Court File and Parties

COURT FILE NO.: CR-22-70000184 DATE: 20230515 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Anh Chiem

BEFORE: Justice Peter Bawden

COUNSEL: Ms. Bev Richards and Ms. Corrie Langdon, Counsel, for the Crown Ms. Naomi Lutes and Mr. Christopher Lutes, Counsel, for the Defendant

HEARD: March 27 to May 9, 2023

Rulings on Mid-trial Applications

• Mistrial Application
• The Application to Exclude the Evidence of Mr. Mahmood
• Application to Vet Pathology Evidence
• Application to Exclude Failure to Disclose Castleform Litigation
• Application to Compel the Crown to Call Angela Balan
• Crown Application Re Alleges Breaches of Rule in Browne and Dunn
• Crown Application to Call Reply Evidence

Mistrial Application

Introductory Facts

[1] On Friday, March 31, 2023, Mr. Mohammed Faraz was under cross-examination by the defence. The cross-examination was concerned in part with the identification of the woman who attended Mr. Faraz’s U-Haul dealership (Dignity Auto) on December 18, 2020 and drove away in a Ford F150 truck. Concerns arose regarding the interpretation of Mr. Faraz's evidence, and the court went on recess shortly before 12:00 p.m. While he was in the hallway, Mr. Faraz received a phone call from the next anticipated Crown witness, Mr. Mirza Mahmood. Mr. Mahmood asked Mr. Faraz questions about his testimony and the appearance of the defendant. Mr. Faraz and Mr. Mahmood had worked side by side at the Dignity Auto shop in December 2020, and there is evidence that Mr. Mahmood helped Mr. Faraz from time to time when he was away from his business. One could infer that the two men were friends.

[2] The phone call lasted for 12 minutes. Shortly after it ended, Mr. Faraz returned to court to continue his evidence. The interpretation continued to be unsatisfactory, and the court broke for the day. I cautioned Mr. Faraz before he left the courtroom that he remained under cross-examination and must not discuss his evidence with anyone.

[3] Shortly after court was adjourned, Mr. Faraz told his own lawyer, Mr. Carmichael, of the call and sought his advice. His counsel obtained a waiver of solicitor-client privilege and then disclosed to Crown counsel, Ms. Langdon, and the officer in charge, Det. Sgt. Thornton, that the phone call had occurred. Mr. Carmichael assured the officer that the call had nothing to do with Mr. Faraz’s evidence. A discussion ensued between the two Crown Attorneys and Det. Sgt. Thornton. As a result of that discussion, D.S. Thornton interviewed both Mr. Faraz and Mr. Mahmood regarding their conversation. The Crown did not attempt to reconvene the court or otherwise seek leave of the court to interview Mr. Faraz when he was under cross-examination.

[4] Defence counsel were not advised of the breach of the exclusion of witnesses order or the investigation undertaken by Det. Sgt. Thornton. The defence first received notice of these events on Saturday, April 1, when the Crown disclosed the audio files of the interviews. Defense counsel, Ms. Lutes, served a Notice of Application for a mistrial on Sunday evening. If that application failed, the defence sought the alternative remedy of excluding Mr. Mahmood as a witness at this trial.

The Grounds for the Mistrial Application

[5] Mr. Faraz testified in-chief that on December 18, 2020, he met with the woman who had been renting an F-150 truck that week. He assisted her to retrieve a cellphone from the truck. The woman said that she would be renting the truck again that day and would return in 20 to 30 minutes to do so. Mr. Faraz waited for several hours but the woman did not return. He eventually had to go home but gave the keys to the truck to a mechanic who worked at Dignity Auto who he knew only as “Sajjad”. He asked Sajjad to give the keys to the woman if she returned.

[6] Mirza Mahmood goes by the name “Sajjad”. The Crown anticipates that Mr. Mahmood will testify that later on December 18, Ms. Chiem returned to the U-Haul outlet, and he gave her the keys to the truck. Police have never conducted an out-of-court identification procedure to test Mr. Mahmood’s ability to identify the suspect. Despite the absence of any prior identification, the Crown proposes to ask Mr. Mahmood if he can identify the woman who he dealt with in court.

[7] D.S. Thornton asked Mr. Faraz to recount his conversation with Mr. Mahmood during the 12-minute phone call. Mr. Faraz recalled the following:

• Mr. Mahmood asked him if he had seen the accused in court, what she looked like and what she was wearing.
• Mr. Mahmood told Mr. Faraz, “if you remember about her, how she looked like or anything, let me know, brother.”
• Mr. Mahmood told Mr. Faraz that the woman picked up the truck on the Wednesday, Thursday, and Friday. Mr. Faraz had been uncertain in his own evidence whether the truck had been rented on Wednesday or Thursday.
• Mr. Mahmood told Mr. Faraz that on December 18, he had left the U-Haul dealership about 25 minutes after he opened. Mr. Faraz told Mr. Mahmood that was not what he recalled. The two men discussed what time Mr. Faraz left the dealership that day.
• Mr. Mahmood told him that on Thursday, Ms. Chiem came to pick up her purse out of her car. Mr. Faraz told him that his memory was that she came on Friday and that was to retrieve her phone.
• Mr. Mahmood told Mr. Faraz that they could get in trouble if they didn’t know anything about the case.
• Mr. Faraz felt that Mr. Mahmood was pressuring him to provide details of his previous statement.

[8] D.S. Thornton next interviewed Mirza Mahmood. Mr. Mahmood agreed that he had called Mr. Faraz but denied having shared details about what happened on December 18. He acknowledged that they discussed the days of the week when the U-Haul had been rented and that their recollections in that regard differed. He also disclosed that earlier that day, he had spoken to Umar Baig, the owner of Dignity Auto and another prospective Crown witness. Mr. Baig told him that Mr. Faraz had not obtained a written contract when he rented the truck to the woman. When Mr. Mahmood was asked directly if he had questioned Mr. Faraz about the appearance of the defendant, he admitted that he had.

[9] The jury was excused on Monday, April 3. The court commenced a voir dire to hear evidence concerning the breach of the exclusion order and the potential tainting of witnesses. The Crown introduced the audio recordings of the March 31 interviews of Mr. Faraz and Mr. Mahmood. After hearing that evidence, I advised Ms. Lutes that, in my view, there was no basis to declare a mistrial. It was necessary, however, that the defence have a chance to discover Mr. Faraz and Mr. Mahmood in the absence of the jury to determine what had been said and how it might have affected their evidence. At the conclusion of their evidence, the court would hear submissions regarding the admissibility of Mr. Mahmood’s evidence and his anticipated in-court identification of Ms. Chiem.

[10] Having heard the evidence of D.S. Thornton, Mr. Faraz and Mr. Mahmood on the voir dire, I dismissed the defence application to exclude Mr. Mahmood’s evidence. I did comment to the Crown, however, that I had grave concerns about conducting an in-court identification with a witness who was evidently soliciting information concerning the present-day appearance of the accused. The parties subsequently agreed that there would be no attempt at an in-court identification, and I would instead provide an instruction to the jury to explain its absence. These are my reasons for dismissing the defence applications for a mistrial and to exclude the evidence of Mr. Mahmood.

Findings on the Mistrial Application

[11] A mistrial is a remedy of last resort. It should only be granted in the clearest of cases where no remedy short of a mistrial will adequately reverse the harm which has occurred. The court must consider whether other less drastic steps could remediate the issues that threaten trial fairness. The onus is on the applicant to establish that the right to make full answer and defence has been violated: see R. v. Donnelly, 2023 ONCA 243, at paras. 15-16.

