Court File No. CR-18-00001309

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

DEVIN BEALS, ALEXANDER BUCKLAND AND CLIVE WALTERS

R U L I N G

BEFORE THE HONOURABLE JUSTICE D.E. HARRIS

AND A JURY on April 8, 2022 at BRAMPTON, Ontario

APPEARANCES:

B. McGuire Counsel for the Crown

P. Maund Counsel for the Crown

R. Gadhia Counsel for Devin Beals

A. Abbey Counsel for Clive Walters

T. Kirichenko Counsel for Alexander Buckland

(i)

Table of Contents

SUPERIOR COURT OF JUSTICE

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

W I T N E S S E S

WITNESS: Examination In-Chief

Cross- Examination

Re- Examination

E X H I B I T S

EXHIBIT NUMBER ENTERED ON PAGE

LEGEND

[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error.

(ph) - indicates preceding word has been spelled phonetically.

Transcript Ordered: ....................April 11, 2022

Transcript Completed: ..................April

Ordering Party Notified: ...............April

MONDAY, MARCH 21, 2022

R U L I N G

HARRIS, J. (Orally):

The Crown applies on re-examination to cross-examine Umang Suri on a prior inconsistent statement under section 9.2 of the Canada Evidence Act. The evidence concerns accused, Clive Walters. Suri never said in his November 23rd, 2017 statement that he saw Clive Walters at the scene of the stabbing on the grassy area. The same is true with respect to the preliminary hearing.

Furthermore, Suri never said he saw Walters with his hands outstretched and trying to come between the two combatants, Devin Beals and Heidrah Shraim.

At this trial in his examination in-chief, Suri could not identify the members of what he called "the opposition," the men who allegedly included Mr. Beals and others.

He at no time said Mr. Walters was present. In cross-examination at this trial, Mr. Abbey, on behalf of Mr. Walters, suggested to Mr. Suri that Walters was standing in a group to the left of Devin Beals and Heidrah Shraim. After viewing a video, Mr. Suri agreed. Mr. Abbey then suggested that Mr. Walters has his hands outstretched in an attempt to break up the two adversaries. Mr. Suri was more than happy to agree with his suggestion.

This entire scenario, up to this point was an exact reprise of what occurred at the last trial. The trial judge, Justice Woollcombe, permitted the Crown application made here. In light of this, the Crown and defence went into this area with open eyes at this trial. It unfolded in much the same way as before.

There was little argument about the mechanics of section 9.2. Instead, Mr. Abbey for Clive Walters argues that re-examination on the issue ought not to be allowed because it would allow the Crown to split their case. The Crown ought to have covered this topic in its examination in-chief. That cannot be correct. Suri did not testify in-chief that Walters was present. Mr. Abbey suggested that the Crown should have refreshed Suri's memory from the testimony at the last trial. I disagree. It makes no sense that the Crown ought to have refreshed the memory of a witness with respect to a point of view that is incredible, unreliable and against their interest. Furthermore, there did not seem to be any memory to refresh in this regard. The Crown could not have been expected to lead this evidence.

Although the testimony from the last trial was in part consistent with this trial, there was also statements inconsistent with it. For these reasons, the cross-examination under section 9.2 will be allowed.

However, I read the previous cross-examination from pages 94 to 99 of the last trial. I will not permit Mr. McGuire to ask some of the questions he asked on the last occasion.

Beginning at page 97, where Mr. McGuire suggested that Suri was a friend of Mr. Walters, he went on to elicit at the top of page 98 that Mr. Suri and Mr. Walters spoke on the phone many times in the month following the stabbing. And I quote from the beginning - the top of page 98:

Question: All right. And, in fact, sir, even after that date, I know that you probably don't have a record of that, but if I suggested to you that you and Clive Walters spoke on the phone something in the nature of 20 times from the 22nd of November to about the 19th of December, does that sound about right?

Answer: Like, like 20 interactions?

Question: Yeah.

Answer: From my phone to his phone? Question: Yeah. Does that sound about right?

Answer: It sounds about.

Question: All right. So you were having, you were having frequent phone conversations with Clive Walters even after this event, right?

Answer: I was able to speak to him a few times 'cause we still tried to get together to drink and whatever have you,yes.

Question: Sure, you maintained a friendship with him, right?

Answer: Yes.

