Her Majesty the Queen v. Akins [Indexed as: R. v. Akins]
59 O.R. (3d) 546
[2002] O.J. No. 1885
Docket No. C35833
Court of Appeal for Ontario,
McMurtry C.J.O., Cronk and Gillese JJ.A.
May 14, 2002
Criminal law -- Evidence -- Bad character -- Co-accused attacking accused's character -- Accused and co-accused jointly charged with narcotics offence -- Accused's defence antagonistic to co-accused -- Trial judge allowing co-accused to attack accused's character by cross-examining accused on drug-related charges that were withdrawn or of which accused found not guilty -- Co-accused arguing that prior narcotics charges demonstrated that accused of bad character and likely to commit drug-related offences even though charges were disposed of in accused's favour -- Trial judge erring in holding that right of co-accused to full answer and defence permitting cross-examination of accused regarding charges of which accused previously acquitted -- Acquittal constituting declaration of innocence for all purposes -- Accused's right to fair trial compromised by cross-examination on facts underlying charges for which he had previously been acquitted -- New trial ordered.
Criminal law -- Evidence -- Cross-examination -- Accused and co-accused jointly charged with trafficking in crack cocaine -- Accused's defence antagonistic to that of co-accused -- Trial judge allowing co-accused to attack accused's character by cross-examining accused on charges that were withdrawn or of which accused found not guilty -- Co-accused arguing that prior narcotics charges demonstrated that accused of bad character and likely to commit drug-related offences even though charges were disposed of in accused's favour -- Trial judge erring in holding that right of co-accused to full answer and defence permitting cross-examination of accused regarding charges of which accused previously acquitted -- Acquittal constituting declaration of innocence for all purposes -- Accused's right to fair trial compromised by cross-examination on facts underlying charges for which he had previously been acquitted -- New trial ordered.
The accused and F were jointly charged with trafficking in crack cocaine. Their defences were antagonistic. The trial judge denied a severance application by the accused. At trial, counsel for F cross-examined the accused on the facts underlying a number of past drug-related charges that were disposed of in the accused's favour by being withdrawn or of which he had been found not guilty. The cross-examination was designed to attack the accused's credibility and to establish that he had a propensity for involvement in drugs and for acts of bad character. The accused was convicted. He appealed.
Held, the appeal should be allowed.
The constitutionally protected right of a co-accused to make full answer and defence permits cross-examination on the disposition or propensity of an accused to commit the offence even where the accused has not put his character in issue. That does not mean, however, that the right to make full answer and defence, protected by s. 7 of the Canadian Charter of Rights and Freedoms, is absolute. When the right is asserted by a co- accused in a joint trial, it must be balanced against the fair trial right of the accused. An acquittal is the equivalent of a finding of [page547] innocence. When a verdict of acquittal is entered, it has the effect in a subsequent criminal proceeding of rendering entirely innocent the accused's connection to the conduct underlying the charge for which the accused was acquitted. Accordingly, the facts underlying the charges for which the accused was acquitted could not be relevant either to propensity or to credibility unless properly admitted as similar fact evidence. The highly prejudicial effect of the cross-examination in this case on the underlying facts of the charges that led to acquittals was not outweighed by the probative value of the evidence elicited by the cross-examination. The fact that the cross-examination was conducted on behalf of a co-accused, as part of that co- accused's right to make full answer and defence, rather than by Crown counsel, did not override any compromise of trial fairness for the accused. An acquittal is a declaration of innocence for all purposes. The accused's right to a fair trial was compromised by the cross-examination on the facts underlying the charges for which he had previously been acquitted.
APPEAL by the accused from a conviction for trafficking in cocaine and possession of the proceeds of crime.
