CITATION: R. v. Borde, 2011 ONCA 534
DATE: 20110728
DOCKET: C49685
COURT OF APPEAL FOR ONTARIO
Goudge, Juriansz and MacFarland JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Quinn Borde
Appellant
Clayton C. Ruby and Gerald J. Chan, for the appellant
James Stewart, for the respondent
Heard: June 21 & 22, 2011
On appeal from the conviction entered on June 22, 2007 and the sentence imposed on May 9, 2008 by Justice Bonnie L. Croll of the Superior Court of Justice, sitting with a jury.
Juriansz J.A.:
OVERVIEW
[1] The appellant appeals against his convictions for robbery, attempted murder while using a firearm, aggravated assault by discharging a firearm, using a firearm in the commission of an indictable offence, and discharging a firearm with intent to prevent his arrest or detention.
[2] At trial, his position was that he was not properly identified as the perpetrator and that he was at his mother’s home when the crimes were committed. On appeal, he alleges ineffective assistance of counsel and that the trial judge made several errors in her instructions to the jury.
[3] For the reasons that follow, I would dismiss the appeal.
FACTS
[4] On June 29, 2006, two young women – Natasha Kulgawetz and Tenicka Webster – were at a party drinking and decided to go find marijuana from a girl that Ms. Webster knew in Regent Park. On their way, they encountered a black male wearing a plain black pullover hood jacket, a bandana and a baseball cap. According to Ms. Webster and Ms. Kulgawetz, the man forced Ms. Webster to take her chain off and hand it to him and he forced Ms. Kulgawetz to give him the money in her pocket. The man then told the two women that they would be staying with him for the rest of the night.
[5] The three of them headed to an apartment to find marijuana and when they arrived, Cedric Wade answered the door. According to the testimony of Cedric and the two women, the man pulled out a gun. As Cedric slammed the door shut, he was shot in the elbow. The shooter then pulled the two women away and they walked towards Queen St. and Parliament St.
[6] At about 4:30 a.m., several police accosted them. The two women dove to the right into a staircase and the man drew a gun and began shooting at the police. The police and the shooter then exchanged shots. The shooter ran down a laneway, climbed over a high fence and slipped through the perimeter the police had set up. As he made good his escape, the shooter fired two shots at the ambulance arriving at Mr. Wade’s apartment.
[7] The police arrested the two women and took them to the police station. Ms. Kulgawetz did not identify anyone when shown a photo lineup containing the appellant’s photo. However, when shown the photo lineup, Ms. Webster identified the appellant as the shooter. One of the police officers, Constable Austin, also picked the appellant out of the photo lineup.
[8] The appellant was arraigned on a 19-count indictment. He entered a plea of not guilty to all counts: counts 1 and 2 concerned the robbery of Ms. Webster and Ms. Kulgawetz; counts 3 to 5 concerned the shooting of Cedric Wade; counts 6 to 15 concerned the shootout between the police and the shooter; and counts 16 to 19 concerned the attempted shooting of the ambulance driver, Mr. Toshoff.
[9] Ms. Webster went missing. The police found and brought her back from Jamaica just as the appellant’s trial began. At trial, she identified the appellant as the shooter. She testified she had been acquainted with the shooter previously. His street name was “Body”. She had met him a few days earlier in Moss Park. Ms. Kulgawetz was also there and Ms. Webster saw her kiss the shooter. She testified that two assailants had approached the shooter in the park and shot him twice. He went to the hospital, but Ms. Webster saw him later that night at a party in undershorts.
[10] Constable Austin identified the appellant as the shooter. The Crown led evidence that on June 24, five days before the offences, the appellant had been treated for gunshot wounds at St. Michael’s Hospital and had left the hospital in undershorts before he was released.
[11] The Crown also led circumstantial evidence of identity. In the vicinity of shell casings ejected from the shooter’s gun and on the route used by the shooter to escape, the police also found a baseball hat and black jacket. The black jacket had gunshot residue on it and the hat contained the appellant’s DNA.
[12] The defence originally planned that the appellant would not testify and defence counsel did not serve a notice of alibi on the Crown. After Ms. Webster proved to be a formidable witness, the appellant decided to testify. In cross-examination he said that at the time of the shootings he was at his mother’s home where he had gone to recover from the gunshot wounds suffered on June 24. He admitted that the hat and jacket recovered by the police at the scene were his, but he claimed that the assailants who shot him on June 24 had stolen them.
[13] The appellant’s mother was not called to testify. The trial judge denied the appellant’s attempt to testify in re-examination that the reason his mother was not called to testify was because she suffers from panic attacks.
