Court File No. CR-20-00000315

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

DYON SMART

R U L I N G O N A P P L I C A T I O N

BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS

on October 13, 2021 at BRAMPTON, Ontario

PUBLICATION BAN

A publication ban issued by the court under s. 486.4(2.1) of the Criminal Code prohibits the publication or broadcast of any information that could identify the victim in this case. These reasons have been edited to comply with the terms of that order and may be published.

APPEARANCES:

C. Nadler

Counsel for the Crown

K. Slate

Counsel for the Crown

M. Moon

Counsel for Dyon Smart

L. Gensey

Counsel for Dyon Smart

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

WITNESSES

WITNESS:

Examination In-Chief

Cross-Examination

Re-Examination

EXHIBITS

EXHIBIT NUMBER

ENTERED ON PAGE

RULING ON APPLICATION

1

Transcript Ordered: ....................October 15, 2021

Transcript Completed: ..................October 21, 2021

Ordering Party Notified: ...............October 21, 2021

WEDNESDAY, OCTOBER 13, 2021

R U L I N G O N A P P L I C A T I O N

STRIBOPOULOS, J. (Orally):

Mr. Smart is currently on trial for charges of attempted murder, aggravated assault, and breaching a recognizance.

The Crown alleges that on the morning of July 19, 2018, Mr. Smart took D.D., who, at the time, was just five years old, from the residence he shared with his mother, M.J., and brutally assaulted him intending to kill him.

The Crown has now finished calling the witnesses it planned to have testify as part of its case, with one exception. The Crown had wanted M.J. to testify. However, that proved impossible because when she was finally on the witness stand, Ms. J. refused to be sworn and give evidence.

In response to that development, the Crown has applied under section 715(1) of the Criminal Code, to introduce Ms. J.'s testimony from the preliminary inquiry in this case, which took place in January 2020. In particular, the Crown seeks to admit an audio recording of Ms. J.'s testimony at the preliminary inquiry along with a certified copy of the transcript. The defence opposes the application.

Section 715(1) provides that:

Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if the facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to

travel or testify, or

(d) is absent from Canada,

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

On behalf of the Crown, Ms. Slate submits that the circumstances satisfy each of the preconditions for admitting Ms. J.'s preliminary inquiry testimony as evidence at Mr. Smart's trial. First, Ms. J. has refused to be sworn as a witness and give evidence at this trial. Second, Mr. Smart had a full opportunity to cross-examine Ms. J. at the preliminary inquiry; defence counsel questioned her extensively over two days. Although Mr. Moon made a tactical decision not to ask Ms. J. any questions concerning a potential third-party suspect, that does not mean, argues Ms. Slate, that the defence did not have a "full opportunity" to cross-examine.

The Crown acknowledges that since the preliminary inquiry, the defence has come into possession of information that it could have used at trial to attempt to impeach Ms. J.'s credibility. That includes her testimony in an unrelated proceeding before Justice Fowler-Byrne in October 2020, in which the court made adverse credibility findings against her, and Peel Children's Aid Society (PCAS) records the court ordered produced to the defence just before the trial commenced in September 2021. However, Ms. Slate argues that it does not follow that because the accused could not use these materials to cross-examine Ms. J. at the preliminary inquiry that he did not have a "full opportunity" to cross-examine her as required by section 715(1).

That said, Ms. Slate concedes that should the court grant the application, the potential impeachment materials the defence has acquired since the preliminary inquiry may be placed into evidence and considered by the court in evaluating Ms. J.'s credibility. To help facilitate that, the Crown advises it is prepared to work with the defence to draft an Agreed Statement of Fact that details the apparent inconsistencies between Ms. J.'s testimony at the preliminary inquiry and information contained in the PCAS records. Additionally, the Crown is agreeable to filing the entirety of Ms. J.'s evidence in the proceeding before Justice Fowler-Byrne as an exhibit at this trial. Placing these materials before the court, Ms. Slate argues, would serve to ameliorate any potential unfairness to Mr. Smart that might otherwise result from admitting Ms. J.'s preliminary inquiry testimony into evidence.

