CITATION: R. v.

Morgan, 2013 ONSC 6462

COURT FILE NO ..: CRIMJ (P) 1208/11
DATE: 20131017
ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

)
)
HER MAJESTY THE QUEEN
)
)
)
)
Respondent )
)
-and)
)
)
ERIC MORGAN
)
)
)
)
Applicant )
)
)
)
)
)

Eric Taylor and Robert Lemke, for

the Respondent

James Fleming and David Shulman,

for the Applicant

HEARD: May 13, 14, 15, 16, 21, 22,

24, 27, 28, 29, 31, June 3, 4, 11, 12,
18,19,20,2013

REASONS FOR JUDGMENT ON PRE-TRIAL MOTIONS

Publication restricted pursuant to s. 645(5) and s. 648 of
the Criminal Code.
F. Dawson J.

...
-2-

Overview
(1]

Mervyn ("Mikey") Spence was gunned down outside a Brampton

nightclub known as Malibu Marie's sometime around 4:00 a.m. on November 4,

2006. Eyewitnesses said two men confronted Spence on the sidewalk after he
exited the club. Shots rang out. Spence was chased down the sidewalk and
across the parking lot by a group of three or more black men, one or more of
whom were shooting at him. Spence fell to the ground and was finished off when
his assailants caught up to him.

[2]

A birthday party was held the previous evening at Malibu Marie's. The

party was breaking up at the time of the shooting. The event was promoted in
advance and tickets were sold to members of the public. The party was held by
and for Eric Morgan, who was turning 39 years old. Most attendees were in their
30's or 40's.
[3]

Eric Morgan was known by the nickname "Action". He ran an event

promotion business known as "Action Production". A number of popular "DJs"

had been hired to play music. Many, but not all, of those in attendance knew Eric
Morgan by his real name or simply as Action. Morgan also hired a videographer
to record events at the party.

-3[4]

In the months following the shooting the police interviewed many

witnesses including the accused Eric Morgan. The police did not consider
Morgan to be a suspect but believed he likely knew who the perpetrators were.
[5]

The investigation turned up a possible motive for the shooting. Spence

had been involved in an altercation several years before at Club Paradise in

Toronto. The altercation involved a group of men, known as "The Weston Men",
who were also in attendance at Morgan's birthday party. A friend of Spence's,
Edward Allen ("Biggs Rock"), advised the police that Spence told him that
evening that he was being "programmed" (given evil looks) by three of the
Weston Men. The Weston Men left tne club as a group prior to the shooting.
[6]

In the spring of 2009, some two and a half years after the shooting, the

Weston Men were arrested. Marian McLean and Courtney Benjamin were
charged with first degree murder. Everald Brissett, Michael Popert, Anthony
Campbell and Ervin Malcom were

charge(:~

with being accessories after the fact

to murder.
[7]

The main eyewitnesses to the shooting were Elaine Morrison and Sasha

Allison. The two were best friends who attended the party together in Elaine
Morrison's car which was parked just outside the club. In their initial police
statements they said they had left the club and returned to Morrison's vehicle

-4shortly before Spence was accosted on the sidewalk in front of Morrison's car.
When the shooting started they ducked down. Their opportunities to observe
were brief. Each said one of the assailants stood out because he was wearing
sunglasses. Both said the assailants got into an SUV after the shooting. Neither
recognized nor identified any of the assailants.
[8]

That changed when Elaine Morrison was re-interviewed by the police on

June 11, 2010 in preparation for the preliminary inquiry of Mclean and Benjamin.
During that meeting, some three and a half years after the murder, Morrison
advised the police that she recognized the assailant who was wearing
sunglasses as someone she had seen inside the club earlier in the evening.
When the police interviewed Morrison again on June 12, 2010 she identified the
person she recognized outside by pointing him out on the party video. That
person was Eric Morgan.
[9]

Elaine Morrison's revelations on June 11 and 12, 2010 led to a

reinvestigation of the case and, by one means or another, to the termination of

the outstanding charges against the Weston Men. Eric Morgan was arrested on
June 15, 2010 and charged with second degree murder.
[1 0]

Michael Popert, previously charged with being an accessory after the

fact, was re-arrested and charged with second degree murder. However, he was

~-

-5subsequently discharged at a preliminary inquiry on the basis that there was no

evidence identifying him as one of the perpetrators.
[11]

Eric Morgan stood trial for second degree murder before Mossip J. and a

jury in February and March 2012. A mistrial was declared when the jury was
unable to reach a verdict after approximately five days of deliberation. It is
common ground that identification was the central issue at the last trial and will
be again at any future trial.
[12]

I have been designated as the case management judge pursuant to s.

551.1 of the Criminal Code. It is anticipated I will preside at the retrial. However,
based on 18 days of pre-trial motions before me, counsel for Eric Morgan seek to
exclude Elaine Morrison's identification evidence on the grounds that it is tainted
and of no probative value. Crown counsel have indicated that should Elaine
Morrison's evidence be excluded they will probably ask that the case be
dismissed.
[13]

Counsel for Morgan also seek a stay of proceedings or, in the alternative,

a variety of lesser remedies, on the grounds of police misconduct towards Sasha

Allison and other potential identification witnesses, and towards a number alibi or
potential alibi witnesses. The alleged misconduct occurred during the course of
the reinvestigation. The defence alleges that during the reinvestigation these

-6-

witnesses were variously subjected to improperly leading, psychologically

coercive,

abusive,

misleading and oppressively lengthy interviews.

It is

contended the police took this approach for the purpose of shoring up Morrison's
late-breaking identification of Morgan, undermining Morgan's alibi, and "booby
trapping" potential defence witnesses by cajoling them into inconsistencies that
could be used by the Crown in cross-examination or pursuant to s. 9 of the

Canada Evidence Act, R.S.C. 1985, Chap. C-5 (CEA), and possibly on a K.G.B.
application 1, should they be called by the Crown.

The Approach to the Pre-trial Applications

[14]

All counsel agree that the application to exclude Elaine Morrison's

identification evidence can be dealt with as a discrete matter. No deliberate

police misconduct is alleged to have been directed towards Elaine Morrison.
[15]

The balance of the pre-trial application is not so easily dealt with. The

accused alleges generalized police misconduct towards a number of witnesses

that has impaired the accused's ability to make full answer and defence and
~--

--

-~--

---

.~

----- ----

.. -

--------------

adversely affected the fairness of any trial. This requires a consideration of the
law of abuse of process and ss. 7 and 11 (d) of the Chatter, both in relation to the
remedy of a stay of proceedings and the lesser remedies which are sought in the
alternative. The accused also seeks remedies on the basis of the court's
1

R.

v.

B.(K.G.), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22; commonly referred to as K.G.B.

-7discretion to exclude evidence because its prejudicial effect exceeds its probative
value, prospectively pursuant to the rules of admissibility under K. G. B., and on
the basis of the court's discretion to prevent cross-examination on prior
inconsistent statements.
[16]

There is a substantial body of evidence to consider. I have been provided

with all of the evidence and pre-trial statements of 11 witnesses. Most witnesses
were interviewed repeatedly, and some for lengthy periods, on video. I have
watched all of the videos and read the witnesses' preliminary hearing and trial
evidence. In the cases of Sasha Allison and an alibi witness Brian Cox my review
included their voir dire evidence at the first trial in relation to applications made
by the Crown pursuant to s. 9 of the CEA and K.G.B. The applicant has filed a
357 page factum and an Application Record which consists of 25 bound
volumes.
[17]

The applicant has also filed reports prepared by two forensic

psychologists. The psychologists opine that the police employed the "Reid
Technique" during many of the witness interviews. The reports indicate that the
technique can be effective in obtaining confessions from guilty suspects, but that
it has also been implicated in false confessions. The reports question the
suitability of the technique for witness interviews, particularly in the case of
eyewitnesses. The reports also address the psychology of eyewitness memory,

-8-

the evaluation of eyewitness identification and the psychology of interview and

interrogation techniques. The applicant submits that this expert evidence should
be taken into account on this application. As I have come to the conclusion that
the expert evidence is inadmissible on this application I will say no more about it
until the end of these reasons, when I will briefly explain my

reas~ns

for this

conclusion.
[18]

I will deal with the application to exclude Elaine Morrison's identification

evidence first. Before doing so I will provide a more detailed overview of the
evidence essential to understanding the application to exclude Elaine Morrison's
identification evidence. I will leave the review of the evidence associated with the
abuse of process aspect of the case until I deal with the balance of the
application.
A More Detailed Overview of the Evidence
[19]

Eric Morgan's birthday party got underway at Malibu Marie's at about

10:00 p.m. on November 3, 2006. However, most people arrived around

midnight. At the height of the party there were between 100 and 150 people
present.
[20]

Devon Garven was hired to make a video of the party. He videotaped the

last few hours of the party. The video shows people standing and listening to

.,
-9-

music and dancing. The video camera is continuously panned around the party
with the result that most persons in attendance are caught on camera at one time
or another. Most are seen repeatedly. The video of the party is significant as it
was seized by the police shortly after the shooting and was shown to important
witnesses, including to Elaine Morrison and Sasha Allison.
[21]

The video was shown to Elaine Morrison on June 12, 2010 when she

identified Eric Morgan as the assailant wearing sunglasses. Eric Morgan was
wearing sunglasses throughout most of the party video. The party video shows
that a number of men were wearing sunglasses inside Malibu Marie's. The
defence material suggests up to 13 men were wearing sunglasses during the
party. Elaine Morrison thought only one other person besides Morgan was
wearing sunglasses inside the club.
[22]

The party was breaking up between 3:00 and 4:00a.m. Towards the end

of the party Annastacha Reid sang happy birthday to Eric Morgan. A large
birthday cake, which had been on display throughout the night, was cut and cake
was distributed to the partygoers.
[23]

Brian Cox was a good friend of Eric Morgan's. He was also in the music

promotion business. He and Eric Morgan often worked together to promote

"dance hall" events. Cox was present throughout the party and was an important

- 10-

alibi witness. When interviewed on November 6, 2006 he told the police that at
the time a woman known as "Lady Shaba" ran into the club and said there had
been a shooting outside, Eric Morgan was inside the club cutting and handing out
birthday cake to departing guests.
[24]

Elaine Morrison came to the party to see a OJ named Hubert Dinnal.

Dinnal was also known as "Wildfire" and "Blue". Elaine Morrison was romantically
interested in Dinnal but they were not in a relationship at the time. Morrison
asked her close friend Sasha Allison to accompany her to the party.
[25]

During the party Elaine Morrison spent time with Dinnal and Allison. The

three of them walked out of the party together about 15 minutes before the
shooting. The women were headed home and Dinnal was walking them to their
car.
[26]

Malibu Marie's is located in a strip mall on the south east corner of

Steeles Avenue and Torbram Road. The strip mall extends in a southerly
direction from Steeles Avenue in the north with the businesses fronting to the
west facing Torbram Road which runs south from Steeles Avenue. There is a
sidewalk running north and south immediately outside the front of the businesses
in the strip mall, including Malibu Marie's.

- 11 [27]

Elaine Morrison's car was parked nose in towards the sidewalk facing

east. The exit from Malibu Marie's was further to the north.
[28]

When the women arrived at the car Sasha Allison got into the passenger

side and waited while Elaine Morrison and Hubert Dinnal spoke outside the car.
According to Morrison, Dinnal was leaning with his back against the driver's side
of the car and she was leaning against him. Morrison was hoping Dinnal would
kiss her. Allison said she was watching people while she waited for Morrison.
[29]

Sasha Allison said she saw the victim, Mervyn Spence, come out of the

club and proceed down the sidewalk in front of the car. He was wearing bright
colours and she had seen him dancing inside the club.
[30]

Just as Spence was passing the car Allison saw two men approach him

and put guns in his face. She thought it was a robbery at first, but then she could
tell the men were angry and she thought they were going to kill him. Shots were
fired and she ducked down.
[31]

Elaine Morrison was concentrating on Dinnal when she became aware of

a confrontation developing on the sidewalk near the front of her car. She had the
impression that people had approached from the parking lot behind her car.
Shots were fired and she and Dinnal ducked down. She then peeked up and saw
the victim being chased by at least three men. There were more gunshots. The

- 12victim fell down at the south end of the parking lot quite a distance away. The
men chasing caught up to the victim and more shots were fired when the victim
was on the ground.
[32]

The women said that one or more SUVs and a car pulled into the parking

lot. One or more of the assailants got into an SUV which pulled away. The
assailant who was wearing sunglasses got into an SUV.
[33]

Morrison and Allison then left the parking lot in Morrison's car. Morrison

described Allison as hysterical. Hubert Dinnal went back into the club to get his
music CO's before leaving.
[34]

The evidence indicates that there was only one call to 911. It was at

4:08:59 from a woman named Princess Boucher. By the time the police arrived at
4:11 a.m. everyone except Boucher had left the scene. Brian Cox told the police
that when he drove out of the south exit of the parking lot he stopped to look at
the body and spoke to a woman who was standing beside the deceased.
(35]

Security video seized from nearby businesses failed to capture the

shooting and simply showed vehicles leaving the parking lot.

[36]

Elaine Morrison was first interviewed on December 18, 2006. Morrison

could only remember a man wearing sunglasses who was running after the

-13victim. I will review her statements and evidence in more depth below. She did
not provide a detailed description and did not identify anyone.
[37]

The police did not interview Sasha Allison for the first time until May 29,

2009. Allison provided a general description of the assailant who was wearing
sunglasses. I will review her statements and evidence in more detail below. She
described the assailant wearing sunglasses as a "bigger set" black male with
dark skin, between 6'0" and 6'2", at least 200 lbs., wearing dark clothing. Eric
Morgan is described in evidence as a light skinned black male. He has a very
slim build. Jail records indicate that when Eric Morgan was arrested on June 15,
201 0 he was 5' 9" tall and weighed 130 lbs. Allison was shown the still images
from the party video and said "Action", whose photo she recognized, was not
involved.
[38]

When Sasha Allison was re-interviewed on June 14, 2010, she was told

there were new developments in the case, and by degrees, that another witness
had identified the assailant who was wearing sunglasses by name, that the police
believed that witness, that the identified assailant was a person who had been at
the party, that she knew that person by name or nickname, and that she had
previously been able to name that person when she saw the party video. Sasha
Allison then "guessed" that the person must have been a friend from high school
she had previously identified as being at the party. When she was told that was

- 14incorrect Allison then said that she thought the person was Action. Counsel for
the accused submits this was really a deduction by Allison from what had been
said in the interview, as opposed to a recalled identification.
[39]

At the first trial Sasha Allison testified that she no longer believed that

Eric Morgan was the assailant wearing sunglasses. She said that she truly
believed that he was when she said that during her June 14, 2010 interview.
When asked why she believed that on June 14, 2010 she said she thought that it
was due to what had "come before" in the interview. She was referring to the
suggestive methods used during the interview.
[40]

At the first trial, Crown counsel was permitted to cross-examine Sasha

Allison on her June 14, 2010 statement pursuant to s. 9(2) of the CEA and as an
"adverse" witness. Ultimately, her June 14, 2010 statement was admitted as
substantive evidence pursuant to K.G.B.
[41]

In his original police statement Brian Cox said Morgan was inside the club

distributing cake when the shooting was announced. Cox was subjected to a
further interview on June 23, 2010. That interview lasted for more than eight
hours. Cox was not offered food or refreshment during the interview. He was
pressured and continuously threatened with charges of obstruction of justice and
accessory after the fact to murder if he did not retract his support for Eric

-15Morgan's alibi. He eventually broke down in tears and told the police he was not
sure where Morgan was at the time the shooting was announced.
[42]

Brian Cox was called as a Crown witness at the first trial. At the trial Cox

testified that the police broke him with their relentless threats of serious criminal
charges which would ruin his chances to work as a paralegal. He was enrolled in
a paralegal training program at the time. Crown counsel proceeded to crossexamine Brian Cox pursuant to s. 9(2) of the CEA. Ultimately, Cox's June 23,
2010 statement was admitted as substantive evidence pursuant to K. G.B.
[43]

Crown counsel has advised me that while the Crown intends to call

Sasha Allison as a Crown witness, the Crown will not be calling Brian Cox as a
Crown witness at any future trial. Nor will the Crown call any of the other potential
alibi witnesses I will refer to later. However, should Cox or any of the others be
called by the defence the Crown proposes to cross-examine them on any prior
inconsistent statements the Crown deems relevant. In its factum the Crown takes
the position that leave is not required to permit a prior inconsistent statement to
be put to an opposing party's witness pursuant to s. 10 of the CEA.
[44]

Against this background I turn first to the discrete application to exclude

Elaine Morrison's identification evidence.

- 16-

The Application to Exclude Elaine Morrison's Identification Evidence

Positions of the Parties
[45]

As formulated in the applicant's factum, the defence position is that

Morrison's identification evidence should be excluded because its probative

value is exceeded by its prejudicial effect. The applicant places reliance on a
number of cases in which such an approach resulted in the exclusion of in-dock
identifications

which

were

either unsupported

by

pre-trial

identification

procedures designed to test the witness' ability to identify the alleged perpetrator,
or where pre-trial identification procedures were suggestive or seriously flawed
and therefore offered no support for the in-dock identification. The cases relied
upon are R. v. Sandhu, [2005] O.J. No. 5855 (S.C.J.) at paras. 1-5, 38-39; R. v.
Holmes, [2002] O.J. No. 4178 (C.A.) at paras. 38-40; R. v. Johnson, [2003] O.J.

No. 3580 (S.C.J.) at paras. 1-5; and R. v. Dhillon, [2005] O.J. No. 2565 (S.C.J.)
at paras. 12-13. See also R. v. Miapanoose (1996), 38 O.R. (3d) 419 (C.A.).
[46]

This submission is combined with reliance on R. v. Harrer, [1995] 3

S.C.R. 562, [1995] S.C.J. No. 81. Harrer stands for the proposition that where_the
admission of evidence would render a trial unfair in contravention of ss. 7 and
11 (d) of the Charter, the residual discretion to exclude evidence when its
probative value is exceeded by its prejudicial effect may be invoked to exclude
that evidence although it was not obtained in violation of the Charter.

- 17[4 7]

These arguments are advanced within the context of the known history of

miscarriages of justice in eyewitness identification cases.

[48]

During oral argument the focus of the defence submissions turned away

somewhat from prejudicial effect and more emphasis was placed on the alleged
lack of probative value in Elaine Morrison's identification evidence. Mr. Fleming
went so far as to submit that there was no probative value to Morrison's
identification of the accused. This change in emphasis may reflect the Crown's
reliance on the recently released decision in R. v. Frimpong, 2013 ONCA 243.
[49]

The no probative value submission is based primarily on the fact that

Morrison agreed in cross-examination at the first trial that her observation of the
assailants took place in a poorly lit parking lot at 4:00 a.m. and was of only one to
two seconds in duration. Counsel then draws an analogy to the in-dock
identification cases previously referenced by submitting that the police failed to
conduct a proper photo line-up in this case. The submission goes further and
criticizes the police for showing Elaine Morrison the party video, particularly
because it had the sound turned on. Counsel submits that comments heard on
the audio track of the party video suggested who Morrison should choose from
the video. The submission continues that the use of the suggestive party video
as opposed to a properly conducted photo line-up undermines any argument that
any in-dock identification Morrison has made or will make is based on an

- 18-

objective test of her ability to identify the accused. As the jury will have no
legitimate means by which to evaluate the in-dock identification that it is
anticipated Elaine Morrison will make, consistent with the cases referenced
above, it is submitted that her evidence has no probative value.
[50]

Alternatively, it is submitted that there is a prejudicial danger the jury will

give Morrison's identification more weight than it deserves. This is again tied to a
submission that the jurors will have no objective test of Morrison's ability to
identify Morgan to assist them in evaluating the reliability of her identification. To
admit evidence which cannot be properly evaluated by the trier of fact would not
only be prejudicial but would render the trial unfair.
[51]

On behalf of the Crown, Mr. Taylor acknowledges the brief duration of

Morrison's observations and, generally, the conditions under which they were
made. He submits, however, that Morrison was engaged in a process that more
closely resembled recognition than identification of a complete stranger. This
submission is based on the fact that Elaine Morrison had seen the accused over
the course of the evening. She knew she was attending a birthday party and she
asked Hubert Dinnal whose birthday it was. He pointed "the birthday boy" out to
her.

