by a jury as strong evidence that the commander of the brickyard was a German officer.
293 The majority of the Court of Appeal held that the evidence of Dallos, Kemeny and Ballo should not have been called by the trial judge, as he was moved to proceed in this way in order to preserve the right of the defence to address the jury last. With respect, I disagree. In a case such as this where the evidence of witnesses is based on events that occurred over 45 years ago, it is essential that all evidence which is relevant, probative and relatively reliable be admitted. The jury must have the benefit of all the testimony pertaining to events which occurred at the time of the alleged offences. Furthermore, it would have been manifestly unfair if the jury had returned a verdict of guilty without having considered the available evidence which suggested that Finta was not the commander of the brickyard. Since such a possibility existed, the trial judge correctly decided to call the evidence on his own behalf since both sides refused to call the evidence themselves. In my view, this was entirely appropriate. What happened to the Jewish people in Hungary was despicably cruel and inhumane. Yet those who are charged with those fearful crimes are entitled to a fair trial. It is the fundamental right of all who come before the courts in Canada. In order to ensure a fair trial for Finta, the evidence of these witnesses had to be presented to the jury.
294 The evidence was admissible. It was important in determining the outcome of this case. It was known to be available to the court. If a miscarriage of justice was to be avoided then the trial judge was bound to call this evidence. I can see no alternative to that decision. This is one of those rare cases where the residual discretion resting with a trial judge to call witnesses was properly exercised.
(i) Canadian and English Law
295 It has long been recognized in Canada and in England that in criminal cases a trial judge has a limited discretion to call witnesses without the consent of the parties. This step may be taken if, in the opinion of the trial judge it is necessary for the discovery of truth or in the interests of justice. This discretion is justified in criminal cases because "the liberty of the accused is at stake and the object of the proceedings is to see that justice be done as between the accused and the state" (Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 826).
296 The discretion should only be exercised rarely and then with extreme care, so as not to interfere with the adversarial nature of the trial procedure or prejudice the accused. It should not be exercised after the close of the defence case, unless the matter was one which could not have been foreseen. (See Sopinka, Lederman and Bryant, supra, at p. 826; Peter K. McWilliams, Canadian Criminal Evidence (3rd ed. 1988), at para. 27:10830 "Right of judge to call witnesses", at pp. 27-15 and 27-16; Cross on Evidence (7th ed. 1990), at pp. 266-68); Phipson on Evidence (14th ed. 1990), at pp. 219-20; Archbold, Pleading, Evidence and Practice in Criminal Cases (45th ed. 1993), at p. 1/555; see also annotation by Philip C. Stenning, "'One Blind Man To See Fair Play': The Judge's Right To Call Witnesses" (1974), 24 C.R.N.S. 49, and Michael Newark and Alec Samuels, "Let the Judge Call the Witness", [1969] Crim. L. Rev. 399.)
297 There is very little case law on how the discretion should be exercised. In his annotation, supra, Stenning enumerates seven propositions derived from English case law. These propositions were cited with approval as correctly stating the Canadian law in Campbell v. The Queen (1982), 1982 CanLII 4802 (PE SCTD), 31 C.R. (3d) 166 (P.E.I.S.C.), at pp. 172-75, per Campbell J., and in R. v. S. (P.R.) (1987), 1987 CanLII 9441 (ON SC), 38 C.C.C. (3d) 109 (Ont H.C.), per McKinlay J. (as she then was), affirming decision of Kurisko Dist. Ct. J. A summary of these propositions is as follows:
The trial judge may call a witness not called by either the prosecution or the defence, and without the consent of either the prosecution or the defence, if in his opinion this course is necessary in the interest of justice: R. v. Harris (1927), 20 Cr. App. R. 86 at p. 89 (K.B.); R. v. Holden (1838), 8 Car. & P. 606, 173 E.R. 638; R. v. Brown, 1966 CanLII 556 (QC CA), [1967] 3 C.C.C. 210, at p. 215, per Hyde J. (dissenting in part on another issue), at pp. 219-20 per Taschereau J. (for the majority); R. v. Bouchard (1973), 1973 CanLII 1374 (NS SC), 24 C.R.N.S. 31, (N.S. Co. Ct.), at p. 46; Campbell v. The Queen, supra, at pp. 172-75; R. v. S. (P.R.), supra, at pp. 111, 119-24; R. v. Black (1990), 1990 CanLII 2417 (NS CA), 55 C.C.C. (3d) 421 (N.S.S.C.A.D.), at p. 425.