Cases referred to Grdic v. R., [1985 34 (SCC)], [1985] 1 S.C.R. 810, 19 D.L.R. (4th) 385, 59 N.R. 61, [1985] 4 W.W.R. 437, 19 C.C.C. (3d) 289, 46 C.R. (3d) 1; R. v. Arp, [1998 769 (SCC)], [1998] 3 S.C.R. 339, 58 B.C.L.R. (3d) 18, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1; R. v. Crawford, [1995 138 (SCC)], [1995] 1 S.C.R. 858, 22 O.R. (3d) 288n, 179 N.R. 161, 27 C.R.R. (2d) 1, 96 C.C.C. (3d) 481, 37 C.R. (4th) 197 (sub nom. R. v. Creighton); R. v. Diu (2000), [2000 4535 (ON CA)], 49 O.R. (3d) 40, 144 C.C.C. (3d) 481, 33 C.R. (5th) 203 (C.A.); R. v. Jackson, [1993 53 (SCC)], [1993] 4 S.C.R. 573, 109 D.L.R. (4th) 318, 162 N.R. 113, 86 C.C.C. (3d) 385, 26 C.R. (4th) 178 (sub nom. R. v. Davy), affg (1991), [1991 11739 (ON CA)], 68 C.C.C. (3d) 385, 9 C.R. (4th) 57 (Ont. C.A.); R. v. Kendall (1987), [1987 180 (ON CA)], 20 O.A.C. 134, 35 C.C.C. (3d) 105, 57 C.R. (3d) 249 (C.A.) (sub nom. R. v. McKay); R. v. N. (R.K.) (1996), [1997 1271 (ON CA)], 32 O.R. (3d) 537, 114 C.C.C. (3d) 40 (C.A.); R. v. R. (A.J.) (1994), [1994 3447 (ON CA)], 20 O.R. (3d) 405, 94 C.C.C. (3d) 168 (C.A.); R. v. Valentini (1999), [1999 1885 (ON CA)], 43 O.R. (3d) 178, 132 C.C.C. (3d) 262 (C.A.); R. v. Verney (1993), [1993 14688 (ON CA)], 87 C.C.C. (3d) 363 (Ont. C.A.); R. v. Wells (1998), [1998 18067 (NL CA)], 165 Nfld. & P.E.I.R. 346, 509 A.P.R. 346, 127 C.C.C. (3d) 403 (Nfld. C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 7 Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)
David M. Tanovich, for appellant. Rick Visca, for respondent.
[1] CRONK J.A.: -- This appeal concerns, in part, the right of a co-accused in a joint trial to cross-examine an accused on past criminal charges, which were withdrawn or which resulted in verdicts of acquittal, for the purpose of demonstrating the bad character of the accused and his propensity for committing a particular criminal act.
[2] The appellant was charged, together with one Corrado Ferraro ("Ferraro"), of trafficking crack cocaine. He was also charged with two counts of possession of the proceeds of crime. He was [page548] jointly tried with Ferraro. On October 27, 2000, following a trial before Justice T. Dunnet with a jury, the appellant was found guilty as charged. He was sentenced on December 8, 2000 to ten months' imprisonment on the trafficking conviction and three months concurrent on each proceeds of crime conviction. The appellant appeals against his convictions.
[3] The appellant argues, among other submissions, that the trial judge erred in permitting him to be cross-examined by counsel for Ferraro on the facts underlying the past charges that were disposed of in his favour. For the reasons that follow, we agree. The appellant also raises other, unrelated grounds of appeal. However, in view of our conclusion regarding the propriety of the impugned cross-examination of the appellant, it is unnecessary to address the other grounds of appeal.
I. The Facts
[4] In February 1999, two undercover police officers were investigating street level trafficking in downtown Toronto. One of the officers approached Ferraro with $20 of police "buy money" and inquired if Ferraro knew where she could "get a '20'?". Ferraro told the police officer that he did not have the "stuff", and pointed to the appellant as the person who did. The appellant was standing in a nearby alcove. Ferraro approached him with the $20 and handed him the money. The police officer could not see the appellant's hands because he had his back turned to her. After a brief exchange between Ferraro and the appellant, Ferraro walked back to the police officer and provided her with a small amount of crack cocaine. The police officer concluded that the appellant had sold cocaine to Ferraro. She gave a pre-arranged arrest signal and, shortly thereafter, both Ferraro and the appellant were arrested.
