COURT FILE NO.: CR-21-90000-173
DATE: 20221004
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Bari Crackower and Amanda Webb for the Crown
- and -
CHRISTOPHER JANISSE
Gregory Lafontaine and Julia Kushnir for Mr. Janisse
HEARD: August 26, 2022
REASONS FOR DECISION
DEFENCE APPLICATION TO REOPEN THE TRIAL
CORRICK J.
Introduction
[1] Mr. Janisse applies to reopen the defence and adduce fresh evidence following his conviction and prior to the imposition of sentence. The Crown opposes the application.
Proceedings to Date
[2] On June 27, 2019, Christopher Janisse was charged with possession of cocaine, fentanyl and crystal methamphetamine for the purpose of trafficking, four counts of trafficking in cocaine, and possession of proceeds of crime of a value exceeding $5,000.
[3] In September 2021, I heard an application by Mr. Janisse to exclude the evidence seized by police on the basis that his right to be secure from unreasonable search and seizure guaranteed by s. 8 of the Charter of Rights and Freedoms had been violated. I dismissed that application on October 29, 2021.
[4] Mr. Janisse’s trial was heard in March 2022. It was based on a written Statement of Facts and Admissions and accompanying exhibits. The defence called no evidence.
[5] On April 26, 2022, I found Christopher Janisse guilty of two counts of possession of cocaine for the purpose of trafficking, possession of fentanyl for the purpose of trafficking, possession of crystal methamphetamine for the purpose of trafficking, two counts of trafficking in cocaine, and possession of the proceeds of crime.
[6] After hearing submissions on sentence on June 9, 2022, the matter was adjourned to August 3, 2022 for the imposition of sentence. Mr. Janisse sought an adjournment on August 3 to bring this motion to reopen the trial on the basis of fresh evidence. I granted the adjournment request, and on August 26, I heard submissions on the application to reopen the trial.
The Fresh Evidence
[7] The fresh evidence relates to a finding made by Justice Nakatsuru in a separate, but related, proceeding, R. v. Downes and Medeiros, 2022 ONSC 4308, and the evidence of D.C. De Sousa given in that proceeding. Downes and Medeiros came to the attention of the police during their investigation of Mr. Janisse. Police alleged that Mr. Janisse and Mr. Downes met briefly in an underground parking garage at 70-90 Queens Wharf Road on June 12, 2019, and later again on June 27, 2019, in the parking area of 155/165 Legion Road North.
[8] At their trial before Justice Nakatsuru, Messrs. Medeiros and Downes brought two applications. The first was a lost evidence application. They alleged that the failure of police to seize relevant video evidence violated their rights protected by s. 7 of the Charter.
[9] The second challenged the admissibility of evidence seized pursuant to various search warrants. D.C. Wilson swore the Information to Obtain (ITO) the warrants. It includes information and observations conveyed to him by D.C. De Sousa.
[10] At their trial, Messrs. Downes and Medeiros were granted leave to cross-examine D.C. Wilson and D.C. De Sousa.
[11] Justice Nakatsuru found that D.C. De Sousa deliberately misled D.C. Wilson about his observations of Mr. Downes and Mr. Janisse on June 12 and 27 in an effort to obtain the search warrants for Mr. Downes’ vehicle and residence. Justice Nakatsuru set aside the warrants related to Mr. Downes for subversion. He did not apply his finding of subversion to Mr. Medeiros even though D.C. De Sousa’s same observations were included in the ITO for warrants related to Mr. Medeiros.
[12] D.C. De Sousa’s June 12 observations of Mr. Downes and Mr. Janisse were also included in an ITO for a general warrant authorizing police officers to covertly enter Mr. Janisse’s residence and car, and a second address alleged to be a stash house. That warrant was issued on June 19.
[13] The observations made on June 27 post-date the issuance of any warrant related to Mr. Janisse.
June 12 Observations in Question
[14] D.C. De Sousa prepared an Information Report on June 12 setting out his observations of a meeting between Mr. Janisse’s vehicle and another vehicle in the underground parking garage at 70-90 Queens Wharf Road on June 12. D.C. Wilson includes D.C. De Sousa’s observations in an ITO he prepared on June 19 for a general warrant for Mr. Janisse’s residence and car, and a stash house.
[15] The ITO states that surveillance officers followed Mr. Janisse in his car from his residence to the front of a condominium complex at 70-90 Queens Wharf Road, where he parked. A few moments later, Mr. Janisse followed a GMC Terrain into the underground parking garage at that address. The driver of the Terrain was later identified as Mr. Downes.
[16] The ITO further states at para. 37(b), “From CCTV video, both vehicles attended parking spots C99-C98; nothing, if anything, could be seen to happen at this time.” Three minutes later, the Terrain left the parking garage, followed by Mr. Janisse’s car. The two vehicles parted ways.
