COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Tash, 2013 ONCA 380
DATE: 20130607
DOCKET: C50566
Juriansz, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ezekiel Tash
Appellant
Ezekiel Tash, acting in person
Peter Copeland, amicus curiae
Robert Gattrell, for the respondent
Heard: November 21, 2012
On appeal from convictions entered by Justice Sandra M. Chapnik, sitting with a jury, on April 24, 2009.
Watt J.A.:
[1] Shortly after hearing a radio report of gunshots fired in the hallway of a high-rise apartment building, three police officers noticed two men walking away from the building where the shots had been reported.
[2] What attracted the officers’ attention was the pace at which both men were walking, and the way in which one of the men, Ezekiel Tash (the appellant), held his right arm and hand by the waist area of his pants. Did the man have a gun in his pants? Had he been wounded in a shooting?
[3] The officers, dressed casually and driving an unmarked vehicle, approached the two men. When one of the officers in the car identified himself as a police officer, both pedestrians bolted. The first officer out of the vehicle ran after the appellant. The other two officers followed. No one pursued the other man.
[4] The foot chase was brief and ended in a physical altercation by a car parked near another apartment building. Outnumbered by his original pursuers and reinforcements, the appellant was overpowered, handcuffed, arrested, and ultimately charged with three firearms offences and two counts of assaulting police officers in the execution of their duty.
[5] A jury heard widely divergent accounts of the events that began with the police query and ended with the appellant’s arrest. Based upon their verdict, finding guilt established on the firearms charges but not on the assault counts, it would seem clear that the jury did not unqualifiedly accept either of the conflicting accounts of the episode.
[6] The appellant seeks a new trial on the firearms counts based on grounds that concern the reception and the jury’s use of some of the evidence admitted at trial. These reasons explain why I think a new trial is required.
the background facts
[7] A brief overview of the evidence adduced at trial is sufficient to provide a backdrop for the grounds of appeal advanced. Any further detail can await the consideration of the individual grounds of appeal.
The Report of Gunshots
[8] Shortly after 10:30 p.m. on August 3, 2006, three plainclothes police officers had just completed a routine check of a licensed premises on Wellesley Street East just west of Parliament in the City of Toronto. As they made their way towards their vehicle, the officers heard a report over the police communications network about gunshots’ being fired on the 19th floor of an apartment building in the St. James Town housing complex at 200 Wellesley Street East.
The Police Response
[9] The three officers drove their unmarked police vehicle west along Wellesley Street towards 200 Wellesley to help out in the investigation.
The Pedestrians
[10] As the officers approached 200 Wellesley, they noticed two men walking quickly along the sidewalk from its direction. One man had his right hand and arm by his waist. The officers stopped their car to ask the men some questions.
The Encounter
[11] When the first police officer approached the two pedestrians and identified himself as “Toronto Police”, both men ran. The appellant ran eastbound along Wellesley, the other man, northbound.
The Chase
[12] The first officer pursued the appellant eastbound along Wellesley towards Parliament, then northbound on Parliament. The appellant continued to keep his right arm and hand by his side as he ran. The other two officers followed the lead officer at varying distances behind him. The most senior officer, Sgt. Matys, was the last in line in the pursuit.
The Altercation
[13] The pursuit ended near a parking area not far from the apartment building at 650 Parliament. The two accounts of what happened there diverge significantly.
[14] In general terms, the police version of events is that the first officer, D/C Jamison, found the appellant lying on the ground by a vehicle, his legs under the vehicle. Jamison grabbed the appellant by the shoulder, identified himself with the words “Toronto Police”, and told the appellant to get up. As the appellant got to his feet, he struck Jamison in the face with his closed right fist. Jamison and his colleagues told the appellant to “stop resisting”. The appellant countered with “stop beating me”.
[15] When uniformed officers arrived to assist in the arrest, the appellant was subdued, handcuffed, and taken into custody in a marked police cruiser.
The Gun
[16] When the altercation by the parked car had concluded, the officers noticed a 9mm semi-automatic Glock handgun on the ground by the car. The police seized the gun, a restricted firearm.
The False Identification
[17] The appellant gave investigators a false name when first asked about his identity. He did so because he was not lawfully in Canada. A short time later, police confirmed the appellant’s true identity.