[12] The mistrial application depended on findings of malfeasance. Ms. Lutes submitted that based on Mr. Faraz’s account of the telephone call, Mr. Mahmood was at least attempting to bolster his own identification of Ms. Chiem by obtaining information from Mr. Faraz. It could also be inferred that he was attempting to tamper with Mr. Faraz’s evidence. Mr. Mahmood knew that it was improper to be speaking to Mr. Faraz, as he had been cautioned not to speak to any other witness when he was examined in a pretrial discovery appearance. Mr. Mahmood’s actions are said to go beyond the mere tainting of evidence. It was an effort by a yet-to-be-called witness to learn another witness’s evidence to make his own testimony more believable. Put simply, it was an attempt to obstruct justice.

[13] The malfeasance of Mr. Mahmood was said to be exacerbated by the actions of the officer in charge. DS Thornton interviewed a witness who was under cross-examination, knowing that the witness had been directed by the court not to speak to anyone about his evidence. Moreover, the interview touched on a point which had arisen in the cross-examination, that being the identification of Mirza Mahmood as “Sajjad”. It was entirely foreseeable that Mr. Faraz would stray into a discussion of his ongoing evidence during the interview and that in fact occurred. Ms. Lutes submits that the appropriate course would have been to alert the defence immediately of the suspected breach of the exclusion order and reconvene the court to explore the alleged breach on the record.

[14] I agree with that submission.

[15] The decision to interview a witness who was under cross-examination without first seeking leave of the court was ill-advised. There is no implied exception to a witness exclusion order that permits the Crown or police to interview a witness who is under cross-examination.

[16] Although D.S. Thornton initially understood that the conversation between Mr. Faraz and Mr. Mahmood did not concern Mr. Faraz’s evidence, it quickly became apparent during the interview that it did. The officer did not terminate the interview when she realized that it touched on the testimony of the witness who was then under cross-examination. If defence counsel interviewed a witness who was under Crown cross-examination, it would likely give rise to considerations of contempt. The breach of the same Order by officers of the Crown is no less grave.

[17] The Crown’s first step should have been to alert the court to the possible breach of the Order and to receive direction as to how to proceed. If that had occurred, the court would have undertaken a voir dire to hear evidence of a breach and any possible tainting effect. The Crown and defence would have had an equal opportunity to explore the evidence in that hearing and the court would have controlled the inquiry into a breach of its own Order. The Crown’s decision to proceed unilaterally deprived the defence of its right to participate equally in the conduct of this trial. The Crown also usurped the jurisdiction of this court to direct the inquiry into a breach of its own Order. In my view, this was an error in judgment which in other circumstances might have constituted grounds for declaring a mistrial.

[18] There are two reasons why I did not declare a mistrial:

a. The conduct of the Crown did not impair Ms. Chiem’s right to a fair trial; and b. The means to address any potential harm are readily at hand.

[19] I do not find that D.S. Thornton acted in bad faith when she interviewed the two witnesses. She had been told by counsel for Mr. Faraz that the call was not related to the evidence heard at trial and was surprised to learn during her interview of Mr. Faraz that it did. It is apparent that D.S. Thornton received the approval of Crown counsel prior to conducting the interviews. Her questions were focused on the content of the telephone call, not Mr. Faraz’s testimony. Although Mr. Faraz did comment on topics which had arisen in his testimony, this was not at the behest of the officer, and it had no tainting effect on his evidence. The officer’s subsequent interview of Mr. Mahmood similarly explored only the possible breach of the court’s Order and had no possibility of tainting the witness.

[20] I also find that the defence was not ultimately prejudiced by the actions of the Crown. The interviews took place very shortly after the phone call took place and therefore captured the best recollections of both men regarding what was said. The information disclosed in the interviews was sufficient to inform the defence of all aspects of the breach of the Order and formed the premise of the mistrial application. Subsequent cross-examination under oath did not reveal any significant additional evidence.

[21] Any harm done to Ms. Chiem’s right to a fair trial was remedied by allowing the defence to explore the evidence of Mr. Mahmood and Mr. Faraz in a voir dire. Ms. Lutes was given wide latitude to cross-examine both witnesses. The out-of-court communications between the witnesses ultimately caused no harm to the defence and arguably held some benefits. The conflicting evidence of Mr. Faraz and Mr. Mahmood concerning an improper communication provided the defence with a windfall opportunity to impugn the credibility and reliability of both Crown witnesses, and Ms. Lutes employed those contradictions to good effect.

[22] I would not declare a mistrial in these circumstances.

The Application to Exclude the Evidence of Mr. Mahmood

[23] The defence alternatively sought to exclude the evidence of Mr. Mahmood. There is authority at common law to exclude evidence where the admission would render the trial unfair: see R. v. Harrer, [1995] 3 S.C.R. 562, at paras. 23-24. Mr. Mahmood attempted to learn the content of another witness’s evidence to make his own testimony more accurate or believable. To preserve the fairness of the trial, it is necessary to exclude altogether the evidence of a witness who has so misconducted himself. Ms. Lutes relies on the case of R v. Latimer.

[24] In Latimer, an officer who was near the end of cross-examination shared details of his testimony with another officer who was yet to be called as a witness. When questioned about having breached an Order not to discuss his evidence, the officer denied having done so. The trial judge rejected the officer’s evidence and found that the conduct of the two officers breached the right of the accused to a fair trial. The court dismissed a defence application for a judicial stay of proceedings but did exclude the evidence of the second officer who had not yet testified.

[25] I would distinguish this case from Latimer based on the facts. In Latimer, two professional witnesses conspired to breach a court Order and then lied under oath to conceal their misconduct. Mr. Mahmood’s misconduct does not approach that level of seriousness. I accept that Mr. Mahmood called Mr. Faraz to obtain information which would assist him in identifying the defendant in court. I also accept that Mr. Mahmood was attempting to reconcile any potential inconsistencies between his evidence and that of Mr. Faraz. Mr. Mahmood undertook these actions despite having been told that he was to have no contact with any other witness. Mr. Mahmood deliberately attempted to frustrate the purpose of the exclusion Order and did so in a surreptitious manner. There is no doubt that this was serious misconduct.

[26] My concerns about the seriousness of the misconduct were attenuated, however, by his evidence on the voir dire. The evidence satisfies me that Mr. Mahmood is a very simple man. He worked as the sole mechanic at a small local garage and, through no fault of his own, was drawn into the maelstrom of a first-degree murder trial. He has returned from his native Pakistan to testify concerning an unremarkable encounter with a woman which occurred almost two-and-a-half years ago. It is obvious from the questions that he put to his friend, Mr. Faraz, that he is deeply uncertain of his ability to identify that woman. That uncertainty must be viewed with some sympathy.

[27] Mr. Faraz recalled that Mr. Mahmood told him that he didn’t remember what the woman looked like and asked Mr. Faraz if he could tell him what Ms. Chiem looked like. Mr. Faraz tried to put him off, saying that he only saw her briefly and she looks like a Chinese lady, but he couldn’t remember anything else. Mr. Mahmood said “you don’t know anything about her? Because you could be in trouble… if you don’t know anything about the case.” This statement, in my view, goes to the heart of understanding why Mr. Mahmood questioned Mr. Faraz regarding the appearance of the defendant.

[28] It seems incomprehensible to those of us who are familiar with the Justice System to think that a witness would fear getting in trouble for his inability to identify a suspect that he met briefly over two years ago. I do not put that concern beyond Mr. Mahmood. Given the seriousness of this case, I can well understand why an unsophisticated witness such as Mr. Mahmood might fear adverse consequences if he was unable to provide evidence on an obviously crucial point such as identification. Mr. Mahmood has no knowledge of the balance of the Crown’s case establishing the identity of the Chinese woman who received the key to the F-150 on December 18. It is regrettable but, in my view, not entirely surprising that Mr. Mahmood attempted to shore up what he believed to be a glaring gap in his evidence by speaking to his one-time friend, Mr. Faraz.