On behalf of Mr. Smart, Mr. Moon opposes the Crown's application to admit Ms. J.'s preliminary inquiry testimony. He argues that the accused did not have a "full opportunity" to cross-examine Ms. J. at the preliminary inquiry. First, Mr. Moon notes that to the extent that he questioned Ms. J. concerning her involvement in the drug trade at the preliminary inquiry, the court allowed her to give that evidence without naming any of the people from whom she bought and to whom she sold drugs. He says that constraint now has a knock-on effect on his ability to point the finger at a third-party suspect without Ms. J. testifying at trial. Second, Mr. Moon points out that he questioned Ms. J. at the preliminary inquiry concerning her involvement with the Peel Children's Aid Society, evidencing his intention to pursue that line of questioning. He argues that that intention was frustrated because the law only permits an accused to seek production of third-party records before the trial judge. As a result, Mr. Moon submits that Mr. Smart did not have a "full opportunity" to cross-examine Ms. J. at the preliminary inquiry, an essential precondition for admissibility under section 715(1).

Additionally, Mr. Moon points out various contradictions between Ms. J.'s testimony at the preliminary inquiry and her evidence before Justice Fowler-Byrne and information contained in the PCAS records. He emphasizes that Ms. J. is a key prosecution witness whose credibility is very much at issue. In light of all this, Mr. Moon argues that filing the impeachment materials would be inadequate to redress the unfairness to Mr. Smart of being denied the opportunity to cross-examine Ms. J. at trial using those materials. After all, he notes, there will be nothing preventing the Crown from downplaying the contradictions and arguing that they do not undermine Ms. J.'s credibility. In short, Mr. Moon submits that to admit Ms. J.'s preliminary inquiry testimony would reward her refusal to testify and occasion significant prejudice to Mr. Smart's ability to make full answer and defence to the gravely serious charges he faces.

With that introduction to the application and the parties' competing positions, these reasons turn to address the issues raised.

Many of the preconditions for admissibility found in

section 715(1) are not at issue on this application. First, on January 6, 7, and 8, 2020, Ms. J. testified at the preliminary inquiry into the charges for which Mr. Smart is currently on trial. Second, there is no issue that Mr. Smart was present in court throughout Ms. J.'s testimony at the preliminary inquiry. Finally, when she took the stand in this proceeding, Ms. J. unquestionably refused to be sworn and testify.

Accordingly, this application turns, first, on whether Mr. Smart had a "full opportunity" to cross-examine Ms. J. at the preliminary inquiry. And second, the court's discretion to refuse the application should it conclude that a purely mechanical application of the section would occasion unfairness to Mr. Smart.

Did Mr. Smart have a "full opportunity" to cross-examine Ms. J. at the preliminary inquiry?

An essential precondition for admitting prior testimony under section 715(1) is that the accused had a "full opportunity" to cross-examine the witness. That will not be the case where the witness refused to answer questions during cross-examination, became unavailable before or during cross-examination, or the presiding judge improperly curtailed cross-examination: see R. v. Lewis, 2009 ONCA 874, paragraph 68; see also R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, at pages 543 to 544; R. v. Davidson (1988), 1988 7067 (ON CA), 42 C.C.C. (3d) 289 (Ont. C.A.), at pages 298 to 299.

The accused is not deprived of a "full opportunity" to cross-examine merely because defence counsel, for tactical reasons, conducted the cross-examination differently than they would have at trial: Potvin, at page 545; Davidson, at page 298. Recourse to the provision "is not determined by the use actually made of the opportunity to cross-examine but rather by the availability of a full opportunity to do so.": R. v. Saleh, 2013 ONCA 742, at paragraph 71. Only where the intention or desire to pursue specific questions was present and was frustrated will a court conclude that there was an absence of a "full opportunity" to cross-examine: Potvin, at page 547. As Justice Trotter incisively observed, "A trier of fact should not be deprived of important evidence merely because defence counsel decided to keep his powder dry at the preliminary inquiry.": R. v. Kuzmich, 2020 ONCA 359, at paragraph 88.