The right to call a witness after the close of the case of the defence should normally be limited to a case where a matter was one which could not have been foreseen.
A witness may be called after the close of the defence not in order to supplement the evidence of the prosecution but to ascertain the truth and put all the evidence before the jury.
The trial judge may not exercise his right to call a witness after the jury has retired, even at the request of the jury.
In a non-jury case, in the absence of special circumstances, it is wrong to allow new evidence to be called once a trial judge has retired, and probably after the defence has closed its case.
A judge ought not to exercise his discretion to call a witness if the defence would in no way be prejudiced by calling the witness. The defence should not be permitted in this way to use the judge to call their witness to give him a greater appearance of objectivity.
The calling of the witness after the defence has closed its case is a factor which may be taken into account on appeal.
298 None of these propositions is really helpful in deciding how the trial judge should have exercised his discretion in this case. In a number of reported decisions, trial judges have called witnesses themselves and either been upheld on appeal, or not appealed. For example in a murder trial, where three doctors examined the body of the deceased and had a difference of opinion, and only two of those doctors were called by the prosecution, the trial judge called the third doctor (R. v. Holden, supra). In a trial for "riot" and wounding with intent to cause grievous bodily harm, the trial judge called two eye witnesses (R. v. Tregear, [1967] 2 Q.B. 574 (C.A.)). In a trial for impaired driving the trial judge called a doctor who could provide the factual basis for earlier expert testimony given on the defence of automatism (R. v. Bouchard, supra). In a trial for indecent assault and sexual assault the accused sought to adduce polygraph evidence and the crown called an expert to testify to the unreliability of such evidence. The accused could not afford an expert to support the opposing position. The trial judge called an expert on the reliability of polygraphs, so the court would have the benefit of hearing evidence on both sides of the issue (R. v. S. (P.R.), supra).
(ii) American Law
299 The American law is essentially the same as the Canadian and British law. A trial judge has the discretion to call witnesses whom the parties do not choose to present: McCormick on Evidence (4th ed. 1992), vol. 1, at pp. 23, 26; Annot., 67 A.L.R.2d 538; Annot., 53 A.L.R. Fed. 498. United States v. Lutwak, 195 F.2d 748 (7th Cir. 1952), at pp. 754-55, aff'd 344 U.S. 604 (1952), rehearing denied 345 U.S. 919 (1953), refers to the discretion in these words, at pp. 754-55:
Indeed, it is generally recognized that where there is a witness to a crime for whose veracity and integrity the prosecuting attorney is not willing to vouch, he is not compelled to call the witness, but that the court, in its discretion, may do so and allow cross examination by both sides within proper bounds.
Another statement of the discretion is found in United States v. Marzano, 149 F.2d 923 (2nd Cir. 1945), at p. 925:
It is permissible, though it is seldom very desirable, for a judge to call and examine a witness whom the parties do not wish to call.... A judge is more than a moderator; he is charged to see that the law is properly administered, and it is a duty which he cannot discharge by remaining inert.
A similar statement was made, obiter, in United States v. Liddy, 509 F.2d 428 (D.C. 1974), at p. 438, certiorari denied 420 U.S. 911 (1975):
The precepts of fair trial and judicial objectivity do not require a judge to be inert. The trial judge is properly governed by the interest of justice and truth, and is not compelled to act as if he were merely presiding at a sporting match. He is not a "mere moderator". As Justice Frankfurter put it, "(f)ederal judges are not referees at prize-fights but functionaries of justice". ... A federal trial judge has inherent authority not only to comment on the evidence adduced by counsel, but also -- in appropriate instances -- to call or recall and question witnesses. He may do this when he believes the additional testimony will be helpful to the jurors in ascertaining the truth and discharging their fact-finding function.
Some other federal cases recognizing this discretion are: Young v. United States, 107 F.2d 490 (5th Cir. 1939); Estrella-Ortega v. United States, 423 F.2d 509 (9th Cir. 1970); United States v. Pape, 144 F.2d 778 (2nd Cir. 1944); Steinberg v. United States, 162 F.2d 120 (5th Cir. 1947); United States v. Browne, 313 F.2d 197 (2nd Cir. 1963).
300 It has been observed that appellate courts should be hesitant to interfere in the trial judge's exercise of his discretion:
An appellate court should not interfere with the district court's performance of that sensitive task [exercising the discretion] absent a clear showing of an abuse of discretion, resulting in prejudice to the defendant.
(Estrella-Ortega v. United States, supra, at p. 511.)