[29] While I obviously condemn Mr. Mahmood’s attempt to bolster his identification evidence, I do not find that he intended to obstruct justice. In my view, it was more an act of misunderstanding than malfeasance.

[30] This is not a case of misconduct by state officials. Mr. Mahmood was acting entirely on his own when he contacted Mr. Faraz. Mr. Faraz immediately reported the breach, and it was investigated. Any concern that the evidence of either Mr. Faraz or Mr. Mahmood has been tainted can be fully explored through cross-examination before the trier of fact: see R. v. Dikah (1994), 18 O.R. (3d) 302, at p. 314.

[31] Excluding the testimony of Mr. Mahmood altogether would have a disproportionate effect on the Crown’s case. Mr. Mahmood’s anticipated identification of Ms. Chiem, if it occurs at all, will be of negligible value in the trial. The matters which he discussed in his ill-advised call to Mr. Faraz are almost entirely tangential to his evidence. The truly important aspect of Mr. Mahmood’s testimony is that he did provide the key to the F-150 to an Asian woman on December 18. He provided a complete audio statement to police that night concerning those events and there is no suggestion that his anticipated evidence on these core points could be affected by his conversation with Mr. Faraz. To exclude his evidence altogether would unnecessarily deprive the Crown of reliable evidence, essential to the narrative.

[32] The jury will be well equipped to assess the weight to be placed on Mr. Mahmood’s testimony. My final instructions will include a short recitation of the facts concerning the improper contact with Mr. Faraz. The jury will be instructed to decide what was said in the conversation and assess how it may impact on the credibility of one or both witnesses.

[33] The application to exclude Mr. Mahmood’s testimony is respectfully dismissed.

Application to Vet Pathology Evidence

[34] The Crown proposed to call Dr. Williams, a forensic pathologist who performed the autopsy on the body of Scott Rosen. Defence counsel opposed the admission of detailed evidence concerning the injuries suffered by Mr. Rosen on the basis that the evidence was of negligible probative value given the issues in the case and that its admission risks inflaming the jury against the defendant.

[35] These are my reasons for permitting the Crown to introduce the evidence.

[36] Ms. Lutes has stated in the absence of the jury that the issue in this case is identification. While I am thankful for that indication, I observe that nothing has been formally conceded in the presence of the jury. Absent a concession, the Crown is obliged to prove intent to kill beyond a reasonable doubt.

[37] One element of the Crown’s case in proving intent is motive. Motive is also relevant to proving the identity of the killer. The Crown argues that the catastrophic injuries inflicted on Mr. Rosen are not only emblematic of an intention to kill but demonstrate a motive so extreme that it can only be characterized as sheer hatred. The Crown anticipates calling evidence which will establish that Ms. Chiem had just such an extreme animus towards Mr. Rosen.

[38] The pathology evidence is also said to be relevant to establishing the sequence of events that caused Mr. Rosen’s death. A surveillance video camera captured the movement of the truck as it first drove towards Mr. Rosen and pinned him against the west wall of the garage. The force of the first collision against the wall damaged an electrical panel causing the security camera to malfunction, ending the video recording. A civil witness, Alexandru Hariton, testified that he heard the first collision and then watched as the truck reversed, then came forward again and struck Mr. Rosen a second time. That testimony will be corroborated by evidence from an expert in collision reconstruction. Although Mr. Hariton’s evidence regarding the movements of the truck was not challenged in cross-examination, his reliability on other points was challenged.

[39] The Crown’s object in introducing the pathology evidence is to establish that the injuries suffered by Mr. Rosen far exceed what could have been caused by the first strike, which does appear on video. The tearing of internal organs, massive skin lacerations and extensive bone fracturing corroborate the findings of the accident reconstructionist that the truck not only struck Mr. Rosen twice but also passed over his body as he lay on the ground. The Crown does not propose to introduce photographs of these injuries but will instead rely on Dr. Williams’s description of his observations and a hand-drawn diagram which illustrates only the location and size of the various wounds.

[40] I find that the pathology evidence has significant probative value in proving matters which are in issue in this trial. The injuries directly corroborate the testimony of Mr. Hariton and the expert reconstructionist. Their evidence is likely to extinguish any conceivable doubt about the driver’s intent to kill. It is also capable of supporting the inference that the person who so deliberately inflicted such massive injuries on Mr. Rosen must have carried an extreme malice towards him. The fact that Ms. Chiem evidently did hold such malice is capable of supporting an inference that she was the driver of the truck.

[41] The Crown has tailored the evidence to minimize any risk of inflaming the jury. The hand-drawn diagrams of Dr. Williams are clinical in nature and, if anything, diminish the horrific nature of the injuries. I cannot foresee any realistic risk that the hand-drawn diagrams or accompanying descriptions will inflame the jury against Ms. Chiem. Given that the real issue in this case is going to be identification, it seems unlikely that the jury will be unduly concerned with the pathology evidence.

[42] I am satisfied that the probative value of the evidence vastly outweighs any prejudicial effect, and it will be admitted.

Application to Exclude Failure to Disclose Castleform Litigation

[43] The Crown intends to elicit evidence that Ms. Chiem filed a false Statement of Affairs when filing for bankruptcy in July 2018. Mr. Morgan will testify that Ms. Chiem was required to disclose her involvement in any ongoing litigation and that obligation was explained to her.

[44] Ms. Chiem was both a defendant and counter claimant in the Castleform litigation at the time that she swore her Statement of Affairs.

[45] The defence opposes the admission of this evidence. It is submitted that evidence that Ms. Chiem swore a false document is highly prejudicial evidence tending to show that she is dishonest and of bad character. The probative value of the evidence is said to be negligible because it is undisputed that the Castleform litigation was not disclosed to the Estate Trustee and that fact will come to the jury’s attention without the need to disclose that Ms. Chiem made a false declaration under oath.

[46] I am not satisfied that the admission of the evidence would be significantly prejudicial to Ms. Chiem.

[47] The proposed evidence does not conclusively prove that Ms. Chiem intentionally made a false statement. The Statement of Affairs form does not include any reference to an obligation to disclose ongoing litigation. A bare reading of the form would not lead an uninitiated reader to conclude that the declaration was false. The evidence will include the fact that Ms. Chiem did not have a Vietnamese interpreter or legal counsel present when she signed the form.

[48] While I agree that the jury could infer that the statement was intentionally false, it is not an irresistible inference. It would be open to counsel to argue against drawing the inference based on the evidence led by the Crown. It is obviously also open to Ms. Chiem to testify and explain her state of mind when she swore the document. There is nothing inherently unfair about such factual contests.

[49] In assessing the prejudicial effect of admission, I consider this evidence against the backdrop of the other evidence which this jury has heard. Ms. Chiem made a series of false and highly defamatory allegations against Mr. Rosen to the Law Society of Ontario (“LSO”). She alleged that Mr. Rosen was pursuing a personal vendetta against her, that he repeatedly lied to the courts and vexatiously pursued false claims against her for his own financial benefit. She went so far as to allege that he was behaving in a psychotic manner which caused her to fear for her own safety and that of her family. The admissibility of those statements is not contested. Ms. Chiem’s allegations to the LSO were patently false and obviously made for malicious purposes. Her emails to the LSO are but one example of the plethora of dishonest behaviour by Ms. Chiem which has come to the jury’s attention. Viewed against that backdrop, her failure to provide complete disclosure in her declaration of bankruptcy is a relatively minor instance of dishonesty.

