Stage 1 - Relevance: The proposed evidence must be relevant to a material issue in the case. This determination is often made based on a defence summary of the anticipated evidence. In this case, the accused used an alias and false Identification and asked Jehovah Witnesses to burn his dental records so the dead body amounted to the remains of a non-registered, unidentifiable legal entity so that it cannot be murder but the destruction of human remains; Stage 2- Prejudice: If the Court determines that the proposed evidence is relevant, it must then consider the potential prejudice (if any) that reopening the evidence would cause the Crown but it is contempt of Court to suppress evidence and how can the Crown be prejudiced when refusing the evidence is the perversion of the Course of Justice and denial of the accused's ability to make full answer and defense and as such the Crown is never prejudiced. Click here for more.
COURT FILE NO.: CR-11-3244
DATE: 2021-01-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: | ) ) |
|
HER MAJESTY THE QUEEN
– and –
JEREMY HALL Applicant | ) ) ) ) ) ) ) ) ) ) ) ) ) ) | S. O’Brien and M. Dean, on behalf of the Crown Attorney |
D. Derstine and R. Gregor, on behalf of the Applicant
K. Edward, for J. Lusted. | ||
| ) |
|
| )) | HEARD: December 17, 2020 |
A.J. GOODMAN J.:
RULING WITH RESPECT TO THE APPLICATION TO RE-OPEN THE CASE AND CALL FURTHER EVIDENCE IN RELATION TO JASON LUSTED
[1] The applicant, Jeremy Hall (“Hall”) is alleged to have committed First degree murder in relation to the 2006 disappearance of Billy Mason (“Mason”). At trial, Jason Lusted (“Lusted”), an alleged accomplice in the murder of Mason and the disposal of his body, testified and provided evidence.
[2] The applicant requests that the case be re-opened and that he be permitted to call further evidence in relation to the Crown’s principal witness, Lusted.
[3] In my November 30, 2020 ruling, (reported at 2020 ONSC 7282), I granted the Third Party Records application and provided certain productions and documents from the police investigation related to Lusted and his alleged involvement in a murder arising out of the Niagara region.
[4] After hearing submissions from counsel, I dismissed the application to reopen the case and to hear further evidence, with reasons to follow. These are my Reasons.
Background:
[5] The applicant was initially tried in the Superior Court of Justice in Hamilton by Lofchik J., sitting with a jury. On March 5, 2013, the applicant was convicted of First degree murder. On February 26, 2018, the Ontario Court of Appeal allowed the applicant’s appeal against conviction and remitted this matter for a new trial, which commenced on January 13, 2020. This re-trial was interrupted for approximately four months due to the ongoing COVID-19 pandemic. Closing submissions commenced on August 27, 2020 and concluded on September 3, 2020.
[6] On October 13, 2020, defence counsel became aware that Lusted had been charged alongside Matthew McInnes (“McInnes”) with the offence of Second degree murder. Defence counsel also received information that McInnes was a resident of the Smithville area. The court was advised that defence counsel would be seeking to reopen the evidence in this matter and corresponding disclosure requests were made to the Crown.
[7] On October 14, 2020, Crown counsel provided defence counsel with a synopsis pertaining to the new charges against Lusted and McInnes. That same day, defence wrote to the Crown and requested further disclosure, and noted that defence would not be able to file their application to reopen the evidence until such disclosure was received.
[8] After having been successful in the O’Connor application, the applicant pursued his motion to reopen the case and to further cross-examine Lusted on the narrow issues raised in the application.
Legal Principles:
[9] The parties agree on the relevant legal principles.
[10] A trial judge sitting without a jury may permit the reopening of evidence at any time before sentence is passed: R. v. Lessard 1976 CanLII 1417 (ON CA), [1976] O.J. No. 74, R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132. This decision is always within the discretion of the trial judge.
[11] The applicable test to re-open trial evidence when a verdict has not yet been rendered is clearly enunciated by the Court of Appeal in the case of R. v. Hayward, 1993 CanLII 14679 (ON CA), [1993] O.J. No. 2939.
