CITATION: R. v.

Hillis, 2016 ONSC 451

COURT FILE NO.: CR-14-3232
DATE: 20160129

ONTARIO

2016 ONSC 451 (CanLII)

SUPERIOR COURT OF JUSTICE

BETWEEN: )
)
HER MAJESTY THE QUEEN )
) Walter Costa, for the Crown
)
)
)
– and – )
)
KRISTOPHER BRADD HILLIS )
) Michael H. Gordner and Lana Strain, for the
) Accused
Accused
)
)
)
)
) HEARD: January 12, 2016

RULING DIRECTING THE CROWN TO CALL CERTAIN WITNESSES

AT TRIAL

POMERANCE J.:

[1] The accused’s trial on charges of second degree murder and aggravated
assault is about to begin. A jury has been selected. The central issue in the
case is whether the accused was acting in self-defence when he killed John
Jubenville and wounded Tanya Lapensee. The parties agree that Mr.
Jubenville and Ms. Lapensee were the aggressors in the altercation, and that
the accused used force in order to defend himself. The question for the jury
 Page: 2

is whether the actions taken by the accused to defend himself were

reasonable.

[2] I heard a number of pre-trial motions in November and December 2015. On

2016 ONSC 451 (CanLII)

January 6, 2016, I ruled, among other things, that the defence could elicit
exculpatory evidence from certain Crown witnesses. Two days after the
ruling, the Crown announced that it was no longer going to call those
witnesses. The defence now asks for an order directing the Crown to call
them at the trial.

[3] The Crown is no longer calling the witnesses because they are in a position
to offer exculpatory evidence. The Crown argues that this is a permissible
strategy, so long as there has been full disclosure, and the witnesses are
available to be called by the defence. The defence says that this is not a
permissible Crown strategy; that it qualifies as an “oblique motive” and
gives rise to an abuse of process.

[4] As a general rule, the Crown is entitled to choose the witnesses that it will
and will not call. The prosecution is not required to assist the defence
strategy. However, in exceptional cases, the court may direct that certain
witnesses be called by the Crown.

[5] This is one of those exceptional cases. I will explain why in the reasons that
follow.

PROCEDURAL HISTORY

[6] Pre-trial motions were heard in this case in November and December of
2015. During this time, the defence was taking steps to get a witness list
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from the Crown. On December 17, 2015, Lana Strain, counsel for the
accused, wrote to both Crown lawyers, asking “would you kindly advise as
to whether you have completed your list of witnesses intended to be called
for the trial?”

2016 ONSC 451 (CanLII)

[7] On December 23, 2015, at 3:19 p.m., Ms. Strain sent another email message,
following up on the request:

Just following up from the last email as well as the

conversation with [Crown counsel], we are asking that you
please forward your list of witnesses as soon as it’s available.
Thank you.
[8] One of the Crown lawyers responded to Ms. Strain on December 24, 2015,
at 9:35 a.m. This message included the following:

We have an extremely lengthy list of witnesses that have been

subpoenaed for this trial. This was filed with the PTCR during
the SCJ A/C and P/T.
We are uncertain as to who exactly will be called during the
course of the trial. This will depend on the rulings we are
anticipating to receive January 6, 2016.
We will not excuse the subpoenaed witnesses until we hear
confirmation from you that you do not require them either.
If there are specific persons you are inquiring about, please
advise…
[9] Ms. Strain attended at the courthouse on December 24, 2015, and obtained
the list of witnesses that Crown counsel referred to in his email. The
witnesses on the list included Daniel Gobeil, PC Stramacchia, and PC
Mollicone. PC Kettlewell was not included on that list, though during the
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pre-trial motions it was established that he was one of the officers who was
dispatched to the scene, only minutes after the 911 call.

[10] On January 6, 2016, I ruled on the pre-trial motions: see R. v. Hillis, 2016

2016 ONSC 451 (CanLII)

ONSC 450. Among other things, I ruled that the defence could elicit certain
testimony from Crown witnesses. This evidence concerned the accused’s
words and actions at and around the time of the alleged offences. The
evidence is exculpatory. The Crown opposed the admission of this evidence
during the pre-trial motions. However, it was never suggested that the
Crown would not be calling the witnesses at trial.