[5] Ferraro fled when he saw the police and, when he was apprehended, he struggled and attempted to resist arrest. In contrast, the appellant was co-operative upon arrest. No drugs were found on the appellant or in his vicinity. However, upon his arrest, the appellant was in possession of the $20 "buy money", together with an additional $545 (Cdn.) and $61 (U.S.) in cash. He was also in possession of a cell phone and video store movie rentals.
[6] The appellant testified at trial. He denied that he had supplied Ferraro with any cocaine. He provided an innocent explanation for being in the area and for being in possession of the $545 (Cdn.) and $61 (U.S.). He claimed that the $20 which Ferraro gave him concerned an outstanding loan which he had made to [page549] Ferraro, the repayment of which he had raised with Ferraro earlier on the day of the arrests.
[7] Ferraro did not testify at trial. His defence was that he was a cocaine addict who had purchased the cocaine from the appellant for the purpose of using the cocaine for his personal use, together with the undercover police officer who, he claimed, had agreed to this plan. On this defence theory, Ferraro intended to possess the cocaine, but not to traffic it.
[8] At trial, counsel for Ferraro cross-examined the appellant on his criminal record, which had been made a trial exhibit. Ferraro's counsel also cross-examined the appellant on the facts underlying a number of past drug-related charges that were disposed of in the appellant's favour by way of withdrawals or acquittals. These included the underlying facts concerning one charge in 1995 of possession of cocaine for the purpose of trafficking for which the appellant was acquitted, two charges in 1992 and 1995, respectively, of possession of cocaine for the purpose of trafficking which charges were either withdrawn or for which the appellant was acquitted, and one charge in 1996 of possession of marijuana which was either withdrawn or for which the appellant was acquitted. Although Ferraro's counsel also cross-examined the appellant on outstanding charges, no objection was taken by the appellant's counsel to that part of the cross-examination during oral argument of this appeal.
II. Analysis
[9] To succeed in his defence, Ferraro was obliged to rebut the appellant's testimony. The appellant's defence was clearly antagonistic to that of Ferraro, and the appellant's credibility was a central issue at trial. Having chosen not to testify, Ferraro sought to establish, through cross-examination of the appellant, that the appellant had a propensity for involvement in drugs and for acts of bad character.
[10] Counsel for Ferraro submitted at trial that he was entitled to:
[s]how evidence of bad character, propensity to commit the offence, that is, involvement with drugs and drug trafficking. And moreover, a propensity to lie, or that he may be perceived as incredible by the jury because of past indices showing that.
He, therefore, wished to cross-examine the appellant on the base facts underlying the appellant's various past charges. Ferraro's counsel stated in his submissions to the trial judge:
[I] submit the relevancy of whether it was a conviction, an outstanding charge, or a withdrawal, or indeed an acquittal is irrelevant; that I am entitled to put the base facts to the witness and I am bound by the answer. [page550]
So I submit that the convictions themselves are irrelevant. Whether or not they are outstanding charges, acquittals or withdrawals, the point being that as counsel, I can put the underlying facts to him. I am bound by the answer. And it assists my client in showing a propensity to lie, a propensity to commit the offences of involvement with drugs and drug trafficking and just general bad character. Whether or not he is convicted I submit or not, is not the point [sic]. But the point is that these are the underlying facts. I am entitled as counsel to put them to him in the advancement of my theory of the case and my client's defence.
[11] In submissions before the trial judge in the absence of the jury, both Crown counsel and counsel for the appellant at trial opposed cross-examination of the appellant on the facts underlying past charges that resulted in acquittals or withdrawals. The appellant's counsel emphasized in his submissions to the trial judge the need to preserve trial fairness for the appellant by avoiding prejudicial cross- examination.