The Appellant’s Version
[18] The appellant’s version of the events that led to his arrest differed significantly from that of the police.
[19] The appellant testified that he had arranged with an acquaintance who he had known for two months, Junior Richardson, to buy some “weed” from Richardson’s supplier. He and Richardson walked into 200 Wellesley while a third man, the driver of the car in which Richardson and the appellant had been passengers, waited in the vehicle. The men agreed to meet later at the Tender Trap, a nearby restaurant. The appellant bought a quarter ounce of “weed” and put it in his pants’ pocket. Once outside, he removed his hand from his pocket to make a call on his cell phone.
[20] When the police approached Richardson and the appellant on the sidewalk and identified themselves as police officers, Richardson bolted. The appellant ran in the opposite direction breaking up the “weed” from his pocket and discarding it as he ran. When he reached the car where he was arrested, the appellant put his hands up, indicating surrender. He had no “weed” left in his pocket. He had nothing in his hands.
[21] Despite his surrender, the police beat him, kicking him in the head and placing him in a headlock. He was injured in the altercation and later was taken to hospital so that his injuries could be examined and treated.
[22] The appellant denied having a firearm in his possession. He said he didn’t know of anyone else who may have had a firearm that night.
Junior Richardson and His Apology
[23] The trial judge permitted the appellant to testify about a conversation he claimed to have had with Junior Richardson at Maplehurst Correctional Centre in March, 2007 when both men were inmates there.[^1] Richardson had heard what had happened to the appellant, in particular that he had been charged with several gun offences. Richardson said he was sorry that the appellant had been charged with the gun offences and offered to testify at the appellant’s trial that the gun was his.[^2]
[24] According to the appellant, Richardson told him at Maplehurst that when the police spoke to them on the street, he (Richardson) had a gun tucked in the back of his pants. He dropped the gun and ran.
The Positions of the Parties at Trial
[25] At trial, the Crown relied upon the evidence of the police witnesses about the circumstances in which the officers approached, pursued, and captured the appellant. It was the Crown’s position that the semi-automatic Glock pistol found by the car where the appellant was arrested was a gun that the appellant had in his possession and for which he had neither a permit nor a licence.
[26] The defence position at trial was that the gun belonged to Junior Richardson, was picked up by Sgt. Matys as the foot chase began, and was brought by Matys to the scene of the appellant’s arrest where it was “put” on him.
the grounds of appeal
[27] As duty counsel, Mr. Copeland advances four grounds of appeal. He submits that the trial judge erred in
i. permitting the introduction of good character evidence about Sgt. Matys that violated the rule against oath-helping;
ii. failing to give the jury a mid-trial (and final) limiting instruction about the evidentiary use of testimony about the appellant’s “Young Thugs” tattoo;
iii. redacting from medical records filed as exhibits at trial the appellant’s account about how his injuries were caused and, at the same time, allowing the trial Crown to rely on his lack of complaint as part of the Crown’s impeachment of the appellant’s version of events; and
iv. excluding the appellant’s evidence of Junior Richardson’s admission of gun ownership as an exception to the hearsay rule, and imposing Richardson’s testimony as a condition precedent for reception of the appellant’s account of the admission.
Ground #1: The Admissibility and Use of “oath-helping” Evidence
[28] This ground of appeal relates to the admissibility and use of evidence adduced by the trial Crown in re-examination of Sgt. Matys, the senior officer involved in the apprehension and arrest of the appellant.
The Additional Background
[29] Trial counsel for the appellant cross-examined Sgt. Matys, as well as the other two arresting officers, Jamison and Patel, on a version of events alleging that the officers had falsely accused the appellant of possession of the Glock handgun. Counsel suggested that Sgt. Matys was the last officer to arrive at the place of arrest because he had picked up the gun dropped by Richardson where the chase began, brought the gun with him to the place of arrest, and dropped it there so that the appellant could be charged with possession of it. Counsel further alleged that Sgt. Matys fabricated his notes and his evidence because he had a complete disregard for the appellant whom he considered “a piece of shit”.
[30] Sgt. Matys denied counsel’s suggestions.