...

- 19[52]

The defence counters this argument by saying that Dinnal pointed to

someone out who was 25 feet away in a group of people and submits there is a
potential for error. He also points out that Ervin Malcom, one of the Weston men,
was also celebrating his birthday that night.
[53]

Crown counsel further submits that in the circumstances the showing of

the party video was an adequate substitute for a properly conducted photo lineup. In fact, it is submitted, it was a better test than a photo line-up. The video is
lengthy and shows numerous people moving about. Some are at times in the
foreground and at other times in the background. Crown counsel notes that when
Elaine Morrison was shown the party video she was able to repeatedly pick out
the accused when he appeared at different times during the video. Mr. Taylor
emphasizes that this entire process was videotaped by the police and the jury will
have both the party video and the video of Elaine Morrison identifying the
accused on the party video, to assist them.
[54]

Against this background I turn to my review of the evidence and my

findings of fact.

-20-

Elaine Morrison's Police Interviews

[55]

Elaine Morrison's first police interview on December 18, 2006 lasted for

two hours and 15 minutes. It was video recorded and is transcribed. I will focus
solely on the identification issue.
[56]

Morrison said that when she was with Wildfire she heard and saw gunfire.

There were lots of flashes of light. They bent down. While there was more than
one person involved in the shooting she only saw one person actually shooting.
She saw three to four persons running. She said the only person she
remembered from the "whole cluster" was "one person with [sun]glasses".
[57]

At p. 19 of the transcript of the interview she was asked if she saw the

guy with the sunglasses in the club. She said "he didn't stand out to me". She
said events started about two car lengths away from her location - so close she
should be able to say who was standing there, but she could not. It started on the
sidewalk. The group of people ran after the victim. She could still hear shooting.
She saw the victim collapse. They made sure he was dead. She remembered a
black SUV, maybe more than one. The guy with the sunglasses entered the

suv.
[58]

Commencing at p. 48 of the interview transcript Morrison was provided

with a book of still images taken from the party video. She looked through them

-21identifying various people she knew. At p. 50 she said, "I don't recognize the guy
with the glasses." It is clear that Eric Morgan was depicted in the images and was
wearing sunglasses. At p. 53 she said she remembered asking Wildfire (Dinnal)
who was "keeping the party". He said it was the guy with the braids and pointed
someone out.
[59]
:r.:

At the bottom of p. 55 she said a guy sticks out because Wildfire said it

was his

birthday~

She was asked if he was the guy running outside with

sunglasses on and she said he was not. She also said that the guy outside with
the glasses looked familiar to her.
[60]

rwould add that during the video of the December 18, 2006 interview it is

not always possible to determine which still image Morrison is looking at when
she makes some of her comments.
[61]

On June 11, 2010 Elaine Morrison was at the Brampton courthouse to

prepare to testify at the preliminary hearing of the Weston men. Det. Tony
Doherty, who is the lead investigator, took her to a video recorded room to
confirm certain things she told him off camera. The video recording and a
transcript are available. The video interview is just over one half hour long.
[62]

On the video Morrison confirms to Det. Doherty that she told him that day

for the first time that she would recognize the assailant who was wearing

-22-

sunglasses because she knew who he was at the time. She did not know him
personally and did not know his name but had seen him inside the club. She also
said that she had inquired who he was during the party and prior to the shooting.
Morrison told Doherty she was a little nervous or scared during her December
18, 2006 interview and so she told the police she did not see him inside the club,
but she had.
[63]

At p. 5 of the transcript of the June 11, 2010 interview Morrison was

asked whether the guy she saw outside was connected to what was going on
inside the club that night. She said she was "not a hundred percent" but she
believed that he "was part of the reason why the party was going on". She then
said she remembered that "vaguely". She remembered it was a birthday party.
[64]

At the bottom of p. 5 Morrison was asked if she remembered who the

birthday party was for. She said at first she thought it was for the guy with the
sunglasses, but that after the shooting her sister told her it was the birthday of
"the guy who got shot".
[65]

Det. Doherty then asked Morrison to provide a description of the assailant

wearing the sunglasses. Morrison said he had dark skin and was about 5'8" to
5'9". She was not sure how his hair was but thought he had "cane rows" or
"braids", "not very long, short." He was a "very dark slim built kind of guy." From

-23-

that point she went on to describe the shooting. She made further reference to
the guy with the sunglasses having braids.
[66]

The following day, June 12, 2010, Elaine Morrison attended a police

station for a further video recorded interview. Det. Doherty commenced the
interview by reviewing what occurred the previous day. He told her a Cst.
Wingate was going to show her the party video. He told her the person she saw
outside wearing sunglasses may or may not be seen on the video.
[67]

Doherty told Morrison that Wingate would show her the video because he

had not been involved in the investigation. This was technically incorrect.
Wingate had been working on the case, but to that point only to locate witnesses
for the preliminary inquiry of the Weston men. Wingate had not previously
watched the party video.
[68]

I pause to point out that it would have been difficult for the police to

prepare a photo line-up at that point in time. To that point Elaine Morrison had
not actually identified anyone. She said she saw the sunglasses wearing
assailant inside the club, however, she had not clearly said he was the person
who was having a birthday. She had not said clearly that when she saw him
inside the club he was wearing sunglasses.

-24-

[69]

Perhaps the police could have used still images of all of the men seen on

the party video who were wearing sunglasses to put together a line-up. However,
if they were going to do that, on its face it would seem just as reasonable to show
Morrison the video. Based on what the police knew after speaking to Morrison on
June 11 it seems to me that showing her the party video was a reasonable
investigative step to take.
[70]

However, in view of what happened within the first few minutes of

showing Morrison the party video, with the benefit of hindsight, it would have
been better to show Morrison the video without the audio track turned on. I say
this for the following reasons.
[71]

The video of the June 12, 2010 interview shows that Morrison watched

the party video to the elapsed time marker 1:37. I will refer to page numbers of
the transcript of the interview video and to elapsed time markers on the party
video. At p. 7 Morrison says: "She said happy birthday to that guy. Did she just
say that?" Wingate agrees he heard that on the party video. Morrison then says:
"That's the guy that I, that I see-, I seen-, that I think I seen but let's just keep
watching." The person on the party video to whom "happy birthday" is being said
at 1:37 is Eric Morgan, who is wearing sunglasses on the video at that point.

-25[72]

Elaine Morrison went on at p. 7 and the following pages to identify

Morgan as the assailant she had seen outside wearing sunglasses. She said that
in the party video "he looks lighter than I remember but that's who ... in my
statement I said that I asked the OJ who that was and he said it was his
birthday." She then said, at p. 8, that she had misinformation from other people
about whose birthday it was. Other people told her later it was the victim's
birthday. It became apparent this had caused her some confusion.
[73]

Elaine Morrison continued to watch the party video and pointed Eric

Morgan out four more times. In addition to 1:37 she pointed him out at 30:09 (p.
15), 38:40 (p. 19), 1:21 :38 (p. 30) and 1:23:40 (p. 32). She also pointed out other
persons she knew who were shown on the party video.
Elaine Morrison's Subsequent Evidence
[74]

In Morrison's subsequent evidence at the preliminary inquiry, and

particularly at trial, she stated that she always recognized the assailant wearing
sunglasses as the "birthday boy". He was the person Dinnal pointed out when
she asked whose birthday it was. However, she had become confused based on
what her sister and others had told her about it being the victim's birthday. She
testified that she told Sasha Allison on the way home the night of the shooting
that she could not believe he would do that on his birthday. Sasha Allison does
not remember that conversation.

-26-

[75]

Morrison testified that when she was first interviewed by the police she

was "deliberately vague" because of nervousness and not wanting to get

involved. By the time of her June 11 and 12, 2010 statements a number of years
had gone by and she was living her life differently. She testified she had been
going to church and thinking about all of the shootings that were taking place.
She decided not to hold back and to tell the police what she had always known.
[76]

Before moving on I would add that a review of Elaine Morrison's

preliminary inquiry and trial evidence shows that her evidence about various
details relating to her identification continued to evolve over time. This gives rise
to a number of inconsistencies between her trial evidence and her earlier
statements, and could support the argument that her memory of the shooting has
changed by incorporating details she learned subsequently, including details
about how Eric Morgan wore his hair, about his clothing and about the shade of
his skin colour.

Analysis
[77]

As I will explain later during my analysis of the argument for the exclusion

of Sasha Allison's June 14, 2010 statement, I do not think Harrer can be
interpreted to mean that whenever a determination is made that the probative
value of evidence is exceeded by its prejudicial effect the admission of that

..
-27-

evidence will render the trial unfair. Rather, Harrer holds that where the
admission of the evidence would render the trial unfair the probative value of the
evidence will always be exceeded by its prejudicial effect and so the residual
discretion is available as a means of excluding the evidence without the need to
resort to s. 24(1) of the Charter. However, as counsel have proceeded on the
assumption that the former proposition is correct, and because I conclude that
the probative value of Elaine Morrison's evidence is not exceeded by its
prejudicial effect, I will approach the admissibility of her evidence strictly from the
point of view of applying that test. Given the manner in which the applicant's
argument has been advanced, determination of this argument against the
applicant is dispositive of the issue given my conclusion that there was no police
impropriety during Morrison's interviews or with respect to the identification
process. I turn to the probative value versus prejudicial effect analysis.
[78]

R.

v. Frimpong, 2013 ONCA 243 is a recent case in which the Court of

Appeal considered an argument that a trial judge should have excluded an

eyewitness's identification evidence on the basis that it's probative value was
outweighed by its prejudicial effect. After acknowledging that identification
evidence is subject to exclusion on this basis, and that there were a number of
problems with the identification evidence of the challenged witness, the court
focused on the question of prejudice.

-28[79]

The court observed, at para. 18, that evidence is prejudicial if it threatens

the fairness of the trial, "cannot be adequately tested and challenged through
cross-examination and the other means available in the adversarial process", or
if there is a real risk the jury will misuse the evidence or be unable to properly
assess it despite assisting instructions from the trial judge. The court noted that
there was a strong presumption to be overcome that jurors follow judicial
instructions.
[80]

The court went on to conclude that since the challenged evidence could

be fully tested by the defence, and because there was nothing peculiar or unique
about the challenged evidence which would impair the jury's ability to assess it, it
could not be said there was any prejudicial effect in the relevant sense. The court
acknowledged that the assessment of identification can be difficult and
counterintuitive but held that the assessment of the weaknesses alleged were
nevertheless "standard fare" for a properly instructed jury. As it could not be said
the problematic identification had no probative value, it could not be excluded in
the absence of prejudicial effect.
[81]

I find the analysis in Frimpong, which was released after the applicant's

factum was filed, to have direct application given the manner in which the
applicant's argument was presented.

-29[82]

As in Frimpong, the prior identification procedure in Elaine Morrison's

June 12, 2010 statement was video recorded. The interview video is available for
assessment by the jury, as is the party video. There is considerable ammunition
available for cross-examination for the purpose of testing Morrison's evidence. It
is also anticipated that Sasha Allison will contradict Elaine Morrison's
identification. Other witnesses who knew the accused but did not see him outside
are available to testify.
[83]

As in Frimpong, the defence is in a position to place all of the

weaknesses of Elaine Morrison's evidence before the jury. The jury will receive
tailored instructions on the frailties of eyewitness identification evidence designed
to ensure they have the tools needed to assess her evidence and to address the
concern of the jury giving such evidence undue weight. The weaknesses in the
identification evidence in this case are similar in their general nature to those in
Frimpong. It cannot be said that there is anything unique or so unusual about the

challenged evidence that the jury will not be able to properly assess it with the
aid of an appropriate instruction.
[84]

Given my conclusion that the evidence can be adequately tested I do not

see how its admission will adversely affect the fairness of the trial. I see no other
basis for reaching a conclusion that the admission of this evidence would result
in unfairness. As mentioned previously, the defence does not allege police

-30misconduct directed towards Elaine Morrison. While the police did not, in
hindsight, handle Elaine Morrison's June 12, 2010 interview with perfection that
is not the applicable standard.
[85]

Given these conclusions the critical question becomes whether the

evidence has any probative value. As noted in Frimpong, at para. 21: "Absent
prejudice, a trial judge cannot exclude evidence solely on the basis that the judge
thinks the evidence has little probative value."
[86]

In my view this case is not on a par with a case that rests solely on an in-

dock identification after a brief observation. Elaine Morrison testified at the first
trial that at the time she made her initial observations she formed the opinion that
the assailant wearing sunglasses was the person that had been pointed out to
her as the person who was having the birthday party. She said the man she saw
outside was the man who had Happy Birthday sung to him at the party. It was his
birthday and so attention was drawn to him throughout the night. There is
evidence that Happy Birthday was sung to Eric Morgan towards the end of the
party. There is no evidence it was sung to anyone else.
[87]

Although Eric Morgan was unknown to Elaine Morrison prior to that night,

and although she was not introduced to him and did not speak to him, she said
he was pointed out to her by Hubert Dinnal as the person having the birthday.

-31 Morrison's evidence that Morgan was the person she saw Happy Birthday sung
to and the independent evidence that Happy Birthday was sung to Eric Morgan,
when combined, tends to confirm that Morgan was indeed the person Dinnal
pointed out to her.
[88]

These factors, in combination, introduce an element of recognition into

the identification issue. Although Morrison agreed in cross-examination at the

first trial that her observations were limited to perhaps one to two seconds, this
recognition element is a factor for the jury to take into account on the question of
whether she is correct in stating that Eric Morgan is the person she saw outside.
[89]

There is also the fact that the audio was on when Elaine Morrison saw

the party video on June 12, 2010 to be taken into account. There is no doubt that
hearing a woman say "happy birthday" drew Morrison's attention to Eric Morgan
just before she identified him. In many circumstances, drawing a witness's
attention to a particular individual during or before an identification process can
render that process valueless. See, for example, Miapanoose; R. v. Smierciak,
[1946] O.J. No. 290, 87 C.C.C. 175 (C.A.) at para 5.
[90]

I am not able to see the situation here in that way. The reason for that is

Morrison's trial evidence that at the time of the shooting she immediately
recognized the assailant wearing the sunglasses as the "birthday boy" who had

-32been pointed out to her by Dinnal. However, years later, when she decided to be
forthcoming to the police, she could no longer remember who it was that Dinnal
had pointed out to her. In these circumstances, what occurred at 1:37 of the party
video could be viewed by the jury as something which refreshed Morrison's
memory and removed confusion about whose birthday it was rather than as an
improper suggestion of who the authorities thought the perpetrator was. It is this
latter kind of suggestion that is regarded as undermining eyewitness
identifications.
[91]

There is also the additional independent evidence that Morgan was the

person to whom Happy Birthday had been sung to be taken into account.
Annastacha Reid told the police she sang Happy Birthday to Eric Morgan
towards the end of the party. At least one other witness confirmed this. Evidence
was led at the last trial that Reid was well known for her exceptional singing
voice.
[92]

Morrison's trial evidence that the assailant wearing sunglasses was the

person she had seen Happy Birthday sung to inside the club, when coupled with
the evidence independent of Morrison that the song was sung to Eric Morgan,
constitutes some circumstantial evidence of identification of Eric Morgan as a
perpetrator. That combination of identifying circumstances is completely

-33independent of the fact that Morrison had her attention drawn to Morgan by the
woman on the party video saying "happy birthday" to Morgan.
(93]

In my view, this combination of factors distinguishes what occurred in this

case from cases like Miapanoose and Smierciak, and from the in-dock
identification cases where the identification evidence was excluded because of a
flawed prior identification procedure or because there was no prior identification
procedure at all.
[94]

I conclude by saying that I neither wish to overstate the probative value of

Elaine Morrison's identification evidence nor understate the need for caution that
a jury will have to be advised to exercise in its evaluation. However, taking
everything into account, I find I am unable to say that the evidence has no
probative value. Given my earlier conclusion that there is no prejudicial effect
associated with the admission of Morrison's identification evidence it follows,
applying Frimpong, that the evidence is not subject to exclusion.
[95]

Before leaving Elaine Morrison's evidence I want to comment on one

aspect of the Crown's argument which I disagree with. Mr. Taylor submitted that
the fact that Elaine Morrison was able to repeatedly pick Eric Morgan out over
the course of watching the party video strengthens Morrison's identification
evidence because it demonstrates she was able to recognize him in varying

-34circumstances and conditions. Therefore, he submits, she would be more likely

to be correct in her original recognition of Morgan as the assailant she saw in the
parking lot.
[96]

With respect, I see this as flawed reasoning which the jury will have to be

specifically cautioned against.

[97]

Once Elaine Morrison had identified Eric Morgan on the party video for

the first time she would simply be looking for the same person thereafter. If an
identification witness were to be shown a photograph of a suspect prior to
viewing a photo line-up containing a different photograph of the same suspect I
would think the photo line-up would be tainted. The same reasoning applies here.
Moreover, in the circumstances of a continuous party video, once Elaine
Morrison saw Eric Morgan she would be aware of the clothing and hairstyle he
wore that evening. These visual cues would assist her in spotting him when he
appeared in the video subsequently.
[9]

For_ the&e reasons it would be dangerous to suggest to the jury that they

could reason that because Morrison had picked Morgan out more than once
when viewing the party video she was more likely to have been correct in her
original recognition of the assailant as Eric Morgan.

