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 ) Eric Taylor and Robert Lemke, for ) the Respondent ) )

Respondent ) )

-and- ) ) )

ERIC MORGAN ) James Fleming and David Shulman, ) for the Applicant ) )

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.

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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.

...

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[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

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shortly 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

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subsequently 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

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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.

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discretion 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,

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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 1 00 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

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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

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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 Sash a 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.

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[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

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victim 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

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victim. 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

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incorrect 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

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Morgan'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 cross-

examine 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. 1 0 of the CEA.

[44] Against this background I turn first to the discrete application to exclude

Elaine Morrison's identification evidence.

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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.

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[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

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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.

...

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[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 line-

up. 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.

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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

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

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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

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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.

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[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.

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[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.

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[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.

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[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

-30-

misconduct 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

-32-

been 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

-33-

independent 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

-34-

circumstances 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.

~ 35-

[99] 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

-36-

witnesses during their reinvestigation of the case following Elaine Morrison's late-

breaking 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

-37-

trial, 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

-38-

the 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.

-41-

The 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

-46-

sunglasses 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 1 0 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

-47-

she 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.

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[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

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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.

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[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.

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[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.

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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

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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

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hours 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

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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.

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[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 1 00 percent sure he left the club with Eric Morgan.

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[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