[31] In re-examination, the trial Crown asked Sgt. Matys whether he had ever been charged with or cited for misconduct. After defence counsel objected to the question and the trial judge ruled in his favour, the trial Crown persuaded the judge to permit the question. Sgt. Matys denied any misconduct. He testified that his police (disciplinary) records would confirm his denial. The trial Crown also elicited evidence from Sgt. Matys that he had been promoted since the appellant’s arrest.
The Closing Addresses
[32] In their closing addresses, each counsel made passing reference to the evidence adduced in re-examination of Sgt. Matys. Defence counsel pointed out that Matys’ evidence referred only to “documented” complaints. The trial Crown contended that Matys’ promotion put paid to the appellant’s claim of a police conspiracy.
The Arguments on Appeal
[33] For the appellant, Mr. Copeland says that the cross-examination by defence counsel did not put the honesty and integrity of Sgt. Matys’ character in issue. Trial counsel argued only that, in this case, the officer planted evidence on the appellant. But the responsive evidence elicited by the Crown over defence counsel’s objection in re-examination, Mr. Copeland contends, was evidence of good character that offended the rule against oath-helping. The jury should have been instructed, as they were in connection with evidence about Matys’ promotion to sergeant, that the evidence of an unblemished discipline record was irrelevant to their decision.
[34] For the respondent, Mr. Gattrell contends that, viewed as a whole, the cross-examination of Sgt. Matys clearly alleged that the officer’s character was such that he would, and in this case did, fabricate a story to falsely implicate an accused in a crime. This attack on the officer’s character permitted the trial Crown to rehabilitate the witness by the introduction of evidence of good character that did not deviate from permissible limits. In the alternative, Mr. Gattrell submits, any answers that extended beyond permissible rehabilitation caused no substantial wrong, especially in light of the limiting instruction about the evidence of the witness’ promotion.
The Governing Principles
[35] The issues raised in connection with this ground of appeal have to do with the credibility of witnesses. Particularly, this ground of appeal concerns the techniques an opponent may use to attack or impeach a witness’ credibility, on the one hand, and the means available to the witness’ proponent to rehabilitate the witness’ credibility after impeachment, on the other. The issues can be resolved by the application of general principles.
[36] Credibility rules are of three types.
[37] The first type concerns attempts by the witness’ proponent to bolster the witness’ credibility even before it has been impeached. As a general rule, we do not permit the witness’ proponent to elicit bolstering evidence in direct examination. The rule against “oath-helping” excludes it.
[38] The second group of credibility rules involves the techniques an opponent may invoke to attack or impeach a witness’ credibility.
[39] The third set of rules governs the method that the witness’ proponent may use to rehabilitate the witness’ credibility after impeachment, in essence, to undo the damage done by the impeachment.
[40] Despite the hostility of the common law towards bolstering evidence, we liberally admit impeaching evidence. Among the modes of attack on a witness’ credibility are attacks that show bias or corruption, and those that attack the witness’ character. A witness may also be impeached by specific contradiction, in other words, by proof through other witnesses that material facts are otherwise than as described by the witness being impeached.
[41] We recognize that a witness’ emotions or feelings towards the parties, or the witness’ self-interest in the outcome of the case, may have a powerful distorting effect on human testimony. And so it is that we recognize that bias, or any conduct, relationships, or motives reasonably likely to produce it, may be established to impeach credibility. The disparate and varied kinds of sources of partiality defy exhaustive listing, but doubtless include hostility or attitude towards an accused.
[42] A witness’ character for truthfulness or mendacity is relevant circumstantial evidence on the question of the truthfulness of the witness’ testimony. Evidence of a witness’ previous deception tends to demonstrate a character for untruthfulness. In turn, the existence of such a character trait increases, at least slightly, the probability that the witness has lied under oath. Proof of a witness’ character trait for untruthfulness can be accomplished in several ways including proof of prior untruthful conduct, the witness’ associations, and prior history. Any other acts offered to establish character should have a significant relation to credibility.
