Court File and Parties
Court File No.: CR-24-20000057-0000 Date: 2024-02-26 Superior Court of Justice – Ontario
Re: R. v. Shamal Searchwell-Beals
Before: Justice S. Nakatsuru
Counsel: George Lennox, Daniel Santoro, and Dean Sgmouromitis, for the Crown Leora Shemesh, for the Defendant David Butt, for D.C. Graham
Heard: February 26, 2024
Ruling under s. 700(2) to excuse witness
[1] To support his application alleging a violation of his Charter rights, the applicant, Shamal Searchwell-Beals, subpoenaed D.C. Graham of the Toronto Police Service. In addition, leave was granted to cross-examine D.C. Graham on his Information to Obtain (ITO) that led to the search warrant being challenged on the application. Through his own counsel, D.C. Graham seeks to be excused from testifying under s. 700(2) of the Criminal Code on medical grounds. Supporting his request, D.C. Graham has filed the report of Dr. Erica Martin, a psychologist with expertise in post-traumatic stress disorders (PTSD), and Ms. Erin Clarke, D.C. Graham’s treating psychotherapist. Both healthcare professionals were available for questioning. None of the parties took the opportunity to do so. Also, at the hearing, a discharge summary from the Newly Institute, an Alberta healthcare facility, was admitted into evidence outlining D.C. Graham’s progress in an intensive outpatient treatment program for his conditions from September to December, 2023.
[2] At the hearing, for the first time, the Crown submitted that D.C. Graham was not a competent witness due to incapacity caused by his mental illness: s. 16(1) of the Canada Evidence Act, R.S., c. E-10; R. v. D.A.I., 2012 SCC 5 at para. 16; R. v. Farley (1995), 23 O.R. (3d) 445 at paras. 13, 15. I disagree. Whatever the effects of his PTSD or other mental conditions have on the reliability of his evidence, I am not satisfied that the Crown has shown that D.C. Graham is incapable of communicating the evidence. In my opinion, s. 700(2) is the best way to analyze the issue.
A. The Legal Test
[3] In a civil matter, the test to excuse a witness from testifying for health reasons was formulated in W. Bryant Shears Ltd. v Sharmat Services Inc, 2012 NLCA 17 at para. 6 along the following lines:
A potential witness may be excused from testifying in court where the trial judge finds that a witness’s health may be seriously jeopardized by attending and giving evidence: [cites omitted]. The onus of demonstrating the risk to the health or life of the witness is on the party raising it, and the burden is a high one. We would adopt the following statement from Alan W. Mewett, Q.C. and Peter J. Sankoff, Witnesses, looseleaf (Toronto: Carswell, 1991) at 7-27, where the authors [cites omitted] suggest that, “… where the evidence of the witness is required for the action the courts will usually side in favour of granting the examination with conditions imposed to make the process easier upon the witness unless it is clear that the risk of serious harm from testifying simply cannot be avoided.”
[4] This test was followed in the criminal case of R. v. Ostrowski, 2017 MBCA 80 at paras. 2-3 where a witness’s request to be excused for health reasons under s. 700(2) of the Criminal Code was denied. In my opinion, this is the proper test to apply. Where a witness has material evidence to provide the court, they should not be lightly excused from testifying based on concerns for their health. Too lax a threshold could well endanger a key foundational pillar of the justice system.
[5] More recently, in R. v Barreau, 2023 ONCJ 210 at paras. 22 to 24, Silverstein J. adopted the test in these authorities but recognized that a potential s. 7 Charter right to security of the person may be engaged if in testifying, the witness’s health could be significantly compromised. In formulating a nuanced approach, he took guidance from the Supreme Court's judgment in R. v. N.S., 2012 SCC 72 which involved a conflict between a female Muslim witness whose sincerely held religious beliefs forbade her from testifying in court without a face covering, and the accused who asserted a constitutional right to see her face while she testified at his preliminary inquiry.
[6] While at its core I feel the test remains the same, the questions from R. v. N.S., provide greater assistance when the resolution to the question of whether to excuse a witness for health concerns is not straightforward. Moreover, the questions give explicit recognition to what is potentially at stake for the witness. Therefore, those questions, as modified, are:
a. Would the witness’s health be seriously jeopardized by attending and giving evidence? b. Would excusing the witness from testifying create a serious risk to trial fairness? c. Is there a way to accommodate both rights and avoid the conflict between them? d. If no accommodation is possible, do the salutary effects of requiring the witness to testify outweigh the deleterious effects of doing so?
B. Application of the Legal Test
a. Would the witness’s health be seriously jeopardized by attending and giving evidence?
[7] Based upon the evidence I have heard, [^1] I am satisfied the burden has been discharged by D.C. Graham.
[8] D.C. Graham received a diagnosis of PTSD in 2019. After being off work for short while, he returned to his regular police duties. However, he was unable to continue. He has been off work for a significant period and the Toronto Police Service confirms that he is not able to perform policing duties including attendance at court proceedings. The return to work is currently indeterminate.