[50] In assessing any potential prejudice to the defence in admitting the evidence, I also take into account the fact that there is no concern that the evidence will lead the jury to draw any impermissible inference of propensity. This is not a case where the admission of discreditable conduct evidence is likely to lead the jury to find that the accused is more likely to have committed the offence which is before the court. There is simply no risk that the jury will conclude that Ms. Chiem is predisposed to murder based on the fact that she swore a false document in bankruptcy proceedings.

[51] On the other side of the ledger, I do find that the proposed evidence has significant value in furthering the truth-seeking function of a criminal trial.

[52] The fact that Ms. Chiem failed to disclose the Castleform litigation in her Statement of Affairs is an important element of the narrative in this case. If the jury does find that the omission was intentional, it permits the inference that Ms. Chiem was attempting to derail the litigation by clandestine means. That is clearly the inference that Mr. Rosen drew, as evidenced by his communications with Mr. Koster of the LSO. Once he learned of Ms. Chiem’s efforts, Mr. Rosen methodically blocked her at every turn using a variety of irreproachable legal tactics. When Ms. Chiem realized that she had no legal means of achieving her ends, she resorted to making a series of false and ultimately ineffective allegations to the LSO. The Crown will argue that Ms. Chiem’s motive to kill Mr. Rosen arose from her realization that he alone stood between her and a successful declaration of bankruptcy. Having exhausted every other means of removing Mr. Rosen as an obstacle, Ms. Chiem set out to kill him.

[53] Ms. Chiem’s false declaration in the bankruptcy proceedings is the first step in the narrative chain that the Crown relies on to prove that motive. It provides important context for Mr. Rosen’s subsequent response to the LSO’s investigations and the Crown theory that the events of December 18, 2020 were the culmination of years of determined efforts by Ms. Chiem to dishonestly advance her own interests and her increasing frustration with Mr. Rosen’s unwavering and skillful opposition to those efforts.

[54] In my view, the probative value of the evidence easily outweighs any prejudice which attends the admission of this evidence. Any concern about the discreditable component of the evidence can be addressed in my Charge if defence counsel wish such an instruction.

Application to Compel the Crown to Call Angela Balan

Introduction

[55] Angela Balan was walking with her husband, Alexandru Hariton, on the south side of Eglinton, immediately across from the underground at 234 Eglinton Avenue. She heard a heavy collision which drew her attention to the north side of the street. Ms. Balan looked towards the garage and saw Mr. Rosen falling. She then saw what she described as a white van reversing at an angle inside the parking lot and then accelerating to high speed, striking Mr. Rosen a second time, and then running over his prone body.

[56] Ms. Balan was interviewed by police on scene and gave a videotaped statement later that night. In that statement, she described walking across Eglinton towards the garage as the van came out of the underground. There were no obstructions between Ms. Balan and the oncoming van, and she had a “very good” look at the driver. She gave the following description:

i. Male ii. Mid 20’s to Mid 30’s iii. Wearing a black toque iv. Dark hair v. Dark brown skin colour vi. Clean shaven vii. Very big white eyes. viii. No mask ix. “Puffier” lips x. Not tall

[57] This description of the perpetrator cannot be reconciled with the appearance of the defendant, Ms. Chiem. If the jury accepts that Ms. Balan’s description of the driver might reasonably be true, it will certainly give rise to a reasonable doubt about Ms. Chiem’s culpability. The Crown does not intend to call Ms. Balan as a witness at this trial.

[58] Ms. Lutes applies for an order to compel the Crown to call Ms. Balan or, alternatively, for the court to call her as the court’s witness. It is submitted that Ms. Balan is an unbiased eyewitness who was in a very good position to see the perpetrator. She gave a detailed description less than four hours after the incident. Other aspects of her evidence (such as her description of the movements of the vehicle in the underground) have been proven to be reliable. The only area where her evidence materially differs from that of her husband (who was called as a Crown witness) is her description of the perpetrator. Ms. Lutes contends that the only material difference between the two witnesses is that Mr. Hariton’s description of the perpetrator is too general to exclude Ms. Chiem whereas Ms. Balan’s description effectively exonerates Ms. Chiem.

[59] The Crown adamantly opposes the application. The Crown views Ms. Balan’s evidence to be highly unreliable and foresees a vigorous cross-examination based on video which purportedly disproves her evidence regarding the sequence of events and her opportunity to observe. It is the position of the Crown that Ms. Balan’s testimony has every likelihood of misleading the jury and the Crown has no obligation to call an unreliable witness whose testimony will detract from the truth-seeking purpose of a criminal trial. Trial fairness is not only the right of the accused. It equally protects the right of the Crown to cross-examine a witness who gives evidence that the Crown factually disputes.

Related Authorities

[60] Ms. Lutes relies on the decision of Justice Pomerance in R. v. Hillis, 2016 ONSC 451. In Hillis, the court ruled that the defence would be entitled to elicit evidence from certain Crown witnesses regarding the words and actions of the accused which supported his position that he was acting in self defence when he killed the deceased. Shortly after that decision was released, the Crown removed those witnesses from the Crown’s witness list. The Crown acknowledged that the evidence of the witnesses was reliable and the only reason that they were not being called by the Crown was that their evidence tended to exculpate the accused: see paras. 20 and 28. One of the witnesses who the Crown had decided not to call was a civilian who gave detailed evidence regarding his observations of the alleged offence. The Crown was calling other witnesses who were similarly situated and had less evidence to offer but would not call the witness with the most detailed evidence because his testimony would include exculpatory statements made by the accused. The defence applied for an order to compel the Crown to call the witnesses.

[61] Justice Pomerance concluded that the Crown’s decision not to call the exculpatory witnesses was a matter of trial tactics which is reviewable on a standard of trial fairness: see para. 41. She concluded that the defendant should not have to give up the procedural advantages of cross-examining the witnesses and addressing the jury last due to an unfair action by the Crown. Justice Pomerance acknowledged that the requested remedy was an exceptional one, but concluded that it was essential in order to do justice. The Crown was ordered to call the witnesses.

[62] Justice Akhtar respectfully declined to follow Hillis in R. v. Cheveldayoff, 2018 ONSC 4329, at para. 29. In his view, the finding in Hillis runs contrary to the decisions of the Supreme Court of Canada in R. v. Cook, [1997] 1 S.C.R. 1113 and R. v. Jolivet, [2000] 1 S.C.R. 751. Neither of those cases suggest that the Crown can be directed to call a witness who will give evidence which is contrary to the Crown’s own case: see Cheveldayoff, at paras. 30 – 31.

Findings

[63] These circumstances do not warrant the requested intervention in the adversarial process. Hillis does not suggest that the Crown should be ordered to call a witness that the Crown considers to be unreliable. That is the position that the Crown takes with respect to Ms. Balan and, based on the material filed on this voir dire, I am satisfied that the Crown does have legitimate grounds to challenge the reliability of Ms. Balan’s evidence regarding both her opportunity to observe the driver and her subsequent description of that person.

[64] There is evidence that Ms. Balan was profoundly shocked by seeing Mr. Rosen’s violent death. Mr. Hariton testified that his wife was visibly in shock as they approached the scene and was unable to speak to the 911 operator such that he had to take the phone from her. P.C. Mazzeo testified that, when he arrived on scene, he instantly recognized that Mr. Rosen had suffered horrific injuries and immediately inquired about the well-being of Mr. Hariton and Ms. Balan because he could see signs that they were both in shock. When Ms. Balan was interviewed a short time later at a police station, she had to stop at several points while she gave her statement because she was so distraught that she was unable to breathe.