[43] Our adversary system requires that the proponent of a witness be afforded an opportunity to meet attacks on the credibility of the witness by presenting evidence rehabilitating the witness. But the bolstering evidence must be responsive to the nature of the attack and not exceed permissible limits. For example, supportive evidence of good character for honesty of a witness impeached by evidence of “bad” character for untruthfulness or dishonesty is permissible. Proof of prior consistent statements to rebut impeachment on grounds of recent fabrication is also permissible. At root, the admissibility of rehabilitative evidence should depend on whether what is proposed is logically relevant to rebut the impeaching fact. The rehabilitating facts should meet the impeachment with relative directness. The wall, attacked at one point, may not be fortified at a distinctly separate point: 1 McCormick on Evidence (7th ed., 2013, Thomson Reuters: Westlaw), at § 47, pp. 307-308.
The Principles Applied
[44] I would give effect to this ground of appeal, but defer consideration of its impact on the integrity of the jury’s verdict and the fairness of the appellant’s trial until the remaining grounds of appeal have been considered.
[45] Trial counsel for the appellant impeached each of the officers who pursued and arrested the appellant on the ground that, in this case, they fabricated their evidence about the circumstances in which they found the gun they attributed to the appellant. The principal motivating factor was their contempt for the appellant who fled when they wanted to speak to them, assaulted them when apprehended, and accused them of gratuitously beating him to the point of significant injuries.
[46] The rehabilitative evidence related only to Sgt. Matys, the officer which defence counsel alleged found the gun at the outset of the chase, picked it up, and planted it by the vehicle where the appellant was arrested so that possession of it could be attributed to the appellant.
[47] The rehabilitative evidence, that Sgt. Matys had no disciplinary record and had been promoted to his rank at trial after these events, lacked any probative value on the issue to which it was directed. The rehabilitative evidence was not a response in kind to the particular basis on which the witness was impeached. The impeachment here was not an attack on each witness’ character for truthfulness or integrity, but rather a case-specific allegation of fabrication based on a specific motive.
Ground #2: The “Young Thugs” Tattoo
[48] This ground of appeal relates to evidence about a tattoo on the appellant’s body which was the subject of examination-in-chief and cross-examination at trial, but not of any instructions from the trial judge.
The Additional Background
[49] In examination-in-chief, trial counsel asked the appellant whether anybody had made fun of him at the police station or had said that something would be done [to him] there. The appellant testified that an officer asked him to display his tattoo and read aloud the words “Young Thugs” from the tattoo. The appellant went on to explain that “Young Thugs” was a musical track from the rapper, 2Pac, that he and some friends had adopted as a name for a band they were putting together. Each member would get a tattoo with the name of the group. The appellant was the first to get the tattoo which was applied in the basement of a friend’s house. The other band members did not get their tattoos and the band never did get organized.
[50] The trial Crown cross-examined the appellant on the origins of the term “Young Thugs” and suggested the term had been adopted because the appellant liked the image the term portrayed:
Q. Well, again Mr. Tash I don’t want to belabour the point but even though “Young Thugs” might be the name of a proposed rap group you and your friends adopted that name because you liked the image that it portrayed, right?
A. It’s not necessary the image it’s just the artist was like, he was popular, he’s famous and I don’t know he had a track. The track that he had was called “Young Thugs” so basically it’s just a track, it’s not to … or you know, nothing like that.
[51] Trial counsel for the appellant asked the trial judge to give an immediate mid-trial instruction that the evidence about the tattoo had no probative value and should form no part of their consideration. The trial judge gave no mid-trial instruction and said nothing about this evidence in her charge.
The Arguments on Appeal
[52] For the appellant, Mr. Copeland says that the cross-examination of the appellant on the image represented by the term “Young Thugs” was improper because it invited propensity reasoning. A mid-trial instruction should have been given, and repeated in the charge, to ensure that jurors did not make improper use of this evidence in deciding the case.
[53] For the respondent, Mr. Gattrell submits that this cross-examination on the appellant’s lifestyle was proper in the circumstances of this case. Since the cross-examination was proper, the trial judge was under no obligation to give a limiting instruction as the appellant contends.
The Governing Principles
[54] This ground of appeal engages basic principles that govern the reception of evidence in a criminal trial and the manner in which that evidence may be used in the demonstration of guilt.
[55] To be receivable in a criminal trial, evidence must be relevant, material, and admissible.