[12] The trial judge recognized that the purpose of the proposed cross-examination by Ferraro's counsel, including on the underlying facts concerning those of the appellant's past charges that had either been withdrawn or which resulted in acquittals, was "[t]o attack the credibility of the witness and to show disreputable conduct and a propensity to commit acts of bad character". In ruling that Ferraro's counsel was entitled to cross-examine the appellant on the facts underlying certain of his past charges, including on those which were drug- related, the trial judge concluded: "[I] am of the view that Akin's propensity to be involved in drugs is relevant to the issues in this trial. . . ." In our view, for the reasons that follow, it was an error to permit cross-examination of the appellant on the facts underlying past charges for which he was acquitted.
[13] As confirmed by the Supreme Court of Canada in R. v. Crawford, [1995 138 (SCC)], [1995] 1 S.C.R. 858, 96 C.C.C. (3d) 481, the constitutionally protected right of a co-accused to make full answer and defence permits cross-examination on the disposition or propensity of an accused to commit the offence even where the accused has not put his character in issue. In this respect, cross-examination restrictions that apply to the Crown do not restrict a co-accused, and an accused who testifies against a co-accused is obliged to accept "that his credibility can be fully attacked by the latter" (R. v. Crawford, at pp. 877 and 883 S.C.R., pp. 495 and 498 C.C.C., per Sopinka J., for the majority of the court; R. v. Valentini (1999), [1999 1885 (ON CA)], 43 O.R. (3d) 178, 132 C.C.C. (3d) 262 (C.A.), at p. 279 C.C.C., per Rosenberg J.A.; and R. v. Kendall (1987), [1987 180 (ON CA)], 35 C.C.C. (3d) 105, 20 O.A.C. 134 (C.A.)). [page551]
[14] That does not mean, however, that the right to make full answer and defence, protected by s. 7 of the Canadian Charter of Rights and Freedoms, is absolute. When the right is asserted by a co-accused in a joint trial, it must be balanced against the fair trial right of the accused. In this sense, it "[M]ust be applied and be subject to other rules that govern the conduct of a criminal trial" (R. v. Crawford, at pp. 879 and 883 S.C.R., pp. 496 and 498 C.C.C., per Sopinka J.; and see also R. v. Diu (2000), [2000 4535 (ON CA)], 49 O.R. (3d) 40, 144 C.C.C. (3d) 481 (C.A.)).
[15] This court has indicated that, in many cases where the rights of co-accused persons conflict, the appropriate remedy is a severance application. However, severance will not be ordered except where it is demonstrated that a joint trial will work an injustice to the accused (R. v. Jackson (1991), [1991 11739 (ON CA)], 68 C.C.C. (3d) 385, 9 C.R. (4th) 57 (Ont. C.A.), at p. 433 C.C.C., per Doherty J.A.; affirmed on other grounds, [1993 53 (SCC)], [1993] 4 S.C.R. 573, 86 C.C.C. (3d) 385. See also R. v. Crawford, at pp. 880-81 S.C.R., p. 497 C.C.C., per Sopinka J.). In this case, in the exercise of her discretion, the trial judge denied a severance application by the appellant. No challenge of that ruling is made on this appeal.
