COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
R. v. Hooites-Meursing, |
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2008 BCCA 264 |
Date: 20080620
Docket: CA034556
Between:
Regina
Appellant
And
Anton Hooites-Meursing
Respondent
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Before: |
The Honourable Mr. Justice Low |
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The Honourable Mr. Justice Smith |
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The Honourable Mr. Justice Lowry |
| G. Fitch, Q.C., R. Peck, Q.C., E. Gottardi |
Counsel for the Appellant |
| J.I. Heller and C.J. Nowlin |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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11 and 12 December 2007 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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20 June 2008 |
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Written Reasons by: |
| The Honourable Mr. Justice Low |
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Concurred in by: |
| The
Honourable Mr. Justice Smith |
Reasons for Judgment of the Honourable Mr. Justice Low:
[1] This is a Crown appeal of a judicial stay of proceedings of a second-degree murder indictment. The application for a stay was triggered by a letter sent by counsel for the Crown to a potential Crown rebuttal witness, Marlin Aburto, prior to the date the second trial of the respondent was scheduled to commence. The first trial ended in a mistrial when the jury was unable to render a verdict. Madam Justice Humphries presided at the first trial. She was scheduled to preside at the second trial and, after hearing evidence and submissions on the defence application, she ordered entry of the stay of proceedings.
[2] The basis for entering the stay of proceedings was that the trial judge found that the letter delivered by the Crown to Aburto adversely affected the willingness of two defence witnesses to testify at the second trial, thereby compromising the defence and rendering the trial irreparably unfair. The two witnesses had testified at the first trial.
[3] The trial judge did not rule on the second basis for the defence application – that the conduct of the Crown in providing Aburto with the letter contravened the fundamental notions of justice and thereby undermined the integrity of the judicial process.
[4] For the reasons that follow, I am of the opinion that the evidence does not support the finding, at the time it was made, that a judicial stay of proceedings was required. The ruling was premature. Because it follows that there will have to be a new trial, I will describe the evidence in as little detail as possible. For the same reason, I will not comment extensively on the theories of the Crown and the defence as put forward at the first trial. Nor will I comment to any great extent on the witness credibility issues raised by both sides. Each of these matters might be of greater or lesser importance on the retrial. It cannot be assumed that the evidence at the next trial will unfold in precisely the same manner as it did in the first trial.
[5] The Crown alleges that the respondent shot and killed the victim, Jean-Guy Lahn, in Burnaby, on 21 October 2003. At his first trial, the respondent testified and claimed that he had acted in self-defence when he shot Lahn. It came out in evidence that Lahn, the respondent, and others were cohorts in the dealing of illicit drugs. It appears to be common ground that Lahn and some of his associates had a reputation for sometimes brutally enforcing drug transactions and that Lahn used violence to keep his underlings in line.
[6] The killing took place in a strip mall parking lot during a heated argument between the respondent and Lahn. The respondent claimed in his evidence that he feared that he would be kidnapped and assaulted, as he knew Lahn’s associates had done to others. He claimed that Lahn pulled a gun on him and that he shot first in order to preserve his own life.
[7] At the first trial, the respondent called two witnesses to testify as to past violent conduct of Lahn and his associates. This evidence went to confirmation of the respondent’s state of mind when he met Lahn in the mall parking lot just before the killing. These two witnesses testified that they had been abducted and physically tortured at separate times by associates of Lahn, under his direction and partially in his presence, the first witness because he objected to a particular job he had been assigned and the second witness because he wanted to get out of the ongoing criminal enterprise. One of these defence witnesses named Aburto as the principal torturer. The other witness refused to give names for fear of retribution within the drug underworld.
[8] A jury was empanelled for the second trial, but before the trial proper began, defence counsel received a copy of the letter the Crown had given to Aburto. The jury was excused and a few days later the court embarked upon a hearing of the respondent’s application for a judicial stay of proceedings. The respondent alleged that the letter to Aburto breached his rights under s. 7 and s. 11 of the Canadian Charter of Rights and Freedoms.