[17] At para. 37(o), D.C. Wilson writes the following, “In my experience as a drug investigator, underground parking lots are commonly utilized to conduct illicit transactions and meetings to prevent detection by law enforcement as they are areas that often provide more privacy, protection, and typically have to be accessed with a fob. It is believed that JANISSE met with the driver of the brown GMC Terrain in the underground parking garage of 70-90 Queens Wharf Road for an illicit purpose – believed to be drug related – based on JANISSE following him into the underground, the duration inside the underground (approximately 3 minutes), the meeting location itself (underground parking garage), and background knowledge surrounding JANISSE and this investigation to date.”
[18] D.C. De Sousa testified before Justice Nakatsuru that on June 12 he reviewed CCTV security footage at 70-90 Queens Wharf Road showing Mr. Janisse’s and Mr. Downes’ cars entering and exiting the parking garage and going through the garage. He asked the security guard to download the footage on to a USB key. However, the USB key only contained the footage of the garage entrance and exit. It did not include the footage of the cars travelling through the garage. D.C. De Sousa testified that he was not aware of that until March 2022.
[19] In addition, D.C. De Sousa testified that he identified the spots where the two vehicles parked by going down to the underground garage. This was necessary because he was unable to identify the spots from the video. This was contrary to the Information Report he prepared, in which he states that he reviewed CCTV video and, “observed the following: both vehicles were followed in the underground to spot C99-98.”
Findings of Justice Nakatsuru
[20] Justice Nakatsuru rejected D.C. De Sousa’s evidence that he was unaware that the USB key did not contain the video of the vehicles travelling through the garage. He found that D.C. De Sousa deliberately failed to download the video of the garage interior to avoid the difficulty of the police possessing a video that did not support what he said it showed. Justice Nakatsuru also rejected the officer’s evidence that he went to the underground garage to identify the spots where the cars parked. He found that the officer fabricated this evidence to explain how he determined in which spots the cars parked.
[21] It is noteworthy that at para. 13 of a Statement of Facts and Admissions made pursuant to s. 655 of the Criminal Code and filed as Exhibit 1 on Mr. Janisse’s trial, Mr. Janisse admits that he followed a GMC Terrain into the parking garage and that, “the two vehicles parked in adjoining spaces.”
June 27 Observations in Question
[22] Police had the search warrants related to Mr. Janisse in hand prior to the disputed observations of D.C. De Sousa on June 27. The disputed observations are not included in the Information to Obtain the warrants related to Mr. Janisse.
[23] The ITO for the search warrant for the residence of Mr. Downes includes the following observations made by D.C. De Sousa at 3:55 p.m. on June 27. Mr. Janisse drove his Mazda to level 2 of the parking garage for 155/165 Legion Road North, and parked. Two SUVs were parked behind Mr. Janisse. They were parked side by side. They had their trunks open. Mr. Janisse was seen walking away from the trunk area of the SUVs back to his Mazda carrying a big, black duffle bag. He then left the parking garage.
[24] The ITO goes on further to describe that D.C. De Sousa later viewed CCTV footage of the parking garage, which showed Mr. Janisse arriving on level 2 of the parking garage and parking trunk to trunk with the SUVs.
[25] The video seized by D.C. De Sousa does not show Mr. Janisse’s Mazda arriving and parking on level 2 of the garage or exiting the parking garage.
Findings of Justice Nakatsuru
[26] Justice Nakatsuru found that D.C. De Sousa deliberately failed to seize a certain video because it did not support what he said he saw in the parking garage. Justice Nakatsuru found further that D.C. De Sousa did not even see Mr. Janisse’s Mazda on level 2.
[27] Again, it is noteworthy that at para. 47 of the Statement of Facts and Admissions filed as Exhibit 1 on Mr. Janisse’s trial, Mr. Janisse admitted the following:
- At 3:40 pm, Mr. Janisse drove from 15 Zorra Street to the secured parking area for 155/165 Legion Road North. He reverse-parked into a spot in the above ground visitors parking area. He parked trunk to trunk with two SUVs. The SUVs both had their trunks open with two unknown males standing at the rear. Mr. Janisse obtained a black duffle bag which he placed in his vehicle. He then drove directly to 105 The Queensway where he entered unit 601 carrying the black duffle bag.
Legal Test to be Applied
[28] The parties agree that this court has the jurisdiction to grant this application to permit Mr. Janisse to reopen his case and present further evidence. The power to vacate a finding of guilt made after a trial “should only be exercised in exceptional circumstances and where its exercise is clearly called for:” R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 75.
[29] The test for reopening the defence case following conviction is more rigorous than prior to conviction, to protect the integrity of the process, including the enhanced interest in finality. The court set out the applicable test in R. v. Kowall (1996), 108 C. C. C. (3d) 481(Ont. C.A.) at pp. 493 to 494 as follows:
It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), 50 C.C.C. (2d) 193, at page 205 (S.C.C.) (see: R. v. Mysko (1980), 2 Sask.R. 342 (C.A.).) That test is as follows:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . . ;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief; and
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions.
