Barrister, Solicitor & Notary Public
In trials, as far as accused persons are concerned there are winners and losers. The winners walk out of the prisoners' docks into the waiting arms of love ones. The losers go to jail and for a long time. See, R. v. Simpson - Rowe 2009 CANLII 18884.
In the Jordan Manners murder trial, the two young accused were acquitted by a jury after 12 hours of deliberations. The main issue had to be credibility of the evidence of the Crown's main witnesses, both of whom gave lengthy statements shortly after the events occurred, and both of whom recanted those statements twice. First in the trial that ultimately resulted in a hung jury and mistrial. Second, in this most recent trial where the accused were acquitted.
The news coverage of this trial and the acquittal is in a frenzied state over what they described as the apparent intimidation of the witnesses.
April 2007 - witness safety in the Jane Creba Case
On December 26, 2005, Richard Steele was on Yonge Street in Toronto , Ontario
We brought an application before Mr. Justice Nordheimer of the Ontario Superior to quash the subpoena. In denying our application, Justice Nordheimer ruled that "4 I acknowledge that Mr. Steele may be considered by some individuals as a "rat" if he is called as a witness notwithstanding that Mr. Steele has been compelled to attend. The fact that some people hold misguided, indeed I would say perverse, notions of what is involved in being a citizen of this country and the obligations that come with that status is not a proper basis to quash a subpoena. To accede to that submission would be to undermine the very foundation of our justice system." See, R. v. Steele 2007 CarswellOnt 3011 (SCJ).
Mr. Steele was upset with that ruling:
On Tuesday, an angry Steele lost his bid to avoid testifying in the trial of the 10 young men accused in Creba's Boxing Day 2005 shooting. "You don't understand, Your Honour. You are helping them kill me," Steele, 19, told Nordheimer.
See, Man must testify in Creba case - thestar.com 24 Apr 2007
Consider the case of David Latchana in November 2007
On November 03, 2007, Mr. Latchana, age 23, was murdered outside of an after hours club. He was previously called by the Crown as a witness involving an aggravated assault that including the suspect Jayson Hay who served 18 months imprisonment. Mr. Hay and another first degree murder co-accused in Mr. Latchana's death made a hip hop tape that was prominenetly showcased on Mr. Hay's myspace.com page calling the deceased a "snith" who "put me away". "You came to Court nigga and pointed in my face (named the accused) but when I get home you know your place. I did a year and half ". "Don't let me catch you cause those guns will spark". I will find you after dark, I don't give a fuck man, cause the time is soft. I won't forget this till your time is up." The accused described himself as "EVIL with Twin eagles bullets go through you and the other peoples."
It is clearly the case that Mr. David Latchana met his death because he was considered a snith for responding to a Crown's summons to testify in a previous case against the accused. This has nothing to do with gang membership or the lack thereof. It has to do with the ability or the lack thereof of the state to protect it witnesses that it calls to testify in cases involving violence and threats thereof. Yet when this man was murdered Peel Regional Police was quick to label him a gang member and alleged that an internal gang rift and a "diss" was the motive for the murder when the evidence suggest that being a Crown witness was. As well, the police failed to act on the threats that was on myspace for some considerable time.
The First Manners Trial
Prior to the commencement of the jury trial an application to have the witnesses testify by videoconferencing facility was dismissed by Mr. Justice Nordheimer in R. v. C.D., 2010 CanLII 22061 on the basis that it violates the fair trial rights of the accused:
[15] This case is very much of a different kind from those cases. Here, the individuals regarding whom the prosecution seeks this order are not the subjects of the criminal offence. They are witnesses to it. While the individuals here did express some fear of facing the accused, their principal concern as reported by the detectives is a fear of reprisals arising from them being witnesses. At no point has any of these witnesses said that they are unable to give their evidence if they are required to do so in the presence of the accused.
[16] If the stated fear is a fear of reprisal arising from the fact that these individuals are going to give evidence in this trial, then it is self-evident that the core fear arises from the fact of being a witness – not from the manner in which the evidence is given. I do not see how changing the manner in which the individuals give their evidence addresses that central concern. In other words, the concern as expressed by these individuals arises from the fact of being a witness, not from the form in which their evidence is given.
[17] In addition, it is difficult to substantiate the concern from an objective point of view. There have been no threats, real or perceived, against any of these individuals. There has not been any contact between these individuals and the accused or between these individuals and anyone purporting to act on behalf of the accused.
As aleady indicated the first trial ended in a hung jury and mistrial, with the crucial witnesses who were students at C.W. Jeffreys Collegiate recanting and causing the judge to be concerned about whether or not they were being intimidated by alleged gang members. See, Judge asks for review of witness statements at Manners murder trial Globaltv 23 Mar 2010 and Mistrial in Jordan Manners case - thestar.com, 26 Mar 2010.
In R. v. J.W., 2010 CanLII 29087 Mr. Justice Nordheimer again had to confront the issue of witnesses and the so-called snitch code:
[19] As I earlier observed, no convincing explanation is offered by either of these witnesses for the dramatic change in their evidence. Those facts, coupled with the expressions of fear and other considerations that I earlier mentioned, must inevitably give rise to concerns that these witness have been subjected to some form of intimidation, whether direct or indirect. Their denials of any such conduct does not serve to fully rebut the common sense inference that arises. To the contrary, the suggestion that these witnesses may have been threatened or coerced into changing their evidence hangs like a dark cloud over this entire proceeding.
