Court File and Parties

COURT FILE NO.: 23-10000334-0000 DATE: 2023-05-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – AMMAN JOSIAH CHARLEY and VITO BAILEY-RICKETTS Defendants

Counsel: Glen Crisp, Adam Schultz, and Daniel MacAdam for the Crown Marcus Bornfreund, for the Defendant Amman Josiah Charley Mark Hogan, for The Defendant Vito Bailey-Ricketts

HEARD: May 9, 12, 2023

Admissibility of preliminary inquiry evidence of PC Dwayne Stamplecoskie

G. ROBERTS, J.:

[1] The Crown seeks to tender the transcript of PC Dwayne Stamplecoskie’s evidence from the preliminary inquiry for the truth of its contents at Amman Charley’s trial. PC Stamplecoskie can provide evidence that places Mr. Charley in the vicinity of where police believed, based on intercepted telephone conversations, he planned to lead a home invasion robbery. This evidence is important from the Crown’s perspective because it provides a circumstance that the Crown anticipates relying on to argue that the intercepted conversations reflect a real plan to conduct a home invasion robbery as opposed to idle chatter.

[2] PC Stamplecoskie testified under oath at the preliminary inquiry. He was cross-examined by Mr. Charley’s counsel, the same counsel who continues to represent him. He was also briefly cross-examined by two other defence counsel. PC Stamplecoskie testified in chief that he assisted Sergeant Schoch with a vehicle stop at 0030 on March 31, 2020 on the L1 northbound lane of Kennedy between the 401 and Sheppard. The vehicle was a smaller silver SUV, with five people inside. PC Stamplecoskie stood on the driver’s side at Sergeant Schoch’s left shoulder. PC Stamplecoskie also believed he had casual conversation with the driver when Sergeant Schoch was back at his scout car doing some checks. The driver was polite and cooperative. PC Stamplecoskie got a fairly good look at the driver and the front seat female passenger, but not as good a look at the two females and male in the back. The driver was wearing a gold grill which made him particularly noticeable to PC Stamplecoskie. I understand from the Crown that this interaction is captured on police video from In Car Camera (ICC).

[3] About an hour later, at Sergeant Schoch’s direction, PC Stamplecoskie went to the area of Kennedy and Huntingwood in order to attempt to deter a possible crime from happening. PC Stamplecoskie drove around in circles with his back lights flashing (he was driving a “stealth” car that had back flashing lights but no roof lights). On his third circle he came upon the same SUV he had helped Sergeant Schoch with earlier. He was a 100 percent sure it was the same vehicle, though he acknowledged in cross-examination that he did not note the licence plate. The vehicle was turning into the same street PC Stamplecoskie was turning out of. The two vehicles met door-to-door, driver’s side to driver’s side. PC Stamplecoskie had his window three-quarters down and rolled it down further and engaged the driver in conversation, asking him if he had seen a couple of white kids on mountain bikes who had committed a robbery in the area. This was a lie. He told it because Sergeant Schock directed him to make conversation with the occupants of the car if he could, and try to scare them away from the area. It was a very brief interaction. PC Stamplecoskie strongly believed that the driver was the same person who was driving during the earlier stop. In cross-examination he agreed that he did not ask the driver for identification. When PC Stamplecoskie reached the next intersection, he did a three-point turn and returned in the direction he had come from. He noticed the same vehicle pulled over. He noted the number 11 but did not recall what he meant by that. The SUV was the only suspicious vehicle he came across while doing his circles.

[4] On April 12, 2023, in preparation for trial, Brandon Polak, the Officer in Charge (OIC), inquired of Patricia Oliveira of the Wellness Unit of the TPS, via email, whether PC Stamplecoskie was available to attend court beginning May 8, 2023, the first day of trial. Two minutes later, the OIC received an email in response containing what appear to be standard questions about the nature of PC Stamplecoskie’s involvement, what testifying would require of him in terms of time, including preparation and court, and whether any accommodations might be possible. After consulting with the Crown, the OIC responded later the same day. The following day, the OIC received the following email from Ms. Oliveira: “Please be advised that we have connected with the WSIB and have been advised that Stamplecoskie is unable to testify at this time. He will be reassessed by the end of July 2023.” On April 25, 2023, the Crown received a letter from Ms. Oliveira, on behalf of Andrew Rivers, Claims Lead of the Wellness Unit of TPS, indicating:

This letter is to confirm that PC Dwayne Stamplecoskie continues to have an approved workplace injury claim in accordance with the Workplace Safety and Insurance Act.

At this time PC Stamplecoskie is not able to perform policing duties, including the attendance or participation in court proceedings/testifying. PC Stamplecoskiee’s ability to return to work is indeterminate at this time.

The Workplace Safety and Insurance Board continues to receive updated medical information in regards to PC Stamplecoskie’s treatment and progress. PC Stamplecoskie will be reassessed by the end of July 2023.