[56] Relevance is not an inherent characteristic of any item of evidence, but rather exists as a relation between an item of evidence proposed for admission and a proposition of fact that the proponent of the evidence seeks to establish by its introduction: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204. Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable then the fact would be without the evidence, through the application of everyday experience and common sense: Luciano, at para. 204.
[57] We assess relevance in the context of the entire case and the positions of counsel: R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709 at pp. 730-732; Luciano, at para. 205. Relevance eschews fixed rules. It does not exist in the abstract, or in the air: Cloutier, at pp. 730-732; Luciano, at para. 205. It follows from the very nature of the notion of relevance that some items of evidence may be relevant in one case, but not in another. See, for example, R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301.
[58] Unlike relevance, admissibility is a legal concept. The rules of admissibility, which are negative and exclusionary, are rooted in policy considerations we regard as sufficiently important to justify the exclusion of relevant and material evidence: Luciano, at para. 209. As a general rule, we deny the Crown access to evidence that tends to establish the character of an accused as circumstantial evidence of the accused’s conduct on the occasion charged: Luciano, at para. 221. To put it in another way, we insist that guilt be proven by evidence of what an accused did and said, not because of the type of person the accused is, or the lifestyle she or he chooses. It follows that Crown counsel is not generally entitled to cross-examine an accused on his or her lifestyle as a basis upon which to establish guilt through character reasoning: R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 153 C.C.C. (3d) 225 (Ont. C.A.), at para. 26.
The Principles Applied
[59] I would give effect to this ground of appeal but, again, defer consideration of its impact on the overall fairness of the trial and the integrity of the jury’s verdict until I have examined the other grounds of appeal.
[60] The subject of the appellant’s “Young Thugs” tattoo was first raised by trial counsel in his examination-in-chief of the appellant. The purpose of the question appears to have been to adduce evidence in support of the defence position that the police ridiculed and denigrated the appellant throughout the course of their dealings with him. It was because of this attitude or animus that the police fabricated their notes and evidence, falsely accusing the appellant of the offences with which he was charged.
[61] It was open to the trial Crown to cross-examine the appellant in connection with his story about the tattoo incident at the police station and to challenge his explanation for the words in the tattoo and his purpose in having it applied. But in the circumstances of this case, the trial Crown was not entitled to cross-examine the appellant in order to establish the appellant had adopted the lifestyle of a young thug, acted in accordance with it in his confrontation with police on August 3, 2006, and, accordingly, was not to be believed as a witness.
[62] Despite a request to do so, the trial judge said nothing to the jury about the tattoo evidence nor did the trial Crown make any reference to this evidence in her closing address. This evidence was introduced by trial counsel for the appellant and was admitted in a case in which the appellant had already acknowledged that he had purchased “weed” earlier in the evening.
Ground #3: The Editing of the Appellant’s Medical Records
[63] This ground of appeal concerns the editing and use of medical records compiled in connection with the examination and treatment of injuries the appellant claimed he had suffered during his altercation with police.
The Additional Background
[64] The appellant complained about injuries he said the police inflicted on him when they beat him despite his surrender at the end of the foot chase. The position of the trial Crown was, or appeared to be, that the beating the appellant alleged never occurred.
[65] In their original state, the medical records relating to the appellant contained his description of the cause of the injuries – that he had been punched or kicked by the police. The trial Crown had no objection to the admission of the records but objected, successfully in the end, to the inclusion of any portions of the records that contained comments from the appellant about how the injuries had been sustained. The trial judge redacted the portions of the records to which the Crown had objected and the records were filed as an exhibit in their redacted form.
[66] During cross-examination, the trial Crown asked the appellant the following questions:
Q. All right. You made no kind of formal complaint since August 3rd, 2006 either about the unprovoked beating or the mistreatment of you at the police station, right?
A. If I made any complaint?
Q. Yes. Did you make a formal complaint to the Police Complaint’s Commission?
A. No, I never made a complaint.
Q. Either about the events or about the injuries that you received as a result?
A. No.
In re-examination, the appellant was permitted to testify that he reported the injury behind his ear to the medical people and told them that he had been kicked in the head.
[67] The trial judge refused to permit trial counsel to re-open the defence case and gave the jury no specific instructions about the use they could make of the medical evidence.