[99]

35-

It also seems to me that Morrison's exposure to a video of some duration,

which repeatedly shows the clothing and hairstyle worn by Morgan that night, has
the potential to contaminate the accuracy of any description subsequently
provided by Elaine Morrison, to the police or in testimony. The danger is that
from that point on she will not be able to distinguish her earlier recollection of the
appearance of the assailant she saw in the parking lot from the clothing and
hairstyle seen repeatedly on the video. However, based on Frimpong, I conclude
this is the sort of problem that can be put before the jury by counsel during
examination and cross-examination of the witness and which can and should be
dealt with in judicial instructions designed to caution the jury about the difficulties
of assessing identification evidence.
Conclusion With Respect to Elaine Morrison's Evidence
[1 00]

I am not persuaded that despite the potential problems with Elaine

Morrison's identification evidence the probative value of that evidence is

outweighed by its prejudicial effect, or that its admission would render the trial
unfair. The evidence is admissible.
The Balance of the Relief Sought - Alibi and Identification Witnesses
Positions of the Parties
[101]

Reduced to its most basic level, the applicant argues that the police

acted improperly towards a number of alibi witnesses and potential identification

-36witnesses during their reinvestigation of the case following Elaine Morrison's latebreaking identification of Eric Morgan. The core allegation is that the witnesses
were treated so badly that the proceedings against Morgan should be stayed.
The mistreatment of the witnesses is alleged to be such that it would constitute
an abuse of process pursuant to s. 7 of the Charter to permit the prosecution to
proceed. It is alleged that the police misconduct resulted in the manufacture of a
false identification of Morgan by Sasha Allison and the destruction of alibi
evidence through pressure and tainting. This conduct is said to render a further
trial unfair in contravention ss. 7 and 11 (d) of the Charter.
[1 02]

The applicant contends that even if the test for a stay of proceedings is

not met the court should find these violations constitute an abuse of process and
grant lesser remedies, which would include the exclusion of certain evidence,
preventing the Crown from tendering the statements of Sasha Allison and Brian
Cox pursuant to K.G.B., preventing the Crown from cross-examining on certain
statements, requiring the Crown to call certain witnesses, and permitting the
defence to cross-examine certain witnesses even if the defence calls them.
[103]

It is submitted these lesser remedies are available under s. 24(1) of the

Charter, and pursuant to the common law discretion to exclude evidence the

probative value of which is exceeded by its prejudicial effect. The applicant also
asks that I make K.G.B. rulings at this time, based on the evidence at the first

-37trial, preventing the substantive use of the statements of Sash a Allison and Brian
Cox. The accused seeks this ruling on the basis of an alleged lack of threshold
reliability, or pursuant to the residual discretion to exclude such hearsay evidence
which is discussed in K.G.B. and subsequent cases.
[1 04]

The Crown's position is that the police did nothing that should result in a

finding of misconduct that constitutes an abuse of process or adversly affects the

applicant's ability to make full answer and defence under ss. 7 and 11 (d) of the
Charter. Certainly, the Crown submits, the test for a stay of proceedings has not

been met. Even if an abuse of process or Charter violation were to be found

lesser remedies than a stay would be appropriate. The Crown concedes such
remedies would be available under s. 24(1) of the Charter.
[1 05]

While the Crown acknowledges that the court has jurisdiction to exclude

evidence or limit cross-examination to ensure a fair trial based on a probative

value versus prejudicial effect analysis, the Crown submits there is no evidential
basis for the exercise of that discretion with respect to any witness in this case,
except perhaps Sasha Allison or Brian Cox. Crown counsel relies on the fact that
Allison and Cox are the only witnesses who have ever claimed that the conduct
of the police influenced their statements. With respect to Allison and Cox, Crown
counsel submits the discretion should not be exercised despite their claims as

-38the threshold reliability of their evidence is established and the ultimate reliability
of their evidence is for the jury.
[1 06]

The Crown also submits that any consideration of a stay of proceedings

is premature and should only be dealt with after the accused has had an
opportunity to be acquitted on the merits. The Crown submits that the court will
be in the best position to assess the impact of the alleged misconduct on the
fairness of the trial after the issues at the trial to come are known; for example,
whether an alibi defence is called or not. The Crown similarly submits that K. G. B.
rulings are premature at this stage.
[1 07]

From this summary it can be seen that I have been presented with a

tangle of overlapping legal arguments. Later in my analysis I will deal first with
the overarching abuse of process argument which the applicant submits should
result in a stay of proceedings. I will then deal with the subsidiary arguments
relating primarily to remedies sought for alleged police misconduct in relation to
the evidence obtained from Sasha Allison on June 14, 2010 and Brian Cox on
June 23, 2010. Resolution of the overarching abuse of process argument
requires a consideration of the reinvestigation and a detailed examination of how
the relevant witnesses were treated by the police. I turn to that now. I will
examine how witnesses who were interviewed on more than one occasion were
treated both before and after Elaine Morrison's June 12, 2010 revelation.

-39-

The Reinvestigation
[108]

After Elaine Morrison identified Eric Morgan on June 12, 2010 the

officers involved in the investigation began to conduct further witness interviews.

A number of different officers were involved but there were certain common
approaches, at least with respect to the witness interviews raised on this
application.
[1 09]

Almost all of the witnesses were pressured. Witnesses were often told

they were holding back or lying. Witnesses were told about the potential for
charges of obstruction of justice or being an accessory after the fact to murder.
Some were threatened with such charges. Some were told the police did not
believe them and were told they were lying. Some of these witness interviews
more closely resemble what is seen during an aggressive interrogation of an
accused than an objective effort to gather information and preserve evidence.
However, the degree of pressure exerted varied from witness to witness. In some
cases the pressure produced results related to legitimate areas of police inquiry.
[11 0]

Before examining what occurred with each witness I wish to add that the

police faced certain difficulties in this investigation. By the time the police arrived
at the scene everyone had fled. As far as I am aware, only one woman stayed at
the scene to speak to the police. A review of various witnesses' statements
shows reluctance on the part of the witnesses to be involved. They did not wish

-40-

to be viewed as informers. There was talk during a number of interviews of a

cultural norm within the involved community not to help the police. Elaine
Morrison is a perfect example. On her evidence she held back because she was
nervous and did not wish to be known in the community as being involved with
the police.
[111]

Once Elaine Morrison told the police that she recognized one of the

assailants, it was reasonable for the police to take the stance that others who
had been in attendance at the party and who were present in the parking lot at
the time of the shooting may also be holding back information. Certainly the
police were under a duty to investigate that possibility. As Mclachlin J. (as she
then was) observed in Harrer, at para. 44: "The situation in which the police take
evidence is complex."
[112]

In order to address the applicant's overarching abuse of process

argument I must examine what occurred with each of the relevant witnesses.
With the exception of Karishna Naraine, who I will deal with last, counsel
categorized the witnesses as eyewitnesses or alibi witnesses. I will use these
categories.

-41The Eyewitnesses
Sasha Allison
[113]

As previously mentioned, Sasha Allison did not give her first statement

until May 29, 2009. In contrast to the interviews during the reinvestigation the first
interview was open ended. The police were simply attempting to collect
information. Det. Doherty conducted Allison's first interview, which lasted two
hours and 42 minutes. Allison was not threatened or cautioned. I will focus on the
identification issue.
[114]

Allison described the assailant who stood out because he was wearing

sunglasses, as dark skinned and wearing black. At pp. 19-20 of the transcript she
described him as tall, with dark skin, 6'1" to 6'2". He had short hair in some kind
of waves and wore sunglasses and black clothing - a black jacket and pants.
Later she said he was in his late 30s, 200 lbs., "a bigger set guy". A second
assailant was 5'9" to 5'10" wearing a red and white hat and a hoodie. He may
have worn yellow and had a goatee and baggy clothing.
[115]

Significantly, she said she observed the assailants and the victim

speaking for 20 to 30 seconds before the shooting started (p. 32).

[116]

At the bottom of p. 39 Allison was asked if she remembered the two

assailants being in the club. She said she remembered the tall guy, the dark
skinned one with glasses. At p. 40 she seems to say that the "birthday boy" may

-42-

have been the one outside. However, in the following pages she says she knows
Action and clearly says Action was not one of the assailants outside. Allison was
then shown the party video. She recognized Action and said he was not the guy
that did it.
[117]

Det. Doherty conducted the re-interview of Allison on June 14, 2010.

The interview lasted from approximately 10:00 a.m. to 3:32 p.m., some five and
one half hours. I will refer to page numbers of a transcript provided by the
defence which includes what Allison said while talking to herself when Doherty
left the room (Application Record, Vol. 5, Tab 42). The transcript provided by the
Crown does not include those comments.
[118]

After some small talk Doherty asked Allison if she knew anyone that was

involved. She said that she did not. Doherty then told Allison that a witness had
come forward and identified one of the assailants. He said that was significant.
He then said, "and that person [the assailant], you know that person yourself'.
Allison said that she did not know who that person was. Doherty told her he
wanted her to take some time and think about it because it was significant that
the person identified was a person she knew. Doherty also told Allison that he
knew she knew the person identified because she identified that person during
her first interview when shown the video and still images of those who attended
the party.

-43-

[119]

Doherty told Allison he knew she was scared. He then told her they

needed to get it sorted out or she herself would get in trouble. He made it clear to
her that it is the person wearing sunglasses who has been identified. He said the
police have a name and it is someone Allison saw on the video and in the still
images previously. He tells her again she knows who it is. Allison finally says "I
think I have an idea I guess". When Doherty asks her who it is she says the only
person she can think of is "Mortley". When Doherty asks who Mortley is she says
he is someone she knew from school who was at the party.
[120]

Doherty continued to tell Allison that the person she saw outside later

wearing sunglasses was someone who was in the club earlier and insisted she
knew who it was. Allison asked, "I would know that person?" Doherty told her she
did and told her to think about it. Doherty continued to tell Allison she knew the
person, maybe by his nickname or maybe by his real name. He told her he is
confident that if she thinks about it she will be able to tell him who that person is.
[121]

Doherty then tells Allison that anyone who holds back on telling the truth

becomes a party to the offence as an accessory after the fact. He says he does
not want to see her go down that road. He mentions that she has too much to
lose and mentions her daughters. When she says she is not protecting anyone
(p. 23) he tells her not to put herself in harm's way. He tells her again she could
find herself in trouble and then leaves her in the room alone.

-44-

[122]

When Doherty is absent Allison says to herself "God, I don't even know

who he's talking about. My kids, my kids." She says more to herself in a similar
vein. She says she does not know who these people are and that she cannot do
this. When Doherty returns Allison tells him she is not holding back and does not
know who the shooter is. Doherty tells her that when he previously showed her
still photos she had no difficulty telling him who that person was (p. 27). Doherty
continues to tell her she knows of the person and has seen him around and
knows his name or his street name. When she continues to say she does not,
Doherty speaks of her being a good person and a mother. He speaks of the
victim's family and says she will help the community if she identifies someone.
[123]

All of this is done in a calm and soft spoken manner. Doherty continues

to tell her that she knows the person. He tells her the police believe the other
witness who identified the assailant. He tells her everyone has to do their bit and
give 100%.
[124]

Doherty then becomes even more leading. He asks Allison how often

she goes to "these events". She says often. He then asks her if she would see
the flyers that advertised the different "DJs" and different "promoters" (p. 43-44 ).
Allison has her own radio show and said later that she knew Action as a
promoter and from seeing him at the radio station and at other events.

-45-

[125]

In the pages leading up to Allison making an identification Doherty refers

to dances, DJs and promoters and refers to "a little community unto itself', where
you get to know the people who are involved on a regular basis.
[126]

As this talk goes on Allison then says "I think I know". Doherty asks her

to tell him her "idea". She responds, "I think when I was looking back at the
pictures, I remember thinking, who I see all the time is Action maybe or ... " (p.
46). At that point Doherty interrupts her briefly and then she continues, "or, I don't
think it's Action (inaudible)."
[127]

At that point Doherty asks her to tell him what she knows about Action

and Allison says she knows he is a promoter and a "shady character". The
conversation continues in this vein for a couple of pages.
[128]

Doherty then says again she knows the person who was chasing the

victim outside. At p. 50 he tells her to think hard and tell him who she saw. He
says it is time to come clean and says, 'We've gotta get this done." He says he
knows that it is hard and he wants her to have peace of mind. He tells her she
knows who was involved. At p. 51 he says, "But we need to do the right thing ... "
He tells her to be the good person that she is, to take a deep breath, "and let's
hear it." He then poses a sentence for her to finish: "The person with the

-46sunglasses that was outside involved in the shooting is ... ?" Allison responds, with
an upward intonation in her voice as if asking a question, "Action".
[129]

Subsequent to this Doherty suggests she has been holding back and

she agrees. She says she is nervous. He then tells her why he thinks she is
nervous.
[130]

Doherty then went through the events surrounding the shooting again

and this time Allison described the role played by Action. She said she saw him
with a gun. She confirms that she has seen Action at least 10 times before.
[131]

However, in the course of going back through events Allison said that

when she saw Action outside he was wearing "a whitish, goldish outfit or
something". That night Eric Morgan was wearing a dark sports jacket and dark
pants. She recalled that his hair was in braids or "fish bones".
[132]

Later in the statement Allison said she had heard rumours in the

community that "the birthday boy did it" (p. 67-68}. She said she knew it was
Action's birthday.
[133]

Commencing at p. 69 Doherty says he wants to ensure she is not just

"connecting the dots". This seems to be an acknowledgment on his part that the
interview might be open to that interpretation. He tells Allison that would be
wrong. She agrees and confirms that what she said in the interview was what

-47she actually saw. She said she had previously heard from her father that it was
"the birthday boy that did it".
[134]

Later in the interview Sasha Allison says the second assailant was also

wearing sunglasses.
[135]

The interview was conducted throughout in a calm, and at times, almost

hypnotic manner. The pressure that was put on Allison was pressure "to do the
right thing". However, the interview was filled with the suggestion that the police
believed the other witness, and that Allison had previously been able to pick out
the person the other witness identified, at least by his nickname. There was also
leading and narrowing of the field of potential persons who met those criteria.
The field was narrowed to black males wearing sunglasses who attended the
party, matched the general description Allison had provided as to age, height,
and skin colour, and whose name or nickname she knew. There were also
comments made which would have directed her attention to DJs and promoters.

Annastacha Reid
[136]

Annastacha Reid was sitting in her car outside the club at the time of the

shooting. She saw three to four men chasing the victim. During her first interview
on November 10, 2006 she told the police that one of the assailants was wearing

-48-

a jean jacket with a purple striped polo shirt. She was a friend of Eric Morgan's
and sang Happy Birthday to him at his party. She did not identify Morgan as
being involved.
[137]

Annastacha Reid was re-interviewed by the police on June 15, 2010, the

day after Sasha Allison was re-interviewed. Prior to her June 15, 2010 interview
she had a chance to view the video of her prior interview. Det. Doherty
conducted most of the second interview. A photo line-up of clothing photographs
made up from the party video was shown to her by Cst. Wingate to see if she
could recognize the polo shirt. That was unproductive.
[138]

Doherty took the same approach with Reid that he used with Sasha

Allison the previous day. He told Reid one of the people involved in the murder
had been identified and was someone who had been in the club earlier that night.
He told Reid it was someone she would know by name. It was someone she
would know by her experience "going to ... these events ... " Doherty told Reid it
was his job to clear anyone who was not involved and to protect the innocent. He
said that at almost the same time that he said things which narrowed the field of
persons who could have been involved. .

-49[139]

Doherty then discussed the various reasons why people might withhold

information from the police. Reid said she was not doing that. She said she did
not see any faces the night of the shooting.
[140]

Doherty told Reid that a new person had been charged who appeared

unique that night because he was wearing sunglasses. He told her she would
know him from the club. I would point out that there were a limited number of
people wearing sunglasses in the club and this was quite suggestive. When this
was not productive Doherty added further suggestions. He said a person might
be known by what they did, for example as a videographer. He then mentioned
promoters. Just after mentioning promoters he told Reid she was able to identify
this person by name previously when viewing the party video. He then added that
he does not want to suggest to her what she should say as that would be unfair.
He says he is testing her memory. At p. 50 of the transcript he says she may
have spent time talking to the person inside the party.
(141]

The atmosphere of the interview was not in any way oppressive. Reid

appears to laugh and chuckle at certain points during the interview.

[142]

Doherty continued to provide Reid with more leading information. He

said if she went to court she would know one of the guys in the prisoner's dock.
Doherty eventually says, "What if I was to tell you Action was one of those guys."

-50-

Reid said she could not say it was him. Doherty finally said the police have been
told Eric Morgan was one of the shooters.
[143]

Annastacha Reid never changed her position. She concluded the

interview by saying that she agreed that Eric Morgan is "very unique looking" but
says he was not involved.
Devon Garven
[144]

Devon Garven was the videographer at the party. He was in the parking

lot at the time of the shooting. When he was interviewed on November 4, 2006
he said he heard shots and saw two men chasing the victim. He thought it was
an ambush. He was asked where Action was at the time of the shooting. He said
Action was inside the club. He was sure. No transcript of that interview is
available, there is only a summary. However, I watched the video.
[145]

Garven was re-interviewed on June 16, 2010 by Det. Doherty and Det.

Hiltz. The officers started by advising Garven that there had been new
developments and that they were re-investigating the case. Based on what they
had been told they now considered Garven to be an eyewitness. They told
Garven a new suspect had been arrested and charged with murder.

-51[146]

Garven said he had no idea who had been charged. Hiltz pressed him to

tell the truth and referred to the victim's widow. Hiltz said he thought Garv~n was
holding back 20% of the truth.
[147]

The officers then went back over events with Garven. Garven said he

came out of the club with his video equipment and was walking to his vehicle.
Blue (Hubert Dinnal) came running and shouting, "They are going to kill him, they
are going to kill him!" Garven said he heard some shots and ducked down and
stayed down. He then saw a vehicle approach and then he "took off'. He said he
saw two guys running. He was asked further questions and provided answers.
[148]

Well into the interview the officers told Garven that a "high profile

person" known to everyone at the party had been identified as involved in the
shooting. They said that person was known to Garven and was in the production
business and that Garven had done business with him. These comments were
made by the officers after they had discussed with Garven the fact he had been
hired by Action to video record the party.
[149]

Hiltz raised the possibility of obstruction of justice and accessory after

the fact to murder charges with Garven. However, I note this was done in a
reasonable tone in an informational way and was not put in terms of a threat
associated with a quid pro quo.

-52-

[150]

Nothing came of the interview with Garven on June 16, 2010 which has

evidential value against the accused.

Hubert Dinnal
[151]

Hubert Dinnal was interviewed on four occasions prior to Morrison's

identification of Morgan on June 12, 201 0. Those earlier interviews occurred on

November 10, 2006; November 29, 2006; February 28, 2007 and April 22, 2010.
It would be fair to say that the police pushed fairly hard during those interviews.
Dinnal maintained that although he was standing with Elaine Morrison outside
her car he did not see who was involved because he initially had his back to the
confrontation and then ducked down when the shooting started. Although the
police pressed Dinnal I did not see or hear anything that raised concerns as I
watched the video recordings of the earlier interviews.
[152]

During the November 10, 2006 interview the police showed Dinnal still

images from the party video and he identified a number of people whom he knew
were in attendance at the party. He recognized Eric Morgan, or Action, in the
images but did not identify him as being involved.
[153]

During the February 28, 2007 statement the police told Dinnal that "in

Peel we will charge other people if they are fucking us around during the
investigation". Dinnal maintained his position that his back was turned and that

-53-

after the shooting he ran inside to tell everyone there had been a shooting
outside.
[154]

In all of the interviews the police continuously told Dinnal they thought

he had more information and was being untruthful or was holding back.
[155]

The re-interview on June 17, 2010 was conducted by Det. Doherty. It

lasted two hours and 17 minutes. Doherty advised Dinnal there had been new
developments in the case and that witnesses had come forward and identified a
person involved in the shooting. Doherty said the person identified was someone
Dinnal knew well, that it was a person he knew like a brother and had seen many
times. Dinnal maintained that he was not aware of that. Early on in the interview
Dinnal offered to take a "lie detector" test to prove to the police that he did not
know who was involved. Doherty told Dinnal that he had no doubt in his mind that
Dinnal was holding back the truth. On occasion Doherty raised his voice and
interrupted Dinnal. He claimed Dinnal was protecting people. Then Doherty
would lower his voice and try to reason with Dinnal.
[156]

In the early stages of the interview I noted that Doherty was forceful but

not impolite or angry. Sometimes he was pressing and his voice was raised.
Sometimes he got quite close to Dinnal. Then he would back off and revert to
normal conversational tone.

-54[157]

Towards the end of the interview Doherty told Dinnal more and more of

a leading nature. Doherty told Dinnal again that the person identified was
someone Dinnal knew both by name and nickname. He told Dinnal that even if
Dinnal had looked over at the shooting for a second he would have recognized
the person.
[158]

At one point Doherty asked Dinnal who the promoters were that were at

the party. Dinnal named "Action" and "Biggs Rock". The officer pointed out that
Dinnal had recognized Biggs Rock (Edward Allen) outside, so he must have
recognized the other person who had now been identified to the police. Doherty
then suggested it was a DJ or a promoter who was involved. Not long afterwards
(p. 77) Doherty slammed his hand on the desk and interrupted Dinnal. He
insisted that other people were not making things up and insisted Dinnal must
have seen more. Eventually, Doherty returned to a softer tone of voice and
continued to try to convince Dinnal to tell him who was involved. Doherty
ultimately told Dinnal the person identified was Action and that Action had been
charged with murder.
[159]

Hubert Dinnal stood his ground and never changed his position. Dinnal

said he did not see Action outside at the time of the shooting.