[11] The evidence that was ruled admissible included the following:

a. Daniel Gobeil says that, while he was in bed, he heard the accused
saying, in a high pitched and distressed voice, “I didn’t mean it”; “call
an ambulance”; “call the police” and “I’m sorry, I didn’t mean it”.
These statements, made at or around the time of the victim’s death,
are admissible as part of the res gestae.

b. PC Kettlewell arrived at the scene minutes after the 911 call was
initiated. He saw the accused kneeling over the victim with his hands
on his neck. According to Kettlewell, it looked as though the accused
was trying to apply pressure to a wound. Kettlewell also confirmed
that the accused seemed disoriented and was unable to answer
questions.

[12] In my ruling, I also found that PC Stramacchia could testify about certain
statements made by Dionne Hewitt to Tanya Lapensee after the police
arrived at the scene. The Crown objected to the admission of this evidence
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on the basis that it was hearsay. I ruled that it was not being tendered for a
hearsay purpose; that there was no truth to be proved by the statements.
Their relevance lay in the fact that they were said.

2016 ONSC 451 (CanLII)

[13] Two days after the ruling, on Friday, January 8, 2016, the Crown sent an
email to the defence, attaching a new witness list. Daniel Gobeil and PC
Stramacchia had been removed as Crown witnesses. The Crown confirmed
that it would not be calling PC Kettlewell as a witness.

[14] The Crown also removed PC Mollicone from its witness list. PC
Mollicone’s evidence was not in issue during pre-trial motions, though it
was clear that the officer’s evidence was important for the accused. Officer
Mollicone, a blood spatter expert, produced a report for the Crown, and
testified for the Crown at the preliminary hearing. This officer testified that,
among the blood spatter evidence observed at the scene, the accused’s blood
was in an impact pattern on the window blinds. This evidence tends to
establish that, during the altercation, the accused was punched with some
degree of force. The Crown will be leading evidence as to the presence of
blood at the residence and who the blood belongs to, but is now not calling
the blood spatter expert to interpret the scene.

[15] On January 8, 2016, the defence learned, for the first time, that the Crown
would not be calling these witnesses. Jury selection was scheduled for
January 11, 2016. A jury was selected on that date and the case was briefly
adjourned to allow for the argument of this issue. The trial is to commence
before the jury on Monday, January 18, 2016.

ANALYSIS
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[16] In R. v. Cook, [1997] 1 S.C.R. 1113, 114 C.C.C. (3d) 481 [Cook], the
Supreme Court of Canada held that, as a general rule, the Crown is entitled
to decide how it will present its case. It is at liberty to choose the witnesses
that it will and will not call. Because these types of decisions involve the

2016 ONSC 451 (CanLII)

exercise of prosecutorial discretion, they are not generally subject to judicial
review.

[17] While the Cook decision advocates judicial restraint, it does not allow for
unlimited prosecutorial power. The courts have consistently recognized that,
while prosecutorial decision making is generally immune from scrutiny, the
courts shall interfere where it is shown that a decision was based on an
oblique or improper motive. This is akin to saying that prosecutorial
discretion may be reviewed when it is alleged to give rise to an abuse of
process.

[18] In Cook, Justice L’Heureux-Dubé stated at para. 58:

A second possibility is where the Crown intentionally abuses

its discretion in some manner by failing to call the witness.
While this has traditionally been referred to as being an
“oblique motive”, it would seem to have much in common
with the doctrine of abuse of process. Indeed, given that the
finding of an “oblique motive” by its very name implies
improper conduct on the part of the Crown, I feel it is unlikely
that such a finding could arise without there being a legitimate
claim of an abuse of process. This does not, of course,
preclude the trial judge from considering conduct of the Crown
which, although falling short of an abuse, could be one factor
influencing him- or her to exercise the discretion to call the
witness.
 Page: 7

[19] In the subsequent case of R. v. Jolivet, [2000] 1 S.C.R. 751, 144 C.C.C. (3d)
97, at para. 21, Binnie J. confirmed that Crown tactics are immune from
intervention unless there is unfairness and/or prejudice to the accused.