[9] Dr. Martin described what PTSD is generally. She opines that some first responders with PTSD can testify with accommodations made in the courtroom. In others, it may be almost impossible to endure. She described heightened anxiety and stress that can lead to re-traumatization and emotional distress that could result from testifying. Additionally, testifying can cause “moral injury” [^2] leading to guilt, shame, and sadness.
[10] Ms. Clark has been D.C. Graham’s primary psychotherapist since October of 2022. She describes his symptoms and emotional state. The symptoms are present daily. He has not shown improvement but has worsened in her time with him. Ms. Clark’s opinion is that D.C Graham does not currently possess the psychological or cognitive capacity to withstand the stress of testifying. His psychological symptoms will be exacerbated if he is compelled to do so. Those symptoms deal with anxiety and mood.
[11] A treatment report by the Newly Institute shows some improvement. However, they continued to diagnose him with PTSD, somatic symptom disorder (pain) and major depression. They recommend continued treatment.
[12] The applicant submitted that this part of the test has not met by D.C. Graham. She points to several deficiencies in the medical materials. I am not persuaded by those submissions. First, I am satisfied that when read fairly, Ms. Clarke’s opinions are current, and she remains D.C. Graham’s ongoing psychotherapist. Second, while I agree the Newly Institute concludes the officer benefited from their program, they continue to confirm his ongoing disability and make recommendations for further treatment. I observe this is despite after undergoing intensive treatment including a relatively novel drug therapy regime. Moreover, D.C. Graham’s participation in such an out-of-province intensive program, further confirms that as of a few months ago, his condition was such that it required the intervention of such a multi-modality program. He has yet to recover from his conditions. Finally, the opinions offered by Dr. Martin and Ms. Clarke were not challenged in cross-examination. While I need not accept unchallenged opinions such as these, nevertheless, those opinions provide a firm foundation for the finding that by giving evidence, D.C. Graham’s health will be seriously jeopardized.
[13] I am particularly concerned about the evidence that between March and October of 2023, for a significant number of months, D.C. Graham’s medical condition was such that it posed a risk to his physical as well as mental well-being. That is most troubling to me. I can see how the stress of testifying may well pose a tangible risk to a reoccurrence. Given the nature of the harm, even a small risk must be taken most seriously.
[14] More generally, I am satisfied that even if D.C. Graham was physically capable of testifying, the fallout and consequences of doing so, would result in significant harm to his mental health by aggravating his existing conditions or by leading to decompensation in whatever gains he has made to date. It bears repeating that the opinions offered were not challenged. Moreover, they are fair and reasonable opinions supported by the fact-specific circumstances of this case. This case is very different from some of the cases where very little medical evidence was offered in proof.
[15] A major portion of both Dr. Martin and Ms. Clark’s report deal with the potential unreliability of D.C. Graham’s testimony due to his medical condition. I find this is not a proper consideration in answering this threshold question. The probative value of his testimony is not a ground to excuse a witness. The weight of many different witnesses’ evidence are often affected by personal characteristics. This can be appropriately assessed by the trier of fact.
[16] That said, this may well be an appropriate factor to consider on the last question when balancing the salutary and the deleterious effects of requiring a witness to testify.
[17] In conclusion, it must be more than just symptoms worsening due to being required to testify. There must be a clear risk of serious harm to health from testifying. I am satisfied based upon the evidence presented that D.C. Graham has proven this on a balance of probabilities.
b. Would excusing the witness from testifying create a serious risk to trial fairness?
[18] I find that excusing the witness from testifying would create a serious risk to trial fairness. On the s. 8 issue, D.C. Graham is a pivotal witness for the applicant.
[19] First, he is the affiant of the ITO that is being subject to a sub-facial challenge. Leave to cross-examine D.C. Graham was granted. A significant part of the reasonable and probable grounds to search the residence belonging to the applicant is the connection between the applicant and Damen Smith, the drug trafficker the police had targeted in the wiretaps. It is alleged that the applicant is Mr. Smith’s drug supplier. The intercepts between Mr. Smith and a “Ziggy Johnson”, the subscriber of the telephone used to communicate with Mr. Smith, provide the support for this allegation. “Ziggy Johnson” is said to be the applicant. The proposed cross-examination attacks the accuracy and completeness of the information in the ITO connecting the applicant to “Ziggy Johnson”.
[20] Second, D.C. Graham sought a telewarrant on the basis of urgency given the police had “frozen” the applicant’s residence while awaiting a search warrant. In a series of emails to the justice of the peace’s office, it is alleged that D.C. Graham seriously misled the justice of the peace about the detention of persons at the residence to gain precedence for his search warrant application. In addition, the applicant submits that D.C. Graham’s conduct as revealed in the emails casts doubt on the police position that the warrantless search of the “freezing” was necessary in the circumstances.
[21] Excusing D.C. Graham from testifying could deprive the applicant of the opportunity to lay the foundation for this aspect of his s. 8 application. It creates a serious risk of unfairness.
c. Is there a way to accommodate both rights and avoid the conflict between them?
[22] Several accommodations are available to ease the burden of testifying on D.C. Graham. He can testify remotely in any environment that would lessen the stress on him. This includes his own home. He can dress in whatever attire that is comfortable. He can have a support person or animal. If needed, medical support could be provided. He can have access to legal counsel if he chooses. Frequent breaks in testimony can be facilitated. Finally, the decision to require D.C. Graham to testify can be re-assessed as he is testifying. It is not a one and done decision. If his health is adversely impacted as he testifies, the decision can be revisited.