[5] In light of this information, the Crown brings this application seeking to tender PC Stamplecoskie’s evidence from the preliminary inquiry for its truth at this trial. The Crown relies on s.715.01 and, in the alternative, s.715 of the Criminal Code. Respecting s.715, the Crown argues that the statutory criteria have been met: PC Stamplecoskie is unavailable to testify due to illness, PC Stamplecoskie testified at the preliminary inquiry in this case under oath in the presence of the accused, and the accused, through counsel, was provided a full opportunity to cross-examine.

[6] Respecting s.715.01, the Crown is candid that there is a dearth of caselaw regarding its operation, but suggests that in deciding whether to require PC Stamplecoskie to attend for cross-examination, I should look to factors courts have considered under s.715 as reasons not to admit evidence from the preliminary inquiry for its truth:

• there was not a full opportunity to cross-examine at the preliminary inquiry because cross-examination was cut short in some way;
• it would not be fair to admit the evidence because cross-examination was not complete due to non-disclosure, or subsequent disclosure, or a material change of circumstance since the completion of the preliminary inquiry;
• the prejudicial effect of the evidence would exceed its probative value.

[7] Defence counsel takes the position that the Crown materials do not establish that PC Stamplecoskie is unavailable due to illness, as is required by s.715 of the Criminal Code. Were he truly unavailable, however, the defence concedes that the balance of the s.715 requirements have been met. I take this to mean that defence counsel had a full opportunity to cross-examine PC Stamplecoskie, in the presence of Mr. Charley, as this is what the balance of s.715 requires.

[8] With respect to s.715.01, the defence takes the position that I should exercise my discretion to require that PC Stamplecoskie be cross-examined at trial. Defence counsel did not take any position on what test I should apply, or what factors I should consider, beyond asserting that the interests of justice must be considered, and these will invariably include necessity. Otherwise, the section could be used improperly by the police, such as a police officer who simply does not want to attend court to answer difficult questions, and presumably the Crown could be complicit in or duped by police taking advantage of the section. When I asked why cross-examination was important in this case, defence counsel explained that he wanted to carefully consider some further disclosure. After taking time to do this, defence counsel confirmed that there was no development in the disclosure or theory of the case that required PC Stamplecoskie to attend for cross-examination.

s.715

[9] Among other scenarios, s.715(1) of the Criminal Code provides that a person whose evidence was given at a preliminary inquiry into the charge, in the presence of the accused, may be admitted as evidence at the accused’s trial on the charge where “facts are proved on oath from which it can be inferred reasonably that the person…is so ill that he is unable to travel or testify” unless “the accused proves that the accused did not have full opportunity to cross-examine the witness”.

[10] A party that invokes s. 715(1) to introduce evidence given by a witness at the preliminary inquiry at trial must establish, on a balance of probabilities,

(i) that the witness gave evidence at the preliminary inquiry; (ii) that the witness is unavailable to testify at trial for any reason described in the section, in this case that the witness is “so ill he is unable to travel or testify”; and (iii) that the preliminary inquiry evidence was given in the presence of the accused.

Where these conditions have been satisfied, s. 715(1) directs that the preliminary inquiry evidence be admitted at trial, unless the accused proves that she or he did not have full opportunity to cross-examine the witness at the preliminary inquiry: R. v. Saleh, 2013 ONCA 742 at para.69. In addition, a trial judge retains a residual discretion not to admit evidence from the preliminary inquiry where it would be unfair to do so, either because of how the evidence was obtained, or because it would be unfair to admit it at trial. However, caution is required in exercising this residual discretion to ensure it does not undermine the purpose of the provision: R. v. Potvin, [1989] 1 SCR 525 per Wilson J. at paras.24-36.

[11] Full opportunity to cross-examine at the preliminary inquiry is not determined by the use made of the opportunity to cross-examine, but rather by the availability of the opportunity to cross-examine. A denial of the opportunity to cross-examine will only occur if the intention to pursue certain questions was present at the preliminary inquiry and was frustrated, for example if the judge curtailed or improperly limited questioning, the witness refused to answer questions, or the witness died or disappeared before the cross-examination was finished. The significance of an inability to cross-examine due to non-disclosure, or because information was received, or events occurred after the preliminary inquiry was finished, is assessed under the residual discretion not to admit evidence from the preliminary inquiry where it would be unfair to do so: R. v. Lewis, 2009 ONCA 874 at paras.57, 64-68; R. v. Saleh at paras.71-72; R. v. Kuzmich, 2020 ONCA 359 at paras.83-88.

[12] In this case, the issue is whether the Crown has established that PC Stamplecoskie is so ill that he is unable to travel or testify. As noted, defence counsel concedes that if this aspect of the test is met, the Crown has met the balance of the requirements of s.715.