[12] In Hayward, at paras. 17 - 19, the court discussed the three stages of analysis that must be satisfied in order to determine whether it is appropriate to reopen the evidentiary portion of the trial. They are as follows:
Stage 1 - Relevance: The proposed evidence must be relevant to a material issue in the case. This determination is often made based on a defence summary of the anticipated evidence ;
Stage 2- Prejudice: If the Court determines that the proposed evidence is relevant, it must then consider the potential prejudice (if any) that reopening the evidence would cause the Crown; and
Stage 3 – The Conduct of the Trial – Finally, the court must also consider what impact (if any) reopening the evidence would cause to the “orderly and expeditious conduct of the trial”.
Positions of the Parties:
[13] The applicant argued that the reopening of the case is relevant with respect to the following issues:
a. the credibility, reliability, and propensity of Lusted;
b. alternative explanations for seemingly corroborative evidence such as the burning truck and cell phone pings; and
c. Lusted’s connection to people (McInnes), places, and events in the Smithville area – a location of central importance in this trial.
[14] The applicant submits that the evidence, in general, is relevant to the credibility, reliability, and propensity of Lusted. Lusted, without question, lived a life characterized by crimes of dishonesty. At trial, Lusted portrayed himself as someone that was scared and forced to assist in the burning of Mason by Hall. He testified that the only reason that he did this was because he feared for his own life. The applicant says that through this characterization, Lusted attempts to create a façade that he is not the type of person that could ever kill someone. If Lusted has dragged an elderly man to his death in what would have been an incredibly gruesome way to die, then the façade Lusted attempted to create at this trial is shattered.
[15] The applicant says that Lusted testified in January 2020 and this new evidence suggest that two days before his testimony, he was committing a substantial commercial Break & Enter. Since testifying, Lusted continues to be involved in crimes of dishonesty and, potentially, a murder. This is further support for the submission that this court should reject his testimony outright. Lusted continued an unbroken pattern of very serious criminality that can only inure to the detriment of his credibility.
[16] The applicant argues that the evidence speaks to a tendency of Lusted to do absolutely anything he can to get himself out of a problematic situation. If Lusted, without hesitation, is willing to smash into multiple police cruisers to facilitate an escape, or to drag an innocent elderly man for nearly 2 km. without stopping or taking any steps to preserve his life, then he is certainly capable of implicating Hall in an attempt to avoid his own prosecution.
[17] The evidence also speaks to Lusted having very close ties to the Smithville area and people residing therein. McInnes’ property, where Lusted’s RV was situated, is only 11 minutes from Smithville. This general area is a location of prime importance in terms of cell phone pings pertaining to Lusted. At trial, Lusted testified that he was only in those areas because he was forced to be there by Hall. This new evidence suggests that he may very well have deep roots and criminal associates in this area, which would explain the cell phone pings.
[18] The evidence also tends to associate Lusted with areas and items that he attributes to Hall in this case. The property of the deceased in Niagara has a very similar description to the property where the pickup truck is found burning. The Circle cashier associates Lusted with a “maroon” pickup, which again is the type of vehicle that is found burning and with a black pickup truck, which is the type of vehicle Lusted testified to.
[19] The applicant says that it would appear from the disclosure that the black SUV that Lusted was seen driving and the alleged murder weapon has not been located. If this is true, then this fact is relevant to Lusted’s ability to dispose of vehicles and forensic evidence in short order to avoid detection. It may very well be the case that Lusted was taking things that he has always been familiar with and attributing them to Hall. A brief glance at Lusted’s record speaks to the fact that he repeats the same behaviour time and time again. When police attempt to apprehend him, he did everything in his power to evade them. When he is finally apprehended, he engages in violent behaviour towards himself and others. The habits he has displayed post-testimony are directly relevant to the habits he likely had pre-testimony. The defence says that Lusted’s pursuit of his own personal gain or protection would come as no surprise that he could figuratively take the life of Hall through false pretences in order to avoid a lengthy term of imprisonment.
[20] The applicant submits that reopening the evidence would not cause any prejudice whatsoever to the Crown. The Crown already concedes that he is a Vetrovec witness of the worst sort. The evidence that defence seeks to cross-examine Lusted on has been clearly summarized in these materials. Finally, the applicant submits that although the reopening of the evidence may cause a small delay to the trial, it does not sufficiently impact on the orderly and expeditious conduct of this matter as a whole when viewed contextually. The trial has already been delayed for the purpose of a disclosure motion. The defence has served its materials on all of these related matters in an expeditious manner. The reopening of evidence could be done in short order and cause minimal delay to this matter. Locating Lusted to bring him before the court is simplistic due to his current incarceration. This case is already years old. Relatively speaking, an additional one or two months is little enough delay in that context.