[9] After the first trial, police officers continued their investigation of the case by interviewing Aburto, who was then in prison. Prosecuting Crown counsel became involved in later discussions with him. I do not find it necessary to review what Aburto said to the police and to the Crown. This process resulted in the letter from Crown counsel to Aburto dated 3 October 2006, a few days before the commencement of the second trial. The trial judge succinctly set out why the letter gave rise to the application for a judicial stay of proceedings:
[12] The basis of the present application is a letter sent by the Crown to Mr. Aburto on October 3, 2006, setting out that the accused and the two witnesses, who were named in the letter, had testified against Mr. Aburto and Mr. Padley at the first trial and had each named them as the people who tortured them. A summary was provided, some of it factually inaccurate, of what they had said. The defence submits that their witnesses are now intimidated and their case is irreparably compromised as a result.
[…]
[32] The defence alleges that Mr. Aburto is tainted as a witness, but more importantly, the defence witnesses are now irreparably compromised and will not offer their testimony at the second trial, or if they do, it will be so compromised that the accused will not be afforded a fair trial. In the defence view, a stay of proceedings is the only option.
[10] The Crown letter to Aburto confirms that Crown counsel intended to subpoena Aburto as a witness in the trial scheduled to start a week after the date of the letter. There is an insistence that Aburto testify “because of certain allegations that were made against you, Robert Padley, Richard Padley and John Lahn [the deceased]” by the respondent and the two defence witnesses who are named.
[11] The letter also contains a list of seven allegations made by the defence at the first trial. These include assertions that Aburto and Robert Padley were Lahn’s henchman and regularly beat people up on Lahn’s orders; that they tied one of the defence witnesses to a chair and tortured and beat him; that they did the same to the other defence witness; that those who attempted to leave the criminal group risked being badly beaten or killed; that Lahn, Padley and Aburto conspired to kidnap, torture and possibly kill the respondent; that, after Lahn was killed, Richard Padley removed the gun in Lahn’s possession from the crime scene and that Aburto or one of the Padleys later disposed of it; and that Aburto and Robert Padley later intimidated a named witness into suppressing evidence of the removal and disposal of Lahn’s gun.
[12] The last three items on this list arose out of submissions made to the jury by defence counsel at the first trial.
[13] The letter concludes as follows:
I recognize that it is extremely difficult, and likely dangerous, for persons who are in custody to testify in open court. I hope that, now that you have seen the sort of allegations that have been made against you and your friends and associates, that you can understand and appreciate why I must call you to the stand in this case.
Finally, I remind you that when you are brought to court, you will be under oath, and the law requires that you answer all the questions asked of you and that you at all times do so truthfully.
[14] The trial judge described the evidence as to the likely effect of the Crown letter to Aburto, and its dissemination, on the defence witnesses as follows:
[90] The first witness has filed an affidavit which contains some hearsay, and defence could not produce him for cross-examination. I admitted the affidavit, subject to the objections to the hearsay, much of which goes to the witness’s state of mind in any event, but said the weight of it would be affected by the fact that the allegations were untested. The witness deposes that he is extremely angry and frightened and does not know what to do or who to trust. He states that it is unimaginable that he would testify again.
[…]
[93] When Mr. Heller [defence counsel] last spoke to the second defence witness, he was willing to return to court to testify; however he has not been advised of the letter and his position is unknown. Defence says there is only one inference to draw: given that witness’s position in court last time and his refusal to name any name for any purpose whatsoever, he will not come and testify again once he learns that the Crown has sent a letter to one of the men who allegedly tortured him, telling the man that the witness has testified against him, naming his name when in fact the witness had refused to do so.
[…]
[100] During the course of this hearing, on October 17, 2006, Crown received a telephone message from Mr. Aburto which he disclosed to defence. The transcript reads:
I need to know the date [the respondent] and [the first witness] is going to testify in court. And I’m going to need the transcript, for [the respondent], and [the first witness], and myself after the trial is over. And so, if, can you please give the message to [Crown], please, I really need him to call the institution, because I am ready and willing to come down to court for him, but I need somebody to verify whether he got his request from me and so please can you phone the Matsqui Institution right away, the soon the better, is very, very important, and my name is Marlon ABURTO, that is the last name.
[101] The first witness deposes:
I was intending to testify at the retrial of this case. However, these developments, plus the fact that Marlon Aburto apparently asked the Crown when I would come to court, make the thought of testifying again unimaginable.