2016 ONSC 451 (CanLII)

It is not the duty of the Crown to bend its efforts to provide the
defence with the opportunity to develop and exploit potential
conflicts in the prosecution’s testimony. This is the stuff of
everyday trial tactics and hardly rises to the level of an
“oblique motive”. Crown counsel is entitled to have a trial
strategy and to modify it as the trial unfolds, provided that the
modification does not result in unfairness to the accused.
Where an element of prejudice results (as it did here), remedial
action is appropriate. [Emphasis added.]
[20] Is the Crown entitled to refrain from calling reliable evidence on the basis
that it could assist the accused? I find that this is not a permissible Crown
strategy. The desire to withhold reliable exculpatory evidence during the
case for the Crown is inconsistent with the role of Crown counsel as a quasi-
minister of justice, and custodian of the public interest. The Crown argues
that the evidence is not concealed because there has been full disclosure to
the defence. That may be so, but the effect of not calling the evidence is to
conceal it from the jury unless the defence decides that it has to call it,
thereby giving up procedural protections. The Crown may decide not to call
a witness for any number of legitimate reasons. It should not omit reliable
evidence from its case solely because it might help the accused.

[21] This is borne out by the authorities. In Cook, at para. 28, the court, citing
earlier Supreme Court authority, affirmed that: “the Crown must not hold
back evidence because it would assist the accused”. Similarly, at para. 39,
the Court in Cook affirmed the following statements of Lebel J.A. in R. v.
V.(J.) (1994), 91 C.C.C. (3d) 284, [1994] J.Q. No. 347 (Que. C.A.):
 Page: 8

Once [crown counsel] has satisfied the obligation to disclose

the evidence, it is for him, in principle, to choose the witnesses
necessary to establish the factual basis of his case…if
improper motives cannot be imputed to him, such as the
desire, for example to hide exculpatory evidence, as a general

2016 ONSC 451 (CanLII)

rule [crown counsel] will be considered to have properly
executed this part of his function in the criminal trial.
[22] This is not a startling proposition. It flows quite naturally from the
conception of the Crown as a quasi-minister of justice, and the implications
of that role. The following passage from R. v. Boucher, [1955] S.C.R. 16,
110 C.C.C. 263, continues to govern the philosophy of prosecutorial
decision making:

It cannot be over-emphasized that the purpose of a criminal

prosecution is not to obtain a conviction, it is to lay before a
jury what the Crown considers to be credible evidence relevant
to what is alleged to be a crime. Counsel have a duty to see
that all available legal proof of the facts is presented: it should
be done firmly and pressed to its legitimate strength but it must
also be done fairly. The role of prosecutor excludes any notion
'of winning or losing; his function is a matter of public duty
than which in civil life there can be none charged with greater
personal responsibility. It is to be efficiently performed with
an ingrained sense of the dignity, the seriousness and the
justness of judicial proceedings.
[23] Similarly, in R. v. Regan, the court noted that : “The Crown has no specific
interest in winning or losing, but it does have an interest in placing the
relevant facts before the court for a determination on the merits”: see R. v.
Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 228.

[24] In other words, the Crown is not at liberty to curate the evidence, excising
anything that might be exculpatory. To do so is to place too high a premium
 Page: 9

on “winning”. It is to lose sight of the Crown’s primary duty to present the

case fairly, and in a manner that will secure a just result.

[25] This is not to say that Crown counsel is foreclosed from being a strong and

2016 ONSC 451 (CanLII)

vigorous advocate. That is expected in our adversarial system. It is only to
say that Crown counsel cannot adopt a purely adversarial role toward the
defence. As L’Heureux-Dubé observed at para. 21 in R. v. Cook:

Nevertheless, while it is without question that the Crown

performs a special function in ensuring that justice is served
and cannot adopt a purely adversarial role towards the defence
(Boucher v. The Queen, [1955] S.C.R. 16; Power, supra, at p.
616), it is well recognized that the adversarial process is an
important part of our judicial system and an accepted tool in
our search for the truth: see, for example, R. v. Gruenke,
[1991] 3 S.C.R. 263, at p. 295, per L’Heureux-Dubé J. Nor
should it be assumed that the Crown cannot act as a strong
advocate within this adversarial process. In that regard, it is
both permissible and desirable that it vigorously pursue a
legitimate result to the best of its ability. Indeed, this is a
critical element of this country’s criminal law mechanism: R.
v. Bain, [1992] 1 S.C.R. 91; R. v. Jones, [1994] 2 S.C.R. 229;
Boucher, supra. In this sense, within the boundaries outlined
above, the Crown must be allowed to perform the function
with which it has been entrusted; discretion in pursuing justice
remains an important part of that function.
[26] This balance between advocacy and fairness is reflected in several places in
the Ontario Crown Policy Manual. The Preamble includes the following
statement at p. 2 :

A prosecutor’s responsibilities are public in nature. As a

prosecutor and public representative, Crown counsel’s
demeanour and actions should be fair, dispassionate and
moderate; show no signs of partisanship; open to the
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possibility of the innocence of the accused person and avoid

“tunnel vision”.
[27] See also the Rules of Professional Conduct 5.1-3 “Duty as Prosecutor”. The
Crown does not have to call evidence merely because it assists the defence,

2016 ONSC 451 (CanLII)

but the Crown cannot categorically exclude all evidence that might have that
effect.

[28] It is against this backdrop that I must assess the Crown strategy in this case.
As I understand it, the Crown acknowledges that it decided not to call the
witnesses because they have exculpatory evidence to offer. This is
confirmed by the chronology of events. The Crown told the defence that it
would not decide on a witness list until it received the court’s ruling on the
admissibility of evidence. I ruled against the Crown on certain issues. Two
days later the Crown excluded the witnesses whose evidence was admitted
over the Crown’s objection.

[29] Apart from the exculpating nature of the evidence, it is hard to imagine why
else the Crown would decline to call these witnesses. Their evidence is
directly relevant to the issues the jury must determine. The evidence
purports to be reliable. Three of the witnesses are police officers. Two of
them arrived at the scene just minutes after the 911 call was placed. The
third is the blood spatter expert retained by the Crown and called by the
Crown at the preliminary hearing. This is the very type of evidence that is
ordinarily called by the Crown in a homicide prosecution. The Crown does
not take issue with the accuracy of the evidence offered by these witnesses
in this case.
 Page: 11

[30] Daniel Gobeil is a civilian witness. He is the only civilian from the group at
the scene that is not being called by the Crown. The Crown says that it has
concerns about the reliability of Daniel Gobeil’s testimony. To be fair, there
is one item of evidence on which Mr. Gobeil is imprecise. The defence

2016 ONSC 451 (CanLII)

wants to lead evidence that, during the altercation, Dionne Hewitt ran into
Mr. Gobeil’s bedroom and said “the guys are being assholes”. On the voir
dire before me, Mr. Gobeil said that he could not really remember that
event. He was sleeping at the time and does not remember who came into
his room or what was said. On this point, the question is not the reliability
of his evidence; it is whether he has any evidence to offer at all.

[31] That is just one aspect of Mr. Gobeil’s evidence. He can otherwise speak
about the interactions between the accused and deceased on the night of the
alleged offences. He can provide evidence of animus between the accused
and the deceased. Crown and defence agreed, during pre-trial motions, that
evidence of animus should be placed before the jury. And Mr. Gobeil is the
one witness who can testify about the res gestae statements made by the
accused at the time of or immediately after the killing of John Jubenville.
Mr. Gobeil has been interviewed several times. He has consistently
maintained that he heard the accused say the words at issue.

[32] Is the Crown genuinely concerned about the reliability of Mr. Gobeil’s
evidence? Perhaps. But logic suggests that that is not why they removed
him from their witness list. The Crown says that Mr. Gobeil was drinking
on the night of the incident. But so was everybody else at the party.
Everyone else is being called as a witness by the Crown. The Crown says
that Mr. Gobeil doesn’t have very much to add to the case. But Mr. Gobeil
 Page: 12

has more to offer than Dionne Hewitt, who claims to have no memory of
anything that took place. Crown counsel candidly disclosed to the court,
during submissions, that Mr. Hewitt has little to add to the case and that she
is likely not being truthful. Despite this, the Crown is calling Ms. Hewitt,

2016 ONSC 451 (CanLII)

and refusing to call Mr. Gobeil. The difference between the two witnesses
is that Mr. Gobeil has exculpatory evidence to offer, and Ms. Hewitt does
not.