[21] The applicant submits that he has met its onus by establishing the proposed evidence is relevant to material issues at trial, will not prejudice the Crown, and will only slightly delay these proceedings.
[22] Briefly, the Crown responds that the applicant has not established how the proposed fresh evidence of Lusted, would assist the court in its assessment of his credibility, reliability, propensity or general character in any meaningful way, and therefore, is not relevant. Further, the applicant has not established any basis to suggest further evidence from Lusted would expose a meaningful connection between his presence in the Smithville area in the fall of 2020, and 14 years earlier, in the winter of 2006 - the time of Mason’s disappearance. Instead, there is a total absence of any factual nexus between the Pelham incident and the material issues in this trial.
[23] Ms. Edward, counsel on behalf of Lusted, was an observer at this hearing and did not seek to make any submissions.
Discussion:
[24] Ms. Gregor, through oral submissions and the factum filed, fully laid out the evidence from the murder allegation related to Lusted arising in Niagara to demonstrate its relevance and materiality for this application. I need not repeat those able comments and merely direct the interested reader to refer to the applicant’s factum at para. 20.
[25] In this case, Lusted testified on January 14, 15, and 16, 2020. He was then recalled on February 20, 2020 following a Browne v. Dunn violation.
[26] The applicant argues that Lusted’s alleged involvement in the murder charge related to October 2, 2020, is relevant to his testimony and seeks to reopen the evidence and to cross-examine Lusted on these allegations.
[27] I agree with the Crown that, at trial, Lusted’s credibility and reliability were vigorously and extensively challenged over the course of several days. He was cross examined at length on his bad character, his prior convictions, and his outstanding charges (as they then were). In closing argument, the Crown openly conceded Lusted was the “poster boy” for a “Vetrovec” witness. As a disreputable and unsavory witness, the Crown agreed with the defence and encouraged me to give his evidence special consideration and scrutiny.
[28] I am persuaded that underlying this application is an attempt by the applicant to expose aspects of Lusted’s character that was not available for cross-examination at the time of his evidence for the simple reason that the events had not yet occurred.
[29] It seems to me that while portraying this application, inter alia, as a credibility issue, the applicant seeks to recall Lusted to impugn his character even further. In the context of assessing his evidence at trial, the applicant is effectively asking me to revisit Lusted’s character at the time of his evidence, by injecting mere allegations of his future bad conduct.
[30] Revisiting a witnesses testimony in this fashion also raises questions surrounding the point at which post-testimony allegations may, or may not, be used as justification for reopening the evidentiary portion of a trial to re-attack the character of a witness, who, at the time of their evidence, could not have done the thing they are now accused of doing. At this late stage of this proceeding, the trial process is better served when a witness’ testimony is assessed at the time it is given, and not revisited on account of the witness’ future behaviour, or mere allegations of their future behaviour.
[31] Again, Lusted’s character as a disreputable and unsavory witness is not in dispute. Further cross-examination in this area is not only problematic, but would accomplish little given the Crown’s position on this issue. Moreover, the nexus to the new evidence produced to the defence on the disclosure application related to the Niagara incident is premised on some conjecture and a temporal disconnect.
[32] Indeed, based on the extensive cross-examination and concessions by the Crown, I am well positioned to make findings of credibility, reliability and propensity regarding Lusted without straying into mere allegations of his subsequent bad conduct or character.
[33] I agree with the Crown and find that the applicant has failed to convince me that it is necessary to reopen the case on the issue of credibility and reliability segment of the materials filed on this application. The application would fail on the first stage of the Hayward test.
[34] Nonetheless, for the sake of completeness,. I go on to address the applicant’s submission that the proposed fresh evidence is relevant and pertains to alternative explanations to the compelling corroborative evidence presented in this case, and Lusted’s connection to people and places near Smithville. In support of this argument, the applicant submits the disclosure suggests Lusted’s may have “deep routes” and criminal associates in the area which could explain his connection to the cell phone pings and the burnt truck years earlier.