[65] Ms. Richards played a video clip from the scene which she proposes to use in cross-examination if Ms. Balan is called as a Crown witness. The video was disclosed to the defence but has not, to this point in the trial, been introduced into evidence. The video shows the white U-Haul truck as it left the underground garage and turned right onto Eglinton Avenue to escape the scene. In her statement to police, Ms. Balan had said that she saw the back of the fleeing truck as she crossed Eglinton to attend to the victim. The video seemingly refutes that evidence. It shows that at least 15 seconds passed from the time that the truck turned right onto Eglinton before Ms. Balan and her husband approached the garage door. The video camera was motion sensitive and stopped recording prior to their arrival at the entrance to the underground. The time elapsed between the departure of the truck and the arrival on scene of Ms. Balan is no less than 15 seconds and could well be more. The video seemingly conclusively disproves Ms. Balan’s anticipated evidence that she was not looking at the back of the truck as she crossed the street.

[66] The video also calls into question Ms. Balan’s recollection that she was able to see into the truck through the passenger window and make an identification of the driver. Ms. Balan told police that the driver was not wearing a mask but there is a host of evidence including video from the underground that strongly suggests the driver was masked. It might also be said that the video does not substantiate Ms. Balan’s evidence regarding her vantage point to observe the driver.

[67] There is no basis to find any oblique motive on the part of the Crown in not calling this witness. There is a legitimate controversy concerning the reliability of her evidence. The Crown does not propose to cross-examine the witness concerning extraneous evidence outside of her knowledge, something that in my view could be unfair. The Crown only proposes to cross-examine on evidence regarding her own demeanor on the night of the killing, and video evidence which flatly contradicts significant elements of her own recollections. This line of cross-examination does not give rise to any unfairness.

[68] If the witness is unable or unwilling to testify in keeping with her previous statements and testimony, I will afford wide latitude to defence counsel in refreshing her memory, cross-examining on previous statements and potentially even admitting prior testimony for the truth of its contents. There are many means available to assist the defence in putting this important evidence before the jury short of the exceptional remedy of ordering the Crown to call the witness. To do so would be an unwarranted intrusion into the adversarial process. This is not a case where the Crown is attempting to avoid unfavorable evidence. There is a legitimate controversy concerning the weight that should be placed on the witness’s evidence and the familiar rules of evidence are designed to resolve exactly such controversies.

Crown Application Re Breaches of the Rule in Browne and Dunn

[69] The Crown submits that the defence breached the rule in Browne and Dunn by failing to confront Mr. Faraz, Mr. Mahmood and Mr. Baig with the anticipated evidence of Ms. Chiem that there was a second male mechanic who worked at Dignity Auto, a young male between the ages of 17 to 25 who spoke Hindi. The Crown seeks to recall Mr. Faraz and Mr. Baig to give their evidence on this issue. Mr. Mahmood has returned to Pakistan and is no longer available as a witness.

[70] Mr. Mahmood testified in-chief that he was the only mechanic who worked at Dignity Auto and he was Mr. Baig’s only employee. He worked Monday to Friday from 9 am to 5 p.m. Mr. Faraz worked in the office with him, and their desks were only two feet apart. He would occasionally help Mr. Faraz by moving vehicles or handing out keys to rental vehicles when Mr. Faraz was not present. On December 18, Mr. Faraz asked him to give the keys of the Ford F-150 to a Chinese woman who was going to be coming into the shop. Mr. Faraz described the woman to Mr. Mahmood as the same woman who he had assisted to retrieve a wallet from the truck and who had been at the dealership previously. Mr. Mahmood knew who Mr. Faraz was speaking of because he had seen a Chinese woman at the dealership on Wednesday and Thursday of that week. He had been present in the office when Mr. Faraz spoke to the woman on December 16.

[71] Mr. Mahmood was cross-examined on April 5. He was challenged on his recollection that Mr. Faraz had identified the Chinese woman as the same woman who he had assisted to retrieve a wallet from the car. It was suggested to him that Mr. Faraz did not identify her by reference to any such incident. Mr. Mahmood was certain that he did.

[72] Mr. Mahmood was not questioned on the presence of any other mechanic or person at Dignity Auto apart from himself and Mr. Faraz. It was never suggested to him that there was a 17–25-year-old mechanic who was present at the shop and in the office on occasions when he was not present. Mr. Mahmood’s testimony that he was the only mechanic and had sole responsibility for the property went unchallenged.

[73] Mr. Faraz testified in-chief that on December 18, he told the mechanic, Sajad, to give the key to the Ford F-150 truck to “the same lady” when she came in. He described Sajad as the mechanic who worked at Dignity Auto and there is no dispute that the man that he knew as “Sajjad” is Mirza Mahmood. The Crown asked Mr. Faraz if Sajad worked every day of the week and Mr. Faraz answered, “not every day”. Mr. Faraz was not asked in-chief to explain why he believed that Sajjad would know who he was speaking of when he said, “the same lady”.

[74] Mr. Faraz was cross-examined regarding other men working at the dealership. On March 31, Ms. Lutes asked him how many mechanics worked for Mr. Baig and Mr. Faraz said that he did not know. He was then asked if it was possible that there was more than one and he said that was possible. It was not suggested to him that there was a young mechanic that he spoke to in Hindi who had been present on the occasions that he dealt with Ms. Chiem.

[75] Ms. Chiem’s evidence regarding her attendance at Dignity Auto began on April 21.

[76] She testified that when she attended for the first time on December 15, she spoke to Mr. Faraz in the office. There was another male in the office at that time. Ms. Chiem described that male as a young man between the ages of 17-25 and he was a mechanic. She saw the same man when she returned to the dealership on December 16. He was the only person present at the dealership when she arrived on Wednesday, and she spoke to him. The man told her that he was Persian and that he spoke to Mr. Faraz in Hindi. Ms. Chiem testified that she never saw Mirza Mahmood at the dealership on any occasion and denied that he ever assisted her to retrieve an item from the truck.

[77] The Crown alleges a breach of the rule in Browne and Dunn. The Crown observes that the cross-examination of Mr. Faraz only inquired about the possibility that Mr. Baig employed a second mechanic. It did not include any suggestion that Mr. Faraz knew the other mechanic, spoke to the other mechanic in Hindi or, most importantly, that the other mechanic had been present when he dealt with Ms. Chiem.

[78] The cross-examination of Mr. Mahmood did not include any challenge to his evidence in chief that he was the only mechanic who worked at the shop and was solely responsible for the premises. The Crown submits that Mr. Mahmood was ideally placed to answer Ms. Chiem’s anticipated testimony that she had seen a 17–25-year-old mechanic at the shop on December 15, 16 and 17. Those questions were never put to Mr. Mahmood. This was unfair to Mr. Mahmood insofar as it impugned his testimony on a key point without ever providing him with an opportunity to respond. It was also gravely unfair to the Crown because the witness who is best situated to refute Ms. Chiem’s testimony is no longer available to answer her evidence because he has returned to his native Pakistan. This eventuality was clearly foreseeable at the time that he was cross-examined.

[79] I agree with the Crown’s submissions.

[80] Beginning with Mr. Faraz, there was a breach of Browne and Dunn in failing to put the specific suggestion to Mr. Faraz that there was a 17–25-year-old mechanic who worked with him at Dignity Auto.

[81] The fact that Mr. Faraz was questioned in an open-ended fashion about the possibility that other mechanics worked for Mr. Baig was not sufficient to put the witness on notice of the anticipated evidence of Ms. Chiem. Ms. Chiem’s evidence contradicted him on a material point and, if her evidence is accepted, it would impugn his credibility and reliability.

