ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Applicant
– and –
JORDAN NESBITT
Respondent
Vlatko Karadzic and Katherine Beaudoin for the Crown
Michael Lacy and Lawrence Gridin for the Defendant
HEARD: May 29, 2024
JUSTICE J. SPEYER
A. Introduction
1Jordan Nesbitt, a York Regional Police officer, is charged with three offences arising from his search of a motor vehicle on October 17 and 18, 2021. During the search, he found cocaine in the passenger’s purse. The Crown alleges that after the cocaine was found, the defendant took some of the seized cocaine and placed it about the driver’s area of the vehicle. The Crown alleges that the defendant also lied in reports he prepared in relation to the events about seeing cannabis in the vehicle, and lied about having seen cannabis and cocaine in the vehicle before he began his search. Jordan Nesbitt is charged with breach of trust, fabricating evidence, and attempt to obstruct justice.
2Jordan Nesbitt investigated a BMW that was parked, with its lights on and engine running, at a hotel late at night. He questioned the two occupants and decided to search the BMW. He was joined there by Constable Mac, and then by Constable Lo. Constable Mac was called to testify by the Crown. The Crown advised defence counsel well in advance of the trial that it would not call Constable Lo to testify.
3The defence moved for an Order requiring the Crown to call Constable Lo as its witness, or, in the alternative, to have the Court call Constable Lo to testify.
4The Crown firmly opposed an Order requiring it to call Constable Lo and to examine him in chief. The Crown decided not to call Constable Lo because the Crown could not ask the Court to accept his evidence. The Crown pointed to internal inconsistencies in the accounts provided by Constable Lo in a statement he provided, and to the objective evidence in this case to support its conclusion that Constable Lo would not be a credible or reliable witness. The Crown submitted that the defence was free to call Constable Lo, and agreed that defence counsel should be permitted to cross-examination Constable Lo, even though he would be a defence witness. In the alternative, the Crown took the position that “it does not strenuously object to” the Court calling Constable Lo to testify as long as the Crown would also be able to cross-examine Constable Lo.
5There is no dispute that Constable Lo is a material witness in this case.
6At the conclusion of counsel’s submissions, and after taking some time to consider my decision, I advised counsel that I would not order the Crown to call Constable Lo as its witness, but that in the unique circumstances of this case, the Court would call Constable Lo as its witness. I determined that both defence counsel and the Crown would be permitted to cross-examine Constable Lo, though the Crown would not be permitted to cross-examine him on a statement he made to Detective Holmes of the Professional Standards branch of the York Regional Police.
7These reasons explain why I decided that Constable Lo should testify as the court’s witness.
B. Analysis
8There is no dispute about the legal framework that governs my decision on this motion.
9The Supreme Court of Canada answered the question: “Which witnesses, if any, is the Crown obliged to call in a criminal proceeding?” in R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113 and in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751. The general rule is that the Crown is under no obligation to assist the defence by calling a witness it deems unnecessary to its case. In general, witnesses should be called by the party that wants their evidence: Jolivet, at para. 15.
10In Cook, at para. 19, L’Heureux-Dubé J., writing for a unanimous Court, held that the Crown had no duty to call witnesses “regardless of their truthfulness, desire to testify, or of their ultimate effect on the trial”, and approved the decision of LeBel J.A. (as he then was) in R. v. V. (J.) (1994), 1994 CanLII 5620 (QC CA), 91 C.C.C. (3d) 284 (Que. C.A.), at pp. 287-88:
[TRANSLATION] Crown counsel, of course, while bound by strict duties so as to ensure the preservation of the integrity of the criminal justice system, however must operate in the context of an adversarial procedure. Once he has satisfied the obligation to disclose the evidence, it is for him, in principle, to choose the witnesses necessary to establish the factual basis of his case. If he does not call the necessary witnesses or evidence, he exposes the prosecution to dismissal of the charge for having failed to establish its case completely and in accordance with the reasonable doubt rule. However, once this obligation has been met and if improper motives cannot be imputed to him, such as the desire, for example, to hide exculpatory evidence, as a general rule, he will be considered to have properly executed this part of his function in the criminal trial. The defence may, at that time, do its work and call its own witnesses, if it considers it appropriate to do so.
11In Jolivet, at para. 21, Binnie J., writing for a unanimous Court, affirmed that in an adversarial system, the Crown is entitled to have a trial strategy:
It is not the duty of the Crown to bend its efforts to provide the defence with the opportunity to develop and exploit potential conflicts in the prosecution's testimony. This is the stuff of everyday trial tactics and hardly rises to the level of an "oblique motive". Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused. Where an element of prejudice results (as it did here), remedial action is appropriate.