[16] It is fundamental to the administration of the criminal law that an acquittal is the equivalent to a finding of innocence (R. v. Verney (1993), [1993 14688 (ON CA)], 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 371, per Finlayson J.A.; and Grdic v. R., [1985 34 (SCC)], [1985] 1 S.C.R. 810, 19 C.C.C. (3d) 289, at p. 293, per Lamer J., quoting with approval from Martin L. Friedland, Double Jeopardy (Oxford: Clarendon Press, 1969), at p. 129). When a verdict of acquittal is entered, it has the effect in a subsequent criminal proceeding of rendering entirely innocent the accused's connection to the conduct underlying the charge for which the accused was acquitted. By definition, therefore, the facts underlying the charges for which the accused was acquitted generally cannot be relevant either to propensity or to credibility unless properly admitted as similar fact evidence. (See, for discussion of the latter circumstance, R. v. Arp, [1998 769 (SCC)], [1998] 3 S.C.R. 339, 129 C.C.C. (3d) 321). Were it otherwise, the fact of a criminal charge alone, without a demonstration of proof, would be sufficient to establish bad character and, potentially, propensity. Such a proposition strikes at the heart of trial fairness and is contrary to our basic tenets of criminal justice. The highly prejudicial effect of the cross- examination in this case on the underlying facts of the charges that led to acquittals cannot be said to be outweighed by the probative value of the evidence elicited by such cross- examination.
[17] The Crown argues here that such cross-examination assumes a different character in a joint trial. He asserts that the [page552] fact that the cross-examination was conducted on behalf of a co-accused, as part of that co-accused's right to make full answer and defence, rather than by Crown counsel, overrides any compromise of trial fairness for the appellant. We do not agree. As this court indicated in R. v. Verney, an acquittal is a declaration of innocence for all purposes (at p. 371, per Finlayson J.A.):
[A]n acquittal is more than a finding of not guilty and is in law a declaration of innocence for all purposes. This must be so, because the verdict of not guilty restores to the accused the presumption of innocence . . .
[18] Crown counsel also submits that the safeguard to trial fairness in the face of cross-examination on the underlying conduct of allegations disposed of by way of acquittal lies in an appropriate instruction to the jury by the trial judge regarding the proper and improper uses of the evidence elicited by such cross-examination.
[19] In her charge to the jury, the trial judge gave the following instruction:
You will recall that Mr. Marko, counsel for Mr. Ferraro, cross-examined Mr. Akins on a criminal record and on other matters where Mr. Akins was arrested but those charges did not result in any convictions against him.
Members of the jury, it is very important that I tell you how you can use this evidence in considering the case of Mr. Ferraro and how it cannot be used in considering the case of Mr. Akins. Sometimes a person charged with a crime will say, it is not me, it was another person charged who did it, and will point to evid[e]nce that this other person had a disposition to do it. In this case Mr. Ferraro is saying that Mr. Akins committed the crime and points to evidence that Akins is the sort of person who would do such a thing. It is up to you to determine whether this disposition evidence alone or together with other evidence raises a reasonable doubt that Mr. Ferraro committed the offence charged. However, you must not use the disposition evidence in any way when you consider whether Crown counsel has proven the case against Mr. Akins beyond a reasonable doubt. No one can be convicted of a crime just for being the sort of person who might have committed it. In other words, you may consider as to Mr. Akins' di sposition to commit the offences charged in deciding whether you have a reasonable doubt that Mr. Ferraro committed them but you must not use evidence of Mr. Akin's disposition to find Mr. Akins guilty of them.
[20] There is no doubt that where bad character evidence is adduced by a co-accused to show propensity by an accused, a special instruction regarding the use of such evidence must be included in the charge to the jury (R. v. Diu, at p. 81 O.R., p. 526 C.C.C., per Sharpe J.A.). In this case, the trial judge's charge included such a limiting instruction. In our view, that instruction was unassailable as far as it went. However, the charge did not warn the jury against using the propensity evidence concerning the appellant in assessing his credibility, which was a central [page553] issue at trial. That left open the real possibility that the propensity evidence could be used to assess the appellant's credibility.
[21] That risk, in this case, is underscored by the fact that the jury was correctly instructed, in relation to evidence concerning the appellant's past criminal convictions, that such evidence could not be used as disposition evidence but could be used to assess the appellant's credibility. In that part of her charge to the jury, the trial judge stated:
I now wish to talk to you about the credibility of witnesses . . .
I should make it clear that when I am talking about witnesses this includes Mr. Akins. He, of course, took the stand and gave evidence in his own defence. Having done so, you will treat his evidence from the witness stand as you would any other witness, that is, you may believe all or part or none of what he has told you in giving his evidence.