-55[160]

In my view it was reasonable for the police to press Dinnal. He was in

almost as good a position as Elaine Morrison and Sasha Allison were to see
what happened. In his earlier statements Dinnal also occasionally told the police
things that would lead them to think he may be holding back information. For
example, he had told the police that he did not want to be known in the
community as "the guy who saw what happened". In addition, the day before
Dinnal was re-interviewed on June 17, 2010 the police had spoken to Devon
Garven. Garven told the police that he had seen "Blue" (Dinnal) running and
heard him yelling, "They're going to kill him, they're going to kill him". This would
suggest Dinnal may have seen more than he was willing to say.
[161]

Dinnal also withstood the pressure well. I would not characterize the

pressure as extreme or the circumstances as oppressive. If Dinnal were an

accused I would not be concerned about the voluntariness of what he did tell the
police.
[162]

As with the other so-called identification witnesses, however, Doherty's

approach was to imply that the police believed the other witness who had come
forward and identified one of the assailants, and to tell Dinnal that the person had
been in attendance at the party, was well known to Dinnal and was a promoter.

-56-

The Alibi Witnesses

[163]

Eric Morgan was arrested on June 15, 2010. On June 16 and 17, 201 0

the police attended at the Maplehurst Detention Centre and spoke to Morgan.
During those conversations Morgan told the police he was inside the club at the
time of the shooting. He named seven people whom he thought would be able to
verify that. The police interviewed five of those seven people.
[164]

The applicant alleges that the police did more than investigate his alibi;

they set out to destroy it. The applicant submits that the conduct of the police
towards the alibi witnesses shows they were involved in a campaign to "booby
trap" the witnesses by pressuring them into making inconsistent statements that
could be used in cross-examination, and perhaps pursuant to K.G.B.
Brian Cox
[165]

Brian Cox was interviewed on November 6, 2006 shortly after the

murder. Brian Cox is black and he was interviewed by Cst. Andrew Cooper, who
is also black. Cooper traded on this during the interview, indicating that he
understood the culture of non-cooperation with the police that existed within
elements of the Caribbean community. Cooper applied pressure to Cox, but not
unreasonably in my view, during this early interview. Cox spoke with Cooper for
approximately three hours on video. Cox indicated throughout that he was not

-57-

afraid to cooperate with the police and said he would help them in any way he
could.
[166]

Brian Cox described the party and said it was winding down shortly

before 4:00a.m. He was assisting in the cutting and distribution of the birthday
cake. He told Cooper that he and Eric Morgan were friends, that Morgan lived
with Cox and Cox's family, and that he was a bail surety for Morgan. Cox said
that Eric Morgan was with him cutting cake when a woman known as "Lady
Shaba" ran into the club and said there had been a shooting outside. Cox told
Cooper that as he drove out of the parking lot soon thereafter he stopped and got
out of his car to look at the deceased. A woman in a long white coat was
standing beside the body.
[167]

There is considerably more to the interview. Cox told Cooper that he and

Action left the club at the same time but that they did not leave the scene
together. He said he did not know why Action left without him. Cox said that
when he left the club the owner, a few DJs and just a few other people remained
inside.
[168]

Brian Cox was re-interviewed on June 23, 2010. The interview was

conducted by Det. Chris Giles and Det. Daniel Johnstone. The interview
commenced at 7:38a.m. and continued until 3:49p.m. Consequently, it is eight

-58hours and 11 minutes in duration. Cox was not offered any food over that entire
time. The interview turned into a relentless onslaught. It must be viewed in its
entirety to be fully understood and appreciated.
[169]

1 have no hesitation in saying that were Cox an accused person under

arrest I would find a significant part of the June 23, 2010 statement to be
involuntary. This would not simply be because I have a reasonable doubt about
its voluntariness, but because I am affirmatively satisfied on a balance of
probabilities, or even on a higher standard, that by the last part of the interview
Cox had been psychologically broken down. His will was overborne by persistent
threats that he would be charged with serious criminal offences if he did not
change his position, and he finally capitulated. What I have witnessed on the
video recording of the interview satisfies me that what the interviewing officers
did destroyed any possible claim to reliability, notionally or in fact, with respect to
what Cox said that amounted to a change in position with respect to the
whereabouts of Eric Morgan when Cox learned of the shooting.
[170]

Having said this I wish to add the following. Brian Cox is obviously an

intelligent and articulate man who is quite capable of standing up to a

considerable degree of pressure. He is far from a shrinking violet. He was often
very forceful himself over the course of the June 23, 2010 interview. He
frequently raised his voice, sometimes to the point of yelling. He gives the

-59-

impression at times of hoping to overwhelm the police pressure with the force of
his own personality. It is reasonable to infer this may have had some impact on
the choice of police tactics.
[171]

I also wish to make it understood that I am aware that the police were

pursuing a number of legitimate investigative purposes when they conducted this

interview. There were a number of areas of legitimate police inquiry were Brian
Cox changed what he previously said, or revealed more, when he was subjected
to pressure from the officers. Significant changes in information, or additions to
information provided came about as a result of the exercise of these police
tactics at points in the interview before that point at which I conclude Brian Cox's
will was overborne.
[172]

I will try to identify some of the significant points at which these various

themes emerge during the June 23, 2010 interview.

[173]

At the outset of the interview it is apparent the police contacted Brian

Cox well before 7:38 a.m. He agreed to meet with Det. Giles at a donut shop and
was then transported to a police station. He was taken to an interview room
where he remained throughout the day with only a few trips to a washroom.
[174]

Cox agreed that he was present voluntarily. However, I note he was not

advised he was free to leave at any time.

-60-

[175]

Cox was asked to go over the events of the evening of the shooting. Cox

was cooperative in his demeanour and gave an orderly and articulate account of
events. He explained that he and Eric Morgan were best friends, that they often
promoted musical events together, and that he was helping out with Eric
Morgan's birthday party.
[176]

Cox explained that at the end of the party he and Morgan were cutting

up and "sharing out" the birthday cake to departing partygoers. He thought they
may have exited the club together after they learned of the shooting but said that
he was not sure who left first. He said he and Morgan and about 15 to 20 people
were still in the club when Lady Shaba came in and said there had been a
shooting outside.
[177]

By p. 17 of the interview Det. Giles' attitude starts to change. At pp. 21-

22 Giles says that if Cox takes Morgan's side and tries to divert blame he will be
taken to task for that in future proceedings. If he lies to protect someone he will
be in a "very bad spot". This is the beginning of the threatening scenario that
persists throughout the hours to come.
[178]

Cox maintained that he was "120 percent sure" Morgan was with him

when Lady Shaba said there had been a shooting outside. He said he was
almost 100 percent sure he left the club with Eric Morgan.

-61-

[179]

At p. 46 Cox said he did not think he left with Eric in his car. As the

interview progresses it becomes clear that this is not accurate, as Cox knows he
and Morgan did not leave in the same car. In fact Cox had told the police in his
first interview that the two did not leave in the same vehicle. Cox was not given
an opportunity to review his first interview before he was interviewed on June 23,
2010.
[180]

As the interview moved on the police alleged Cox was not being truthful.

In response, Cox became shrill and raised his voice. At p. 98 the officer says the
stakes are high. Cox says he's not going down for anyone. The officer suggests
repeatedly that Cox does not know where Morgan was at the time of the
shooting. Cox is intent that he is not covering for anyone.
[181]

As the interview proceeded the officers touched on other aspects of the

investigation. They tried to pin Cox down on where certain other individuals were
at certain times. This included an understandable focus on the whereabouts of
some of the other alibi witnesses. The officers also wanted to obtain details of
any conversation between Cox and the accused, and about who Eric Morgan
may have left the scene with.
[182]

At p. 145 of the transcript Giles re-introduces the potential of a charge of

accessory after the fact against Cox. Cox maintains his position.

-62-

[183]

At p. 150, which is at about 11:14 a.m., Giles tells Cox they will not be

much longer and then leaves the room. Obviously, the interview went on much
longer. When the officer returned he made inquiries about some three-way
telephone calls that were initiated by Eric Morgan from the jail following his
arrest. This is another legitimate investigative inquiry the police were pursuing.
[184]

Starting at approximately p. 167 of the transcript the officer starts to

bring up cell phone records the police have become aware of. The police have a
legitimate interest in asking about Cox's knowledge of such calls. It is apparent
the police have learned of a series of cellular telephone calls made by Morgan to
Cox in the immediate wake of the shooting. Cox had not volunteered this
information and once the cell phone calls were brought up it is apparent from a
review of the entire interview that Cox was guarded when discussing them. Cox
remained loud and shrill through this part of the interview.
[185]

By p. 183 Cox is yelling and is quite upset. The officer presses Cox

about why Morgan called him repeatedly and suggests that a call was placed by
Morgan to Cox when Cox says Morgan was still at the party.
[186]

The potential for Cox being charged comes up from time to time. At p.

200 Giles says he does not want to see Cox put himself in a bad spot for his_
friend. By p. 200 Giles is telling Cox there is a major problem with his story and

-63-

no one is going to believe him. At p. 204 the officer is interrupting Cox and then
tells him they are done. However, at that point Cox wants to keep talking, and he
again becomes loud and shrill. Giles uses a calm voice but Cox continues to yell.
[187]

Giles tells Cox he wants him to go home and think about things. He says

that Cox is not telling him everything. Cox maintains that he is telling the truth
and that he is not protecting anyone.
[188]

Giles then asks Cox to stop using such a loud voice. He then tells Cox,

at pp. 217-218, that there is going to be a development shortly that will put Cox in
a bad spot.
[189]

Cox continues to insist in a loud voice that he is telling the truth. At p.

225 Giles tells Cox that if they uncover evidence that he is covering up for Eric
Morgan he will be arrested and prosecuted. At 12:31 p.m. Giles leaves the
interview room.
[190]

At 1:22 p.m. Det. Johnstone enters the interview room and introduces

himself. He is immediately verbally aggressive and confrontational. He says he

has been sitting outside monitoring the interview and listening to Cox's "bullshit".
Johnstone says it is his view that Cox "should be charged right now." However,
he says his boss wants to give Cox one last chance. Johnstone told Cox they
knew he was lying because they had surveillance video. He shows a clip of the

-64-

video to Cox and claims it shows "the men in the vehicles that did it", and that
they are leaving the parking lot at 4:06 a.m. He points out that the cell phone
calls from Morgan to Cox started at 4:06:12. The officer said the 911 call was at
4:08. Johnstone says that at 4:06 Morgan called Cox twice and said that Cox is
lying.
[191]

Johnstone used a loud and controlling voice. He said he did not come

for conversation. He said the police had concrete evidence that, if they decided
to charge Cox, they would use against him to prove charges of obstruction of
justice and being an accessory after the fact to murder (p. 213). Johnstone
interrupted when Cox tried to speak and told him that if he was charged he would
end up with other people involved in the shooting who are bigger fish than Eric
Morgan. He told him he would be going to jail for Eric Morgan if he sticks to his
story that Morgan was with him inside when he learned of the shooting. This
became a continuous and forceful threat that was made again and again until
Cox finally changed his account.
[192]

Johnstone left the room and Giles came back in. At pp. 237-38 Giles

tells Cox: "If you don't tell me the truth, you are gonna be arrested and charged
I

with accessory after the fact to murder and you're gonna go to jail today". Giles
asked Cox if he wanted to be arrested "put in jail and take your chances and go
to court ... or what do you want to do". He said he was tired of Cox's story. He did

-65-

not want to hear "any bull shit". Cox starts to ask out loud how he got into this
situation when he just went to a party (p. 239).
[193]

At that point there was an earthquake. The police building was shaking.

Giles left the room but left Cox in the interview room although Cox asked not to
be left there. There is no evidence as to whether the door to the interview room
was locked.
[194]

When Giles returned he told Cox that the police knew Morgan was not

with Cox when Lady Shaba announced the shooting. He told Cox if he sticks to
his story he is playing roulette and rolling the dice.
[195]

Cox then told Giles (p. 240), "Now you got me thinking, was he there or

wasn't he there". Giles told Cox, "No, no, no, you're not getting out through that
hole". Cox indicated that he did not want to go to jail. Giles said he was starting
to think that Johnstone was right, that they should just arrest Cox. He also said,
however, that he was trying to give Cox an "opportunity" to "get out from under
this" so Cox could "go home today". I would point out that, although it was not
argued before me, a convincing argument could be made that by this time Cox
was detained.
[196]

Cox then says his intentions are not to go to jail and that he wants to

"think this thing through". Giles continues to push, saying he could "already arrest

-66-

you and put you in jail for what you've told me" because it was a lie. Cox
responded that it was not a lie. Giles then said Cox must either tell the truth or
face the consequences. It is clear from what has gone on before that Giles is
saying that if Cox does not withdraw his alibi for Morgan he will be arrested and
put in jail. There is no other way to interpret what has been said up to this point.
At this point there are still over 100 pages left to the interview transcript.
[197]

The threats continue until Cox completely breaks down.

[198]

Giles tells Cox he is not charged yet because the nice guy (Giles) is still

sitting there (p. 245). He tells Cox, "rescue yourself'. At p. 248 he talks about the
charge being upgraded to accessory after the fact to first degree murder and
says that would make the room "go dark" but says it is Cox's call.
[199]

At p. 251 Giles says he doesn't believe Morgan was present when Lady

Shaba came in. Cox starts to back off by saying that maybe he wasn't. Cox then
referred to the surveillance video Johnstone had shown him. At p. 255 Giles says
he is going out to talk to the officer in charge.
[200]

When Giles comes back he starts to ask questions about Biggs Rock,

and the interview progresses. However, at p. 261 Cox says again that he
remembers Morgan being present in the club when he learned of the shooting.
Giles' response is, "so you're going back to your original statement now, is that

-67what you're doing?" Cox says he is confused and the police should go ahead and
charge him. He maintains that he is not trying to help a friend but is telling the
truth.
[201]

At this point in the interview Cox reveals that during one of his telephone

conversations following the shooting Morgan asked him to tell the police that
Morgan was with him because otherwise Morgan would be charged with breach
of bail. The interview then continued for a time about the content of those phone
calls.
[202]

At p. 269 Cox again says he told the police he was 120 percent sure

Morgan was with him when he learned of the shooting because that's what he
remembered and because he did not believe Eric Morgan killed anyone.
However, at p. 270 he said "maybe' he was not sure Morgan was there. They
continued to discuss the phone calls after the shooting and Cox's belief that
Morgan was incapable of killing anyone. At pp. 278-79 Cox says that the only
reason he is still talking to the police at this point is because he is afraid of going
to jail.
[203]

At p. 238 Giles again alludes to charging Cox and then presses Cox to

tell him whether what Cox said before (about Morgan's whereabouts) was right or
wrong. Cox says, "Yes, I'm wrong". When Giles asks what that is based on Cox

-68says the evidence he has been told about points to Morgan not being in the club.
When Giles asks if that is based on Cox's memory or what he has been told
today Cox maintains again that his memory told him Morgan was with him. This
leads Giles to ask Cox if it is going to take him being charged, going through a
bail hearing and being prosecuted to get him to tell the truth (p. 285). At p. 290
Cox demands to be given a lie detector test "right now". Giles leaves the room at
2:23 p.m., ostensibly to look into that, and Det. Johnstone comes back into the
interview room at 2:44p.m.
[204]

When Johnstone starts to speak he will not allow Cox to talk. Johnstone

goes on at length about what he thinks happened and says Cox is trying to give
his friend an alibi. He said the deal with Cox today was that if Cox told the truth
they would not bring the hammer down on him.
[205]

When Cox finally gets a chance to speak he becomes loud. Johnstone

calls him a liar (p. 300). He then tells Cox he is going to be charged for "providing
a false alibi" (p. 301 ). At p. 303 Cox is told he can be charged with obstruct
police. Cox is insisting on a polygraph test. By p. 309 the officer is occasionally
yelling. Cox continues to say that he told the police what he did because he
believed it to be the truth. Johnstone told him he was a liar at p. 312 and p. 313.

-69[206]

The conversation continues in a similar vein with Johnstone trying to

exert control. At p. 324 Cox accuses Johnstone of bullying him. Johnstone tells
him he has evidence to convict Cox of obstructing the police by lying (p. 328). He
then promises Cox he will be charged with obstruct and accessory after the fact
(pp. 329-30). At p. 331 Johnstone ignores Cox's request to use the washroom
and tells Cox in a loud and assertive manner that Cox came to the police station
and provided an alibi and that that makes him an accessory. He then left the
room and Cox was permitted to use the washroom.
[207]

The interview continued at 3:21 p.m. in much the same way. Johnstone

told Cox he was the only one of six people who was still sticking up for Eric
Morgan. Johnstone went on to say that if Cox sticks to his story the police case
against Morgan stays the same but Cox will be "on the hook for this bull shit".
[208]

Johnstone finally gets Cox to completely relinquish the alibi at p. 343. He

says he's going to ask him the question again. He then asks if Cox has any
recollection of Eric Morgan in the club at the time Lady Shaba ran in to say there
was a shooting. Cox answers "No". Cox is asked if he can take one more step.
Johnstone says he thinks Cox can tell him whether or not Morgan was standing
beside him. Cox says, "He wasn't standing beside me".

-70[209]

The officer then goes back to the phone calls. He questions Cox about

the details.
[210]

By p. 349 Cox appears to be crying. He is wiping tears from his eyes.

[211]

At p. 350 Cox says the last time he saw Morgan in the club was during

the party. At p. 351 he then reiterates that he said what he did before because he
honestly thought Morgan was beside him sharing the cake. However Johnstone
then confirmed "But you never saw him". Cox said "Righf' and "he didn't tell me
to say that." The officer suggests the fact is Cox never saw Morgan beside him
and Cox agreed. He said "I assumed that he would be beside me because it's his
birthday, it's his cake." The officer: "But you never saw him." Answer: "Right".
Officer: "And that's for sure?" Answer: "Yeah".
[212]

By p. 353 Johnstone is trying to be conciliatory. He says that he is

offering an olive branch. He does not want to hear it said later that the only
reason Cox has changed his position is because he was threatened with being
charged. Cox responds that he is not 100k sure and he does not now believe
Morgan was with him.
[213]

At p. 356 Johnstone says there's two ways to look at it. One way is that

Cox thought it couldn't have happened [that Morgan was involved] and
Johnstone said he was leaning towards that. In essence Johnstone is giving Cox

-71 -

an easy way out. Cox takes it by saying, "The latter sounds more like it. There
was no plan."
[214]

By p. 358 Johnstone is shaking hands with Cox. That ended the

interview.
Vivienne Lindsay
[215]

Vivienne Lindsay was the owner of Malibu Marie's. She was interviewed

by the police on November 4, 2006. She told the police that by 3:45 a.m. there
were only about 10 people left in the club. The lights had been turned on to
signal the club was closing. When she was asked where Action was she said that
he was in the club cutting up his cake with Brian Cox. She also said that Action
and Brian Cox left at the same time she did at the very end of the evening.
[216]

Det. Johnston re-interviewed Lindsay on June 23, 201 0. The interview

lasted from 7:51 a.m. to 8:57a.m., just over one hour.

[217]

Lindsay said that after the bar closed at 2:00 a.m. she was in the

kitchen. The victim "Mikey" came in just to talk. Lindsay believed she learned of
gunshots outside when someone told her husband about that at about 3:15a.m.
Her concern at that point was to clear liquor bottles off the tables. She was
concerned the police might arrive and think she was serving after hours. She
heard a OJ named Alan Ladd say he heard that someone got killed outside.