[20] In saying all of this, I am very conscious of the fact that there is no evidence linking either J.W. or his co-accused to any improper conduct regarding these witnesses. That fact does not change the reality that they stand as the immediate beneficiaries of this changed evidence, however. It would certainly not be lost on an outside observer that that is the direct result of these events whether orchestrated by the accused or not
Little, if anything, is known about what the state did to offer these witnesses any semblance of peace of mind, safety and protection. The subjective basis relates to the existence of a fear of death or serious bodily harm and/or psychological harm in the mind of the witnesses. The objective basis requires that there be a valid basis for this fear. The objective basis of their fears were well founded if the Latchana case is anything to go by.
Implications for other cases
What is entirely lost in the May 20, 2011 press coverage is Canada's failed witness protection program and the failure of justice officials to come to grips with the dynamics of communities such as that where Jordan Manners lived and died. See, for example, Co-accused acquitted in shooting death of Jordan Manners - Globe and Mail; With not guilty verdict, family may never know why Jordan Manners died - Vancouver Sun; Mandel: Not guilty verdict tragic, but no surprise - Toronto Sun; Manners verdict leaves questions Toronto Sun - Chris Doucette.
Fundamentally, however, "Witness protection involves understanding the dynamics of the community. The police don’t understand that people are afraid. Instead, they think that people are colluding with the gunmen, and that’s simply not the case." Mike Franklin,U.K. Commissioner of the Independent Police Complaints Commission (IPCC). See Minutes of the meeting of the Toronto Police Services Board, December 15, 2005.
Who want's to end up being labelled a snitch and murdered like David Latchana was, with the indifference of the state and/or the police? See Murder victim no gang member, family says, Mississauga News, November 12, 2007. The first inclination of the police was to blame the victim for his demise.
Obviously, my comments give years ago fell on deaf ear: "(The Attorney General) needs to come up with some pro-active measures to ensure this tragedy doesn't happen again," Pieters said. "It is clearly the case that Mr. Latchana met his death because he was considered a snitch for responding to a Crown's summons to testify in a previous case. This has nothing to do with gang membership or the lack thereof. It has to do with the ability or the lack thereof of the state to protect its witnesses that it calls to testify in cases involving violence and threats thereof." See, Lawyer calls for government probe into witness protection, Mississauga News, 12 Nov 2007 and Mother claims she's living in fear after her son's murder 13 Nov 2007.
Unless and until the state offers adequate and durable protection to witnesses of serious violent offences including murder, it will not be known whether a witness whose original statement to the police was recanted because of fear or intimidating from gang members or on the other hand, whether the witness was really lying, as to the events that he or she testify to be true.
We can all agree that this poses serious impediments to the administration of justice in Canada and the efficiency or the lack thereof of the system as a whole.
What is entirely lost in the May 20, 2011 press coverage is Canada's failed witness protection program and the failure of justice officials to come to grips with the dynamics of communities such as that where Jordan Manners lived and died. See, for example, Co-accused acquitted in shooting death of Jordan Manners - Globe and Mail; With not guilty verdict, family may never know why Jordan Manners died - Vancouver Sun; Mandel: Not guilty verdict tragic, but no surprise - Toronto Sun; Manners verdict leaves questions Toronto Sun - Chris Doucette.
Fundamentally, however, "Witness protection involves understanding the dynamics of the community. The police don’t understand that people are afraid. Instead, they think that people are colluding with the gunmen, and that’s simply not the case." Mike Franklin,U.K. Commissioner of the Independent Police Complaints Commission (IPCC). See Minutes of the meeting of the Toronto Police Services Board, December 15, 2005.
Who want's to end up being labelled a snitch and murdered like David Latchana was, with the indifference of the state and/or the police? See Murder victim no gang member, family says, Mississauga News, November 12, 2007. The first inclination of the police was to blame the victim for his demise.
Obviously, my comments give years ago fell on deaf ear: "(The Attorney General) needs to come up with some pro-active measures to ensure this tragedy doesn't happen again," Pieters said. "It is clearly the case that Mr. Latchana met his death because he was considered a snitch for responding to a Crown's summons to testify in a previous case. This has nothing to do with gang membership or the lack thereof. It has to do with the ability or the lack thereof of the state to protect its witnesses that it calls to testify in cases involving violence and threats thereof." See, Lawyer calls for government probe into witness protection, Mississauga News, 12 Nov 2007 and Mother claims she's living in fear after her son's murder 13 Nov 2007.
Unless and until the state offers adequate and durable protection to witnesses of serious violent offences including murder, it will not be known whether a witness whose original statement to the police was recanted because of fear or intimidating from gang members or on the other hand, whether the witness was really lying, as to the events that he or she testify to be true.
We can all agree that this poses serious impediments to the administration of justice in Canada and the efficiency or the lack thereof of the system as a whole.
(c) 2011 Selwyn A. Pieters - This blog post is a draft article written for publication. Please feel free to critique it. However, while permission is gioven to cite it, this must be done with proper attribution to the author.
