Her Majesty the Queen v. Bouhsass [Indexed as: R. v. Bouhsass]
62 O.R. (3d) 103
[2002] O.J. No. 4177
Docket No. C32136
Court of Appeal for Ontario,
Finlayson, Moldaver and Feldman JJ.A.
November 4, 2002
Criminal law -- Trial -- Conduct of Crown -- Crown counsel conducting sarcastic, personally abusive and derisive cross- examination of accused -- Crown counsel's preoccupation with accused's character broadening and exacerbating prejudicial effect of bad character evidence -- Crown counsel improperly requiring accused to comment on veracity of other witnesses -- Improprieties in cross-examination rendering trial unfair -- Question asked by jury indicating that bad character evidence went some way towards undermining presumption of innocence -- Curative proviso in s. 686(1)(b)(iii) of Criminal Code could not be applied to save conviction -- Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).
The accused appealed his conviction for second degree murder, submitting that the Crown conducted an improper cross- examination of the accused which rendered the trial unfair. The Crown attacked the accused's lifestyle, including his relationships with women generally, his sexual activities, his alleged heroin addiction and his "thievery". He repeatedly called the accused a "bare-faced liar".
Held, the appeal should be allowed.
The tone of the Crown's cross-examination of the accused was sarcastic, personally abusive and derisive. Assuming that evidence of the accused's bad character was properly admissible at trial despite its prejudicial effect, Crown counsel's preoccupation with the prejudicial aspects of the evidence considerably broadened and exacerbated the prejudicial side of the equation. Moreover, the cross-examination improperly required the accused to comment on the veracity of other witnesses and explain why certain witnesses were not being called to testify, used the accused's constitutional right to disclosure as a trap by portraying him as an actor who had carefully scripted his evidence in light of the disclosure, and mocked the accused's adherence to his religious beliefs. A question asked by the jury suggested that the bad character evidence had gone some way towards undermining the presumption of innocence. The improprieties in the Crown's cross- examination rendered the trial unfair. Despite the strength of the Crown's case, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code could not be applied to save the conviction.
APPEAL by an accused from a conviction for second degree murder.
Cases referred to R. v. Robinson (2001), 2001 24059 (ON CA), 53 O.R. (3d) 448, 153 C.C.C. (3d) 398 (C.A.); R. v. Walker (1994), 1994 8725 (ON CA), 18 O.R. (3d) 184, 90 C.C.C. (3d) 144 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)
Lucy Cecchetto, for respondent. David E. Harris, for appellant. [page104]
[1] BY THE COURT: -- The appellant appeals from his conviction for second degree murder. Although he raises two grounds of appeal, we only find it necessary to deal with the ground pertaining to the Crown counsel's improper cross- examination.
Overview
[2] In view of our conclusion that a new trial must be ordered, we propose to limit our review of the facts to a bare minimum.
[3] On October 19, 1997, the police attended at 34 Princeway Drive in Scarborough where they discovered the deceased, Sholeh Taleshi. Ms. Taleshi was found lying in her bed and she had been brutally stabbed to death. The investigation revealed that Ms. Taleshi had last been seen on the evening of October 17, and it was determined that the murder must have occurred later that night.
[4] The appellant was arrested on October 19, 1997 and charged with second degree murder. At trial, he testified and denied killing the deceased.
[5] The case against the appellant was a formidable one even though it rested entirely on circumstantial evidence. It was the Crown's position that for some months prior to the murder, the appellant had engaged in a parasitic relationship with the deceased in which he feigned romantic interest to obtain money from her and gain permanent status in Canada. According to the Crown, the appellant's plan fell apart when the deceased broke off the relationship in the first two weeks of October. Rejected, but in need of money to feed his alleged drug habit and also buy a plane ticket back to his country of origin, the Crown maintained that the appellant went to the deceased's home on the night of October 17 and proceeded to stab her to death before stealing her jewellery, valued at $15,000.