-72[218]

Vivienne Lindsay was asked who was in the club when she heard about

the gunshots. She said there was her husband, Alan Ladd, a man named Von
Penley and three or four other people. She said she did not remember who they
were but one of them could have been Action who was "the birthday guy".
[219]

Lindsay was asked if she remembered what time the birthday cake was

cut. She said she did not even remember there being a cake. Lindsay said that
she knew Action and would recognize his face. She was asked whether he was
in the club at the time of the shooting. She said she thought he was still there at
that time but then added that she was trying to remember whether he was inside
or outside. Her final position was that she could not say for sure that he was
inside, but that he was on the premises.
[220]

Johnstone occasionally tried to lead Lindsay to a position that would

tend to undermine Morgan's alibi. For example, at p. 16 of the interview transcript

Johnstone said: "So, it would be fair to say that you never saw him
inside ... around the time that your husband came in and mentioned the shots?"
However, Lindsay responded that, "He could've been inside. I don't know."
Johnstone's occasional attempts were unsuccessful. However, it was clear
Lindsay's memory had deteriorated from the time of her first statement which
does not appear to have been reviewed with her prior to her June 23, 2010
interview.

-73[221]

Johnstone also told Lindsay that "somebody else" had put her in "this

position" and said she did not have to lie for him. Lindsay said that she had no
reason to lie for Eric Morgan. She did not know him well personally and he was
not her friend.
[222]

Johnstone told Lindsay that Action had told him that at the time of the

shooting he was inside the club, cleaning up or cutting up the birthday cake and
that she was with him. This was not an accurate account of what Morgan said.
Lindsay denied this and said that after the bar closed she was sitting in the
kitchen resting her feet and that she was not even sure if there was a cake.
[223]

At the first trial Lindsay testified that she could not remember whether

Action and Brian Cox were inside the club when she learned of the shooting.
However, she testified that her memory was very good when she was first
interviewed on November 4, 2006. She testified that prior to the trial she had
reviewed the video of her November 4, 2006 interview which was accurate and
truthful. The November 4, 2006 video was left with the jury to be considered as
substantive evidence.
[224]

Based on my review of the June 23, 2010 interview there was nothing

about the conduct of the interview that I would consider abusive or oppressive,
although there was some leading and inaccuracy. One also gets the sense that

-74-

by misstating to Lindsay what Eric Morgan had said to the police Johnstone was
exhibiting bias in the manner in which he was investigating Morgan's alibi.
Chris Murray
[225]

Chris Murray was a OJ who attended the party although he had not

been hired to play. When he was interviewed by the police on November 4, 2006
he said that he knew Action and wished him a "happy birthday". He said he was
inside the club when someone ran in and said there had been a shooting outside.
He was not asked where Eric Morgan was at the time the shooting was
announced.
[226]

Chris Murray was re-interviewed on June 24, 2010 by Det. Derek Rice.

The interview started at 10:06 a.m. and continued until 12:28 p.m. The interview
started out in an open-ended and non-confrontational fashion. However, that
changed after Murray said that Action was inside the club at the time everyone
learned of the shooting. Rice ended up telling Murray that he did not believe him.
He told Murray he could be charged with being an accessory after the fact to
murder and obstruction. Later in the interview he suggested that Murray was
mistaken and provided him with suggestions about why he was mistaken and
about what he might say to extricate himself from the threat of charges.

-75-

[227]

As with Brian Cox, the video must be viewed to fully appreciate the

tactics the officer used and to fully understand the type of pressure that was
applied to Murray. As with Cox, the transcript alone is inadequate. As I watched
the video I could not help but think that if a defence lawyer treated a prosecution
witness the way Rice treated Murray, they would be charged with attempting to
obstruct justice.
[228]

I will not summarize the entire interview but I will touch on a few areas of

the interview to highlight my concerns about the interview.

[229]

It is at p. 45 of the interview transcript where Murray is asked where

Action was at the time of the shooting. Murray said Action was inside the club
and that he said "later" to Action as he left. The threats and intimidation tactics
began to emerge after that point in the interview.
[230]

Throughout the interview Murray makes it clear that while he believes

Action was in the club he cannot be 100% sure. As Murray sticks to his story
Rice becomes more explicit in his use of threats of criminal charges.
[231]

Between pages 79 and 83 Rice tells Murray that his story does not make

sense and warns him that he could be charged with being an accessory after the
fact to murder. He tells Murray he can "be on his way shortly" but that they have
"gotta sort out this issue". The implication is that the sorting out must be done

'

-76-

before Murray can leave. Throughout the interview Murray is concerned that he
has to leave to help with his 11 year old daughter's public school graduation.
[232]

Rice told Murray he was not in any trouble yet but if he carried on

beyond that point he could be an accessory to murder. He told Murray that if he

lies to the police by saying something which tends to exonerate Morgan that
would make him an accessory to murder. Standing on its own this might be
regarded as merely an informational warning. In the context of the interview as a
whole I find it was part of an intimidation tactic designed to see if Murray would
modify his position.
[233]

At pp. 110-111 Rice said that it was "troubling" to him that Murray was

saying he thought he saw Action when he was leaving the club after hearing of
the shooting. He said, "But just listen, even the fact that you're saying you think it
is troubling".
[234]

At pp. 113-114 Rice tells Murray, "This is going to spiral out of control for

you and cause yot.J grief that you never imagined unless you see the light. .. " At
pp. 115-116 Rice tells Murray that Action was outside in the parking lot shooting
the victim five minutes before Murray left and that at the time Murray claims he
was saying "later" to Action, Action's cell phone was bouncing off a tower miles
away. This was a misrepresentation of the cell phone evidence the police had

-77gathered. The time of the shooting was uncertain. Cell phone calls from Morgan's
phone at 4:06:52 and 4:13:44 were transmitted through cell phone towers that
cover Malibu Marie's location.
[235]

At p. 119 Rice told Murray that he had interviewed people for 10 to 20

hours to get the truth. He then told Murray that the saying "the truth shall set you
free" may "not be the case for you."
[236]

When Murray insisted he was truthful and would not get himself in

trouble for someone else, Rice told Murray that by even coming down to the
police station and saying what he did he had already committed a criminal
offence. He then told Murray that it did not look good for him and that, "If, if things
keep going this way, you may need a lawyer." Rice also told Murray that
everyone else the police had spoken to had changed their stories and now said
they did not know where Action was at the time of the shooting.
[237]

At pp. 131-132 Rice told Murray:

Things don't look good for you right now because four years later we get asked
by the person who's charged with murder to go speak to you. That you will be his
alibi. And then you do say I think I saw him leaving the the club ... And we know
he wasn't in the club. He was miles away.

[238]

After pressuring Murray and making it quite clear that the police may

charge him if he does not change his story, Rice starts to give Murray an "out".

'

-78-

He tells him he has talked to his partner who has commented that Action was at
the front door quite frequently and says that his partner and other officers who
know more about the case are thinking that is what Murray is remembering.
Murray begins to adopt this suggestion. Rice then asks leading questions to
suggest Murray just remembers Action being at the door because Action had
been at the door a lot that night. He then asks Murray what his level of certainty
is for seeing Action at the door at the time he left and Murray says "two percent".
[239]

I would add to the foregoing that Rice was fairly forceful and controlling

during the interview. He frequently interrupted Murray, told Murray to listen to

him, and made it clear that nothing Murray could ever say would persuade the
police Eric Morgan was in the club at the time of the shooting. The message was
that Murray must either be mistaken or committing a serious criminal offence,
and that if he persisted with his original position the police had enough evidence
to charge him.
[240]

Chris Murray was not called as a witness at the first trial. There is no

evidence as to why he was not called. Counsel for the applicant submits that he
could not be called because he was "booby trapped" in the sense that if he was
called as a defence witness he would be subject to cross-examination on his
June 24, 2010 statement.

-79[241]

Chris Murray was called as a witness at the preliminary inquiry so that

he could be cross-examined by defence counsel. Murray was not asked whether

the pressure applied during the June 24, 2010 interview had caused him to
change his evidence or alter his description of what occurred. He testified that
while he had an impression Action was in the club at the time he learned of the
shooting

he

remained

uncertain.

Consequently,

despite

what

have

characterized as the "message" the police were conveying, I have no evidence

that Murray altered his evidence during the June 24, 201 0 interview as a result of
the pressure applied by the police.
Ricardo Grennan
[242]

Ricardo Grennan provides OJ equipment for events. He also acted as a

disc jockey at Malibu Marie's on the night of Eric Morgan's birthday party. He was
first interviewed by the police on November 8, 2006. He said the lights came on
in the bar at 3:45 a.m. He heard that two men who were not at the party had
shot Spence five times. He was not asked if he knew where Eric Morgan was at
the end of the party.
[243]

Grennan's November 8, 2006 interview has not been transcribed. I

watched the video, which has poor sound quality, and made notes of two clips of
the interview that were not included in the police summary and which were

-80-

brought to my attention by Crown counsel on the issue of whether Ricardo

Grennan is properly considered to be an alibi witness.
[244]

In the first clip it is clear that Grennan knows who Action is. He describes

certain of Action's activities that night.

[245]

Grennan said that around the time he learned of the shooting he saw

people running back into the club in hysterics. He figured someone was shooting
outside. He looked outside but did not see anything. He then said, "I looked for
the promoter. He had disappeared." Grennan said he then left the club and drove
away. He did not see the person who was shot.
[246]

In the second clip Grennan said that he did not hear any shots when he

went out to the parking lot. He saw a OJ known as "Nitro" putting turntables into a
car and a guy selling soup out of a van. He went on to say that a black girl and
Wildfire (Hubert Dinnal) probably saw the most. He talked of certain people,
whom he named, running back into the club. He said Wildfire came back into the
club, and that "Biggs" went out and never came back. He then added, "Not even
the promoter came back in".
[247]

Ricardo Grennan was one of the persons Morgan told the police may be

able to confirm that he was inside the club at the time of the shooting. Grennan

-81 was re-interviewed by Det. Doherty on July 7, 2010. The interview commenced at
1:50 p.m. and lasted for one hour and 27 minutes, ending at 3:17 p.m.
[248]

The interview was conducted throughout in an appropriate tone. On a

couple of occasions Doherty mentioned the potential for a charge of obstruct

justice or accessory after the fact, but that was not done in a threatening way.
The interview was not conducted in a pressing fashion. Grennan appears to be
relaxed during the interview.
[249]

Grennan confirmed he had heard about Morgan's arrest. He knew

Morgan as Action. His relationship with Morgan was professional through

promoting events. They had not done business together in a while. He said
Action had never spoken to him about the case.
[250]

Grennan said that when he first heard about the shooting he was in the

DJ area on the stage. When asked where Action was when he heard about the
shooting Grennan said, that if he remembered correctly, Action was in front of the
bar with a man from England who walks with a limp. He repeated that he recalled
Eric Morgan being in front of the bar when he learned of the shooting. He said
there were about 20 people in the club at that time.
[251]

At p. 26 and following Doherty concentrates on whether Action was

inside or outside when Grennan learned of the shooting. Grennan says, "Really,

-82-

truly I don't clearly remember, but I just remember seeing him at the bar and I
don't remember him being anywhere else ... " At p. 27 Doherty asks Grennan if,
when people became aware of the shooting, Grennan specifically remembered
Action being beside him. Grennan said he really did not remember Morgan being
beside him. However, at p. 28 he went on to say that he remembered Morgan
coming up to the OJ booth and telling Andrew "not to play no more because
someone just got shot". He said he did not remember where Morgan went after
that.
[252]

Doherty then said, " ... what if I tell you that he wasn't inside when the

shooting happened, and so it couldn't have been him" that told Andrew to quit
playing. Grennan continued to say that in his mind he saw Morgan at the bar and
did not recall seeing him go out the door. He did recall that "after

eve~hing

happened" he called Morgan on his cell phone and asked him what happened.
[253]

At p. 30 Doherty told Grennan that Action told the police that he (Action)

was right beside Grennan cutting cake or cleaning up when the shooting
happened and that Grennan was part of that process. Grennan said he did not
remember if there was a cake there. However, he continued to say he recalled
Morgan being in the club, did not remember him going outside and coming in and
did remember him telling a OJ not to play anymore as someone got shot outside.

-83[254]

At p. 32 Doherty told Grennan he was the only person saying Morgan

was still inside "when this thing goes down outside". When Grennan said it was
long ago, Doherty told Grennan he did not want him to guess or generalize
because that is dangerous. At p. 38, after Grennan has been having difficulty
remembering who told him details of what happened outside, Doherty told
Grennan he had "difficulty" when Grennan remembered certain things but not
others. He said this after mentioning that Grennan remembered Morgan being
inside.
[255]

While it is clear that Doherty was seeing if Grennan could be moved off

his position regarding Morgan being in the bar, the entire interview is conducted
in a calm non-threatening manner.
[256]

Later in the interview Doherty reviews Grennan's earlier statement with

him and then asks if he could be mistaken about Action being inside the bar.
Grennan agreed that he "could be" mistaken. Doherty then says (pp. 63-65) that
he knows Grennan saw Action in the bar that night, probably on the stage, and
suggests maybe what he is recalling is from an earlier time before the shooting
and asks Grennan, "Is that possible?" Grennan says, "It could be". He also starts
to say that at this point he doesn't remember but before he can complete that
thought Doherty interjects, "You're not 100 percent about anything at this point".
Grennan agrees.

-84[257]

The interview with Grennan covered a lot of ground other than Morgan's

whereabouts. Consequently, its length does not reflect pressure on Grennan to

change his position, and he never really does. By the end of the interview he has
not said anything that is truly inconsistent with what he said at the beginning as
regards Morgan's whereabouts. He has a certain impression but so long after
events cannot be sure.
Nadine Tulloch
[258]

Nadine Tulloch is Eric Morgan's cousin. She was helping out at the party

that night. She was with her niece, Vonnetta Smith and Smith's boyfriend,
Andrew Taylor, both of whom were visiting from England.
[259]

Nadine Tulloch was interviewed by the police on November 9, 2006.

She said that shortly before the shooting Andrew Taylor had gone outside and
that Vonnetta Smith asked her to go outside with her to check up on him. As she
and Smith were leaving the club they heard shooting and went back inside. They
heard someone had been shot and Vonnetta Smith ran outside to see if it was
Andrew Taylor. Tulloch ran after Smith. There were more shots and they ran
back into the club again.
[260]

Tulloch said she then ran up to Eric Morgan, who was inside the club,

and told him there was shooting outside, they had heard someone had been

-85shot, and that they did not know if it was Andrew Taylor. Soon after that everyone
was going outside and she went to her car and left the area.
[261]

During her initial interview Nadine Tulloch provided the police with

Vonnetta Smith's telephone number in London, England.

[262]

Nadine Tulloch refused to be re-interviewed by the police. She testified

as a defence witness at the first trial that Eric Morgan was inside Malibu Marie's
at the time of the shooting. While she could not recall details relating to the
cutting of the cake she recalled "Happy Hirthday" being sung to Morgan and was
firm that she saw and spoke to Morgan inside the club when she ran inside
during the shooting.
Vonnetta Smith
[263]

Vonnetta Smith testified as a defence witness at the first trial. Although

Nadine Tulloch had provided Smith's telephone number in England to the police
the police had not contacted her. When Vonnetta Smith was in Canada for a visit
prior to Morgan's trial she made herself available to the police but the police
declined to interview her. A detailed affidavit disclosing what Smith's trial
evidence was anticipated to be was provided to the prosecution prior to the first
trial and has been filed on this application.

-86[264]

The applicant submits that the fact that the police made no effort to

interview Smith demonstrates that the police were not interested in conducting a
thorough, fair and objective investigation of his alibi.
Karishna Naraine
[265]

Karishna Naraine is neither an eyewitness nor an alibi witness but a

woman who had a history of romantic involvement with Eric Morgan. She visited
him in jail and had telephone communication with him from jail in the period
immediately after his arrest on June 15, 2010. She was not at Malibu Marie's the
night of the shooting. The applicant has put forward a video recording of her
interview by Det. Johnstone on June 23, 2010 in support of his submission that
the police were conducting their reinvestigation in a biased and abusive fashion
that constituted police misconduct.
[266]

Karishna Naraine was interviewed on video on June 23, 2010 from

10:29 a.m. to 12:17 p.m. Det. Johnstone was confrontational, controlling, and
aggressive throughout the interview. He told her on a number of occasions that
she was lying to him and threatened her with charges of obstruction of justice
and being an accessory after the fact to murder.
[267]

Naraine was cooperative throughout the interview. However, it was

difficult for the officer to obtain information from her as she spoke quickly, was

-87imprecise in what she said and frequently concluded partial answers with the
phrase, "you know what I mean?"
[268]

Naraine indicated that she met Morgan in 2008 and that subsequently

they had a relationship, but at the time of his arrest they were just friends. She
acknowledged having telephone contact with Morgan from jail subsequent to his
arrest. The police had a legitimate investigative interest in finding out what
Morgan had said and in learning what, if any, information Morgan may have had
Naraine pass on to others. That aspect of the investigation related to whether
Morgan might be orchestrating a false alibi.
[269]

When Naraine was pressed she proved to be open and cooperative.

She allowed Johnstone to look through her cell phone. She told Johnstone that
Morgan had always told her he was inside Malibu Marie's with his cousin and
friends at the time of the shooting.
[270]

Johnstone told Naraine she could be charged for lying to the police and

that she was wrong if she thought she had a monogamous relationship with Eric
Morgan. He said he knew she was lying and cautioned her about obstruction of
justice and being an accessory after the fact. He suggested that although she
loved Eric he was treating her badly and indicated that she was making a bad
choice if she continued to associate with him.

-88-

The Overarching Abuse of Process Argument

The Applicable Legal Principles
[271]

At common law the court has the power to stay proceedings where a

prosecution is conducted in such a manner that it contravenes the community's

basic sense of decency and fair play and to prevent the abuse of the court's
process through oppressive and vexatious proceedings: R. v. Jewitt, [1985] 2
S.C.R. 128.
[272]

In R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 63, the court subsumed

the doctrine of abuse of process into the Charter on the basis that conducting a
prosecution in such a manner "is also an affront of constitutional magnitude to
the rights of the accused." See also R. v. Regan, 2002

sec 12,

1 S.C.R. 297, at

paras. 49-50.
[273]

Once subsumed into the Charter, violations in the nature of abuse of

process, usually based on an alleged violation of ss. 7 and 11 (d) of the Charter,
result in lesser remedies than a stay of proceedings being available pursuant to
s.-24(1)

of~ the

-cnarter. A stay of proceedings remains an available remedy.

However, as held in O'Connor at para. 75, and Regan at paras. 53-54, due to the
drastic effect a stay of proceedings has on society's interest in a disposition on
the merits a stay of proceedings will only be available in the clearest of cases
and only when two criteria are met:

-89(1)

the prejudice caused by the abuse in question will be manifested,

perpetuated or aggravated through the conduct of the trial or its
outcome; and

(2)

no other remedy is reasonably capable of removing the prejudice.

Recently, in R. v. M. T., 2013 ONCA 476, at paras. 67-70, Rosenberg

[274]

J.A. referred to R. v. Nixon, 2011 SCC 34, 2 S.C.R. 566 and to Regan, and
reminded us that there are two classes of abuse of process. At para. 67 of M. T.
he said:
Helpful summaries of the doctrine of abuse of process are found in the recent
decisions of R. v. Nixon, 2011 SCC 34, 2 S.C.R. 566 and R. v. Regan, 2002 SCC
12, 1 S.C. R. 297. Those cases identify two categories of abuse of process. The
first, and more common, category is engaged by prosecutorial conduct affecting
the fairness of the trial; the second, the residual category, is engaged by
prosecutorial conduct that contravenes fundamental notions of justice and
undermines the integrity of the judicial process: see Nixon at para. 36.