12The Ontario Court of Appeal, per Watt J.A., stated the general rule in R. v. Rybak, 2008 ONCA 354, at para. 172:
As a general rule, we leave to the parties the decision about which witnesses to call in support of their case. The prosecutor is no exception: the witnesses to be called by the prosecution are those essential to the unfolding of the narrative of events (Seneviratne v. R., 1936 CanLII 396 (UK JCPC), [1936] 3 All E.R. 36 (P.C.), at pp. 48-89; Cook, at pp. 1125-26 S.C.R., p. 490 C.C.C.). The requirement, "essential to the unfolding of the narrative", means no more nor less than that the prosecutor must put forward enough witnesses to adequately establish the essential elements of the offence charged (R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, 36 C.C.C. (3d) 417, at pp. 433-34 C.C.C.). The requirement does not impose upon the prosecutor an obligation to call all witnesses who have relevant testimony (Cook, at pp. 1127-29 S.C.R., p. 492 C.C.C.).
13An exception to the general rule may arise where a perverse or oppressive exercise of prosecutorial discretion could amount to an abuse of process: Jolivet, at para. 18. In such a case, it may be appropriate for a trial judge to require the Crown to call a witness. This is not such a case. The defence does not allege that the Crown’s decision not to call Constable Lo as its witness amounts to a perverse or oppressive exercise of its discretion, or that the Crown’s decision amounts to an abuse of process. The Crown told me that it will not call Constable Lo as its witness because it does not consider Constable Lo to be a credible or reliable witness. I accept that the Crown has a proper basis for not calling Constable Lo as its witness.
14The defence relies on the decision of Pomerance J. (as she then was) in R. v. Hillis, 2016 ONSC 451, 26 CR (7th) 329. In Hillis, the defence sought and obtained an Order directing the Crown to call several witnesses. The circumstances in Hillis are unique. Before the trial began, the Crown was noncommittal about the witnesses it intended to call, and advised defence counsel that it would depend on the rulings counsel expected to receive as to the permissible scope of the evidence of those witnesses. After the trial judge ruled that the defence could lead exculpatory evidence from those witnesses, the Crown advised that it would not be calling those witnesses. That decision was communicated to the defence on the eve of the commencement of the jury trial. Importantly, the Crown in Hillis acknowledged that the exculpatory evidence to be given by the witnesses it did not wish to call was both material and, for the most part, reliable. Hillis was a jury trial, and the defence decision whether to call evidence had tactical implications. To call a defence would require the defence to give up its right to address the jury last.
15In Hillis, Pomerance J. undertook a detailed examination of the law that governs a trial judge’s decision whether to compel the Crown to call a witness, and the standard of review to be applied. Pomerance J. concluded that such decisions can be reviewed, like all prosecutorial decisions, where the decision is the product of an oblique motive and amounts to an abuse of process. Additionally, Pomerance J. found that the decision of the prosecution to call or not call certain witnesses at trial is a matter of Crown tactics, reviewable under the court’s trial management authority, on a lesser standard relating to trial fairness.
16Hillis was not followed in R. v. Vader, 2016 ABQB 405, R. v. Cheveldayoff, 2018 ONSC 4329, and R. v Anh Chiem, 2023 ONSC 2915. In Cheveldayoff, at para. 31, Akhtar J. observed that Hillis appears to conflict with the decisions in the Supreme Court of Canada in Jolivet and Cook, which both held that the Crown is under no obligation to assist the defence by calling a witness it deems unnecessary to its case but might be helpful to the accused.
17I do not need to resolve this conflict in the law since my decision does not require me to review the trial Crown’s decision. In this case, there is no reason to doubt the bona fides of the Crown’s assessment of Constable Lo’s credibility or reliability. The Crown’s position reflects its professional obligations rather than a tactical choice.
18Each of the cases to which I have been referred turned on its unique facts. In Cheveldayoff, the Crown decided not to call a witness who had given materially and evolving accounts of what happened, and who the Crown therefore considered unreliable. Similarly, in Anh Chiem, the Crown’s reason for not calling a material witness was a legitimate concern about the reliability of the witness. There was no oblique motive on the part of the Crown in not calling the witness.
19As Dambrot J. noted in R. v. Yabarow, 2019 ONSC 3839, at para. 52:
… Hillis was not about the right of the accused to place exculpatory evidence before the jury. It was simply about whether the accused would be able to adduce this evidence in the cross-examination of witnesses called by the Crown, or would have to call the Crown witnesses as defence witnesses, and as a result lose the right to cross-examine them and lose the right to address the jury last. It was in this context and for this reason that the Crown decided not to call the witnesses. And it was that decision made for that reason that the trial judge characterized as unfair, and made the order that the Crown had to call the witnesses.
20My decision in this case turns on its unique facts.
21The defence does not allege an oblique motive or abuse of process on the part of the Crown. Rather, the defence alleges that misconduct by an investigating officer who interviewed Constable Lo influenced his account of the events, and that therefore, fairness demands that the defence be able to cross-examine Constable Lo.