[82] The failure to put the anticipated evidence to Mr. Mahmood was an egregious breach. The fact in issue is significant in the context of this case. The evidence of Ms. Chiem directly contradicted Mr. Mahmood’s testimony on a material point and he was not provided with an opportunity to respond. If the jury were to accept the evidence of Ms. Chiem, it would amount to a conclusion that Mr. Mahmood must have been lying when he testified that he was at the shop from 9 am to 5 pm every day. It would also require the jury to reject the evidence of Mr. Baig, who testified that Mr. Mahmood was his only employee, and he would supervise the shop by video on any occasion that Mr. Mahmood was away. Neither the witnesses nor the Crown were alerted to Ms. Chiem’s version of events at a time when they were in a position to answer it.

[83] Ms. Lutes argues that the defence could not confront Mr. Mahmood on this point without losing the benefit of an earlier ruling which prevented Mr. Mahmood from making an in-court identification of Ms. Chiem. With respect, the defence could have challenged Mr. Mahmood’s testimony that he had sole responsibility for supervising the garage and was the only mechanic who worked at Dignity Auto without making any reference to the identity of the woman who attended Dignity Auto. The issue of whether Mr. Mahmood had direct dealings with Ms. Chiem could have easily been kept distinct from the question of whether there was a second mechanic working at the shop.

[84] In my view, the breach of Browne and Dunn has given rise to an unfairness to the three witnesses, the Crown and the jury.

[85] There are three potential means to remedy the unfairness:

i. The ideal remedy would be to recall Mr. Mahmood. That appears to be impossible. ii. An alternative remedy is to permit the Crown to recall Mr. Baig and Mr. Faraz to provide their response to the evidence of Ms. Chiem. It is difficult for me to assess how effective a remedy that would be, given that I am currently uncertain of what their evidence would include. My expectation is that both men, when provided with the description of the young mechanic provided by Ms. Chiem, would immediately deny any possibility that a male of that description was present in the shop during the week of December 15-18. If so, that is likely a satisfactory remedy from the Crown’s perspective. iii. The third option is to provide the jury with a fulsome instruction concerning the absence of any challenge to the testimony of Mr. Mahmood and the impact that may have on the weight that they will place on that aspect of Ms. Chiem’s testimony. The benefits of this third option include the fact that my direction can be tightly controlled (unlike the viva voce testimony of witnesses), the significant time savings of not recalling witnesses and the minimization of prejudice to the defence (recognizing that there will already be a substantial amount of reply evidence concerning the motive-comprehension issue.)

[86] I invite the Crown to send me additional information concerning the anticipated reply evidence of Mr. Baig and Mr. Faraz so that I can assess the probative value and duration of the potential reply. I will hear the parties briefly on Monday morning at 9 a.m. regarding the appropriate remedy for the breach.

[87] The Crown also sought to recall Mr. Faraz to give evidence concerning the amount of cash that Ms. Chiem deposited on December 15 and their agreement concerning the length of the rental. I have reviewed the evidence on this point and conclude that the issue was canvassed in detail in Mr. Faraz’s examination-in-chief and, although Ms. Chiem’s anticipated evidence was not put directly to Mr. Faraz, it was clear that the defence did not accept his evidence on the point. Seen in the wider context of this trial, the agreement between Mr. Faraz and Ms. Chiem is a lesser matter and does not merit calling additional evidence. In my Charge to the jury, I will review the competing evidence on this point and simply note that Mr. Faraz did not have the chance to comment on Ms. Chiem’s evidence regarding the terms of their agreement.

Crown Application to Call Reply Evidence

[88] The issue in this trial is the identity of the person who was driving the U-Haul truck in the underground parking lot of 234 Eglinton Ave on December 18. One element of the Crown’s case is motive. The fact that the accused had a strong animus towards the deceased is a circumstance from which the jury may infer that she was the killer.

[89] The motive is established in part by evidence that the deceased, acting in his role as counsel, took steps to prevent the accused from being discharged from bankruptcy and was investigating her beneficial interest in a property located at 28 Elder Avenue. The Crown will argue that these actions infuriated the accused and prompted her to file a series of false complaints concerning Mr. Rosen’s conduct to the LSO. The evidence establishing the framework for the motive was introduced through Mr. Mark Morgan, Ms. Chiem’s estate trustee, and Mr. Tom Koster, an investigator for the LSO. Both men spoke and corresponded with Ms. Chiem in English.

[90] As Ms. Chiem's estate trustee, Mr. Morgan was obliged to advise her regarding the status of her bankruptcy and the overlap between the bankruptcy proceedings and the outstanding litigation with Castleform. In his lengthy testimony, Mr. Morgan did not express any uncertainty regarding Ms. Chiem’s comprehension of the information which he provided to her in oral and written English. It was not suggested to him in cross-examination that there were any signs of misunderstanding.

[91] Mr. Koster testified that he spoke to Ms. Chiem on November 25, 2020, for roughly 17 minutes. The purpose of the call was to give Ms. Chiem a chance to explain her complaints about Mr. Rosen. Mr. Koster testified that he was gathering facts for his investigation by speaking to Ms. Chiem. Mr. Koster indicated in his examination-in-chief that he had no difficulty understanding Ms. Chiem and there was no sign that she did not understand him.

[92] The evidence in this trial has established that Ms. Chiem speaks English fluently. She has lived in Canada since 1980. She has represented herself in several civil proceedings without the assistance of an interpreter. At points during this trial, Ms. Chiem challenged the interpretation provided by accredited Vietnamese interpreters and, during her own testimony, spontaneously responded to questions in English. Ms. Lutes acknowledges that Ms. Chiem has a good command of spoken English.

[93] It is common ground that the Crown presumed that Ms. Chiem was sufficiently fluent in English that she understood the bankruptcy information provided by Mr. Morgan and the contents of the written complaints which she submitted to the LSO. The Crown maintains that if there had been any indication during the cross-examination of these witnesses that Ms. Chiem did not comprehend what they were saying to her in English, the Crown would have elicited evidence to settle the issue. The Crown’s presumption was not rebutted until Ms. Chiem’s examination-in-chief.

[94] Ms. Chiem testified in emphatic terms that she did not understand the law or facts which give rise to the alleged animus. The clear implication of her evidence was that she had little or no animus against Mr. Rosen because she wasn't aware that his actions had detrimental consequences to her. Her evidence in-chief included the following assertions:

i. She was no longer involved in the Castleform litigation in December 2020 and her name only appeared on the documents because she owed debts. ii. She denied any understanding of a certificate of pending litigation and hence any appreciation of the legal effect of Mr. Rosen obtaining a certificate for the 28 Elder property. iii. She did not intentionally omit the Castleform litigation in her 2018 Statement of Affairs because she did not know that she was required to make the declaration. Mr. Morgan's assistant (now identified as Ms. Nehron) filled out the entire form on her behalf. iv. She did not know why Mr. Rosen attended her bankruptcy proceedings on September 23, 2019, and, by implication, she did not comprehend that his attendance had any detrimental consequences to her. v. She did not write the emails which she submitted to the LSO alleging professional misconduct by Mr. Rosen. Those emails were written by her friend, Norman Gadsby, and she had little or no knowledge of their content. vi. She did not understand the significance of the section 38 order obtained by Mr. Rosen and did not dare to ask anyone what it meant. vii. She did not understand who she owed money to. She only knew that Mr. Rosen represented a company that bought some of her debts, but the significance of this was lost on her. viii. She did not understand the correspondence which she received from Mr. Morgan which explained these matters. When she received his letters, she would ask someone else to read them to her. ix. When she registered her second complaint to the LSO in November 2020, her only object was to determine the truth about Mr. Rosen’s involvement in the 502 corporation and the purchase of a portion of her debts. She did not write the complaint which she submitted to the LSO. Ms. Chiem told Norman Gadsby a few simple things and he evidently fabricated a series of false allegations which she uncomprehendingly forwarded to the LSO.