Positions of the Parties
[30] Mr. Lafontaine argues that the evidence of D.C. De Sousa given at the trial of Medeiros and Downes, and the subsequent findings of Justice Nakatsuru did not exist at the time of Mr. Janisse’s trial and could not have been adduced by due diligence. In addition, he submits that it is admissible and cogent evidence relevant to whether the June 19 general warrant for the suspected stash house and subsequent search warrants could have been issued.
[31] The Crown argues that the application to reopen the case is an attempt to reverse the tactical decisions made by the defence at trial. At trial, the defence focused exclusively on a challenge to the tracking warrant. The defence did not challenge the warrants issued after the tracking warrant on any basis other than that they were based on evidence gathered from the improperly issued tracking warrant. The Crown submits that the proposed fresh evidence does not satisfy the Palmer test, and the application to reopen the case should be dismissed.
Analysis
[32] After careful consideration of counsel’s submissions, the record before me, and the jurisprudence, I have concluded that this application must be dismissed as an attempt to retry the case using a different strategy. In addition, the evidence of D.C. De Sousa could have been produced at trial. It was not produced because the defence chose a different route to challenge the admissibility of evidence seized by police pursuant to the search warrants.
[33] Mr. Lafontaine argues that the evidence of D.C. De Sousa could not have been produced at Mr. Janisse’s trial because he was not aware of an April 5, 2022 willsay statement of D.C. De Sousa that, “anchored the position in the corelated matter of Mr. Downes and Mr. Medeiros, specifically with respect to arguments ultimately made on subversion of the judicial pre-authorization process:” (from paragraph 17 of the Applicant’s factum.) The willsay statement indicates that on June 12, 2019, D.C. De Sousa asked security personnel at 70-90 Queens Wharf to download the security video that he had viewed there earlier that day onto a USB flash drive. The statement further indicates that D.C. De Sousa had become aware that one of the videos he had requested had not been downloaded. Justice Nakatsuru rejected this explanation for the missing video.
[34] This willsay statement was prepared in response to Mr. Downes’ lost evidence application. Although the willsay statement was not disclosed until after Mr. Janisse’s trial had been heard, Mr. Lafontaine knew, as did Mr. Boni, counsel for Mr. Downes, that the Crown had not disclosed any video of the interior of the parking garage. In his factum filed on the Charter application, Mr. Lafontaine refers to the fact that the only video disclosed by the Crown showed the garage entrance. Mr. Boni made numerous requests for disclosure of the missing video. On March 18, 2020, he was advised that the only video seized by police was that of the garage entrance doors. As a result, he brought a lost evidence application.
[35] D.C. De Sousa’s evidence about his June 12 observations and the missing video could have been adduced at Mr. Janisse’s trial. Mr. Lafontaine did not do so by bringing a lost evidence application or seeking to cross-examine D.C. Wilson or D.C. De Sousa. His trial strategy was different. He chose to attack the warrants issued in relation to Mr. Janisse by challenging the issuance of the June 6 tracking warrant and arguing that its improper issuance tainted the subsequent warrants. D.C. De Sousa’s observations and failure to seize video surveillance on June 12 were not relevant to that challenge.
[36] It is not unreasonable that Mr. Janisse’s counsel approached the trial differently than counsel for Mr. Downes. Mr. Downes was observed only twice during this month-long investigation, on June 12 and 27. The observations of him on those dates were critical to the issuance of warrants against him. Mr. Janisse was the target of the investigation and was surveilled by the police almost daily. He was observed removing bags from the trunks of other vehicles, exchanging bags and boxes with others while parked on the street, and entering and exiting the elevator on different floors at the stash house carrying bags and boxes as a means of counter-surveillance. This surveillance, together with the tracking data obtained from his vehicle, led to the issuance of the general warrant on June 19, 2019.
[37] Even if Mr. Janisse’s Charter application had challenged the issuance of the general warrant, the excision of D.C. De Sousa’s June 12 observations of Mr. Janisse driving into the underground parking garage and parking next to a GMC Terrain would not have affected the sufficiency of the grounds for the general warrant. However, as I have already indicated, D.C. De Sousa’s observations of June 12 post-date the issuance of the warrant that was challenged by Mr. Janisse and therefore could not have affected the result of that challenge.
[38] Mr. Lafontaine’s argument that the admission of D.C. De Sousa’s evidence meets the criteria set out in Palmer is based on a Charter application that he did not bring. Even if the evidence were to meet the second, third and fourth part of the Palmer test, it does not meet the first part. I am mindful that the due diligence criterion is not applied as strictly in criminal matters. However, this evidence was not adduced at trial for lack of due diligence. It was not called because it was not relevant to the trial strategy employed by competent, experienced defence counsel. I have concluded that this application to reopen is “in reality an attempt to reverse a tactical decision made at trial.”
[39] The application is dismissed.
Corrick J.
Released: October 4, 2022
COURT FILE NO.: CR-21-90000-173
DATE: 20221004
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
CHRISTOPHER JANISSE
REASONS FOR DECISION
DEFENCE APPLICATION TO REOPEN THE TRIAL
Corrick J.
Released: October 4, 2022