22The defence alleges that Detective Holmes, of the Professional Standards branch of the York Regional Police conducted an interview of Constable Lo in a manner that was misleading and calculated to influence Constable Lo’s memory of the incident and to bend it to Detective Holmes’ theory of the case. This allegation has merit. At the outset of his interview, Constable Lo provided an account, based on his memory assisted by his notes, that the defendant told him that he had seen marijuana and cocaine in the subject vehicle before Constable Lo arrived on scene, and that Constable Lo saw cannabis in the car before the car was searched. After Constable Lo gave that account, Detective Holmes showed him an excerpt of the recording made by Constable Nesbitt’s in car camera (“ICC”), of the time between Constable Lo’s arrival on scene and the arrest of the occupants of the car. That video did not show the driver’s side of the car. Detective Holmes did not show Constable Lo the ICC recording from Constable Mac’s cruiser, which clearly showed Constable Lo attending to the driver’s side door, interacting with the driver, and shining his flashlight into the driver’s seat area, all before the defendant searched the car and found the cocaine in the passenger’s purse. Thereafter, in response to a series of leading questions, Constable Lo changed his account, stating that he did not see marijuana and cocaine in the car before the search commenced. Constable Lo told Det. Holmes that it looked like he did not look into the BMW until after the occupants were arrested.
23The Crown maintains its long-standing position that it will not call Constable Lo as its witness because it considers him to be incredible or unreliable. The Crown points to inconsistencies in Constable Lo’s statement to Detective Holmes to support its assessment of Constable Lo’s anticipated evidence.
24The defence submits that fairness requires the Court to compel the Crown to call Constable Lo as a witness because: 1) Constable Lo’s evidence is material and critical to the issues to be determined at the trial; 2) the truth-seeking function of the trial will be impaired if Constable Lo does not testify; 3) the circumstances of Constable Lo’s interview by Detective Holmes cannot be properly explored in examination-in-chief; and, 4) it would be unfair to permit the Crown to cross-examine Constable Lo on his statement to Detective Holmes because of the improper manner in which Detective Holmes shaped Constable Lo’s narrative. In the alternative, the defence submits that the Court should call Constable Lo as its witness.
25In this case, there would be a legitimate controversy about the weight to be given to any evidence that Constable Lo may give. The Crown is not attempting to avoid unfavouable evidence. Rather the Crown does not wish to present evidence it believes to be unreliable. The Crown should not be forced to lead evidence it believes to be unreliable, and I decline to require the Crown to call Constable Lo. This decision will not deprive the defence of the evidence it wishes to lead to make full answer and defence.
26In both Cook and Jolivet, the court explored potential remedies that might be appropriate in cases where the Crown’s decision to not call a witness resulted in unfairness to the accused. In an appropriate case, the judge might exercise their discretion to call the witness themselves: Cook, at para. 42. In R. v. Rybak (2008), 2008 ONCA 354, 90 OR (3d) 81, 236 OAC 166, at para. 176, the Court of Appeal noted the exceptional nature of an Order by a trial judge to call a witness not called by either party:
In a criminal case, a trial judge has a discretion to call witnesses not called by either party. It is a discretion that is rarely exercised since we generally leave the conduct of the litigation, including the calling of witnesses, to those most familiar with the case: the parties.
27In this case, it is necessary for me to hear the evidence of Constable Lo to fairly adjudicate the factual issues. He is a material witness. He was a direct observer of the events at issue in this trial. He is a police officer who is sworn to uphold the law. By virtue of his office, as well as any oath he may take, he is expected to testify truthfully. It is regrettable that his interview was conducted in a manner that may have influenced his memory of what he saw. But that should not deprive the court of the benefit of his evidence, and the opportunity to weigh the evidence.
28At its core, a criminal trial is a search for truth, conducted fairly.
29In the circumstances of this case, the search for truth would be incomplete without the evidence of Constable Lo.
30In the circumstances of this case, fairness demands that the defence be able to cross-examine Constable Lo because his statement was improperly influenced by the police officer who elicited that statement.
31Fairness also demands that the Crown be able to cross-examine Constable Lo. The Crown’s concerns about his credibility and reliability are real and have a basis in the evidence. The Crown should be afforded an opportunity to explore those concerns. However, I accept the defence submission that the Crown should not be permitted to cross-examine Constable Lo on his statement to Detective Holmes because the detective improperly influenced Constable Lo’s account. It would perpetuate the improper influencing of Constable Lo’s memory to permit that statement to be used to influence Constable Lo’s trial evidence.
32Therefore, the court will call Constable Lo as its witness. The defence may cross-examine Constable Lo. The Crown may also cross-examine Constable Lo, except with respect to the statement he gave to Detective Holmes.
Released: October 2, 2024
Amended: October 22, 2024 (updated with new citation number only)
COURT FILE NO.: CR-22-911-3350-0000
DATE: 2024-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
JORDAN NESBITT
REASONS FOR JUDGMENT
Justice Jocelyn Speyer
Released: October 2, 2024
Amended: October 22, 2024 (updated citation number only)