It is noteworthy that courts have also rejected claims that an accused was deprived of a "full opportunity" to cross-examine because the defence comes into possession of information after the preliminary inquiry that it could have used to cross-examine the witness at trial: see R. v. Michaud (2000), 2000 14347 (NB CA), 144 C.C.C. (3d) 62 (N.B.C.A.), at paragraphs 21 to 22; Lewis, at paragraphs 66 to 68; Saleh, at paragraph 42. As Justice Drapeau observed in Michaud, "No cross-examination ever takes place in circumstances where counsel is fully aware of all the information that might prove useful in challenging the credibility of the witness." Michaud, at paragraph 20. As a result, he cautioned that it "would strip section 715(1) of any meaningful application" if it were unavailable whenever the defence acquires additional information after the preliminary inquiry that it could use to impeach the absent witness's credibility: Michaud, at paragraph 20.

Mindful of these principles, Mr. Smart has failed to demonstrate that he did not have a "full opportunity" to cross-examine Ms. J. at the preliminary inquiry.

First, Ms. J. was subject to an extensive and probing cross-examination at the preliminary inquiry. The cross-examination commenced on January 7th and continued until almost the lunch break on January 8th. Defence counsel questioned Ms. J. concerning her antecedents and character, including her involvement with the Children's Aid Society, her work as an exotic dancer, her participation in the drug trade, and her receipt of social assistance while earning undeclared income from drug dealing. She was cross-examined at length about her relationship with Mr. Smart, revealing her obvious hostility towards him. Additionally, the questioning included a detailed probing of her account of the events of July 18 and 19, 2018. Defence counsel also cross-examined Ms. J. concerning inconsistencies between her testimony and prior statements she made to the police and others. Additionally, Ms. J. was questioned regarding her potential motive to point the finger at Mr. Smart. Finally, the defence put to her its theory that someone connected to her drug-dealing activities could be responsible for what happened to D.

Second, although during her preliminary inquiry testimony the court permitted Ms. J. to refer to persons she knew through her involvement in the drug trade without identifying them by name, that was an arrangement agreed to by defence counsel: see Preliminary Hearing Transcript, January 7, 2020, at page 94, line 29. The presiding judge made it clear that if counsel reached a point during cross-examination where he wanted Ms. J. to provide names, he could ask to revisit the issue: see Preliminary Inquiry Transcript, January 7, 2020, at page 94, line 30 to page 96, line 15. Despite this, defence counsel never did seek to ask Ms. J. to name names. Instead, he eventually moved on to other areas of cross-examination without doing so. It may be that counsel had good tactical reasons for taking that approach. In these circumstances, I am far from convinced that the presiding judge improperly curtailed cross-examination.

In any event, just because the presiding judge wrongly precludes defence counsel from pursuing a single line of questioning, an isolated erroneous evidentiary ruling does not inexorably support a conclusion that the accused did not have a "full opportunity" to cross-examine: see Lewis, at paragraph 75. More would be necessary, as Justice Moldaver points out in Lewis, for example, a "blanket proscription on counsel's right to cross-examine on matters of credibility at a preliminary inquiry." Lewis, at paragraph 75.

Third, defence counsel's decision to defer cross-examining Ms. J. about a potential third-party suspect until trial does not mean that Mr. Smart did not have a "full opportunity" to cross-examine her at the preliminary inquiry. The jurisprudence makes clear that the question is whether the accused had a "full opportunity" to cross-examine the witness, not how, for tactical reasons, defence counsel chose to use it.

Finally, since the preliminary inquiry, the defence has come to possess information it could have used to cross-examine Ms. J. at trial and impeach her credibility. That includes Ms. J.'s evidence before Justice Fowler-Byrne in an unrelated proceeding that resulted in adverse credibility findings against her, and the PCAS records this court ordered produced just before this trial commenced last month.

I accept Mr. Moon's representation that had the law permitted him to gain access to the PCAS records before the preliminary inquiry, he would have brought the required application and used the records to cross-examine Ms. J. at that hearing. However, it does not follow that because that was not a legally available option, there was a denial of a full opportunity to cross-examine. As Justice Moldaver explained, on behalf of the Court of Appeal in Lewis, the "full opportunity" requirement does "not apply where the failure to cross-examine stems from an accused person's ignorance of potentially useful information, no matter the cause or reason." Lewis, at paragraph 68 (emphasis added): see also Saleh, at paragraph 72; Michaud, at paragraph 21.