[6] In his testimony, the appellant admitted that he visited the deceased on the night of October 17, but he denied killing her. As far as he was concerned, their relationship was ongoing and he rejected the suggestion that he had been using the deceased for his own selfish purposes. He did, however, admit to stealing Ms. Taleshi's jewellery but he denied doing so on October 17. Rather, he maintained that the theft had occurred one week earlier and that he had taken the jewellery to pay off some outstanding debts and obtain the money needed for the return trip home.
[7] Apart from motive and opportunity, the Crown was able to show that in and around the time of the murder, a knife similar to the one used to kill the deceased had gone missing from the [page105] home where the appellant was living. In short, as indicated, the circumstantial case against the appellant was formidable.
Improper Cross-examination
[8] Crown counsel's cross-examination in this case can be described in terms similar to those found at para. 35 of this court's decision in R. v. Robinson (2001), 2001 24059 (ON CA), 53 O.R. (3d) 448, 153 C.C.C. (3d) 398:
. . . Crown counsel's cross-examination of the appellant was highly improper. From start to finish, it was designed to demean and denigrate the appellant . . . Many of the questions posed were laced with sarcasm and framed in a manner that made it apparent that Crown counsel personally held the appellant in utter contempt. In many respects, it was not a cross-examination but an attempt at character assassination.
[9] We do not find it necessary to detail the numerous transgressions committed by Crown counsel at trial. With her usual candour, Ms. Cecchetto, who was not the trial Crown, has conceded many of them in her factum.
[10] Assuming, for the purpose of these reasons, that the bad character evidence in issue [See Note 1 at end of document] was properly admissible despite its prejudicial effect, we are of the view that Crown counsel's preoccupation with the prejudicial aspects of the evidence considerably broadened and exacerbated the prejudicial side of the equation. As such, the cross-examination ran afoul of this court's admonition in R. v. Walker (1994), 1994 8725 (ON CA), 18 O.R. (3d) 184, 90 C.C.C. (3d) 144 (C.A.) at pp. 192-95 O.R., pp. 150-53 C.C.C., that unfair exploitation by Crown counsel of originally admissible bad character evidence can have a mushrooming prejudicial effect.
[11] In this case, the tone of the cross-examination was often sarcastic, personally abusive and derisive. The language used was emotive and it measured the appellant against a severe moralistic standard. The appellant was attacked for his lifestyle, including his relationship with women in general, his sexual activities, his supposed heroin addiction and his "thievery". While some of these matters (the thefts and the heroin addiction) were held by the trial judge to have probative value, as indicated, the Crown's questions focused largely on the prejudicial content of the evidence, rather than its probative content. [page106]
[12] In addition, the cross-examination broke, in a repetitive and persistent fashion, the following rules that have been spelled out time and time again by this court:
(1) It required the appellant to comment on the veracity of other witnesses.
(2) It improperly required the appellant to explain why certain witnesses were not being called to testify and in the same vein, it called upon him to answer for the fact that his evidence was not corroborated by anyone.
(3) It used the appellant's constitutional right to disclosure as a trap and portrayed him as a stage actor who, in light of disclosure, had carefully scripted his evidence to avoid the minefields in the case against him.
(4) Crown counsel repeatedly referred to the appellant as a bare-faced liar and he regularly injected his personal views and editorial comments into the questions he was asking.
(5) Crown counsel made a number of suggestions in cross- examination that were baseless but highly prejudicial to the appellant.
(6) Crown counsel mocked and unfairly challenged the appellant's adherence to his religious beliefs.
[13] Our concerns about the prejudicial impact of the cross- examination are heightened by a question asked by the jury from which it may be inferred that the bad character evidence had gone some way towards undermining the presumption of innocence. In these circumstances, despite the strength of the Crown's case, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 cannot be applied to save the conviction.
[14] The improprieties which we have identified rendered the trial unfair and the conviction cannot stand. In view of this conclusion, we find it unnecessary to determine the evidentiary issues raised by the appellant in his first ground of appeal. It will be for the trial judge at the new trial to deal with those issues, should they arise.
[15] In the result, the appeal is allowed, the conviction is quashed and a new trial is ordered.
Appeal allowed. [page107]
Notes
Note 1: The evidence in question concerns the appellant's alleged addiction to heroin, alleged petty thefts from some of his friends and more generally, the use made of certain aspects of his criminal record.