[35] This submission is not supported in the disclosure produced. At its highest, the disclosure suggests that 14 years after Mason went missing, Lusted moved his RV onto a property approximately 15 km. from Smithville. The property belonged to a criminal associate. Lusted only moved to this location in late September 2020 - about 1 week prior to the day of the alleged murder implicating Lusted. Prior to that, his RV was parked at a house in Welland.
[36] I find that this new information is entirely unhelpful in addressing the evidence of corroboration in this case. First, it does not suggest any meaningful alternative explanation for the cell phone pings connecting both the applicant and Lusted to the geographical area of the burning truck during the afternoon of February 24, 2006. Second, it fails to explain the abrupt stop in cell phone communication between the applicant and Lusted in the two hours prior, when Lusted testified, he was with the applicant during the abduction and killing of Mason. Finally, Lusted’s presence in the Niagara Region in late 2020, living in an RV, reveals nothing about his ties to the area over a decade earlier.
[37] For the most part, much of the assertions are premised on some tenuous, alleged connection to the Smithville area at the relevant time of this murder. Being in the Smithville area in late 2020 is not necessarily related to or relevant to what connection Lusted may or may not have had 14 years earlier. I also disagree that Smithville is “a location of central importance” in the Mason murder. It is but one piece of evidence in the overall mix of evidence presented at this trial.
[38] I have already determined that this application fails on relevance. While I need not necessarily turn to the Crown’s submission that the defence is correcting an earlier tactical decision, I acknowledge the Crown’s argument that the applicant now seeks to cross-examine Lusted on matters open for cross-examination during the trial, but were not pursued. For example, the applicant was aware of Lusted’s history of committing crimes in Niagara during the trial. At the very outset of his evidence in chief, when asked where he and the applicant would engage in criminal activities, Lusted stated “Hamilton, Niagara”. Therefore, it was open to the applicant to use this information to suggest alternative explanations for the seemingly corroborative evidence such as the burning truck and the cell phone pings during the trial. Instead, the applicant’s cross-examination of Lusted focused on his history of criminality and dishonesty.
[39] In my view, the applicant has not established any basis for suggest further evidence from Lusted would establish a meaningful connection between his presence in the Smithville area in the fall of 2020, and the winter of 2006.
[40] Moreover, I am not persuaded that it would be conducive to the expeditious conduct of the trial to allow the application. The applicant’s trial commenced on January 13, 2020. It has been ongoing for almost a full year. The fact that a trial has already been delayed by several months does not diminish the significance of even further delay on the orderly and expeditious conduct of the trial. I am persuaded that the extensive delay to date, through no fault of any party, weights in favour of bringing the matter to its conclusion.
[41] Finally, the application to reopen is based exclusively on knowledge that was not in the possession of the defence at the time Lusted testified. The disclosure now in the possession of defence not only suggests that Lusted may have recently committed a murder, but it also speaks to the likelihood that Lusted was committing offences, unbeknownst to the defence, while he was testifying at this trial in January and February, 2020.
[42] Again, it bears repeating that the Crown concedes that Lusted falls squarely under the Vetrovec principles and is an unsavoury and disreputable witness. He was thoroughly cross-examined on his crimes of dishonesty, reputation and character, not to mention other crimes related to dangerous driving and of violence. No further evidence need be called in order to create a special testimonial category or to launch some form of a residual, enhanced degree of a “Vetrovec” witness. I am acutely mindful of the defence position that nothing Lusted testified to at trial is trustworthy or credible.
[43] With respect, I disagree with counsel that Hall is in a position similar to the accused in Hayward whereby “when counsel applied to reopen his case, the circumstances had changed drastically from the time he elected to close his case”. Quite the contrary. There must be some finality to the proceedings.
Conclusion:
[44] At this late stage of the proceedings, the applicant has not met his onus to substantiate the relief being sought. The application to reopen the case and to recall Lusted for further cross-examination is dismissed.
A.J. Goodman J.
Released: January 5, 2021
CITATION: R. v. Hall, 2021 ONSC 29
COURT FILE NO.: CR-11-3244
DATE: 2021-01-05
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JEREMY HALL Applicant
RULING WITH RESPECT TO THE APPLICATION TO REOPEN THE CASE AND CALL FURTHER EVIDENCE IN RELATION TO JASON LUSTED
A.J. GOODMAN J. |
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