The Arguments on Appeal
[68] For the appellant, Mr. Copeland submits that the trial judge erred in redacting the medical records to remove any passage that disclosed the origin of the injuries. He says that the records should have been admitted in their unredacted state and the jurors given a limiting instruction about the limited use they could make of the claims of origin as narrative. In a case involving serious issues of witness credibility, the redaction, according to Mr. Copeland, caused the appellant serious prejudice.
[69] For the respondent, Mr. Gattrell contends that the jury had evidence about the injuries the appellant had suffered and that he had been treated at the hospital for those injuries. The redaction was necessary to guard against the unprincipled admission of prior consistent statements where there was no express or implied allegation of recent fabrication. Mr. Gattrell adds that even if the redacted portions had been included, they would not have been admitted as evidence of the truth of the contents, thus their deletion caused the appellant no meaningful prejudice.
The Governing Principles
[70] As a general rule, prior consistent statements of a witness are inadmissible because they lack probative value and, when offered to prove the truth of their content, they constitute hearsay and are prima facie inadmissible: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.
[71] Among the exceptions to the general rule that prohibits the introduction of the prior consistent statements of a witness is a rule that permits their reception as part of the narrative: Dinardo, at para. 37. Prior consistent statements admitted as narrative, however, may be used by a trier of fact only for the limited purpose of helping the trier of fact understand how the witness’ story was initially disclosed: Dinardo, at para. 37. The prior consistent statement may also assist the trier of fact in assessing the witness’ likely truthfulness: Dinardo, at para. 38. But the prior consistent statement cannot be used to confirm the truthfulness of the sworn allegation: Dinardo, at para. 37.
The Principles Applied
[72] I would give effect to this ground of appeal and defer any assessment of its impact on the fairness of the appellant’s trial and the integrity of the jury’s finding of guilt until I have considered the final ground of appeal.
[73] The trial judge redacted the appellant’s account about the cause of his injuries on the basis of the hearsay rule. In other words, she redacted it on the basis that the accounts of the origins were offered to prove the truth of what was said. But the trial judge failed to consider that the accounts could be admitted for a purpose independent of their truth – namely, as part of the narrative to help the jury understand how the appellant’s story was initially disclosed: Dinardo, at para. 37. Statements admitted as narrative are not and cannot be used as proof of the truth of their contents, thus are not within the exclusionary reach of the hearsay rule.
[74] The availability of narrative evidence to show the fact and timing of a complaint, which may then assist the jury in assessing the truthfulness or credibility of a complainant, may be of no little significance in a case in which credibility is center stage, as here. By their verdict, the jury signalled to the principals that they were not prepared to accept either version of events as entirely truthful. In their examination of the appellant’s account, the jurors were deprived of the value of the narrative evidence as a factor in their assessment of the truthfulness of the appellant’s version.
Ground #4: The Hearsay Evidence of Junior Richardson
[75] The defence position at trial was that the appellant did not have a gun in his possession on August 3, 2006 when he was pursued, subdued, and arrested by police. The gun belonged to Junior Richardson who dropped it when both men bolted when approached by police on Wellesley Street. Sgt. Matys, the last of the three officers who pursued the appellant, picked up the gun and planted it near the car where the appellant was arrested so that possession of it could be attributed to him.
[76] The position of the Crown at trial was that the appellant was in possession of the gun when first seen by the officers as they proceeded along Wellesley Street East. Throughout the foot chase, the appellant kept his right arm and hand around the waist area of his pants in a manner consistent with having the gun secreted there.
The Additional Background
[77] To demonstrate that the gun belonged to Junior Richardson, defence counsel proposed to adduce evidence from the appellant at trial of a statement Richardson made to him while both men were inmates at Maplehurst Correctional Centre. According to the appellant, Richardson approached him and apologized because the appellant had been charged with offences involving the gun Richardson had dropped when both men ran away from the police.
[78] Defence counsel sought to adduce the evidence of this conversation through the appellant, submitting that it was admissible as a declaration against Richardson’s penal interest. Apart from mention of the common law exception, defence counsel did not attempt to demonstrate compliance with the conditions precedent to the penal interest exception, or to satisfy the requirements of necessity and reliability. Nothing was said about the availability of Junior Richardson to testify as a witness at trial.