[14] The jury acquitted the appellant of all counts in relation to the ambulance driver and convicted him of the offences listed above. The trial judge sentenced him to an aggregate sentence of 25 years with no eligibility for parole for 10 years.
ISSUES
[15] The appellant submits that he is entitled to a new trial because:
i. the trial judge should not have instructed the jury that it could draw an adverse inference from the failure to make timely disclosure of the alibi defence, in the absence of evidence that more effective police investigation would have been possible had the alibi been disclosed earlier;
ii. the failure of defence counsel to serve a notice of alibi on the Crown constituted ineffective assistance of counsel;
iii. the trial judge erred in failing to instruct the jury that the defence did not need to prove the alibi but only raise a reasonable doubt;
iv. the trial judge erred in telling the jury that it could draw an adverse inference from the appellant’s failure to call his mother as an alibi witness;
v. the trial judge erred in refusing to allow the appellant to explain why he did not call his mother as a witness; and
vi. the trial judge failed to give an unsavory witness instruction in regard to Ms. Webster.
Discussion
Need for evidence that an earlier investigation would have been more meaningful
[16] The appellant submits that a trial judge should instruct a jury that it may draw an adverse inference from failure of the accused to make timely disclosure of an alibi defence only where the Crown establishes by evidence that the police could have conducted a more meaningful investigation had the alibi been disclosed earlier. To advance this proposition, the appellant relies on the comments of Doherty J.A. in R. v. Wright (2009), 2009 ONCA 623, 247 C.C.C. (3d) 1 (Ont. C.A.), at paras. 18-20, that the adverse inference instruction is a qualification on constitutionally enshrined principles, which can be justified only where the rationale for that qualification actually operates. Doherty J.A. said, “Thus, if the alibi defence is disclosed in time to permit meaningful investigation of the defence, there can be no justification for the instruction”.
[17] In my view, the appellant takes these comments out of context. In Wright, Doherty J.A. found that the trial judge was wrong to characterize the appellant’s position as an alibi defence. Rather, it should have been characterized as an admission of some involvement in the events coupled with a denial of any involvement in the crimes. In Wright the Crown did not require any disclosure in order to effectively investigate and respond to the defence actually advanced by the appellant.
[18] The rule is one of expediency intended to guard against surprise alibis fabricated in the witness box that the prosecution is almost powerless to challenge: R. v. Cleghorn, 1995 CanLII 63 (SCC), [1995] 3 S.C.R. 175 per Iacobucci J., at para. 4. Requiring the Crown to request an adjournment to attempt to investigate a late claim of alibi or requiring it to prove that meaningful investigation would have been fruitful but is no longer possible before an adverse inference instruction is appropriate, would undermine the rationale of the rule. It would also create logistical problem for the trial and place an impossible burden on the Crown to show what the investigation it was unable to do would have yielded. In the circumstances of this case, the late disclosure of the alibi defence fell squarely within the rule; it could not be expected that the police could effectively investigate the appellant’s claim when the alibi was disclosed.
[19] I would not give effect to this ground of appeal.
Failure to serve a notice of alibi constituting ineffective assistance of counsel?
[20] Defence counsel examined both the appellant’s mother and brother regarding his claim of alibi and concluded that the jury was unlikely to believe them. Counsel for the appellant accepts that it was reasonable for defence counsel to make this judgment initially and to advise the appellant not to testify. Counsel for the appellant points out that circumstances change, as they did in this case, and because the accused always has the right to decide to testify, defence counsel must serve a notice of alibi in all cases. The only exception this rule that counsel for the appellant would recognize is where defence counsel knows the claim of alibi is fabricated.
[21] I find the proposition too unequivocal. Certainly, having the case go to the jury with an adverse inference instruction is always undesirable for the defence. Every effort should be made to avoid that happening. However, sometimes the defence must choose between the devil and the deep blue sea, as counsel for the Crown put it. Here, defence counsel considered that the appellant’s alibi defence would be disbelieved, and that having the police investigate the claimed alibi would harm the defence by exposing its weakness or possibly establishing it was concocted. The appellant was prepared to accept that advice. In the unlikely event that the appellant changed his mind, going to the jury with a failed or concocted alibi would have been worse for the defence in defence counsel’s judgment. This was a competent, professional tactical decision that I would not second guess.
[22] I would not give effect to this ground of appeal.
The trial judge’s failure to instruct the jury that the defence did not need to prove the alibi but only raise a reasonable doubt
[23] The appellant complains that the trial judge did not explicitly link her instructions about reasonable doubt to the appellant’s alibi defence. The complaint has no merit.