[275]

The accused submits that the police misconduct alleged in this case

should be found to constitute an abuse of process under each of these

categories. As held in R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.) at
para. 15: "It is well established that police conduct may render a subsequent
criminal prosecution an abuse of process."
[276]

Under the first category dealing with trial fairness, the accused will

generally have to show actual prejudice to his or her ability to have a fair trial or
to make full answer and defence. However, given the nature and purpose of the

-90doctrine of abuse of process, including its reflection in s. 7 of the Charter,

whether an abuse of process is made out under either category is to be
evaluated in the context of societal interests and the integrity of the judicial
system: O'Connor, at para. 73; Nixon, at para. 39.
[277]

At para. 64 of O'Connor, L'Heureux-Dube J., for the unanimous court on

the abuse of process issue, referred to an overlap between prejudice to the

system and prejudice to the individual. Given that most individual rights protected
by the Charter also have a "societal dimension" she held that it is appropriate to
look at both when considering abuse of process. At para. 65 of O'Connor she
wrote: "For this reason, the principles of fundamental justice, including the
'fairness of the trial', necessarily reflect a balancing of societal and individual
interests" (citations omitted).
[278]

As noted by Rosenberg J.A. at para. 70 of M. T., in Nixon the Supreme

Court of Canada "suggested that the balancing of interests is a central concern

that defines the concept of abuse of process and its remedy."
[279]

At para. 38 of Nixon, Charron J. observed that when determining

whether a violation of s. 7 of the Charter in the nature of an abuse of process has

been established, the kind of harm the common law doctrine of abuse of process
was designed to address and why the degree of harm inherent in an abuse of

-91 process required a stay of proceedings, must be borne in mind. She also made
the point that the fact that s. 24(1) of the Charter provides for lesser remedies
than a stay does not diminish the degree of abuse that must be demonstrated to
establish a s. 7 violation in the nature of an abuse of process. Justice Charron
concluded her remarks at para. 38 by stating: "Achieving the appropriate balance
between societal and individual concerns defines the essential character of
abuse of process." I understand these references to societal interests to include
society's interest in a trial on the merits as well as society's interest in a fair
process.
Analysis
[280]

Against the background of this legal framework, and despite my findings

that the police went too far in dealing with Sasha Allison, Brian Cox and Chris
Murray, I am not satisfied that an overarching abuse of process is established
under either category. The balance between societal and individual interests that
is important to defining abuse of process plays an important role in reaching my
conclusion.
[281]

First, I note that the police were investigating a serious crime. From the

beginning of their investigation it is apparent they were met with a general

reluctance by those who probably had information about the homicide to provide
it.

Clearly,

Elaine

Morrison

withheld

information.

Devon

Garven,

the

-92-

videographer, told the police that if he had any information he would provide it to
Crime Stoppers or through a tip line and not directly to the police. The police
pushed Hubert Dinnal, but they had reasons to do so. Devon Garven told the
police that he saw Dinnal running and yelling, "They are going to kill him, they are
going to kill him!" This suggested Dinnal saw more than he would talk about. He
was with Elaine Morrison and Sasha Allison when the shooting occurred and one
would think it was likely he saw more than he was saying.
(282]

Given these circumstances it was reasonable for the police to suggest to

witnesses that they were holding back evidence and not telling the truth. It was
also proper for them to advise witnesses in a reasonable fashion about their legal
jeopardy if they misled the police. Society has an interest in allowing the police a
reasonable scope to their investigative activities. It has often been said that a
criminal investigation is not a tea party. The circumstances of this investigation
required the police to challenge some of the witnesses.
[283]

Second, with the exception of Brian Cox and Sasha Allison, there is no

indication that any of the witnesses changed their evidence as a result of the
police tactics during the reinvestigation. The witnesses the applicant places in the
eyewitness category told the police when first interviewed that they did not see
Eric Morgan outside at the time of the shooting. Only Allison changed her
position on that point during the reinvestigation. With respect to the witnesses the

-93applicant places in the alibi category, they all initially said they had the
impression Eric Morgan was inside the club when they learned of the shooting.
However, during their original interviews they were all either imprecise or
exhibited a degree of uncertainty concerning Morgan's whereabouts. Morgan
was not a suspect at the time of the earlier interviews and the interviews did not
focus on his whereabouts at the time of the shooting. Not much had changed by
the time the re-interviews of the alibi witnesses had concluded. In some cases
the witnesses were more uncertain about where Morgan was but I am not
persuaded this was the result of police misconduct rather than the passage of
time and more precise questioning.
[284]

For the most part, the witnesses did not seem fazed by the pressure

applied to them by the police. Annastacha Reid was laughing and chuckling
during her interview. Det. Doherty suggested things to her but she was
apparently not influenced and did not agree with his suggestions. As I stated
earlier, the interview was not oppressive. Devon Garven was pressed but not
unreasonably. The possibility of charges of obstruction or accessory after the fact
was raised but in a reasonable tone in an informational way. While Hubert Dinnal
was pressed fairly hard I have already explained why that was reasonable.
Dinnal did not change his position. He provided no evidence against the accused

-94-

as a result of the pressure. The police did not go nearly as far as they did with
Brian Cox. The circumstances of the interview did not become oppressive.
[285]

Vivienne Lindsay was not subjected to as much pressure as some of the

other witnesses. Det. Johnstone tried to lead her to certain positions but that was
essentially unsuccessful. The interview was not lengthy or oppressive.
[286]

Chris Murray was subjected to what I view as improper threats and

overly aggressive and abusive tactics by the police. In particular, he was

threatened with criminal charges if he did not change his story, which the police
viewed as supporting Morgan's alibi. I have taken this into account in my overall
assessment. However, I am not persuaded this pressure ultimately affected his
evidence or his usefulness as a witness.
[287]

Counsel for the accused suggests Murray was not called as a defence

witness at the first trial as he was "booby trapped". I have no evidence to support
that suggestion. The applicant's current counsel did not represent him at the
pr_~limi_naryjogyjry _Qr _th~ fir~t _tria_L

As. indicated when I reviewe.d the evidence,

Murray was called at the preliminary inquiry. He said that he had the impression
Morgan was inside the club when he learned of the shooting but he was
uncertain. That had always been his position. Murray gave no evidence at the
preliminary inquiry that what he said was influenced by the way the police

-95-

conducted the interview. I do not know why the applicant's former counsel did not
call Murray at the first trial.
[288]

Ricardo Grennan appeared to be relaxed when he was re-interviewed.

There was nothing about the interview that was oppressive or exceeded what
was permissible. As I noted during my review of his statement, by the end of the
interview Grennan had not said anything that was truly inconsistent with what he
said at the beginning.
[289]

The accused submits that the police should not have re-interviewed the

alibi witnesses so soon after they spoke to the accused in the days immediately
following his arrest. The accused submits that such interviews should not have
been conducted until he gave the police formal notice of his alibi. I am unable to
accept this submission. I agree with the Crown's submission that once the police
were aware of potential evidence which was inconsistent with their grounds for
arresting the accused they were under an obligation to investigate and preserve
any such evidence. Consequently, the timing of the interviews does not support
the submission there was an abuse of process.
[290]

Later in these reasons I analyse what took place between the police and

Sasha Allison and the police and Brian Cox. As will be seen, I conclude that the
police acted improperly in relation to Allison and Cox in a manner which

-96undermines the reliability of parts of their evidence or its use for certain
purposes. When I add those findings into the overall picture I remain unpersuaded that there is an overarching abuse of process under the first category.
[291]

One reason is that the problematic aspects of what transpired between

the police and Sasha Allison and between the police and Brian Cox are quite
different in nature. Sasha Allison was subjected to leading and suggestion by
Det. Doherty which undermines the reliability of her identification of Eric Morgan
as a perpetrator. Brian Cox was subjected to oppressive police tactics centred on
the use of threats of criminal charges being brought against him if he did not
withdraw his support for Morgan's alibi. Due to these differences, and having
regard to my other findings, I cannot say there is a pattern of police misconduct
which permeates the reinvestigation, to the degree the applicant contends.
[292]

Under the first category of abuse of process the accused says the police

conduct has rendered the trial unfair and interfered with his ability to make full
answer and defence. Having reviewed the nature of the police conduct in respect
of each witness referred to on this application I reject that submission. I am
unable to conclude that the police conduct criticized by the applicant, some but
not all of which I find to be objectionable, rises to the level of an overarching
abuse of process under the first category. The accused has failed to show that
such conduct has resulted in the level of unfairness the cases require for such a

-97finding or that there has been a significant interference with his ability to make full
answer and defence.
[293]

I am also unpersuaded that an overarching abuse of process has been

made out under the second or residual category. Such a finding will only be
appropriate where what has occurred is so offensive to community notions of
fairness and decency that it demands that the court refuse to lend its process to
what occurred. The focus is prospective.
[294]

I simply am unable to find that what occurred here rises to such a level. I

have already explained why in this case the police were entitled to press some of
the witnesses. In the case of Brian Cox and Chris Murray I have found that the
police went too far. I also find below that Det. Doherty acted improperly when he
employed leading and suggestive techniques while pressuring Sasha Allison to
identify a perpetrator when re-interviewing her on June 14, 2010. The conduct of
the police in this case is clearly subject to legitimate criticisms. However, I
conclude prejudice to society's expectations of fairness in the administration of
justice is not demonstrated to an adequate degree to establish an overarching
abuse of process under the residual category. Taking all of the evidence and
relevant circumstances as described in the authorities into account, what
occurred here was not so unfair or oppressive overall that allowing the Crown to
proceed would "tarnish the integrity of the judicial system": Nixon, at para. 59.

-98[295]

Even if I concluded that what occurred here amounted to an overarching

abuse of process, I would not grant a stay of proceedings in the circumstances of

this case. I intend to grant lesser remedies than a stay as a result of the manner
in which the police conducted Allison's June 14, 2010 interview and Cox's June
23, 2010 interview. My analysis leading to those remedies is found in the next
section of this judgment. I am satisfied those remedies will adequately address
any trial unfairness associated with the use of the

evi~ence

which was

unacceptably tainted by the police conduct towards Allison and Cox that I find
below was improper. As I am satisfied those remedies are sufficient to ensure a
fair trial and eliminate any ongoing taint, neither of the prerequisites established
in O'Connor for a stay of proceedings are met.

Alleged Violations of Sections 7 and 11(d) of the Charter Apart From the
Overarching Claim of Abuse of Process
Positions of the Parties
[296]

In anticipation that Sasha Allison and Brian Cox will testify at the

forthcoming trial in much the same manner as they did at the last trial, the
applicant seeks prospective rulings that Allison's statement of June 14, 2010 and
Cox's statement of June 23, 201 0 should not be used for any reason. These
rulings are sought on the basis that the use or admission of either statement for
any purpose would render the trial unfair. Reliance is placed on R. v. Harrer,
[1995] 3 S.C.R. 562, [1995] S.C.J. No. 81.

-99-

[297]

In Harrer it was held that if the admission of evidence would render a

trial unfair the evidence may be excluded under s. 24(1) of the Charter or
pursuant to the common law power to exclude evidence the probative value of
which is exceeded by its prejudicial effect. A number of submissions are made to
demonstrate why the admission of the evidence would render the trial unfair.
[298]

The first submission is that the conduct of the police during the

interviews undermined the reliability of the statements so that they cannot meet
the test of threshold reliability required for substantive admissibility pursuant to
K.G.B. The second submission is that, even if threshold reliability can be

established, the statements should be rejected as substantive evidence pursuant

to the residual discretion described at pp. 801-802 (paras. 115-118) of K.G.B. on
the basis that the statements are involuntary because they were induced by
improper police conduct.
[299]

The applicant then turns to the use of the statements to challenge

credibility. He submits that because the statements should be ruled inadmissible

for substantive use it would be unfair to permit the Crown to cross-examine on
the statements to attack the witnesses' credibility.
[300]

I observe that the order of these arguments is inconsistent with the

normal order of proof at trial. If either Allison or Cox were to give evidence

-100-

inconsistent with their prior statement the usual practice would be to seek to
cross-examine them on their prior statement in order to challenge their credibility
and to try to convince them to adopt their earlier statement. The determination of
whether their prior inconsistent statement, which is hearsay, would be admitted
for substantive purposes pursuant to K.G.B. would come later.
[301]

I would also point out that binding authority establishes that cross-

examination on a prior inconsistent statement may be appropriate although that

prior statement is ruled inadmissible as substantive evidence pursuant to K. G. B.:
R.

v. Tran, 2010 ONCA 471; 257 C.C.C. (3d) 18, at paras. 33-38. This

demonstrates the need to consider the use of the statement to challenge

credibility separately from the statement's use as substantive evidence. See also
R. v. Aitkenhead (2001), 154 C.C.C. (3d) 79 (Man. C.A.) and R. v. S.(C.L.), 2011

MBQB 12, [2011] M.J. No.8.

[302]

The Crown submits that to the extent this application rests on the

application of the principles in K. G. B. it is premature because we do not know

what either Sasha Allison or Brian Cox will say at the next trial. The Crown
submits that the precise details of what they may say will affect the contours of
any cross-examination that is permitted and, ultimately, any K.G.B. ruling. The
Crown also submits that we cannot know whether a K.G.B. application will be
brought with respect to either witness until they testify.

- 101 [303]

Despite taking this position in relation to the application of K.G.B., the

Crown concedes that I have jurisdiction to decide the constitutional argument

advanced on the basis of Harrer, and agrees that I should proceed and exclude
the challenged evidence at this point should I find that the probative value of that
evidence is exceeded by its prejudicial effect. However, the Crown submits that
despite the conduct of the police in relation to Sasha Allison and Brian Cox, it
cannot be said that their statements have no probative value in relation to their
credibility or in relation to the issues of identity and alibi. As the statements have
some probative value on these issues, the Crown submits the outcome turns on
the extent of any prejudicial effect associated with the use of the statements. The
Crown again relies on Frimpong.
[304]

On the question of prejudicial effect, Crown counsel submits that the

applicant is in a good position to test and challenge the evidence in issue. This
submission is based on the fact that the statements are video recorded and all of
the transcripts of the prior proceedings are available for proper use by counsel at
the coming trial. As the evidence can be tested and evaluated there is no
prejudicial effect. Consequently, applying Frimpong, Crown counsel submits that
it cannot be said that the probative value of the evidence is outweighed by its
prejudicial effect.

...

-102-

Analysis
(305]

Harrer established that if the admission of challenged evidence would

render the trial unfair contrary to ss. 7 and 11 (d) of the Charter, there is no need
to resort to s. 24(1) of the Charter to exclude the evidence. It seems to me that
the point made in Harrer is that, because we cannot tolerate an unfair trial, it
follows as a matter of logic that whenever the admission of evidence would
render a trial unfair the probative value of that evidence will be exceeded by its
prejudicial effect. This is not the same thing as saying that a trial will be rendered
unfair in all circumstances where a judge determines that the probative value of
certain evidence is exceeded by its prejudicial effect. If that were so then in any
situation where a trial judge erred in the application of the residual discretion a
new trial would be mandated. Yet we know that an error made determining the
admissibility of evidence when applying the residual discretion does not always
lead to that result. Consequently, I do not think it is simply a matter of
determining whether the probative value of the evidence is outweighed by its
prejudicial effect. The important question is what, in terms of the admission of
evidence, will render a trial unfair. It must be remembered that in Harrer the court
was dealing with the admissibility of self-incriminatory statements which Justice
La Forest characterized as "crucial evidence" (para. 13).

- 103[306]

Apart from s. 24(2) Charter jurisprudence, it is difficult to find statements

of general principle concerning how to determine whether the admission of

evidence will render a trial unfair. In her concurring opinion in Harrer, delivered
on behalf of herself and Major J., Mclachlin J. made a number of helpful
observations.
44 Whether a particular piece of evidence would render a trial unfair is often a
matter of some difficulty. A distinction must be made at the outset between
unfairness in the way a statement was obtained and an unfair process or trial.
The situation in which police take evidence is complex. Even where every effort
is made to comply with the law, aspects of the process may, in hindsight, be
argued to have been less than fair. Sometimes the unfairness is minor or
rendered insignificant by other developments (for example, that the police would
probably have obtained the evidence anyway) or by other aspects of the case
(for example, that the accused waived or acquiesced in the unfairness).
Sometimes the unfairness is more serious. The point is simply this: unfairness in
the way evidence is taken may affect the fairness of the admission of that
evidence at trial, but does not necessarily do so. This is true for Charter
breaches; not every breach of the Charter creates an unfairness at trial which
requires exclusion of the evidence thereby obtained: R. v. Collins, [1987] 1
S.C.R. 265, at p. 284. It must also be true for irregularities that do not constitute
Charter breaches.
45 At base, a fair trial is a trial that appears fair, both from the perspective of
the accused and the perspective of the community. A fair trial must not be
confused with the most advantageous trial possible from the accused's point of
view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be
conflated with the perfect trial; in the real world, perfection is seldom attained. A
fair trial is one which satisfies the public interest in getting at the truth, while
preserving basic procedural fairness to the accused.
46
Evidence may render a trial unfair for a variety of reasons. The way in
which it was taken may render it unreliable. Its potential for misleading the trier of
fact may outweigh such minimal value it might possess. Again, the police may
have acted in such an abusive fashion that the court concludes the admission of
the evidence would irremediably taint the fairness of the trial itself. In the case at
bar, police abuse or unfairness is the only ground raised, and hence the only one
with which we need concern ourselves.

--

-104-

[307]

There are four points I would draw from the above quotation which have

particular application in this case. The first is that a fair trial is to be determined
from the perspective of both the accused and the community. The second is that
the trial may become unfair if the evidence has been obtained in a manner that
may render it unreliable. However, it seems to me that if evidence can be
properly tested and evaluated by the trier of fact its admission will seldom render
the trial unfair as our justice system generally relies on juries to evaluate the
credibility and reliability of evidence. The third point is that the fairness analysis
has as one of its components a consideration of whether the probative value of
the evidence is exceeded by its prejudicial effect. The fourth point is that police
conduct may be so egregious that the court cannot countenance it by admitting
the challenged evidence. Before this principle would apply I would think that
some causal connection would have to be demonstrated between the police
conduct and the collection of the evidence in question.
[308]

I return to the Crown's concession that I should decide the Harrer

application now but defer the determination of whether to permit crossexamination on the statements pursuant to the CEA or to determine substantive
admissibility pursuant to K.G.B. The practical difficulty I am presented with by the
Crown's position is that the determination of the Harrer application is linked by
the applicant's arguments to issues related to the application of K.G.B. and

-105cross-examination pursuant to the CEA. That link is appropriate in relation to the

substantive use argument, given that the statements are presumptively
inadmissible hearsay. It is also appropriate in relation to the Crown's use of the
statements to cross-examine Allison because the Crown must seek leave to
cross-examine its own witnesses. Pursuant to s. 9 of the CEA the court has a
discretion to determine whether such cross-examination will be permitted: R. v.
Milgaard (1971), 2 C.C.C. (2d) 206 (Sask. C.A.), leave to appeal to S.C.C.

refused, [1971] S.C.R. x.; R. v. Mcinroy and Rouse, [1979] 1 S.C.R. 588 at p.
604; R. v. Carpenter(No. 2) (1982), 1 C.C.C. (3d) 149 (Ont. C.A.) at p. 155; R. v.
McMillan (2003), 176 O.A.C. 215, [2003] O.J. No. 3489 (C.A.) at paras 25-26.