[33] It is true that the defence has full disclosure of the witnesses’ evidence, and
could call them to testify at trial. However, this would disadvantage the
defence. The defence cannot cross-examine its own witnesses, and by
calling evidence it forfeits the right to address the jury last. These tactical
disadvantages are a natural incident of the trial process, but should not be
forced upon the defence by an unfair prosecution strategy.

[34] While I disagree with the Crown’s position in this case, I need not determine
whether it amounts to an oblique motive, or results in an abuse of process. I
am satisfied that it is open to the court to intervene on a lower standard of
review.

[35] In Cook, the Supreme Court of Canada perceived that the identification of
Crown witnesses is an exercise of prosecutorial discretion. Since Cook, the
Supreme Court of Canada has refined what it means by “prosecutorial
discretion”. Recent authority suggests that the choice of witnesses is more a
question of trial tactics than prosecutorial discretion. While Crown tactics
are entitled to deference, they are reviewable on a standard below that of
prosecutorial discretion, which only warrants judicial intervention in cases
of an abuse of process.
 Page: 13

[36] This point was first made by Rosenberg J.A. in R. v. Felderhoff (2003), 180
C.C.C. (3d) 498, [2003] O.J. No. 4819, at para. 53 [Felderhoff], in which he
observed the need to modify the holding in Cook:

2016 ONSC 451 (CanLII)

Finally, the broad statements by Justice L'Heureux-Dubé in
Power and Cook must now be read in light of the recent
decision of the Supreme Court in Krieger v. Law Society
(Alberta), 2002 SCC 65 (CanLII), [2002] 3 S.C.R. 372, 217
D.L.R. (4th) 513. Iacobucci and Major JJ. speaking for the
court, at para. 43, held that "'prosecutorial discretion' is a term
of art. It does not simply refer to any discretionary decision
made by a Crown prosecutor. Prosecutorial discretion refers to
the use of those powers that constitute the core of the Attorney
General's office and which are protected from the influence of
improper political and other vitiating factors by the principle
of independence." Iacobucci and Major JJ. expressly
addressed, at para. 47, the contention that prosecutorial
discretion insulates tactical and other conduct before the court
from judicial supervision:
Significantly, what is common to the various
elements of prosecutorial discretion is that they
involve the ultimate decisions as to whether a
prosecution should be brought, continued or
ceased, and what the prosecution ought to be for.
Put differently, prosecutorial discretion refers to
decisions regarding the nature and extent of the
prosecution and the Attorney General's
participation in it. Decisions that do not go to the
nature and extent of the prosecution, i.e., the
decisions that govern a Crown prosecutor's tactics
or conduct before the court, do not fall within the
scope of prosecutorial discretion. Rather, such
decisions are governed by the inherent jurisdiction
of the court to control its own processes once the
Attorney General has elected to enter into that
forum.
 Page: 14

[37] Rosenberg J.A. went on to note that the Crown’s witness list may be
reviewed as part of the court’s trial management function:

In my view, the trial judge's power to manage the trial,

including the power to review the order in which certain

2016 ONSC 451 (CanLII)

evidence may be called, properly falls within the area of the
prosecutor's "tactics or conduct before the court" and thus does
not implicate prosecutorial discretion that is reviewable only
on the standard of abuse of process, bad faith or improper
purpose. I do not think the appellant's separation of powers
rationale stands in the way of recognizing a trial management
power.
[38] The distinction between “true” prosecutorial discretion, on the one hand, and
Crown behaviour or tactics, on the other, was solidified by Moldaver J. in
the later case of R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras.
35-36 [Anderson], in which he stated the following:

There are two distinct avenues for judicial review of Crown

decision making. The analysis will differ depending on which
of the following is at issue: (1) exercises of prosecutorial
discretion; or (2) tactics and conduct before the court.
All Crown decision making is reviewable for abuse of process.
However, as I will explain, exercises of prosecutorial
discretion are only reviewable for abuse of process. In
contrast, tactics and conduct before the court are subject to a
wider range of review. The court may exercise its inherent
jurisdiction to control its own processes even in the absence of
abuse of process.
[39] Prosecutorial discretion was defined at para. 44 as decisions pertaining to
“the nature and extent of the prosecution”:
In an effort to clarify, I think we should start by recognizing
that the term “prosecutorial discretion” is an expansive term
that covers all “decisions regarding the nature and extent of the
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prosecution and the Attorney General’s participation in it”

(Krieger, at para. 47). As this Court has repeatedly noted,
“[p]rosecutorial discretion refers to the discretion exercised by
the Attorney-General in matters within his authority in relation
to the prosecution of criminal offences” (Krieger, at para. 44,

2016 ONSC 451 (CanLII)

citing Power, at p. 622, quoting D. Vanek, “Prosecutorial
Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis
added)). While it is likely impossible to create an exhaustive
list of the decisions that fall within the nature and extent of a
prosecution, further examples to those in Krieger include: the
decision to repudiate a plea agreement (as in R. v. Nixon, 2011
SCC 34 (CanLII), [2011] 2 S.C.R. 566); the decision to pursue
a dangerous offender application; the decision to prefer a
direct indictment; the decision to charge multiple offences; the
decision to negotiate a plea; the decision to proceed summarily
or by indictment; and the decision to initiate an appeal. All
pertain to the nature and extent of the prosecution. As can be
seen, many stem from the provisions of the Code itself,
including the decision in this case to tender the Notice.
[40] Decisions relating to trial strategy are outside of the realm of true
prosecutorial discretion, falling into the category of crown conduct or
tactics. As Moldaver J. explained at paras. 58-59:

Superior courts possess inherent jurisdiction to ensure that the

machinery of the court functions in an orderly and effective
manner: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R.
331, at para. 18; Ontario v. Criminal Lawyers’ Association of
Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 26.
Similarly, in order to function as courts of law, statutory courts
have implicit powers that derive from the court’s authority to
control its own process: Cunningham, at para.18. This
jurisdiction includes the power to penalize counsel for
ignoring rulings or orders, or for inappropriate behaviour such
as tardiness, incivility, abusive cross-examination, improper
opening or closing addresses or inappropriate attire. Sanctions
may include orders to comply, adjournments, extensions of
 Page: 16

time, warnings, cost awards, dismissals, and contempt

proceedings.
While deference is not owed to counsel who are behaving
inappropriately in the courtroom, our adversarial system does
accord a high degree of deference to the tactical decisions of

2016 ONSC 451 (CanLII)

counsel. In other words, while courts may sanction the conduct
of the litigants, they should generally refrain from interfering
with the conduct of the litigation itself.
Moldaver J. continued at paras. 60-61:

Crown counsel is entitled to have a trial strategy and to modify

it as the trial unfolds, provided that the modification does not
result in unfairness to the accused: Jolivet, at para. 21.
Likewise, as this Court recently held in R. v. Auclair, 2014
SCC 6, [2014] 1 S.C.R. 83, a judge may exceptionally override
a Crown tactical decision in order to prevent a Charter
violation.
Finally, as with all Crown decision making, courtroom tactics
or conduct may amount to abuse of process, but abuse of
process is not a precondition for judicial intervention as it is
for matters of prosecutorial discretion.
[41] Relying on Felderhoff, Kreiger, and Anderson, I find that the decision of the
prosecution to call or not call certain witnesses at trial is a matter of Crown
tactics, reviewable under the court’s trial management authority. These
decisions are, like all prosecutorial decisions, subject to review where the
product of oblique motive. But they are also subject to judicial review on a
lesser standard relating to the fairness of trial.

[42] I am concerned that the Crown strategy in this case could adversely affect
trial fairness. This justifies the court’s intervention whether or not the
conduct amounts to an abuse of process. The Crown proposes to call
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evidence of certain observations and events at the crime scene, but not
others. The jurors will hear about certain things that happened during the
case for the prosecution. But they will not hear Daniel Gobeil’s evidence
about the accused’s statements at or around the time of the victim’s death, in

2016 ONSC 451 (CanLII)

which he apologized and said he “didn’t mean it”. They will not hear PC
Kettlewell’s evidence that the accused was trying to staunch the victim’s
bleeding, by holding his neck when the police arrived (though this evidence
might be available from PC D’Alimonte, which is being called by the
Crown). They will not hear that the blood spatter evidence is consistent with
the accused having been punched with significant impact. In short, the
narrative will be missing several critical pieces.