[79] The trial Crown did not object to the admission of the appellant’s version of his conversation with Richardson, provided Richardson was called to testify. The trial judge agreed with the Crown’s requirement. Defence counsel agreed to call Richardson as a witness after eliciting the appellant’s version of the conversation during examination-in-chief of the appellant.
[80] As a witness, Junior Richardson was a bust. Afflicted with systemic memory failure, Richardson couldn’t remember whether he had spoken to the appellant about the events of August 3, 2006 or had apologized to him about his (the appellant’s) predicament. Nor could Richardson remember whether he had had a gun with him on August 3, 2006.
[81] In the end, the only evidence the jury heard about Richardson’s alleged admission was what the appellant said about it. In substance, according to the appellant, Richardson said he had a gun in the back of his pants, but dropped it when the police approached and both men ran. Richardson told the appellant that it was not fair that he (the appellant) should do time for Richardson’s gun. Richardson promised to testify at the appellant’s trial and say the gun was his.
The Instructions of the Trial Judge
[82] In her charge to the jury, the trial judge treated Junior Richardson as a third party suspect because of his disposition to commit weapons-related offences. She said:
The previous convictions may help you decide whether Mr. Richardson is a sort of person who would commit the offence, in particular, the weapons related offences with which Mr. Tash is charged. In this case, there is evidence by Mr. Tash that Mr. Richardson may have committed those offences. That evidence, along with the evidence of Mr. Richardson’s prior convictions may leave a reasonable doubt in your mind whether it was Mr. Tash who committed these offences. It is for you to say.
[83] Trial counsel for the appellant objected to the charge because of the trial judge’s failure to refer to Richardson’s admission as part of the position of the defence. The trial judge declined to recall the jury.
The Arguments on Appeal
[84] For the appellant, Mr. Copeland submits that the trial judge erred in failing to admit the appellant’s version of Richardson’s statement as a declaration against penal interest without requiring the defence to call the declarant, Richardson, as a witness. But even if Richardson’s statement did not qualify as a declaration against penal interest, Mr. Copeland says, the trial judge should have admitted it in the exercise of her discretion to permit a relaxation of the standard of admissibility for defence hearsay where it is necessary to do so in order to prevent a miscarriage of justice.
[85] For the respondent, Mr. Gattrell says that the appellant’s account of Richardson’s statements was not admissible under the penal interest exception to the hearsay rule. Richardson’s statement to a fellow prisoner in a correctional centre did not render Richardson vulnerable to penal consequences. Richardson could not reasonably conclude that his admission would expose him to potential criminal liability. Nor should the trial judge have admitted the evidence in the exercise of her discretion to admit otherwise inadmissible hearsay tendered by the defence.
[86] Mr. Gattrell adds that the appellant’s version of Richardson’s statement was led before the jury and was left as evidence of the truth of its contents. In the result, Mr. Gattrell says, the appellant has suffered no harm.
The Governing Principles
[87] Trial counsel sought to have Richardson’s admission of gun ownership received through the testimony of the appellant under the declaration against penal interest exception to the hearsay rule. No voir dire was conducted. Nor did counsel attempt to establish admissibility under the principled exception to the rule.
[88] The principles that govern the admissibility of declarations against penal interest are these:
i. the declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result;
ii. the vulnerability to penal consequences must not be remote;
iii. the declaration must be considered in its totality, so that if, upon the whole tenor, the weight of it is in favour of the declarant, the declaration is not against his or her interest;
iv. in a doubtful case, a court might consider whether there are other circumstances connecting the declarant with the crime, and whether there is any connection between the declarant and the accused; and
v. the declarant must be unavailable because of death, insanity, grave illness that prevents the declarant from giving testimony even from a bed, or absence in a jurisdiction to which none of the court’s processes extends.
R. v. Demeter, 1977 CanLII 25 (SCC), [1978] 1 S.C.R. 538, at p. 544; R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, at p. 600; and R. v. Lucier, 1982 CanLII 153 (SCC), [1982] 1 S.C.R. 28, at pp. 32-33.