[13] As a preliminary matter, I do not accept the defence argument that the materials simply suggest that the Toronto Police Service (TPS) has determined that a TPS officer cannot testify. I am satisfied that it is the WSIB that is reporting to the TPS that PC Stamplecoskie cannot testify. While the WSIB is independent of the TPS, however, I do not think the distinction matters for the purpose of s.715 in the circumstances of this case.

[14] I do not believe that the material put before me is sufficient to establish that PC Stamplecoskie is so ill he cannot testify. While I appreciate that PC Stamplecoskie is entitled to his privacy, I believe I need sufficient information to come to an independent determination that PC Stamplecoskie is too ill to testify. The materials in this case simply state that PC Stamplecoskie has “an approved workplace injury” and is “not able to perform policing duties”, including testifying in court. While I am not disputing the information provided by the Crown, I do not even know that the “approved workplace injury” is an illness, let alone such a significant illness it would prevent PC Stamplecoskie from testifying. Assuming it is, however, I am required to make the decision that PC Stamplecoskie is too ill to testify in order for s.715 to apply, and I need sufficient information in order to be able to do that. I cannot do it on the opaque assertion of the WSIB. If the Crown wishes me to rely on s.715 of the Criminal Code, I believe that the Crown must provide me with sufficient information so that I can make my own independent assessment that the statutory criteria have been met.

s.715.01

[15] s.715.01 provides as follows:

(1) Despite section 715, the transcript of testimony given by a “police officer”, as defined in section 183, in the presence of an accused during a voir dire or preliminary inquiry held in relation to the accused’s trial may be received in evidence at that trial.

(2) No transcript is to be received in evidence unless the party intending to produce it has given the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the transcript.

(3) The court may require the attendance of the police officer for the purposes of examination or cross-examination, as the case may be.…

[16] There is a dearth of caselaw on the application of this provision; certainly nothing I could find about what test or factors should guide my discretion whether to require the police officer to attend for cross-examination. However, I agree with the Crown that a useful starting point is looking at the sorts of things courts have considered in relation to s.715 as reasons not to admit evidence from the preliminary inquiry. Such considerations include:

• Defence counsel did not have a full opportunity to cross-examine at the preliminary inquiry, due to some sort of curtailment such as for reasons outlined above in relation to s.715.
• It would be unfair to admit the evidence without a further opportunity to cross-examine, either because it was obtained unfairly (the examples Justice Wilson gives at para.34 of Potvin are the witness was only temporarily unavailable and could have attended at trial with minimal effort, or at the time the evidence was taken the Crown was aware the witness would be unavailable in future and said nothing), or because its admission at trial would be unfair, such as for reasons outlined above in relation to s.715.

[17] I do not agree with the general defence submission that I must insert a necessity requirement into s.715.01 in order to admit PC Stamplecoskie’s evidence from the preliminary inquiry without ordering him to attend for further cross-examination. This would add a requirement that is simply not in the section. It would also make s.715.01 redundant, effectively rendering it a carbon copy of what s.715 already provides. Picking up on Justice Wilson’s caution at para. 34 of Potvin, however, I agree that if there is a real possibility that the police witness is trying to take advantage of s.715.01 in order to avoid cross-examination, that is a reason to require cross-examination. There is not even a hint of that here. While the Crown materials are insufficient to meet the necessity requirement under s.715, they do satisfy me that PC Stamplecoskie is not simply trying to avoid cross-examination in this case.

[18] I am not going to spend too much time worrying about the correct test or approach to exercise my discretion under s.715.01(3) to require PC Stamplecoskie to attend for cross-examination, as defence counsel has not pointed to any reason why it is in the interests of justice to require that PC Stamplecoskie attend for cross-examination. There is no suggestion that defence counsel did not have a full opportunity to cross-examine PC Stamplecoskie at the preliminary inquiry, or that admitting PC Stamplecoskie’s evidence from the preliminary inquiry at this trial would be unfair in any way. PC Stamplecoskie’s evidence appears uncontroversial. No challenge is made to PC Stamplecoskie’s evidence at the preliminary inquiry, nor has there been any material change of circumstance to suggest it would be important or even helpful to be able to cross-examine PC Stamplecoskie on the new information or circumstance.

[19] In all the circumstances I do not believe that it is in the interests of justice that PC Stamplecoskie attend for cross-examination. He is off work, and I agree with the Crown that there is no reason to make him attend trial. As a result, I decline to exercise my discretion to require him to attend for cross-examination. The transcript of PC Stamplecoskie’s evidence from the preliminary inquiry can be admitted for the truth of its contents at this trial.

[20] In light of my decision under s.715.01, there is no need to consider the Crown’s argument under the principled exception to the rule against hearsay.

G. ROBERTS, J. Released: May 16, 2023