Members of the Jury, the fact that Mr. Akins has been convicted of these crimes may be considered by you for only one purpose and that is, to judge his credibility or truthfulness as a witness. The fact of such convictions does not necessarily destroy or even impair his credibility, but it may indicate a lack of moral responsibility to tell the truth. It is simply one of the circumstances that you may take into consideration in weighing his evidence and his trustworthiness as a witness. Obviously you should consider the nature of the conviction. Convictions relating to dishonesty tend to bear more directly upon credibility than convictions for crimes not related to dishonesty.
I must warn you that you must not use the prior convictions as evidence that Mr. Akins committed the crimes with which he is now charged. You must not conclude that because he has been convicted of other crimes he is predisposed or has a propensity to commit further crimes. The law does not permit you to do so. You can only consider the prior convictions, as I have said, in deciding the credibility of Mr. Akins, and you will decide what weight, if any, should be given to his criminal record on that matter.
[22] That instruction immediately preceded the trial judge's limiting instruction on the use to which the jury could put the evidence concerning the facts underlying the appellant's prior charges, including his drug-related charges, which were withdrawn or which resulted in acquittals. That limiting instruction, as we have said, contained no warning to the jury against using such propensity evidence in assessing the appellant's credibility. In contrast, the instruction regarding the appellant's prior convictions expressly contained a direction that the jury could use such evidence in assessing his credibility. The juxtapositioning of these two instructions, and their placement in relation to each other in the trial judge's charge, in our view, heightened the risk [page554] of misuse by the jury of the propensity evidence elicited on cross-examination concerning the underlying facts of charges for which the appellant was acquitted.
[23] That risk of misuse was further exacerbated by the fact that some of the past charges against the appellant that led to acquittals were allegations of a similar nature to one of the crimes for which the appellant was tried in this case, namely, possession of crack cocaine for the purpose of trafficking. The degree of similarity between those prior charges and one of the current charges for which the appellant was tried and convicted, gave rise to a real danger that the jury might use such allegations in its deliberations as similar fact evidence. In this case, the evidence regarding the facts underlying the appellant's prior acquittals was not introduced as similar fact evidence. Moreover, as stated by the Supreme Court of Canada in R. v. Arp (at p. 383 S.C.R., p. 355 C.C.C., per Cory J.):
[I]n most situations it will be unfair and inappropriate to admit the evidence underlying the prior acquittal as similar fact evidence in a subsequent trial of the same accused.
(See also R. v. Wells (1998), [1998 18067 (NL CA)], 127 C.C.C. (3d) 403, 509 A.P.R. 346 (Nfld. C.A.).)
[24] We agree with the appellant's submission that his right to a fair trial was compromised by the cross-examination of him on the facts underlying the charges for which he had previously been acquitted. The trial judge's instructions to the jury did not cure that prejudice. In our view, the offending part of the cross-examination of the appellant destroyed "the necessary appearance of fairness in the trial and resulted in a miscarriage of justice" (R. v. R. (A.J.) (1994), [1994 3447 (ON CA)], 20 O.R. (3d) 405, 94 C.C.C. (3d) 168 (C.A.), at p. 181 C.C.C. per Doherty J.A.). We are not satisfied that it can be safely concluded that the improper cross-examination had no material adverse effect on the jury's deliberations. In circumstances of fundamental trial unfairness, it is inappropriate to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. Moreover, the proviso must be used with great care, particularly where, as here, the verdict turns on cre dibility assessments. (R. v. N. (R.K.) (1996), [1997 1271 (ON CA)], 32 O.R. (3d) 537, 114 C.C.C. (3d) 40 (C.A.)).
III. Disposition
[25] In the result, the appeal is allowed, all of the convictions are quashed and a new trial is ordered on all of the charges against the appellant.
Appeal allowed. [page555]