[95] In sum, Ms. Chiem fully repudiated the presumption that she was sufficiently fluent in English that she understood the legal and factual circumstances which underpin the Crown's theory of motive. If her evidence is accepted by the jury, it would substantially weaken the Crown’s case regarding identity.

[96] The Crown applies to call Mr. Koster, Mr. Morgan, and Ms. Nehron to reply to the evidence of Ms. Chiem. It is anticipated that they will recount their observations of Ms. Chiem’s words and actions which circumstantially demonstrate that she did understand the legal implications of Mr. Rosen’s actions and wholeheartedly endorsed the contents of the written complaints which she submitted to the LSO.

[97] The defence objects on general grounds to the proposed reply evidence and raises particular objections to the proposed evidence of each of the three witnesses. I will first address the general objection.

[98] The general objection is that the Crown should have foreseen that Ms. Chiem would deny that she understood the legal and factual circumstances which gave rise to the alleged animus. Ms. Lutes points to the following circumstances which, in her submission, demonstrate that the Crown's assumption was unjustified:

i. Ms. Chiem has been assisted by a Vietnamese interpreter at every stage of the criminal proceedings. ii. The sworn Statement of Affairs introduced by the Crown does not include any direct reference to the obligation to disclose outstanding litigation. iii. The defence cross-examined Mr. Morgan regarding Ms. Chiem’s uncertainty about how much she owed after 502 had purchased two thirds of her debt and Mr. Morgan agreed that she had asked him more than once how much she owed. iv. The fact that the Crown questioned Mr. Koster regarding Ms. Chiem’s comprehension of the telephone conversation on November 25 demonstrates that the Crown did recognize during their case in-chief that comprehension was a live issue.

[99] The Crown is required to present its case in its entirety before the accused is called upon to decide whether to call a defence. A trial judge may permit the Crown to call evidence in reply on matters which became relevant to the Crown’s case due to defence evidence that the Crown could not reasonably have anticipated. Reply evidence may also be called where the defence evidence enlarged an issue in a manner that the Crown could not reasonably have foreseen. Reply evidence cannot be called to merely confirm or repeat evidence which was previously heard in the Crown’s case.

[100] Ms. Lutes relies on R. v. Melnichuk (1995), 87 O.A.C. 336 (C.A.) for the proposition that the Crown cannot assume that a material aspect of its case will not be contested by the defence. Writing in dissent at page 18 of that decision, Justice Doherty stated: [1]

Miss Cooper further submits that as the Crown took the position that the appellant knew the Hobson mortgage was not registered, the Crown was entitled to call reply evidence on the issue when the appellant gave evidence which contradicted the assumption made by the Crown. I cannot accept this submission. I am aware of no authority which permits the Crown to assume that a material element of its case will go unchallenged and to call reply evidence when that assumption is not borne out by the conduct of the case for the defence. This submission ignores the burden of proof which rests on the Crown throughout the criminal trial process.

[101] Ms. Lutes argues that the Crown could not reasonably presume that Ms. Chiem’s comprehension of the legal proceedings would go unchallenged. To permit the Crown to prove the point in reply would be to split the Crown’s case. With great respect, I do not accept this argument.

[102] My perception of the landscape of this trial is that there was nothing in the evidence which would have caused a reasonable observer to doubt Ms. Chiem’s comprehension of the circumstances which faced her. I was surprised when I heard Ms. Chiem’s evidence-in-chief and realized that Ms. Chiem denied being sufficiently fluent in English to have comprehended the legal circumstances which she faced. Up to that point in the trial, the evidence had uniformly indicated that she did understand, and I had not noticed any attempt to unseat that presumption. Ms. Chiem’s ability to comprehend English and advocate for herself in English was apparent from the testimony of P.C. Johnson and the accompanying in-car video. Nothing in the cross-examinations of Crown witnesses had alerted me to any dispute about Ms. Chiem’s comprehension of English.

[103] The cross-examination of Ms. Chiem elicited evidence which fully explained the basis for the Crown’s presumption. Ms. Chiem represented herself in numerous civil proceedings speaking English. She ran successful businesses in English. English is the only language spoken by her three children.

[104] I find that the Crown’s presumption that Ms. Chiem comprehended English and therefore understood the effect of Mr. Rosen’s actions was reasonable.

[105] I accept the principle stated in Melnichuk but find it inapplicable here. Motive is a material aspect of this case, and the Crown could not presume that it would go unchallenged. The Crown did not make that presumption. On the contrary, the Crown went to great lengths to establish the evidential foundation from which the jury may infer Ms. Chiem’s animus towards Mr. Rosen. What the Crown presumed was that Ms. Chiem comprehended English, which was a reasonable presumption based on all the circumstances of this case.

[106] It was not until Ms. Chiem’s evidence that anyone had cause to question that presumption. Given that the issue arose for the first time in the defence case, is highly material to this litigation, and that it could not have reasonably been foreseen by the Crown, I do find that it is generally admissible in reply, subject to objections which have been raised concerning the anticipated evidence of each individual witness.

The reply evidence of Corey Nehron

[107] Ms. Chiem testified in examination-in-chief that she did not have an interpreter or a lawyer present when she swore the Statement of Affairs which was the foundation for her bankruptcy application. She said that an assistant in Mr. Morgan's office filled out everything and she did not know anything about her obligation to disclose her involvement in the Castleform litigation.

[108] The Crown applies to call Corey Nehron in reply. Ms. Nehron is the associate at Mr. Morgan's office who reviewed the Statement of Affairs with Ms. Chiem and swore her on its contents. I understand that Ms. Nehron will testify that she had four meetings with Ms. Chiem prior to swearing the statement, completed a detailed form as a prelude to swearing the Statement of Affairs and that she explained to Ms. Chiem that she was obliged to disclose her involvement in any pending litigation on the Statement of Affairs. Implicit in this evidence is that Ms. Nehron was satisfied that Ms. Chiem understood what she was saying and, if there was any concern in that regard, Ms. Nehron would not have sworn her to the truth of the document without obtaining reliable interpretation.

[109] I have found that the Crown could not have reasonably foreseen that Ms. Chiem would deny that she comprehended matters which were explained to her in English. This is particularly true of the Statement of Affairs, which was a sworn document prepared with professional assistance and filed with the bankruptcy court by a reputable insolvency firm. The Crown cannot be expected to have foreseen that the accused would deny knowledge of her own sworn statement.

[110] Defence counsel argued that allowing the Crown to call Ms. Nehron in reply would effectively permit the Crown to split its case. In response to that submission, it must be recalled that the defence earlier applied to exclude altogether the evidence that Ms. Chiem failed to disclose the Castleform litigation on her Statement of Affairs. The argument at that time was that it would cause undue prejudice to Ms. Chiem if the jury knew that she swore a false document in bankruptcy proceedings and that the evidence was unnecessary to support the Crown’s argument for motive. If the defence perceived undue prejudice from the failure to report the Castleform litigation, it can hardly now take the position that the Crown ought to have called Ms. Nehron in their case in-chief to prove the full circumstances of Ms. Chiem's false affidavit. The evidence would have been highly prejudicial and was unnecessary, until Ms. Chiem disavowed the contents of her sworn Statement.

[111] Ms. Nehron will be permitted to testify in reply to Ms. Chiem's claim that she knew nothing about the Statement of Affairs when she signed it and that the entire form was filled out by an assistant.

