R V Bullen Observation Paper

Introduction

For the purposes of this assignment, I attended the court on three separate occasions. On February 15 and March 1, 2018, I had an opportunity to observe the criminal trial of R v Bullen. On March 2, 2018, I observed a criminal trial of R v D. D.

R v Bullen

In R v Bullen, the accused David Bullen, was charged with the drug trafficking and organized crime as a result of the police project Adelaide. This was a very lengthy and complex trial, involving offences committed across Ontario, involving several criminal organizations (e.g., Hells Angels, etc.), and testimonies made by various witnesses and experts. The trial is scheduled to be completed by the end of June, 2018.

Prior to entering the courtroom, I had to undergo another

security search in addition to the one that is conducted prior to entering the courthouse, which signalled to me that this will not be “an ordinary” trial. During the course of the trial, I was able to observe the Direct Examination by an experienced Crown Counsel - Mr. Sonolly and a final stage of the Cross-Examination by the Defence counsel - Mrs. Genevieve McInnes. The Crown’s witness was an individual with an extensive criminal history, who ultimately decided to become a police informant/agent in the present case. The trial was tried by Justice Labrosse. In addition, there were two other Crown counsels present, one special constable, two court clerks, one court employee, and two under-cover police officers who sat motionless throughout the entire trial. The accused was brought into the courtroom in shackles and seated in the accused box.
Direct Examination
Overall, I observed that the Crown’s witness/police informant was very well prepared for the trial. He seemed to be knowledgeable about the trial process (which could also be explained by his extensive criminal history), and his answers were very clear and concise. He did not exhibit any signs of hostility and he was not behaving in an adverse manner, which in my opinion, greatly assisted the trier of fact, the Crown and the Defence counsel.
The Crown seemed to employ the “paragraph method” as some of his questions related to the age, marital status, employment history, and past criminal history of the witness.

I think that this type of order provided a good structure and allowed the Crown to control the flow of the testimony without the witness becoming rampant. He asked questions by using simple language, and he was loud, clear and did not rush. This tactic reminded me of what Lee Stuesser referred to as the “direct examiner’s three step” or “question, answer, pause” technique. It was so effective that Justice Labrosse did not feel the need to ask the Crown to slow down or ask the Crown to repeat the question.

Another approach which I found extremely effective was the fact that the Crown did not ask any compound questions and there was always one question at a time. Moreover, I think that this type of questioning was particularly useful in this case because the witness had a hearing disability to which the Crown alluded to at the beginning of the Direct Examination when discussing the

accommodations.
During the trial, the Crown personalized the witness with a high degree of caution. I think that this was a warranted caution considering the fact that the witness had an extensive criminal history and life-long struggle with the substance abuse. I thought that this was a very fine balancing act that required a high degree of mastery considering the potential negative consequences if executed improperly. The personalization with caution allowed the witness to appear trustworthy despite his criminal past and his current status as a police informant/agent. It would be very interesting to explore the boundaries which if breeched, would result in one appearing biased in their personalization of the witness or accused.
One issue of contention during the Direct Examination was the use of leading questions. At one point, the Defence counsel raised an objection regarding the question that was posed by the Crown. The question was “Do you recall Mr. X?” Justice Labrosse dealt with the matter by ordering for the witness to be escorted out of the courtroom. The Crown assumed a role of a zealous advocate because he did not perceive it as a leading question, quite contrary, he stated that in his opinion this question was open-ended and appropriate. Justice Labrosse disagreed and stated that a more appropriate question would be “Would there be anyone else with whom you were directed to deal with?” The Crown counsel disagreed with the Justice Labrosse and stated that in his opinion the question suggested by the Justice Labrosse constitutes a leading question. The Crown and Justice Labrosse exchanged opinions on what constitutes a leading question, and ultimately the Crown yielded and re-phrased the question into “Who else you met in Ottawa at direction of Mr. Bullen?”
I thought that it took Crown a lot of courage and conviction to disagree with the Judge. I am not certain that it is the best tactic to disagree with the Judge because it can result in uncomfortable predicament considering the fact that the case is tried by Judge alone, instead of the jury. Moreover, it is irrelevant what Crown’s opinion is in the circumstances, what matters is the opinion of the Judge because he is the trier of fact. Therefore, I do side with Justice Labrosse and the Defence counsel who stated that “Do you recall Mr. X?” is indeed a leading question in the context it was asked, and leading questions during the Direct Examination generally are not allowed.
Despite the disagreement on what constitutes leading questions, the Crown and the Defence counsel had very amicable interactions during the morning break. This illustrated that two opposite parties can separate themselves from the case when needed. I thought it was a great example of professionalism, civility, and commitment to the effective administration of justice, which are the cornerstones of professional responsibility.
During the Direct-Examination, the Crown relied on Exhibits, such as the photographic evidence, wiretap intercepts, and the statements made by witnesses. The Exhibits were tendered in specific sequence: they were first introduced, shown to the witness and the court, proved, marked, and used by the Crown counsel.
Cross-Examination
I returned to the courthouse on March 1, 2018, and I had a chance to observe a final stage of the Cross-Examination conducted by the Defence counsel Mrs.

Genevieve McInnes. On March 1, 2018, there were the same attendees, with an exception of two additional under-cover police officers who sat in the back of the court-room and communicated through radios with each other.

The Defence counsel attempted to challenge the credibility and reliability of the Crown’s witness/police informant by alleging that the Crown’s witness left out significant portions from his criminal record when speaking to police. By challenging Crown’s witness, the Defence was brief and asked one question at a time, the questions were close-ended, simple and leading (i.e. “You would agree that it would be completely improbable to forget that you shot people?”) Moreover, the Defence built the questions factually so skilfully and smoothly that the ordinary witness may have been surprised that these questions will eventually lead to the discreditation of his/her credibility and reliability. This reminded me of the Cross-Examination principle “start safe and finish strong” which was discussed by Lee Steusser. However, the Crown’s witness/police informant appeared very well prepared and he seemed to have anticipated these questions, therefore he cited “trust issues” as a logical explanation on why he failed to disclose all of his criminal record to the police

officers.
After the Cross-Examination by the Defence was completed, the Crown conducted a Re-examination where he attempted to counter the suggestion of recent fabrication by the Crown’s witness (i.e., the fact that witness did not disclose all of his criminal record to the police officers). This step proved to be very important because Crown attempted to restore credibility and reliability of the witness’s statement in question.
Overall, I was very impressed by the work of the Defence counsel who single-handedly advocated for the accused, and I was also impressed by the skillfulness of the Crown counsel. It would be very interesting to see what would happened if the case was tried by the jury. I assume, that the jurors explicit or implicit biases toward the drug traffickers would influence the decision.
One thing that could be improved is the quality of the evidence. For example, the police intercept/wiretap recording was of such a poor quality that the Judge and the attendees could hardly hear anything. This is the reason why Justice Labrosse had to read the transcript in order to hear the conversation between the accused and the police informant/agent.