Question: Okay. And you talked to him on the phone, correct? Answer: Yes.

Question: Even after you knew that people were getting arrested in this case, right?

Answer: Yes.

Question: You continued to speak with Mr. Walters?

Answer: And afterwards I stopped, yes. Question: Okay. 'Cause he was a friend of yours, right?

Answer: Yes.

Question: A friend who's being represented by Mr. Abbey in this, in this case, right?

Answer: Yes.

While the friendship between Suri and Walters is a permissible topic to touch on in the re-examination, albeit briefly, I would prohibit the questioning about the phone calls and any conversations after the fact. There was no evidence that Walters put Suri up to testifying about Walters trying to break up a fight.

The thinly veiled suggestion, innuendo really, in cross-examination that Walters was a motivating force behind a significant falsehood told by Suri on this topic, for the purpose of exonerating Walters is highly prejudicial. It is blatantly inadmissible. The design and effect of the questioning is to a cast a consciousness of guilt inference on Walters without a proper legal foundation.

As is well known, evidence characterized loosely as consciousness of guilt evidence can easily jeopardize the fairness of a trial unless very carefully handled. See R. v. White, No. 1 1998 CanLII 789 (SCC), 1998, 2 SCR 72, 125 CCC (3d) 385 at paragraph 22.

This cross-examination fits well into that category. An attempt to lead as evidence in-chief without direct evidence that Walters asked Suri to lie for him, would not have been permitted. Worse, to allow this evidence in re-examination would be a not insignificant legal error.

Furthermore, particularly given that this was elicited at the last proceeding, this evidence was clearly anticipated by the Crown and the attempt to illicit it should have been in-chief. So not only was it of high prejudice with no probative value, it was an example of the Crown impermissibly splitting their case.

I would also caution generally that the cross- examination of Suri under section 9.2 ought to be conducted with restraint. I reserve the right to permit Mr. Abbey to conduct further cross-examination if the remaining re-examination strays beyond proper bounds. So that's the ruling.

MR. ABBEY: Thank you, Your Honour.

MR. MCGUIRE: Yes, thank you, Your Honour. At the top of page 99, that question is still in and those answers and questions are still in.

THE COURT: Yeah, I don't see the need to point out that Mr. Abbey is Mr. Walters' lawyer. I'm not sure where that's going. I think it's pretty obvious. So - but yes, the first question there about the, about the help him a little bit, that's, that's fair enough.

MR. MCGUIRE: Right. And I don't know if it matters, I guess by way of explanation, the, the basis for that cross, Your Honour, I understand Your Honour's point and I accept it and, and, and you're likely right. In fact, you know, you're deemed to be right but it was....

THE COURT: Likely right and deemed to be right, that’s - thank, thank you very much for that.

MR. MCGUIRE: You're welcome.

THE COURT: Thanks.

MR. MCGUIRE: The - it was based on the Court of Appeal for Ontario's decision in Dayes, D-A-Y-E-S, where I think it was Justice LaForme saying - it might've been Justice LaForme saying within a scope of 9.2 it's permissible to cross-examination a witness about the witness' motivation to make an inconsistent statement. So that's what that was aimed at. Not at Mr. Walters after the fact conduct or consciousness of guilt, but Mr. Suri's desire to assist his friend because they were friends. That was the point of it. Although I understand Your Honour's point and I guess in the probative prejudice balance, Your Honour has assessed that and found them to be too prejudicial. I just wanted you to know I wasn't flouting the rules of, of, of post-offence conduct. That was the theory behind that cross.

THE COURT: Right.

MR. MCGUIRE: You're allowed to explore the motive why someone may have changed their evidence.

THE COURT: Right. Okay, well, I won't comment any further on it. My, my ruling certainly stands and....

MR. MCGUIRE: Yeah, but I'm not trying to re- litigate, I'm just, I guess, showing I'm - I had somewhat clean hands in embarking on that cross at the last trial.

THE COURT: Somewhat clean, yeah. MR. MCGUIRE: Somewhat clean.

THE COURT: Okay. Can we have Mr. Suri then, please?

...END OF EXCERPT

Certification

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. Beals et al in the Superior Court of Justice held at 7755 Hurontario Street, Brampton, Ontario taken from Recording(s)

No. 3199_212_20220408_093650 30_HARRISDAVI which has been certified in Form 1 by J. Gayle.

(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.