[89] It is well-established that, as a matter of general principle, admissibility rules apply equally to the Crown and to the defence. But a trial judge can relax those rules in favour of the defence where it is necessary to do so in order to prevent a miscarriage of justice: R. v. Williams (1985), 1985 CanLII 113 (ON CA), 18 C.C.C. (3d) 356 (Ont. C.A.), at p. 378; and R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), at para. 80. Relaxation of the rules does not invite an abandonment of the inquiry into reliability under the principled approach, nor should it do so in connection with factors or conditions that attempt to ensure reliability under listed exceptions: Kimberley, at para. 80.
The Principles Applied
[90] Despite errors in permitting the introduction of the appellant’s version of Richardson’s admission as a declaration against penal interest and in requiring the defence to call Richardson as a witness as a prerequisite to the reception of the appellant’s account, I would not give effect to this ground of appeal.
[91] Tendered through the appellant as its recipient, the statement of Richardson admitting ownership of the gun, possession of which was attributed to the appellant, was not admissible as a declaration by Richardson against his penal interest.
[92] Richardson’s statement was made to a fellow inmate in a correctional centre in circumstances that did not expose Richardson to any realistic risk of penal consequences. Even if it could be said that some risk of vulnerability attached to the admission, the risk was, at best, highly remote. Further, there was an association between Richardson and the appellant, both at the time of the incident giving rise to the charges and at the time the declaration was allegedly made. In addition, there was no evidence that the declarant, Richardson, was unavailable to testify. Indeed, as it turned out, Richardson was available and was called as a defence witness.
[93] The appellant did not seek to have his account of Richardson’s admission received under the principled exception to the hearsay rule, or ask that it be received through some relaxation of the rule to prevent a miscarriage of justice. No voir dire was conducted, thus neither the trial judges nor this court could determine admissibility on either basis.
[94] In the end, what happened here was that the substance of Richardson’s alleged admission was adduced before the jury in the form of hearsay evidence that should not have been admitted. Its effect was diluted by Richardson’s testimony in which he professed no memory of the gun or the Maplehurst conversation. The trial judge said nothing about the evidence except to give it a brief reference in the “third party” instruction she gave about Richardson’s involvement.
conclusion
[95] What remains is an assessment of the cumulative impact of the identified errors on the fairness of the appellant’s trial and the integrity of the jury’s verdict finding him guilty of the three firearms offences.
[96] In this case, the jury was confronted with conflicting versions of the relevant events. Even though the jury’s task was to decide whether the Crown had proven the essential elements of each offence charged beyond a reasonable doubt, and was not entitled to make its decision by simply picking one of the two conflicting versions, any error that had the effect of enhancing the credibility of one version, or diminishing that of the other, seems likely to have exerted an influence on the result.
[97] The verdict rendered by the jury indicates that the jurors did not accept either the appellant’s account or the police version in its entirety. The jurors had a reasonable doubt about whether the appellant unlawfully assaulted Jamison and Patel in the execution of their duty. The jurors were satisfied beyond a reasonable doubt that the appellant was in possession of the semi-automatic gun found at the scene of his arrest. It is only the evidence of the arresting officers that link the appellant to the firearm. No forensic evidence was adduced. No forensic examination of the gun was undertaken.
[98] The errors made by the trial judge, in permitting the introduction of oath-helping evidence in relation to Sgt. Matys, redacting from the medical records the appellant’s account of how he was injured, and permitting cross-examination of the appellant on the lifestyle associated with his “Young Thugs” tattoo, were all linked to the credibility of the principals at trial. In another case where the credibility of witnesses occupied a place of lesser prominence and the evidence of guilt was overwhelming, the errors made here may have made no difference in the result. But the evidence here, as the jury’s verdict demonstrates, was not overwhelming. I am not satisfied that but for the errors, the jury’s verdict would necessarily have been the same.
[99] In the result, I would allow the appeal, set aside the convictions on the firearms counts and order a new trial on those counts.
Released: June 7, 2013 “RGJ” “David Watt J.A.”
“I agree R.G. Juriansz J.A.”
“I agree Gloria Epstein J.A.”
[^1]: The judge permitted the appellant to recount his version of the conversation provided defence counsel called Richardson as a witness. Defence counsel did so with somewhat disastrous results. [^2]: Richardson testified but not as promised.