The Reply Evidence of Tom Koster

[112] Ms. Chiem testified in-chief that she cannot write in English and asked her friend, Norm Gadsby, to write the complaints she sent to the LSO. She did not understand the content of the complaints. Her only intention in filing them was to determine the truth about Mr. Rosen’s representation of 502 and his role in the purchase of her debts.

[113] Mr. Koster cannot testify regarding who wrote the emails which he received from Ms. Chiem. Defence counsel is free to argue to the jury that there is evidence within the documents which supports Ms. Chiem’s testimony.

[114] Mr. Koster can testify, however, to the 17-minute conversation he had with Ms. Chiem on November 25, 2020, in which he discussed the complaints directly with her. It is anticipated that Mr. Koster will testify that Ms. Chiem fully endorsed the allegations made in the written complaints in that telephone conversation. If so, it is fair reply to Ms. Chiem's claim that she did not hold those grievances.

[115] Defence counsel observes that the Crown did ask Mr. Koster about his recollections of those calls in his examination-in-chief and elicited his recollection that he understood Ms. Chiem and she understood him. Ms. Lutes submits that reply evidence should not be permitted to repeat evidence that was previously given or to confirm evidence which the jury has already heard.

[116] While I agree that reply evidence should not be permitted simply to reiterate parts of the Crown’s case in-chief, I find that the Crown’s purpose in recalling Mr. Koster goes beyond mere repetition.

[117] The Crown touched on Ms. Chiem's understanding of English in a perfunctory way when examining Mr. Koster earlier in the trial. Ms. Chiem’s evidence has vastly expanded that issue in a way that was not reasonably foreseeable to the Crown. The anticipated reply evidence from Mr. Koster is not merely devoted to Ms. Chiem's comprehension of English, but also to her adoption of the content of the written complaints. The Crown could not be expected to have foreseen that Ms. Chiem would deny understanding the words which she submitted in her own name from her own email account. In my view, this is properly responsive to the issues raised by Ms. Chiem, and I will allow it.

The Reply Evidence of Mark Morgan

[118] Ms. Chiem testified in-chief that Mr. Morgan told her in September 2019 that she had to be in court for a hearing. She was asked what she remembered about that day. Ms. Chiem testified that she got lost on the day of the hearing and arrived late. Mr. Morgan and Mr. Rosen were both there. She did not know at the time why Mr. Rosen was there. The case was adjourned.

[119] In the course of her evidence, Ms. Chiem denied that she had any understanding of the effects that Scott Rosen’s legal actions had on her interests. She denied any understanding of the repercussions of the certificate of pending litigation on the Elder property, the section 38 order or the purchase of her debt by 502. She was asked about her conversation with Mr. Morgan on December 16, 2020, only two days before the murder of Mr. Rosen. She only recalled that she asked Mr. Morgan to get her discharged from bankruptcy. She testified that she did not understand much about the status of her bankruptcy, but Mr. Morgan said that he would put her name on the list for discharge.

[120] In his examination-in-chief, Mr. Morgan testified that he told Ms. Chiem in the December 16 call that a discharge hearing could be scheduled, but it would not occur until mid to late 2021 due to COVID delays. He added that if Mr. Rosen continued to oppose the discharge, the hearing would be longer and even further delayed.

[121] The Crown wishes to call Mr. Morgan in reply to refute Ms. Chiem’s testimony that she had no understanding of her legal predicament or the effects of Mr. Rosen’s opposition to her bankruptcy discharge. The Crown also seeks to call further evidence regarding the events of September 23, 2019, when Mr. Rosen attended Ms. Chiem’s first discharge hearing.

[122] If permitted, Mr. Morgan would testify that Ms. Chiem had a visceral reaction to Mr. Rosen’s attendance on that day. Her angry confrontation of Mr. Rosen outside the courtroom left no doubt in his mind that she understood why he had attended and that she believed that Mr. Rosen’s opposition was a significant if not determinative reason why she had not been granted the discharge that she desired.

[123] The Crown had agreed in pretrial discussions with the defence that Mr. Morgan’s observation of Ms. Chiem’s behaviour on September 23 could give rise to inferences of bad character, and the Crown had agreed not to lead the evidence. The Crown did adduce evidence that Ms. Chiem emailed Mr. Rosen the night before the hearing and asked him not to oppose the discharge. The Crown believed at the time that this would be sufficient to establish Ms. Chiem’s developing animus towards Mr. Rosen.

[124] The Crown now wishes to elicit all the evidence regarding the events of September 23 in reply to Ms. Chiem’s testimony that she did not know why Mr. Rosen attended on September 23 and the implied assertion that his attendance did not trouble her.

[125] It must be observed that if the Crown felt that Ms. Chiem’s evidence in-chief opened this issue, the Crown could have sought permission to cross-examine Ms. Chiem concerning her behaviour on that day. If the Crown had done so, it would not now be permitted to call Mr. Morgan to give reply evidence regarding a collateral matter.

[126] For the reasons previously stated, I will allow the Crown to recall Mr. Morgan to reply to Ms. Chiem’s claim that she did not understand the bankruptcy proceedings and was unaware of the repercussions of Mr. Rosen’s actions on behalf of his clients. This includes Mr. Morgan’s recollections of the conversation that occurred on December 16. While it is true that Mr. Morgan testified earlier regarding his recollections of that call, that evidence was not focused on the question of whether Ms. Chiem understood what he was explaining to her, particularly in regards to the consequences of Mr. Rosen’s actions. That evidence goes to the heart of the Crown’s case on motive and could not reasonably have been foreseen by the Crown.

[127] I am not prepared to allow the Crown to introduce an unrestrained account of the events of September 23. The Crown did not attempt to cross-examine Ms. Chiem regarding this evidence and while I do not hold counsel to a standard of perfection, the defence should not be compelled to bear the consequences of a failure by the Crown. Permitting the Crown to introduce Mr. Morgan’s unrestrained account of the events of September 23 in reply would deny Ms. Chiem the chance to put her own version of events before the jury and, at the same time, permit the Crown to introduce their version in the last moments of the trial. That is generally impermissible on collateral matters.

[128] I do find that Ms. Chiem opened the door to some evidence concerning her behaviour on September 23 when she testified that she did not know why Mr. Rosen attended the discharge hearing. I would caution, however, that the issue which was opened was only Ms. Chiem’s understanding of why Mr. Rosen attended that day. It is not an opportunity for the Crown to call evidence of animus in reply which it agreed not to call at the first instance.

[129] I appreciate that this finding may give rise to difficulty for the Crown. How can Mr. Morgan explain Ms. Chiem’s angry outburst in the halls of the courthouse without engaging elements of animus? And how can this evidence be shorn of any of the discreditable elements which caused the Crown to forego introducing it in the first instance?

[130] The answer is that it cannot. The jury will hear (or necessarily infer) that Ms. Chiem’s response to seeing Mr. Rosen that day was an angry one. The fact that this may contribute to a finding of animus can be addressed in the Charge to the jury. It also should be observed that demonstrating anger when engaged in litigation is not necessarily evidence of bad character. Although it is desirable that parties engaged in litigation act in a civil and courteous manner towards one another, the fact is that they often don’t. It is unlikely that the jury would draw an adverse inference against Ms. Chiem’s character based on her angry behaviour towards Mr. Rosen over a year before the murder. I will ask the Crown to trim the evidence of Mr. Morgan to the greatest extent possible to be responsive only to the issue of whether Ms. Chiem knew why Mr. Rosen had attended the courthouse that day.

Justice Peter Bawden Date: May 15, 2023

[1] On further appeal, the Supreme Court of Canada ordered a new trial based on the dissenting reasons of Justice Doherty: see R. v. Melnichuk, [1997] 1 S.C.R. 602.