Undoubtedly, decisions like Lewis and Michaud are the most likely reason why Mr. Moon could not find a reported decision where the court refused a Crown application to introduce a witness's preliminary inquiry testimony under section 715(1) in analogous circumstances to this case.

Accordingly, for all these reasons, Mr. Smart has failed to demonstrate that he did not enjoy a "full opportunity" to cross-examine Ms. J. at the preliminary inquiry.

Would the admission of Ms. J.'s preliminary inquiry testimony occasion unfairness to Mr. Smart?

The Supreme Court of Canada in Potvin held that because section 715(1) uses permissive language - "may be admitted as evidence in the proceedings" - it confers on a trial judge the discretion not to admit the prior testimony where its admission would occasion unfairness to the accused: Potvin, at pages 548 to 49; see also at page 550. At the same time, the Court observed that "such circumstances will be relatively rare.": Potvin, at page 549.

In Potvin, the Supreme Court of Canada provided essential guidance on the kind of unfairness that will justify a trial judge in exercising their discretion to exclude an absent witness's preliminary inquiry testimony at trial.

First, there could be unfairness in the way the evidence was obtained: Potvin, at page 551. The Court provided two examples of this kind of unfairness. The first example, the Crown brings an application under section 715(1) to admit a witness's prior testimony because they are temporarily out of the country where it could have obtained their attendance at trial with a minimal degree of effort: Potvin, at page 551. The second example, when the witness initially testified the Crown knows they will be unavailable at trial yet fails to inform the accused of this fact so that he could make the best use of the opportunity to cross-examine at the earlier proceeding: Potvin, at page 551. These examples each involve situations that call into question the necessity of resorting to section 715(1). Given this, the Court of Appeal has recognized that trial judges should consider the very same factors that underpin the necessity requirement under the principled exception to the hearsay rule to inform the exercise of their discretion whether to admit prior testimony under section 715(1): see R. v. Li, 2012 ONCA 291, at paragraphs 49 to 61; Saleh, at paragraph 76.

The second type of unfairness to the accused identified by the Supreme Court in Potvin concerns "the effect of the admission of the previously taken evidence on the fairness of the trial itself.": Potvin, at page 552. That is the type of unfairness at issue on this application. Subsequent cases have elaborated on the concerns that should inform a trial judge's assessment of unfairness under this category.

Amongst the factors that a trial judge must consider in exercising their discretion not to admit prior testimony under section 715(1) are "the crucial nature of the evidence itself" and "the crucial nature of the credibility of the witness whose evidence is tendered for admission.": Saleh, at paragraph 77; see also R. v. Jones-Solomon, 2015 ONCA 654, at paragraph 43.

As part of their discretion under section 715(1), the cases recognize that trial judges are permitted to impose conditions on receiving an absent witness's preliminary inquiry testimony into evidence to ensure an accused has a fair trial: Jones-Solomon, at paragraph 51; Davidson, at page 300.

In cases like this, where the defence, after the preliminary inquiry, acquires information it could use to impeach an unavailable witness's credibility, its ability to place that information before the trier of fact in some form has proven an important consideration weighing in favour of admitting the evidence: see Jones-Solomon, at paragraphs 52 to 55; Lewis, at paragraphs 77 to 83; Michaud, at paragraphs 8 and 29.

Ultimately, in deciding whether to exercise their discretion to admit or exclude prior testimony under section 715(1), the trial judge must balance and weigh the need to ensure that an accused receives a fair trial and society's interest in the admission of probative evidence to get at the truth of the matter in issue: see Potvin, at page 553; Saleh, at paragraph 74. Stated differently, trial judges must carry out a cost/benefit analysis. They must assess whether the benefit of admitting the evidence to the truth-seeking function of the criminal trial outweighs the cost to the litigation process, in terms of the fairness of the accused’s trial, of receiving the evidence in a less than optimal form: see Jones-Solomon, at paragraph 56.

In this case, Ms. J.'s evidence is highly probative. Her account is essential to the Crown's efforts to prove that Mr. Smart had the motive and the opportunity to commit the offences charged. In other words, her evidence is crucial to the Crown's case against Mr. Smart, who is on trial for gravely serious charges.