301 In the United States the trial judge's discretion to call witnesses exists both at common law, and under Rule 614(a) of the Federal Rules of Evidence, which has been held to be declaratory of the pre-existing common law: United States v. Ostrer, 422 F.Supp. 93 (S.D.N.Y. 1976), at p. 103.
(iii) Summary as to the Discretion of the Trial Judge to Call Witnesses and the Exercise of that Discretion in this Case
302 In order to take this unusual and serious step of calling witnesses, the trial judge must believe it is essential to exercise the discretion in order to do justice in the case. In the case at bar, where the trial judge had decided that certain evidence was essential to the narrative it was a reasonable and proper exercise of the discretion to call the evidence if the Crown refused to do so. It is essential in a case where the events took place 45 years ago that all material evidence be put before the jury. With the passage of time it becomes increasingly difficult to get at the truth of events; witnesses die or cannot be located, memories fade, and evidence can be so easily forever lost. It is then essential that in such a case all available accounts are placed before the court. The majority of the Court of Appeal dismissed concerns about the problems of defending in this case by saying that all cases pose difficulties in presenting a defence. With respect, I think this fails to recognize that this case presents very real difficulties for the defence in getting at the truth which are not comparable to other cases due to the length of time that has elapsed since the events at issue occurred.
303 The Court of Appeal erred in holding that the trial judge was wrong to take into account the fact that if he did not call the evidence the defence would lose its right to address the jury last. In a case where the trial judge has found that the evidence in question should have been called by the Crown, the issue of who addresses the jury last is indeed relevant. If this were not so it would be open to the Crown not to call certain evidence in order to force the defence to give up its right to address the jury last. I am certainly not suggesting the Crown acted for improper reasons in this case, but it seems to me that the opportunity for such abuse should not be left open. Further, I think the trial judge's concern for the order of addresses to the jury was secondary to his finding that the evidence was essential to the narrative, which was the principal reason for calling the evidence himself.
304 Finally, I do not think the appellant can be correct that the trial judge should have waited until after the defence had decided whether or not to call evidence before he called the evidence in question himself. The trial judge could not do that without risking offending the rule that a trial judge should not call evidence him- or herself after the close of the defence case unless the matter was unforeseeable. If the trial judge had waited, and the defence had elected not to call evidence, the trial judge would have been prevented from calling the evidence, as the matter was readily foreseeable, and calling it at that point would have been prejudicial to the defence.
[21] When I read those paragraphs in their entirety, and I familiarize myself with the nature of the trial against Mr. Finta, I fully understand why the trial judge felt that it was strictly necessary for the Court itself to call the evidence of Dallos, Kemeny, and Ballo, and why the Supreme Court of Canada affirmed the appropriateness of that decision made by the trial judge.
[22] Our case is very far removed from those circumstances, however.
[23] In our case, it is not at all necessary for this Court to call A.C. as a witness at trial. The defence is perfectly capable of doing so. In fact, the defence has the fortunate assurance of knowing that A.C. cannot easily resile from the evidence that the defence wants to elicit at trial because I am told that the said evidence is contained, expressly, in the statement that she gave to the police. Hence, the full toolkit will be available to Mr. Edgar, experienced defence counsel, including sections 9(1) and 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, as amended, if necessary.
[24] There is simply no reason to believe that a miscarriage of justice would likely result if this Court does not exercise its residual discretion to call A.C. as its own witness. To the contrary, it is very likely that the evidence that the defence wants to elicit from A.C. at trial will in fact be elicited, one way or another, if she is called as a witness by the defence.
[25] If that occurs, and if the Crown is able to elicit evidence from A.C. in cross-examination that is harmful to the accused, then that is no different than the risk that is taken with any witness that is called by either side at a criminal trial. Besides, the defence is free to argue on closing submissions that this Court, in assessing the weight to be given to the evidence of A.C. in cross-examination at trial, should take into consideration the fact that A.C. was always considered to be a “Crown-friendly” witness and was, at one point, going to be called as a witness for the Crown at trial.
[26] Finally, as is turns out, because of the adjournment that was granted at the request of the defence, there is more time (much more time, in fact) for the defence to now prepare for the calling of A.C. as a witness at trial. That additional time will serve to eliminate any prejudice that could have otherwise been argued might have resulted from this ruling.
[27] For all of those reasons, the defence application was dismissed.
(“Original signed by”)
Conlan J.
Released: June 21, 2021
COURT FILE NO.: CR-19-56 DATE: 20210621
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – L.S.
REASONS FOR Ruling Defence application for the court to call a witness at trial
Conlan J.
Released: June 21, 2021