Even in the case of an opponent's witness the court possesses some discretion
to prevent or control cross-examination on a prior inconsistent statement: R. v.
Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Meddoui, [1991] 3 S.C.R. 320; R.

v. W.(.B.A.), [1992] 3 S.C.R. 811. See also R. v. Dooley (2009), 249 C.C.C. (3d)
449 at paras. 158-59.
[309]

Quite apart from the applicant's arguments, it seems to me that the

concepts I must consider in order to deal with the argument the Crown concedes
I should deal with at this point, are related at a fundamental level to what must be
considered in applying K.G.B. or determining whether to permit crossexamination pursuant to the CEA. For example, it is very difficult to evaluate

- 106-

unfairness and the relationship between probative value and prejudicial effect
without considering whether the applicant is in a position to adequately test the
reliability of the evidence before the jury. This is one of the issues that arises
when determining whether a hearsay statement meets the test of threshold
reliability under K.G.B. and related cases: see R

v.

Khelawon, [2006] 2 S.C.R.

787 at paras. 61-63.

(310]

Considering whether the admission of evidence would result in

unfairness in the sense described by Mclachlin J. in Harrer requires a

consideration of many of the same matters that arise when determining whether
to apply the residual discretion recognized in K.G.B. to exclude hearsay evidence
even when the tests of necessity and reliability are met. For example, both cases
suggest looking at any improper influences by the police that are connected to
the evidence sought to be admitted.
[311]

In short, I feel that it would be very difficult for me to explain my analysis

with respect to the argument the Crown concedes I should decide at this point
without substantially deciding the other issues that arise. Therefore, I propose to
provide my complete analysis on the basis of the record as it stands before me.
This is not a case where I am asked to make a decision in relation to a witness
who has not yet been heard. There has already been a trial in this case and the
relevant evidence from that trial is before me. That trial did not conclude a long

- 107-

time before this application commenced. Given the nature and extent of that
evidence it also seems unlikely to me that the evidence will change significantly.
Should the evidence at the coming trial differ significantly from the evidence as it
stands now counsel can raise that. I will then hear further submissions and
determine whether the rulings I have made here should be modified.
[312]

The fact that there has been a previous trial in this case, and that I will

be able to reconsider my decision in the event the evidence changes

significantly, distinguishes the situation before me from that in R. v. Buric, [1996]
O.J. No. 1657 (C.A.) to the extent that case turned on a concern that the trial
judge's ruling was made prior to the witness being heard. That concern is
expressed at paras. 25-26 of the judgment of Labrosse J .A.
[313]

As what occurred between the police and Sasha Allison and between

the police and Brian Cox were quite different I will deal with each witness
separately.
Sasha Allison
[314]

As already mentioned, the applicant alleges that Sasha Allison's June

14, 2010 statement identifying the applicant as a perpetrator is unreliable

because Det. Doherty made suggestions to her and led her to identify Eric
Morgan by telling her the perpetrator was inside the club and that she knew his

,
-108name. This narrowed the field to a very small group of men, and ignored the real
possibility that the perpetrators may never have been inside the club.
[315]

The statement is said to be involuntary based on Det. Doherty

pressuring Allison and telling her that she could be in trouble if she did not
identify the perpetrator. I reviewed the interview in detail earlier in these reasons
and will not repeat that here.
[316]

The critical issue to determine is whether the admission of this evidence,

either for the purpose of challenging credibility or for substantive use, would
render the trial unfair. As indicated by Mclachlin J., at para. 46 of her concurring
judgment in.Harrer, unfairness in collecting evidence may or may not result in the
admission of the evidence rendering the trial unfair. The applicant ties his
submission of resulting unfairness to alleged unreliability of the evidence arising
from the conduct of the police.
[317]

It seems to me that the question of unfairness must be determined in

relation to the purpose for which the evidence is permitted to go before the jury. 1
see the issue differently depending upon whether the issue is the credibility of the
witness or the reliability of the statement as substantive evidence. Having given
this difficult issue my best consideration and applied all of the considerations
raised in the passage quoted from the concurring judgment of Mclachlin J. in

- 109Harrer, I am of the view that it would not be unfair to permit the Crown to use

Sasha Allison's statement to challenge her credibility should she testify as she
did at the last trial. However, I do feel that it would be unfair to permit the
statement to be used for substantive purposes. I will deal with the credibility point
first.
Use of Allison's June 14. 2010 Statement to Assess Her Credibility
[318]

Sasha Allison was with Elaine Morrison and had a similar or better

opportunity to make observations than Morrison did. During her June 14, 2010
statement she at one point, after having identified the applicant as the
perpetrator, agreed that she had been holding back. As I have pointed out, the
police had reason to think that a number of witnesses may have been holding
back evidence in this case.
[319]

The Crown has good reason to call Sasha Allison as a witness at the

forthcoming trial to establish a number of things. She can describe how the
incident started. Quite apart from the issue of identification, she is one of the
most helpful witnesses in describing what happened and where it happened.
Consequently, the Crown cannot be criticized for calling her although, based on
her testimony at the last trial, she may be expected to say that Eric Morgan was
not involved in the shooting.

-110-

[320]

If Sasha Allison gives that evidence again fairness requires that the

Crown have an opportunity to challenge her credibility on that point. The fact that
Allison gave a prior inconsistent statement has considerable probative value on
the issue of whether or not the jury should accept her testimony that Eric Morgan
was not involved in the homicide. That is a significantly different issue than
whether Allison's prior out-of-court identification of Morgan should be relied upon.
That statement is hearsay and presumptively inadmissible.
[321]

The Crown should also have the opportunity to see, once again, if

Allison will adopt the contents of her June 14, 2010 statement. I do not see this
as inconsistent with my determination below that the statement is otherwise
inadmissible as substantive evidence. The two situations are qualitatively
different from the point of view of ensuring that decisions by a jury are based on
reliable evidence. K.G.B. deals with situations in which the jury is permitted to
choose between the sworn in-court testimony of the witness and the inconsistent
unadapted out-of-court statement of the witness. Should Allison adopt her prior
testimony it becomes part of her sworn trial testimony. It is the unreliability
associated with permitting the jury to use an unsworn, unadapted statement as
substantive evidence in contradiction to sworn testimony that is challenged on
this application.

- 111 [322]

Turning to prejudicial effect, in the absence of a convincing argument to

the contrary, it must be assumed that the jury will follow the standard instruction
that a prior inconsistent statement may not be used by them to help determine
what happened in the case unless the witness adopts the prior statement:
Frimpong. I am not persuaded a jury will be unable to follow such an instruction

in this case.
[323]

While there is a similarity between the subject matter of the anticipated

inconsistency (Allison now says Morgan was not involved but previously said that
he was involved) and the impermissible substantive use of that inconsistency on
the issue of identification, I am satisfied that the circumstances surrounding the
making of the prior inconsistent statement are such that the jury will be able to
grasp the distinction between using the evidence to assess credibility and its
improper use as evidence of identification. Allison gives a logical explanation for
the inconsistency and the manner in which the June 14, 2010 interview was
conducted could be viewed by the jury as supporting that explanation.
Consequently, the jury will have a context in which to apply the limiting instruction
that will assist them in grasping the distinction between credibility assessment
and substantive use. This diminishes the potential for prejudicial effect. Given
this context I conclude the situation is no different here than in most situations in

- 112which we rely on jurors to understand and apply the standard limiting

instructions.
[324]

The June 14, 2010 statement is video and audio recorded and available

for use by the applicant. Should the applicant choose to do so he is in a good

position to use the recorded statement during cross-examination to place before
the jury his theory that when Allison named Morgan during the interview she was
simply trying to be co-operative and was making a guess or putting things
together based on leading questions and suggestions by Det. Doherty. Given
that the jury will be instructed that they are not to make substantive use of the
statement unless it is adopted, I conclude that the defence could use such an
approach to support Allison's credibility without heightening prejudice. I also
observe that Allison's first statement of May 29, 2009, in which she said Eric
Morgan was not involved, is also video recorded and available. It is my
understanding that Crown counsel is not opposed to both statements being
played for the jury.
[325]

When I come to balancing probative value against prejudicial effect in

the context of using the statement solely to challenge credibility, I conclude the
balance tips in favour of use of the prior statement for that purpose. I am unable
to accept the submission that the use of the statement solely to test Allison's
credibility would render the trial unfair.

- 113[326]

One of the main reasons for reaching this conclusion at the balancing

stage is my finding that the statement has considerable probative value on the
credibility issue. This is in contrast to the very limited probative value I find the
statement has on the identification issue given the suggestive and leading
fashion in which Det. Doherty conducted the interview.
[327]

As already alluded to, I am also of the view that due to the way in which

the June 14, 2010 interview was conducted the resulting statement potentially
has considerable probative value in supporting Allison's trial testimony that she
was simply guessing or putting things together when she identified Morgan as a
perpetrator during that interview. At the last trial Allison testified that she only
identified Morgan because of "what came before" in the June 14, 2010 interview.
Whether this explanation will be accepted should it be advanced again will be up
to the jury with the benefit of a proper instruction. The point is, I find the
statement has real probative value on the credibility issue. As I have found that
the jury can follow a limiting instruction and that the applicant can test the
evidence, I conclude that the use of the June 14, 2010 statement for the limited
purpose of challenging Allison's credibility will not render the trial unfair.
Use of Allison's June 14. 2010 Statement As Substantive Evidence
[328]

When it comes to the issue of the substantive use of the statement, the

court cannot overlook the importance to the administration of justice of ensuring

- 114that pretrial identification procedures are conducted in a fair and reliable way.
History has shown that liberties taken in pretrial identification procedures can
lead to miscarriages of justice; the ultimate form of unfairness. As stated by
Doherty J.A. in R. v. Quercia (1990) 75 O.R. (2d) 463 (C.A.) at p. 465, "The
spectre of erroneous convictions based on honest and convincing, but mistaken,
eyewitness identification haunts the criminal law."
[329]

Many decided cases show that courts treat tainted identifications as

having little to no probative value. I cited some of those cases above, at para. 45,
when dealing with Elaine Morrison's evidence. Reference may also be made to
Smierciak; R. v. Sutton, [1970] 2 O.R. 358, [1970] 1 C.C.C. 152 (C.A.); R. v.
Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 29; R. v. Hibbert,

2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 51-53; and to The Inquiry
Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration
of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001 ).

[330]

In Miapanoose Charron J.A. (as she then was) reviewed the heightened

concerns that surround eyewitness identification evidence. At pp. 424-25 she

indicated that courts must be constantly watchful "that nothing unfair to an
accused person is done or put in evidence in connection with identification
procedure." In the same paragraph she wrote that, "it is clear that the police also
have a duty to ensure the integrity of the identification process." She concluded

- 115the paragraph by stating: "Irreversible prejudice to an accused may flow from the
use of inappropriate police procedure and, unless adequately counterbalanced
during the course of the judicial process, may result in a serious miscarriage of
justice."
[331]

The element of improper police conduct which adversely affects the

reliability of Sasha Allison's identification evidence in this case was absent in

Frimpong. This significant distinguishing factor must be kept in mind in

considering the applicability of Frimpong when dealing with Sasha Allison as

opposed to Elaine Morrison. I found that it was not improper for the police to
show Elaine Morrison the party video. No other improper conduct was alleged in
regard to Morrison. It is the tainting police conduct that turns what occurred in
relation to Allison's June 14, 2010 statement into a matter with Charier
implications.
[332]

Det. Doherty told Sasha Allison during the interview that the police

believed the other witness and by implication, therefore, that the police believed
the suspect identified by the other witness was the perpetrator. That was
improper. He also told Allison that the person the other witness had identified by
name was inside the bar earlier in the evening and was known to Allison. That
was also improper. These improprieties by a state actor engaged in the collection
of identification evidence tainted the reliability of the resulting evidence. This

- 116impacts negatively on the accused and, given society's collective interest in

avoiding miscarriages of justice, on the proper administration of justice and the
community as a whole.
[333]

While I have already said that in this case it was reasonable for the

police to challenge witnesses and to suggest to witnesses that they were holding
back, that is quite different than providing an identification witness with
information about whom it is that other witnesses have identified or who the
police believe is responsible for a crime. When that occurs the probative value of
the evidence is diminished significantly or may be destroyed completely. By his
comments Det. Doherty narrowed the field of persons Sasha Allison was told to
select from down to the few black males she had previously been able to pick out
by name or nickname when viewing photographs made from the party video. If
anything similar were to happen during a police line-up the line-up would likely be
excluded on the basis that it had no probative value or that any slight probative
value it had was exceeded by its prejudicial effect. It seems to me that the same
reasoning should be applied here where the issue is whether the prior
inconsistent statement, which is hearsay, should be admitted as substantive
evidence to prove the identity of the perpetrator.
[334]

In contrast to my finding that the June 14, 2010 statement has

considerable probative value on the credibility issue, I find it has almost no

- 117probative value on the identification issue. The identification issue is the only
substantive issue that I am aware the Crown is interested with respect to
Allison's statement.
[335]

The degree of prejudicial effect associated with evidence also varies

with the nature of the issue to which the evidence is directed. Where the issue is
the reliability of an eyewitness's identification, police conduct which taints the
reliability of the eyewitness will have the potential to lead to considerable
prejudicial effect being associated with the use of the evidence given the known
propensity of jurors to give eyewitness evidence undue weight. In a context
where what is being considered also involves the admission of presumptively
inadmissible hearsay for the purpose of permitting jurors to choose between
sworn testimony and an out-of-court inconsistent statement, I conclude the
potential for prejudicial effect associated with the use of such tainted evidence is
heightened. Sasha Allison was not subject to contemporaneous crossexamination when she gave her June 14, 2010 statement. Given the leading
nature of the interview and Allison's seeming initial uncertainty in identifying
Morgan, contemporaneous cross-examination would likely have had a significant
impact on the ability of jurors to assess the reliability of the identification that
Allison made in the course of the interview. Given the circumstances, it may have
undermined the identification completely.

- 118-

[336]

I am not satisfied that the ability to cross-examine Allison at trial will be

an adequate substitute. As the interview continued Det. Doherty skillfully used a

number of techniques to shore up Allison's somewhat shaky initial identification
of Morgan. The interview shows that Det. Doherty had an agenda. The overall
manner in which he conducted the interview demonstrates that his objective was
to develop support for Elaine Morrison's identification of Morgan if there was any
way to do so, as opposed to fairly and accurately documenting Allison's ability to
identify a perpetrator. This finding must be evaluated in the context of the known
difficulties jurors have with eyewitness identification evidence. Juries are not
steeped in the knowledge of the dangers of eyewitness identification as
experienced lawyers and judges are. This is why appellate courts set high
standards for judicial instructions to jurors in such cases. Recent examples can
be found in R.

v. Yigzaw, 2013 ONCA 547 and R. v. Jack, 2013 ONCA 80, 294

C.C.C. (3d) 163.

[337]

My concern regarding the effectiveness of defence cross-examination at

trial serving as an adequate substitute for contemporaneous cross-examination is

related to the fact that I have the benefit of a complete retrospective view of what
happened at the first trial. By virtue of s. 9 of the CEA Crown counsel was
permitted to cross-examine Allison first in the presence of the jury. That crossexamination was handled skillfully and Allison had difficulty articulating her

- 119position that the way in which the interview was conducted by Det. Doherty led
her to believe, for a time, that her identification of Morgan logically flowed from
what she had been told in the interview.
[338]

By virtue of s. 9 the Crown completely controlled the manner in which

the challenged identification evidence was presented to the jury. Crown counsel
was able to start with the witness in a manner which emphasized what the Crown
hoped to obtain from her evidence. The Crown was able to capitalize on the
techniques Det. Doherty used to shore up the identification after the initial shaky
identification.

The

weaknesses

in

the

circumstances

surrounding

the

identification were downplayed. By the time defence counsel rose to crossexamine in front of the jury considerable time had passed. There was diminished
opportunity for effective advocacy to demonstrate what Chief Justice Lamer
described in K. G.B., (at p. 801, when explaining the residual discretion to exclude
inconsistent statements that otherwise met the K. G. B. tests of necessity and
reliability), as the "malign influences on the witness by police". In many ways the
procedural advantage the Crown derived from s. 9 of the CEA by being able to
go first in cross-examination before the jury, tended to inoculate Allison's
identification against the test defence cross-examination would usually provide.
The defence cross-examination was considerably delayed by these procedures
and came only after the Crown had the advantage of cross-examining first on

- 120-

everything that mattered. The practical result was that the Crown benefitted from
Det. Doherty's improper conduct of the interview.
[339]

I also note that Det. Doherty is an experienced and skilled interrogator.

Some of the things he did which are likely to have influenced Sasha Allison are
subtle. Much of the interview was conducted in a quiet almost hypnotic tone of
voice. 1 have watched the video of the interview a number of times. I am
concerned that some of the things he did which could have an impact on the
reliability of Allison's identification of Eric Morgan may be difficult for the jury to
appreciate, despite the best efforts of counsel and my instructions. It is very
difficult to describe these subtle influences. It is important to view the interview to
appreciate all the dynamics of the interview.
[340]

I am also concerned by the way in which pressure was applied to Sasha

Allison to get her to make an identification from the group of men inside the club
which Det. Doherty had narrowed it down to. The officer suggested to her that
she would be doing a service to the community if she picked someone out from
that group. He also told her a number of times that she could be in trouble herself
if she did not cooperate in this regard. Those comments were made during parts
of the interview where Det. Doherty was trying to persuade Allison that she
should identify a particular person from the group of men inside the club whom
she knew by name or nickname. They were not simply informational comments.

- 121 After a careful review of the entire interview I conclude undue pressure was
applied to Sasha Allison to identify someone from that limited group as a
perpetrator.
[341]

That said, I do not find that the statement was involuntary pursuant to

the confessions rule. Based on my assessment of the statement and all of Sasha
Allison's evidence, including her evidence at the previous trial, I am unable to
conclude that her ability to choose whether to speak to the police was overborne
by Det. Doherty's conduct during the interview. Sasha Allison testified at the last
trial that she identified the applicant, "because of what came before," during the
interview. She wanted to co-operate and was trying to assist the police. In
essence, Allison testified that she made a deduction in order to help the police,
believed at the time it was correct, and felt it was the proper thing to do.
[342]

Based on all that I have seen and read Sasha Allison is not a classic

recanting witness. She testified that she did not recognize any of the perpetrators
at the time of the shooting but was persuaded by Det. Doherty to make a
deduction based on what she was told during the June 14, 2010 interview. She
believed her deduction was correct at the time. By the time of the first trial she no
longer believed that. Based on my assessment of her demeanour and abilities,
including her ability to express herself, I assess this explanation as a reasonable

'
-122one that is supported by the evidence. I have had the benefit of watching many
hours of Sasha Allison being interviewed by the police.
[343]

My concern about trial fairness is rooted in the conduct of Det. Doherty

which tends to undermine the actual reliability of Sasha Allison's identification of

Eric Morgan during the interview and to the danger that poses to society's
interest in preventing miscarriages of justice. That danger is directly linked to the
use of the June 14, 2010 statement, which is presumptively inadmissible
hearsay, as substantive evidence.
[344]

Turning to balancing probative value against prejudicial effect, I find the

balance tips solidly against the admissibility of the statement for use as
substantive evidence of identification. As I have already said, I find the evidence
has very little probative value given the way in which it was developed by Det.
Doherty. On the other hand, for the reasons stated, I believe there is
considerable prejudice associated with the use of the statement as substantive
evidence. Balancing one against the other favours exclusion of the evidence for
substantive purposes.
[345]

I do not see my earlier conclusion that the applicant is able to

adequately challenge the reliability of the evidence in the context of its use to
assess Allison's credibility as inconsistent with this conclusion. The issues are

- 123different. The degree of prejudice to the applicant's fair trial interests is much
greater in the case of the statement's substantive use as evidence identifying him
as a perpetrator than it is in relation to assessing Allison's credibility. It is in the
area of eyewitness identification that it is known that juries have difficulty
assessing the reliability and weight of evidence. I would also add that as the
probative value of evidence declines a lesser degree of prejudicial effect will tip
the scales against admissibility: R. v. Robertson, [1987] 1 S.C.R. 918, at pp. 94344, [1987] S.C.J. No. 33, at paras. 45-46. I have found that Allison's statement
has little probative value on the issue of identification.
[346]

I wish to emphasize again that I do not see this balancing as always

determinative of the trial fairness question. The nature of the evidence and the
improper role of a state actor in obtaining it are significant additional factors
leading to my conclusion in this case.
The Principles in K.G.B. Applied to Allison's Statement
[347]

To this point I have tried to express the reasons for my decision without

substantial reference to the principles governing the admissibility of prior

inconsistent statements as substantive evidence pursuant to the line of authority
beginning with K.G.B. However, when I apply those principles I reach the same
conclusion.