At the same time, Ms. J.'s credibility is also a matter of central importance at this trial. During her testimony at the preliminary inquiry and the trial before Justice Fowler-Byrne, Ms. J. admitted she was a drug dealer. There are inconsistencies between her testimony at each proceeding concerning her involvement in the drug trade. Further, it would seem from the PCAS records that Ms. J. was less than forthright during her preliminary inquiry testimony concerning other matters, including her drug use and her involvement with that agency. Finally, it is evident from Ms. J.'s testimony at the preliminary inquiry that she is extraordinarily hostile towards Mr. Smart.

In these circumstances, the defence's inability to cross-examine Ms. J. at trial because she has refused to testify is no small matter. That decision has deprived the court of the essential opportunity to see and hear Ms. J. give evidence, including her cross-examination concerning information that has only emerged since she testified at the preliminary inquiry.

Nevertheless, the court has the discretion to place conditions on the receipt of Ms. J.'s preliminary inquiry testimony that could go some distance towards alleviating the prejudice that would otherwise be occasioned to Mr. Smart's ability to have a fair trial.

First, the court can require, and the Crown is agreeable, to filing the transcript and playing the audio recording of her preliminary inquiry testimony. As a result, although the court will not have the opportunity to see Ms. J. giving her evidence, it will be able to hear her. That will place the court, to a certain extent, in the same position it would be in had Ms. J. testified at this trial.

Second, the court can require, and the Crown is agreeable, to filing Ms. J.'s evidence from the trial before Justice Fowler-Byrne. Therefore, if there are inconsistencies between her evidence in each proceeding, they can be brought to the court's attention and considered when assessing her credibility.

Third, the court can require, and the Crown is agreeable, to filing a document that sets out any information from the PCAS records that is arguably inconsistent with Ms. J.'s testimony at the preliminary inquiry.

Lastly, the court can permit the filing of any excerpts from Ms. J.'s prior statements inconsistent with information in the PCAS records or her testimony at the preliminary inquiry and the trial before Justice Fowler-Byrne. Although the Crown did not make this suggestion, the trial judge in Davidson took a similar step, which Justice Martin commented upon favourably: Davidson, at page 300.

In my view, these various measures will go a considerable distance towards ameliorating any potential prejudice to Mr. Smart's right to a fair trial that might otherwise be occasioned by admitting Ms. J.'s preliminary inquiry testimony. Moreover, in some respects, these measures will be more advantageous to Mr. Smart. For example, had Ms. J. testified, Mr. Smart could undoubtedly have cross-examined her concerning any inconsistencies between information contained in the PCAS records, her testimony on other occasions, and her prior statements. Of course, she could have offered explanations or denials that the court might have chosen to accept. However, given her refusal to testify, any material inconsistencies will undoubtedly cut hard against her credibility as there will be no opportunity for her to try and mend the wounds.

Subject to the conditions I have laid out, I am satisfied that the benefits to the truth-seeking function of the trial of receiving into evidence Ms. J.'s preliminary inquiry testimony outweigh any potential prejudice occasioned to Mr. Smart's ability to receive a fair trial.

Accordingly, the court grants the Crown's application to admit Ms. J.'s testimony from the preliminary inquiry into evidence. However, that ruling is subject to the various conditions that I have set out.

Given this ruling, the court does not have to address the Crown's alternative submission that Ms. J.'s preliminary inquiry testimony is admissible under the principled exception to the hearsay rule. Further, the court's ruling concerning the section 715(1) application renders moot the Crown's application to admit Ms. J.'s videotaped police interview from July 19, 2018.

...END OF PROCEEDING

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Brenda Ferland, certify that this document is a true and accurate transcription of the recording of R. v. Dyon Smart in the Superior Court of Justice held at 7755 Hurontario Street, Brampton, Ontario taken from Recording(s) No. 3111_214_ 20211013_093301__30_STRIBOJ which has been certified in Form 1 by D. Bonello.

October 21, 2021 ______________________________

(Date) (Signature of authorized person)

This certification does not apply to ( i.e. Rulings, Reasons for Judgment, Reasons for Sentence, Charge), which was/were judicially edited.