[23] I have also seriously considered whether an adjournment of his testimony could be a reasonable accommodation. However, it is not. No party has asked for one. The prognosis does not provide any specific date within a reasonable time where he would be fit to testify. And the history of these proceedings requires his testimony soon. The trial awaits the outcome of the Charter application and the trial must be finished within a reasonable time.
[24] On this issue, Ms. Clark gave her opinion that the typical courtroom accommodations would not be helpful for D.C. Graham as it is the questioning process itself that would be triggering and have potentially adverse impacts on D.C. Graham. The opinion was unchallenged. Given the nature of his illness, the nature of the cross-examination likely to take place, and the fact that the accommodations cannot, without impairing the defence’s ability to make full answer and defence, limit the types of questions posed, I find that there is no way to accommodate both rights and avoid the conflict between them.
d. If no accommodation is possible, do the salutary effects of requiring the witness to testify outweigh the deleterious effects of doing so?
[25] At first blush, this question may appear strange since a finding has already been made that a witness’s health would be seriously jeopardized by testifying and no accommodation can be made. That suggests that the only answer would be to excuse the witness. However, there is benefit to this question. Usually, a risk to health in testifying is a matter of degree and cannot be fully predicted in advance. Moreover, not every witness who seeks to be excused is the same when it comes to the significance of their testimony. For example, some may be critical to proof of guilt or innocence; others may be peripheral. The balancing required by this question takes into consideration the fact-specific nature of the decision that must be made when finally deciding whether the risks to health in compelling a witness to testify is justified by the interests of justice on the particulars of the case.
[26] The deleterious effects on D.C. Graham are significant. I have already outlined my findings in this regard. They pose a real risk to his mental health and potentially, physical health as well.
[27] The salutary effects of his testimony includes the substance of what D.C. Graham is being asked to testify about. As noted, the testimony sought from him is relevant to key issues on the Charter application. But also, in assessing the salutary effects, some consideration should be given to the likely probative value of his testimony if he is compelled as a witness. Ms. Clark’s view, supported in general terms by Dr. Martin, is that D.C. Graham’s evidence would suffer from memory impairment, emotional dysregulation, dissociation, inability to prepare or review his notes, and a self-perception of his own incompetence. In short, he would be a very poor witness. There is a factual basis that supports the position that not much may be gained by his testimony.
[28] In addition, while his testimony is important to the Charter issues raised, it does not touch upon the applicant’s factual guilt or innocence. His testimony is relevant essentially to an issue about the admissibility of certain evidence: R. v. Pires; R. v. Lising, 2005 SCC 66.
[29] Lastly, in weighing the salutary and deleterious effects of requiring D.C. Graham to testify, the existence of alternatives to his testimony should be considered. In other cases, for example, if numerous witnesses could testify to the same event or other sources for the same information were available, then the deleterious effects on the witness’s health, may not be outweighed by the salutary effects of having the testimony. In this regard, to ensure that the defendant receives a fair trial, it is open for the parties and/or the judge to come up with creative approaches or to allow the admission of other evidence that otherwise may not be admissible to compensate for the unavailable witness’s evidence. Mr. Butt submitted that analogy could be had to “lost evidence” cases: R. v. Atwima, 2022 ONCA 268.
[30] In this case, there are the emails that exist independent of the officer’s testimony. Furthermore, on the Garofoli application, amplification and excision can be resorted to even without the cross-examination of the affiant. While I leave it to the parties to ultimately decide, written interrogatories seem unlikely to suffice for defence purposes and it has not yet been canvassed if the officer is capable of providing them. I will not say more about other potential options to D.C. Graham’s testimony since the parties have not had an opportunity to address this issue in any fulsome manner. I will just say that the existence of these options reduces any potential unfairness to the applicant in excusing D.C. Graham from testifying.
[31] In conclusion, I am satisfied that the salutary effects of requiring D.C. Graham to testify do not outweigh the deleterious effects of doing so.
[32] Therefore, D.C. Graham is excused from attending under s. 700(2).
Justice S. Nakatsuru Released: February 26, 2024.
[^1]: D.C. Graham’s counsel has expressed concern about the officer’s privacy interests in his medical information. While I find that the open court principle must take precedence, I have limited the references to the medical information out of respect for his privacy. However, in light of the constitutional importance of the open court principle, the request of D.C. Graham for anonymity by initializing his name is not granted. I have given due consideration to the nature of the medical condition and evidence he has presented. I find that it is not of such a nature that revealing his identity in open court would carry with it any significant harm to him or to any broader societal interests. The well-known axiom “justice should not only be done but should manifestly and undoubtedly be seen to be done” has not been displaced. [^2]: Dr. Martin describes “moral injury” as an injury to the heart and soul of a person. This has a detrimental effect on feelings of control over our lives and our ability to keep loved ones safe. Moreover, it can involve later questioning of one’s performance or decisions that weighs heavily on one’s conscience.