-124[348]

With respect to substantive admissibility, assuming Sasha Allison

testifies as she did at the last trial, necessity will have been established.
[349]

Turning to reliability, as summarized in Khe/awon, at paras. 61-63,

threshold reliability may be established in either of two ways. Under the first, it is
established where there is no real concern about whether the statement is true
due to the circumstances in which the statement was made. Clearly that does not
apply in this case. Under the second, threshold reliability may be established if it
can be shown that, in the circumstances, the truth and accuracy of the statement
can be sufficiently tested before the trier of fact.
[350]

The Crown relies upon the second means of establishing threshold

reliability. Again, the Crown argues that because the statement is recorded,
because Sasha Allison is available for cross-examination and given that
transcripts of all of her testimony are available to assist counsel, the evidence
can be tested by counsel leaving the jury in a good position to assess ultimate
reliability. On this basis Crown counsel submits the threshold reliability
requirement is easily met.
[351]

I have already provided a number of reasons why I disagree with this

submission when it comes to the substantive use of the statement on the issue of
identification. Those reasons are contained both within my comments concerning

- 125probative value and prejudicial effect. However, I would like to make some
additional points in response to this submission.
[352]

As this application was presented by both sides the focus was on

determining whether what was done by a state actor undermined the reliability of
the evidence to such a degree that an unfair trial would result if the evidence
were to be admitted. This seems to me to raise a broader question than is
involved in determining whether the evidence meets the second branch of the
test for threshold reliability as explained in Khe/awon. Whether the evidence can
be adequately tested is a component of the application as presented but there is
more to it than that.
[353]

The broader aspects of the matter I am dealing with as a Charter

application pursuant to Harrer are also captured by the residual discretion to

exclude hearsay evidence that otherwise meets the tests of necessity and
reliability. That residual discretion was first described in K.G.B. at pp. 801-802
(paras. 115-118) and was developed further in Khelawon at paras. 3, 49, 81 and
87 and in R. v. Devine, [2008] SCC 36, [2008] 2 S.C.R. 283, at para. 30. See
also R. v. Youvarajah, 2013 SCC 41, at para. 23.
[354]

Counsel for the applicant has referred to that discretion in the course of

arguing that Allison's statement is involuntary. I have found the statement to be

- 126-

voluntary. However, there are other aspects of the residual discretion that I rely
upon to conclude that the June 14, 201 0 statement is inadmissible pursuant to
the residual discretion developed in these authorities.
[355]

In K.G.B. Lamer C.J. indicated at para. 117 that, in addition to

establishing necessity and reliability, before admitting a prior inconsistent

hearsay statement as substantive evidence the judge must be satisfied that the
statement was "not the product of coercion of any form, whether it involves
threats, promises, excessively leading questions by the investigator or other
person in a position of authority, or other forms of investigatory misconduct."
[Emphasis added.] He went on to indicate that this would include anything that
was said or done which would bring the administration of justice into disrepute if
the evidence were to be admitted. I also note that pursuant to K.G.B. the burden
is on the party tendering the evidence to convince the court that the residual
discretion should not be invoked.
[356]

In Khelawon Charron J. indicated, at para. 49, that the additional inquiry

under the residual discretion was required because "trial fairness may
encompass factors beyond the strict inquiry into necessity and reliability." In
Devine, at para. 30, Charron J. described the residual discretion under ~.G.B. as

involving a determination of whether the prejudicial effect of the evidence

exceeds its probative value. She said that the discretion may be invoked "when

- 127there is a concern that the statement may be the product of some form of
investigatory misconduct."
[357]

Even if I were to accept the Crown's submission that threshold reliability

is established because there is an adequate opportunity for the applicant to test

the evidence before the jury, I would nonetheless exclude the statement by
applying the residual discretion. Despite my conclusion that the statement was
voluntary in the sense that Allison did not make the statement because her will
was overborne, given the well-known dangers of eyewitness identification
evidence, I am nonetheless of the view that the interview was conducted in such
an improper manner that the evidence must be excluded. Det. Doherty used
techniques during the interview that he ought to have known would lead to
serious concerns about the reliability of any identification evidence that resulted.
The state should not be able to take advantage of that improper conduct to
obtain substantive admissibility for presumptively inadmissible hearsay on such a
sensitive issue as eyewitness identification.
[358]

I wish to make one final point before concluding with respect to Sasha

Allison's June 14, 2010 statement. Crown counsel relies heavily on the case of
Buric in connection with his submission that, because the statement is video

recorded and there is an extensive record available to assist the applicant, the

-128-

statement can be adequately tested. He says that, as the Court of Appeal ruled
in Buric, the matter should be left with the jury.
[359]

In Buric the trial judge concluded that an unsavoury witness had been

tainted by the police showing him other evidence in the case during their
attempts to gain the witness's cooperation. The trial judge applied Harrer and
found that the trial would become unfair if the tainted witness were permitted to
testify. He excluded the witness's evidence.
[360]

Three separate judgments were written in the Court of Appeal. Labrosse

J.A. and Weiler J.A. wrote concurring judgments allowing the Crown's appeal.
Laskin J.A. dissented. In a brief judgment the Supreme Court of Canada affirmed
the decision of the Court of Appeal for the reasons of Labrosse J.A.
[361]

Labrosse J.A. held that, in the circumstances, Harrer did not apply. At

para. 23 he held that the constitutional discretion to exclude evidence to prevent

an unfair trial did not reduce the law on exclusion of evidence to a discretionary
principle based on the trial judge's perception of whether the evidence was
reliable. The other rules of evidence must not be ignored as those rules are
designed to assist in ensuring fair trials. He noted that the admission of evidence
which may be unreliable does not necessarily render a trial unfair. The reliability
of evidence is generally for the jury to determine.

-129[362]

Crown counsel submits that I am bound to take the same approach in

this case. I respectfully disagree. The evidence I am dealing with is

presumptively inadmissible hearsay. It will only be admissible if the Crown
establishes necessity, reliability, and the inapplicability of the residual discretion
pursuant to K.G.B. As I have already explained with reference to authority, the
residual discretion pursuant to K. G.B. involves a determination of whether the
probative value of the evidence is exceeded by its prejudicial effect: Devine, at
para. 30. Buric was not a case involving presumptively inadmissible evidence but
just the opposite.
[363]

As Weiler JA. held in her concurring opinion in Buric, at para. 33, it is

when a judge is dealing with evidence which is generally not admissible, but
which may exceptionally be admitted, that the exercise of the trial judge's
discretion to exclude evidence because its probative value is exceeded by its
prejudicial effect is most likely to be invoked. That was not the case on the facts
in Buric but it is in the case before me. Weiler JA. explained that this is because
a preliminary finding of fact is often required before presumptively inadmissible
evidence will be admitted pursuant to an exception to an exclusionary rule. That
is precisely the situation I am dealing with.
[364]

For the foregoing reasons Sasha Allison's June 14, 2010 statement may

be used in cross-examination to challenge her credibility should her testimony

- 130deviate from the statement. However, subject to a significant change in the

evidence, the statement is inadmissible as substantive evidence on the issue of
identification. Should Allison's evidence change significantly at the coming trial I
will reconsider this ruling.
Brian Cox
[365]

I have already analysed what occurred when Brian Cox was interviewed

by the police on June 23, 2010. I have described the interview as a relentless
onslaught that must be viewed to be appreciated. I have found that if Cox were
an accused person I would exclude a substantial portion of the statement as
involuntary.
[366]

Brian Cox testified as a Crown witness at the last trial. He was

extensively cross-examined by Crown counsel on his June 23, 2010 statement

pursuant to s. 9 of the CEA. As previously mentioned, his June 23, 2010
statement was admitted as substantive evidence pursuant to K.G.B.
[~67]

During his

_tri~l

testimony Brian Cox gave an _account. of how he was

psychologically "beaten down" by the police during the interview. He agreed he

had not been physically threatened. He said the police would not accept anything
he said in relation to Eric Morgan being inside the club when he learned of the
shooting, and that they wanted him to agree with their theory of what happened.

- 131 -

He explained that he viewed the police as having the power to decide whether to
release him or not. He was afraid they were going to charge him with being an
accessory after the fact to murder. "If that happened I wouldn't be going home ...
I basically told them what they were fishing for."

[368]

Cox testified that he was telling the truth for six hours but the officers did

not want to hear it. He said that Det. Johnstone was coming at him "full speed",
calling him a liar and threatening him. He was thinking about his paralegal career
and the effect his being charged as an accessory after the fact to murder would
have on his family. He said that he was confused. When he went in to speak to
the police he had control of his life but within a few hours that control was taken
away from him and his life was just up in the air. He testified that after Det.
Johnstone came into the interview room he started to tell the police what they
wanted to hear. Towards the end of the interview he could sense that he was
almost home free and he was not going to say anything to mess that up. He
noted that the officers' demeanour started to change when he started to tell them
what they wanted to hear.
[369]

All of this evidence from Brian Cox is well supported when one views the

eight hour interview. The police threat involved a quid pro quo: tell us what we
want to hear and you will not be charged. Stick to your support for Morgan's alibi
and you will be arrested and held in custody for a bail hearing.

-132[370]

The transcript indicates at p. 226 that Det. Giles left the interview room

at 12:31, which was at about the six hour mark. Cox was left alone for 41 minutes
until 13:23. Johnstone then entered the room and immediately became
controlling and aggressive. Soon after that point Cox started to back off his
support for Morgan.'s alibi.
[371]

As already mentioned, the Crown has decided not to call Brian Cox at

the coming trial. However, the applicant proposes to call him as a defence
witness. The applicant seeks a ruling that the Crown should be prevented from
cross-examining Brian Cox on his June 23, 2010 statement. Interestingly, Crown
counsel says that for tactical reasons the Crown may choose not to crossexamine Cox on that statement.
[372]

In its written material the Crown took the position that it had the right to

cross-examine an opposing witness on any prior inconsistent statements. On

behalf of the Crown, Mr. Taylor moderated that position considerably during oral
argument towards the end of the day on June 19, 2013. Mr. Taylor agreed that I
have the discretion to prevent or limit such cross-examination pursuant to Lyttle.
He conceded that I should proceed and exercise my discretion on the basis of
fairness by determining whether the probative value of the evidence is exceeded
by its prejudicial effect.

- 133[373]

Crown counsel submits that because there is a substantial inconsistency

between what Brian Cox is expected to say and his June 23, 2010 statement the
statement has considerable probative value on the issue of Brian Cox's
credibility. Consequently, he submits that the issue turns on prejudicial effect. He
contends there is no danger the jury will misuse Cox's inconsistent statement as
substantive evidence and that, accordingly, there is no such prejudicial effect.
[374]

I am unable to accept this submission. In my view, the conduct of the

police during the interview became so oppressive, particularly after Det.

Johnstone became involved, that the reliability of the evidence thereafter is
seriously undermined. I am satisfied Brian Cox's gradual retreat from support of
Morgan's alibi during the final hours of the interview was the direct result of
threatening and oppressive police conduct. Consequently, what Cox said during
that part of the interview has no probative value on the issue of his credibility.
[375]

I am also of the view that there is substantial prejudicial effect

associated with permitting the Crown to cross-examine Cox on the portions of the
statement I intend to exclude from such use. Leaving to the jury the assessment
of whether the police conduct resulted in an unreliable prior inconsistent
statement on the alibi issue will be time consuming and will sidetrack the trial. It
may require the defence to challenge the conduct of the police more broadly,
further sidetracking the trial. Keeping in mind that the Crown will still have a

-134substantial portion of the interview available for potential cross-examination, what

there is to be gained by permitting cross-examination on the last two hours of the
interview is outweighed by these factors. Prejudicial effect outweighs probative
value.
[376]

I understand that what I have said about the limited probative value of

the inconsistencies in the statement in relation to assessing Cox's credibility,

which is based on my assessment of the inferential value of the evidence on the
credibility issue, risks usurping the function of the jury in deciding the weight of
the evidence. It cannot be said that Cox's prior statement is presumptively
inadmissible for the purpose of challenging his credibility should he testify as a
defence witness. The situation involving Cox is closer to that in Buric for this
reason. However, I do not rest my decision solely on my assessment of probative
value.
[377]

I also find that the interview became so oppressive that to permit the

Crown to take advantage of the abusive tactics employed during the interview, by
using evidence the police virtually manufactured to attack the credibility of an
important defence witness on a question as central to the defence as alibi, would
bring the administration of justice into disrepute. In this narrow sense I find that
the use of the objectionable portions of this interview would constitute an abuse
of process. The police conduct during this witness interview was vexatious and

- 135oppressive to a degree I find surpasses community standards of tolerance, even

in a serious investigation such as this one. I infer it was calculated to unfairly
undermine the strongest witness in support of Eric Morgan's alibi.
[378]

While there were threats and oppressive circumstances earlier in the

interview, Brian Cox himself testified that everything he said was truthful up until
the point where Det. Johnstone became involved in the interview. In view of that
testimony I will not prevent the use of the statement in cross-examination up to
the point where Johnstone entered the interview room at 13:23 (transcript, p.
226). Consequently, the first six hours will be available to the Crown. Should
there be inconsistencies, this will allow the Crown considerable scope to crossexamine Cox on aspects of the statement which are important to the Crown's
case and to the jury's assessment of Cox's credibility. However, shortly after
Johnstone entered the room it is apparent that Brian Cox began to withdraw his
support for Morgan's alibi due to the great pressure that was being exerted upon
him. No portion of the statement thereafter may be used in cross-examination.
[379]

in

view of the fact that Cox will be a defence witness, and given the

ruling that I have just made, it seems unlikely that Crown counsel will apply to
have Cox's statement admitted as substantive evidence pursuant to K.G.B.
However, given what I have already said, if that were to occur the same portion
of the statement that I have excluded for use in cross-examination would, subject

-136-

to some significant unforeseen change in the evidence, be inadmissible pursuant

to the residual discretion described in K.G.B. and subsequent cases. That
exclusion rests on my finding that the statement is involuntary and that its use
would constitute an abuse of process. I say this recognizing that there is authority
that inadmissibility under the confessions rule does not necessarily equate with
the type of involuntariness that is contemplated in the residual discretion
pursuant to K.G.B.: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208.
However, it is apparent that my findings go considerably beyond involuntariness
under the confessions rule.
[380]

In Hamilton the court gave an example of circumstances that would

support a conclusion of involuntariness under the residual discretion in K.G.B. by

using the following words (para.144 ): "For example, if a trial judge were to
entertain real concern that a witness's statement was the product of police
coercion and the witness simply told the police 'what the police wanted to hear',
this would necessarily undermine the veracity of the indicia of relia~ility and
render the proposed statement inadmissible for its truth." This is precisely the
finding I have made in this case.
[381]

Subject to a significant change in the evidence, no portion of Brian Cox's

June 23, 2010 statement subsequent to Det. Johnstone's involvement in the

- 137-

interview which commenced at 13:23 (transcript, p. 226) shall be used in crossexamination or admitted as substantive evidence at the forthcoming trial.
Other Remedies Sought by the Applicant
[382]

The applicant also sought an order permitting him to cross-examine

Brian Cox should Cox be called as a defence witness. I understood that request
as an alternative to the request that Cox's statement be excluded. The basis for
the request was to allow counsel to control the presentation of Cox's version of
how the police broke him down psychologically and got him to change his story, if
the Crown was going to be permitted to cross-examine Cox on his June 23, 2010
statement. The applicant submitted that permitting his counsel to pose leading
questions would assist in levelling the playing field if the portion of the statement
that was wrung out of Cox was going to make its way before the jury.
[383]

Given my ruling that the portion of Cox's statement that I have found

was improperly obtained will be excluded, I see no need for this alternative
remedy. However, if by the time Cox is called to testify issues have arisen during
the trial which render it important that certain areas be avoided during his
testimony in-chief, I will consider relaxing the normal rules to the degree required
to avoid any difficulties.

-138-

The Inadmissibility of the Expert Evidence

[384]

Reports prepared by Dr. Brian Cutler and Dr. Timothy Moore were filed

on this application. I briefly described the nature of this evidence at para. 17

above. Crown counsel agreed that there was no need to call the witnesses for
cross-examination but did object to the admissibility of their evidence on the
application.
[385]

Both witnesses are forensic psychologists who have qualifications

relevant to the issue of the effect of interviewing techniques on the reliability of

resulting eyewitness identification. My conclusion that their reports are
inadmissible on this application is not related to their qualifications but to two
other factors operating in combination.
[386]

First, the question before me is essentially a legal one. The evidence of

experts is not generally relevant to the determination of such legal questions.

See the discussion in R. v. Parrott, [2001] 1 S.C.R 178, commencing at para. 53.
I do not find the proposed evidence to be of significant assistance in relation to
what I must decide pursuant to the applicable legal tests set out in the
jurisprudence.
[387]

Second, I find the evidence to be unnecessary to assist me in drawing

appropriate inferences from the factual evidence before me. As pointed out by

- 139-

Binnie J. at para. 55 of Parrott, an expert's role "is not to testify to the facts, but to
provide an opinion based on the facts, to assist the trier of fact to draw the
appropriate inferences" which the trier would otherwise be unable to draw. What
Dr. Cutler and Dr. Moore have to say is very interesting and is presented with
supporting evidence from the field of social science. I have no doubt that there is
great value in the work they do. However, stripped of the supporting references, I
find that what they say in their reports is well within the knowledge of
experienced lawyers and judges. As such their evidence is unnecessary and
therefore it is inadmissible on this application: R. v. Mohan, [1994] 2 S.C.R. 9, at
paras. 21-25; R.

v. Abbey, 2009 ONCA 624, 246 C. C. C. (3d) 301, at para. 94.

Summary of Conclusions
[388]

Elaine Morrison's evidence is admissible.

[389]

The overarching abuse of process application is dismissed.

[390]

Should Sasha Allison give evidence inconsistent with her June 14, 2010

statement that statement will be available for use by the Crown to test Allison's
credibility and in order to see if she will adopt any portion of the statement.
However, subject to a significant change in the evidence, that statement will not
be admitted as substantive evidence.

\ -

- 140[391]

Subject to a substantial change in the evidence, the portion of Brian

Cox's June 23, 2010 statement taken by the police after 13:23 shall not be used
in evidence for any purpose.
[392]

The pre-trial applications are otherwise dismissed.

Released: October 17, 2013

CITATION:R. v. Morgan, 2013 ONSC 6462

COURT FILE NO.: CRIMJ (P.) 1208/11
DATE: 20131016

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
HER MAJESTY THE QUEEN
Respondent

- and-

ERIC MORGAN
Applicant

REASONS FOR JUDGMENT ON PRETRIAL MOTIONS

F. Dawson J.

Released: October 17, 2013