COURT FILE NO.: CR-6/21
DATE: 2021 12 02
AMENDED DATE: 2021 12 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
N.G.
COUNSEL:
Ms. Wollaston, for the Crown
Mr. Gold, for N.G.
HEARD: December 2, 2021
ENDORSEMENT ON PRETRIAL APPLICATIONS
Conlan J.
Amended Reasons for Decision on Pretrial Applications
Para. 5 “…charged with aggravated assault, forcible confinement, and breach of probation,” has been changed to “…charged with aggravated assault and forcible confinement,”
[1] There are three Applications before the Court. At the pretrial stage, they were addressed today, via Zoom. This brief Endorsement deals with the first two.
I. The Crown’s Application Regarding the Voluntariness of the Accused’s Statements to the Police
[2] There are two components to this Application – (i) the accused’s alleged utterances to the arresting police officer on scene, regarding the incident that gave rise to the charges on the Indictment before this Court, and (ii) the accused’s formal statement to the police in Toronto on January 9, 2020, regarding an alleged assault of the accused by the complainant, D., at a nightclub in Toronto on December 31, 2019.
[3] Not on consent, but also not opposed, and with Mr. Gold’s express acknowledgement on the record that this Court would inevitably find the said statements voluntary if the Crown witnesses testified in accordance with the disclosure, the Crown’s Application is granted.
[4] The said statements are ruled voluntary and are admissible at trial.
II. The Crown’s Application Regarding the Photographs Taken of the Complainant’s Facial Injury
[5] The accused is charged with aggravated assault and forcible confinement, stemming from a domestic dispute between N.G. and D. on January 1, 2020. The most serious offence is the aggravated assault, as it is alleged that N.G. essentially bit the nose off the complainant’s face.
[6] The Crown applies to have admitted into evidence at trial before the jury six (or alternatively, less than six) photographs of the facial injury to D., taken at the hospital after the incident.
[7] The Application is dismissed.
[8] In my view, the photographs have very little probative value, to the point of being irrelevant, and significant potential to inflame the triers of fact and unduly prejudice the accused’s right to a fair trial.
[9] Relevance, materiality, and probative value are concepts that are driven by what is at issue in the case. In this prosecution, based on the materials filed by the Defence on the Application and the submissions by Mr. Gold at Court today, (i) that the complainant was disfigured is admitted, and (ii) that the disfigurement was caused by the accused biting the nose of the complainant is also admitted. The only issue is whether the biting was intentional. This is not the same as saying it was an accident by D. having fallen onto the floor, for example, as feared by the Crown.
[10] In these circumstances, I fail to see any probative value to the photographs. In particular, with respect, I reject the Crown’s argument that the photographs are somehow relevant to the credibility of the parties in terms of how exactly the injury occurred. We know how the injury occurred – N.G. bit the nose of D. Whether he did so intentionally or as an unintentional reaction to some interference with his jaw, for instance, is not going to be assisted in any way by having the jury look at the photographs.
[11] As for prejudice, I think it is obvious. The photographs are gruesome and bloody and close-up and numerous. They will almost certainly attract the kind of thing that we instruct jurors to avoid – sympathy for the complainant.
[12] I reserve the right to deliver further reasons on this Application at a later date, but for now counsel and the accused know the gist of those reasons.
[13] This ruling may be revisited by the trial judge if warranted, depending on what transpires at trial.
“C.J. Conlan”
Conlan J.
Released: December 2, 2021
Amended: December 6, 2021
COURT FILE NO.: CR-6/21
DATE: 2021 12 02
AMENDED DATE: 2021 12 06
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
N.G.
Endorsement on pretrial applications
Conlan J.
Released: December 2, 2021
Amended: December 6, 2021