Court File and Parties

COURT FILE NO.: CR-21-5249 Released orally and in writing – May 8, 2023 DATE: 20230508

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Shanice Wynter and Kahli Johnson-Phillips Accused

Counsel: Bryan Pillon and Jayme Lesperance, for the Crown Anthony Bryant, Counsel for Shanice Wynter Michael Moon and Nicole DeBellefeuille, Counsel for Kahli Johnson-Phillips

Publication Ban

Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict, or until further order of the court.

RULING ON OPENING

HEBNER J.

[1] Mr. Bryant, on behalf of the accused Ms. Shanice Wynter, has brought an application seeking an order allowing him to make an opening address immediately after the Crown’s opening address. The Crown opposes the application. Mr. Johnson-Phillips does not make a similar application. This is my ruling.

Background

[2] On August 27, 2018, at approximately 2:41 a.m., Jason Pantlitz-Solomon was shot and killed outside of a Pizza Pizza restaurant located at 294 Ouellette Avenue in Windsor, Ontario. Mr. Pantlitz-Solomon’s girlfriend, Camille Lufitha-Molima, was shot once in the left thigh. She was treated at hospital and released.

[3] Mr. Kahli Johnson-Phillips and Ms. Shanice Wynter are jointly charged with committing first degree murder against the person of Jason Pantlitz-Solomon contrary to s. 235 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. Mr. Johnson-Phillips is also charged with attempted murder of Ms. Lufitha-Molima contrary to s. 239(1) of the Criminal Code. Ms. Wynter is also charged with aggravated assault against Ms. Lufitha-Molima by wounding her with a firearm, contrary to s. 268 of the Criminal Code.

[4] The trial is scheduled to commence on September 11, 2023, and is expected to last 12 to 14 weeks.

Analysis

[5] Section 651 of the Criminal Code states:

651 (1) Where an accused, or any one of several accused being tried together, is defended by counsel, the counsel shall, at the end of the case for the prosecution, declare whether or not he intends to adduce evidence on behalf of the accused for whom he appears and if he does not announce his intention to adduce evidence, the prosecutor may address the jury by way of summing up.

(2) Counsel for the accused or the accused, where he is not defended by counsel, is entitled, if he thinks fit, to open the case for the defence, and after the conclusion of that opening to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence.

[6] The general rule is that counsel for the defence delivers an opening statement at the conclusion of the Crown’s case.

[7] In R. v. Obregon-Castro, 2021 ONSC 1318, Akhtar J. discussed competing authorities and concluded that it is a matter of judicial discretion whether to permit the accused to address the jury after the Crown completes its opening. I agree. The jurisprudence indicates that the discretion ought to be exercised only in special or exceptional circumstances.

[8] In R. v. A.D., at para. 17, Dambrot J. outlined the concerns with allowing the accused to open immediately after the Crown:

(1) An opening statement is a review of the evidence that is proposed to be called by a party. The accused is not called upon to decide whether evidence will be called in defence until after the close of the Crown's case. Accordingly, a right to open cannot arise immediately after the Crown opening. This problem was addressed by Barr J. in R. v. Edwards and Edwards (1986), 2 W.C.B. (2d) 220 (Ont. H.C.J.), by permitting the defence to open early only upon undertaking to call evidence. But such an undertaking was considered to be unnecessary by Donnelly J. in R. v. Sood, [1997] O.J. No. 5385 (QL) (Gen. Div.), and by trial judges in several subsequent cases.

(2) On the assumption that the review of the evidence for the defence permitted in the defence opening might include evidence expected to be elicited in cross-examination of Crown witnesses (see R. v. Barrow (1989), 48 C.C.C. (3d) 308 (N.S.S.C.)), the risk that the defence will not produce the evidence promised is high, and the likelihood that the opening will slip into argument is significant.

(3) It would be unfair for the defence to have the opportunity to open twice, but despite making an opening immediately after the Crown opens, the defence retains the statutory right to open at the end of the Crown's case if a defence is called.

[9] Some factors to consider in determining the issue are:

• Length of trial: A concern that the Crown will call evidence for weeks or months without the defence position being apparent to jury.
• Number of counts in the indictment.
• Complexity of factual issues: Risk that the jury will not understand the defence position as the evidence unfolds.
• Predictability of evidence to be called by the Crown (as would likely be the case with a retrial).
• Significant body of, and/or competing expert evidence.
• Nature of the defence relied on, e.g., self-defence.

[10] Some of these circumstances are present in this case. The trial will be lengthy – it is expected to last approximately 12 to 14 weeks. The trial will be complex with numerous police witnesses, circumstantial evidence and expert witnesses to be called by the Crown. However, this is not a case where competing experts will be called. There is one important witness expected to be called by the Crown whose credibility will be important to the case.

[11] A significant factor to consider is that there are two accused in this case. This is a joint trial and Mr. Johnson-Phillips does not seek to deliver an early opening statement. In [R. v. Sandham, 2008), Heeney J. dealt with a case involving six accused. Three of the accused wished to open after the Crown and the other three did not. Heeney J. followed the reasoning of Southey J. in R. v. Church of Scientology of Toronto, [1992] O.J. No 3756 (Ont. S.C.J.) and concluded that the “all or none” approach had merit and was consistent with the provisions of the Criminal Code. Heeney J. said that:

If one or more defence counsel opens immediately after the Crown’s opening, while the others open in the manner specified by the Code, it will create a prejudicial impression in the minds of the jury against those who chose to open in the traditional manner.

Further, Heeney J. held that,

The jury might well infer that counsel for the other accused remained silent because they had nothing positive to say on behalf of their clients or, worse, that they had something to hide.

[12] Mr. Bryant seeks to make an early opening to ask the jury to pay particular attention to certain evidence and absence of evidence, particularly the evidence or absence of evidence of a motive on the part of his client. In my view Mr Bryant will most likely be able to make that point through cross examination.

[13] Although this trial will be long, and the Crown’s case is a complicated circumstantial case, the thrust of the defence is “it wasn’t me”. I agree with the Crown that the defence’s case will likely be apparent to the jury through the cross examination of witnesses. As it was put by Dambrot J. in A.D., at para. 27:

Denial of the opportunity to make an early opening address to the jury will not prevent the accused from getting his position on the important issues in this case before the jury at an early opportunity.

[14] I reach the conclusion that it is not necessary to the trial fairness of Ms. Wynter to have Mr. Bryant make his opening statement immediately following the Crown’s opening. This is not a case where special or exceptional circumstances call for an early defence opening. The fairest course of action is to follow the procedure set out in s. 651 of the Criminal Code.

Original signed by Justice Pamela L. Hebner

Pamela L. Hebner Justice

Released: May 8, 2023