[24] The trial judge instructed the jury on the presumption of innocence, the burden of proof on the Crown and the concept of reasonable doubt. She charged the jury in relation to W.D. on two occasions, once relating those instructions to the appellant’s testimony that he was at his mother’s home, though she did not use the word “alibi”. The jury would have understood that the Crown has to disprove the appellant’s claim of alibi in the course of establishing his guilt beyond a reasonable doubt.
[25] I would not give effect to this ground of appeal.
Adverse inference from the appellant’s failure to call his mother as an alibi witness
[26] The appellant submits that an adverse inference from the failure to call his mother was not justified in this case and that the trial judge should have corrected, rather than endorsed, Crown counsel’s suggestion that the jury “should turn a critical eye to the fact that the person who could support his alibi was never called by the defence, though she sat in the courtroom while he gave that evidence.”
[27] The trial judge gave the jury the following instruction:
Ladies and gentlemen, in assessing the weight to be given to Mr. Borde’s whereabouts on June 29, 2006, you are entitled to consider that this information was not disclosed at a sufficiently early time to permit its investigation by the police. You may also consider that Mr. Borde’s mother was not called as a witness, but you must understand that there is no obligation on the defence to call Mr. Borde’s mother, and there may, indeed, be a perfectly good reason why she was not called. As well, the only possible inference you may draw from the failure to call Mr. Borde’s mother is that had she been called as a witness, her evidence would have been unfavourable to Mr. Borde. You may or may not draw this inference; that is up to you, but you must not use the failure to call his mother to draw the inference of guilt of Mr. Borde.
[28] While the appellant is correct that the Crown could have called the appellant’s mother, it was logical to expect the defence to call her, given the appellant’s relationship with her and his testimony that she could confirm he was at home at the time of the crimes. The trial judge’s instruction was both justified and fair. It made clear that the appellant was under no obligation to call his mother as a witness, that there might be a perfectly good reason why she had not been called, that it was up to the jury to decide whether to draw or not to draw an adverse inference, and, importantly, that the jury should not draw an inference of guilt from the appellant’s failure to call his mother.
[29] I would not give effect to this ground of appeal.
Refusal to allow the appellant to explain why he did not call his mother as a witness
[30] The trial judge refused to allow the appellant to explain in re-examination that he did not call his mother to testify because she suffered from “panic attacks”. The trial judge ruled this proposed testimony inadmissible on the basis that it was hearsay or opinion evidence. She added that it was open to the defence “to call other more reliable evidence as to any problems with having [the mother] testify.”
[31] The appellant submits that his observations of his mother were direct and therefore did not constitute hearsay, and that his own observation that she experienced “panic attacks” was permissible lay opinion. That may be so, but the trial judge took the view that the appellant was not qualified to offer the opinion that the panic attacks that his mother suffered prevented her from testifying. While the trial judge, perhaps, could have admitted the testimony as lay opinion, the evidentiary ruling she made had a basis in reason and does not constitute reversible error.
Failure to give an unsavory witness instruction
[32] The appellant submits that the trial judge erred by failing to caution the jury to be careful in accepting the evidence of Ms. Webster, an unsavory witness. Ms. Webster, the appellant points out, admitted to selling crack cocaine; she had a motive to lie because of her connection to the crime; she was suspected of involvement in the offences at the time she first gave her statements to the police; she was subjected to intimidating treatment by the police and interrogated in a “hard interview room” until she urinated herself; she had provided different accounts on different occasions; she delayed in coming forward with information; and she lied under oath.
[33] Despite these factors, it was open to the trial judge, who had the advantage of seeing Ms. Webster testify and assessing her testimony in the context of the whole trial, to find that an unsavory witness instruction was not required to ensure a fair trial. The trial judge’s instructions would have alerted the jury to the danger of accepting Ms. Webster’s testimony without careful scrutiny. Had the trial judge given an unsavory witness caution, she would have had to review the independent evidence supporting Ms. Webster’s testimony. For example, the appellant’s street name was “Body”, he had been shot a few days earlier, and he had left the hospital wearing nothing but boxer shorts, as Ms. Webster said. The trial judge’s exercise of discretion deserves deference. I would not give effect to this ground of appeal.
CONCLUSION
[34] We did not call upon the Crown to respond to a number of additional issues raised by the appellant and I see no need to discuss them. I would dismiss the appeal.
“R.G. Juriansz J.A.”
“I agree S.T. Goudge J.A.”
“I agree J. MacFarland J.A.”
RELEASED: July 28, 2011