[43] In some cases, the Crown is motivated to call all relevant evidence because
it needs to prove its case. If it leaves out certain evidence, it may not
discharge its onus of proof. At para. 30 of Cook, Justice L’Heureux-Dubé
cited with approval the following passage from Yebes:

While the Crown may not be required to call a given witness,

the failure of the Crown to call a witness may leave a gap in
the Crown's case which will leave the Crown's burden of proof
undischarged and entitle the accused to an acquittal. It is in
this sense that the Crown may be expected to call all witnesses
essential to the unfolding of the narrative of events upon which
the Crown's case is based.
[44] This “self policing” rationale does not apply here. The missing evidence
does not expose gaps in the crown’s case. It leaves the erroneous impression
that no such gaps exist.
 Page: 18

[45] The Crown insists that the evidence could be called by the defence. The
defence could, indeed, call the evidence. This would ensure that the
evidence is heard by the jury. It might even afford the defence a tactical
advantage. The jury, realizing that important information was withheld by

2016 ONSC 451 (CanLII)

the Crown, might lose faith in the prosecution. Be that as it may, it is for
Mr. Gordner, as the accused’s counsel, to weigh the pros and cons of these
alternatives. It was not unreasonable for him to conclude that the benefits of
calling the evidence are outweighed by the disadvantages, such as losing the
ability to cross-examine, and the possibility of addressing the jury last.

REMEDY

[46] For the reasons discussed above, it is “essential…in order to do justice in

this case” that the jury hear from Daniel Gobeil, PC Stramacchia, PC
Kettlewell, and PC Mollicone: see Cook, at para. 63. I direct that the Crown
call these witnesses during the case for the prosecution. I leave it to the
Crown to determine when it calls these witnesses and what, if any, evidence
it chooses to elicit in-chief.

[47] In some cases, the remedy for the Crown’s refusal to call a witness is for the
trial judge to call the evidence. That is not the preferred remedy in this case,
as the accused is to be tried by a jury. It would be difficult to explain to the
jury why the trial judge is calling witnesses, rather than one of the parties
before the court. I would not want the jury to view the evidence as any more
or any less important than the other evidence called at trial. I would not
want the jury to perceive the trial judge as a participant in the adversarial
contest. Nor would it be fair to place a judicial imprimatur on the witnesses
that are called. It seems to me that the more appropriate remedy is to require
 Page: 19

the Crown to call the witnesses during its case, to align with traditional trial
procedure.

[48] I recognize that this is a remedy to be reserved for exceptional

2016 ONSC 451 (CanLII)

circumstances. I have not arrived at this decision lightly. I have based my
decision on the combined effect of the following factors:

a) the witnesses are of the type that would ordinarily be called by the
Crown. Three are police investigators who were present at, or
analyzed evidence from, the crime scene. The fourth is a civilian
witness who, like the other witnesses who are on the Crown’s list,
was at the scene at the time of the alleged offences.

b) These individuals, save for P.C. Kettlewell, were on the Crown’s

original witness list and were only removed two days before jury
selection.

c) The decision to remove these witnesses from the Crown’s list was
motivated by the desire to exclude reliable exculpatory evidence
from the Crown’s case.

[49] For all of these reasons, the application by the defence to require that the
Crown call the witnesses is allowed.

Original signed by Justice Renee M. Pomerance

Renee M. Pomerance
Justice
Released: Oral Decision: January 15, 2016
Written Reasons: January 29, 2016
 CITATION: R. v. Hillis, 2016 ONSC 451
COURT FILE NO.: CR-14-3232
DATE: 20160129

ONTARIO

2016 ONSC 451 (CanLII)

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KRISTOPHER BRADD HILLIS

Accused

RULING DIRECTING THE CROWN TO CALL

CERTAIN WITNESSES AT TRIAL

Pomerance J.

Released: Oral Decision: January 15, 2016

Written Reasons: January 29, 2016