[15] The judge summarized her conclusions about this evidence thus:
[102] As defence concedes, fear is not a ground for refusing to testify. Nor is an accused necessarily entitled to a defence based on uncontaminated witnesses in the ordinary scheme of things - many witnesses have oblique motives for testifying, or are afraid to testify and afraid of retribution if they do. As Mr. Peck pointed out, an accused is entitled to a fair trial, not a perfect trial. However, the defence should not have to face a compromised case because the Crown has become implicated in undermining the value of their witnesses. The two witnesses may indeed appear, either in response to a subpoena or on a warrant, and one or both of them may actually give some evidence again, but the issue is whether, given the circumstances which now exist, the accused will have the full benefit of their testimony.
[103] There is an additional aspect to the potential testimony of these witnesses. The issue may arise as to how much the jury should know about the substance of this application in order to help them assess the defence evidence, if the witnesses do not appear and the transcripts are adduced, or if their evidence is not as forthcoming as it was last time, or even as general background to help assess their demeanour and credibility. I asked Crown to address whether the same Crown trial counsel could continue to act for the Crown if this happened. Mr. Peck left the response to the trial Crown who said he would consider it when and if it arose. In my view, it is certain to arise.
[Emphasis added.]
[16] In my opinion, demonstrated by the underlined portion of the reasons for judgment above, these conclusions are merely speculative. It cannot be known whether the first defence witness will testify until his resolve is put to the test. The actual concerns, if any, of the second witness are unknown.
[17] It is important to note that this is not a case of alleged witness tampering. The only basis on which the application for a stay was based was that the letter to Aburto and his subsequent circulation of it to others intimidated the two defence witnesses and irreparably compromised the respondent’s presentation of his defence of self-defence.
[18] The principle to be applied where a judicial stay of proceedings of a criminal charge is sought is clearly stated in O’Connor v. The Queen, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, at para. 82:
It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.
[19] In support of its argument that the trial judge acted prematurely in finding that Crown conduct had rendered the trial irreparably unfair, the Crown says that the options open to the court to avoid prejudice, short of a judicial stay of proceedings, at the appropriate times in the course of the trial, were as follows:
(a) the use of publication bans, with or without a closed courtroom, with respect to the hearing of the evidence of the two defence witnesses;
(b) the defence witnesses giving their evidence via video link from a place distant from the courtroom;
(c) admitting the evidence of the two defence witnesses from the first trial by audio playback and by transcript under the principled exception to the hearsay rule;
(d) denial to the Crown of the right to call Aburto as a rebuttal witness;
(e) carefully instructing the jurors as to their consideration of the defence evidence and any rebuttal evidence presented by the Crown.
[20] The trial judge provided lengthy written reasons for her decision to order a stay of proceedings. After considering the options suggested by the Crown in some detail, she dismissed them by stating, at para. 120, “… I believe the option of starting the trial and seeing what happens is not feasible. I am not persuaded that any alternative measures exist to remedy the situation and have concluded that this is one of those extremely rare case where the court has no alternative but to enter a judicial stay of proceedings”.
[21] In my opinion, the underlying finding of the judge that trial fairness had been irreparably compromised could not, in the circumstances of this case, rise above speculation until the defence evidence was presented at the second trial and anticipated problems became real problems. The proceedings did not progress to that stage. The ruling was premature. I agree with the Crown that the stay of proceedings was entered without the benefit of an evidentiary record. Until there is such a record, the prejudice, if any, to the respondent cannot be known, and it cannot be determined if that prejudice has caused irreparable unfairness to the trial process. The trial judge should have reserved on the defence application until later in the trial, or should have dismissed the application with leave to the defence to renew it at the appropriate time.
[22] It is only as the trial proceeds that any problems for the defence caused by the letter to the potential Crown witness will become apparent. It might prove to be the case that the defence evidence will be received without difficulty. If the defence has problems in presenting its evidence as a result of the letter, the extent of those problems and the avenues to addressing them can be considered by the trial judge. The judge will then consider the remedies I have described above, or any other remedies that might be appropriate, including a judicial stay of proceedings. A stay, of course, would be a last resort. The fairness of the trial cannot be determined until the witnesses have testified, or have refused to testify, as the case may be. As Labrosse J.A. said in a similar case, R. v. Buric and Parsniak (1996), 106 C.C.C. (3d) 97 (Ont. C.A.) at 112: “It is difficult to see how a trial will unfold when the witness has not yet been heard”.
[23] I would allow the appeal, set aside the stay of proceedings and remit the case to the trial court for a new trial.
“The Honourable Mr. Justice Low”
I agree:
“The Honourable Mr. Justice Smith”
I agree:
“The Honourable Mr. Justice Lowry”