COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ahmed, 2015 ONCA 751
DATE: 20151106
DOCKET: C57601
Feldman, MacPherson and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ahmed Ahmed
Appellant
Russell Silverstein and A. Cooper, for the appellant
John Patton, for the respondent
Heard: September 9, 2015
On appeal from the conviction entered on January 29, 2013 by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury.
MacPherson J.A.:
A. Introduction
[1] The appellant Ahmed Ahmed was convicted of attempted murder and possession of a loaded restricted firearm following a jury trial.
[2] The appellant testified at the trial. His testimony in chief was quite brief. Crown counsel conducted a lengthy cross-examination. The appellant contends that, in one major respect, the cross-examination was completely unfair and amounted to trial by innuendo. His principal ground of appeal is that the trial judge erred by permitting the challenged line of questions.
B. Facts
(1) General
[3] The appellant and the victim, Donovan Brooks (widely known in the community by his nickname Debo), had been acquaintances for several years. They were both long-term residents of Lawrence Heights, a neighbourhood located in North York.
[4] The appellant and Brooks attended a bar the night before the shooting. The next day, September 25, 2011, Brooks learned that he was accused of taking something from the appellant. He decided to go to the Juice Bar, a local meeting place, with his younger brother Ryan Malcolm to try to clear his name.
[5] At approximately 6:00 p.m., someone shot Brooks several times at close range, hitting his arm, chest, back and pelvis.
[6] Brooks survived and identified the appellant as the shooter. He testified to this effect at the trial.
[7] Malcolm made a video statement to police shortly after the shooting, saying that he had never seen the shooter before. At trial, Malcolm changed his story and identified the appellant as the shooter. He testified that he did not tell the truth until the trial because of the dangers of being a ‘snitch’ in the Lawrence Heights neighbourhood plus a threat he received to discourage him from testifying.
[8] Brooks’ girlfriend, Sophia Lindsay, was not present at the shooting. However, she testified that she was approached by the appellant at a mall about six weeks later. She testified that the appellant apologized for shooting Brooks and said that he was mistaken in thinking that Brooks had stolen his gun.
[9] The appellant testified that he was not at the Juice Bar on September 25, 2011 and he did not shoot Brooks.
(2) The cross-examination of the appellant
[10] During his examination in chief, the appellant was asked how he became aware that Brooks had been shot:
Q. Do you know how – describe for us the circumstances, if you know, of how you became aware that Donovan Brooks or Debo had been shot?
A. Um, I’m guessing somewhere around that time, early October, whatnot, I received, like a text message. I don’t know. But I guess a couple of days after it might have happened, I guess it happened whatever, I received a text message, a BBM broadcast, a Blackberry broadcast message. It’s just broadcasted by all your friend list or whatnot, right? And said, um, a shooting had happened in Lawrence Heights.
Q. Did it tell you who was involved in the shooting?
A. No. Well, let me get to it first.
Q. Sorry, I interrupted you.
A. I can’t remember who exactly I texted back, but basically the – I don’t know if everybody’s familiar with a BBM.
Q. Why don’t you tell us.
A. Okay. It’s a broadcast message. Basically, everybody on your friend list, you just send it, like, you write a message and you send it to your friend list. So it was – I was getting them from random people. So I text back one of the people, I’m like, What happened? And they said shooting happened. I said, What happened? Um, Debo had gotten shot. I said, Oh, okay. That’s crazy.
[11] The Crown engaged in a lengthy cross-examination of the appellant. He singled out this portion of the appellant’s testimony for special and protracted attention. His goal was to challenge the appellant’s credibility by establishing that it was unlikely that the appellant only heard about the shooting “a couple of days after it might have happened”. His route to reach this goal was to ask the appellant about several other shootings in the Lawrence Heights neighbourhood and how he had come to know about them.
[12] The Crown started this line of questioning almost immediately. His sixteenth question to the appellant was: “Do you know someone named Trooper?” The appellant answered “No.” The cross-examination continued:
Q. You know you’re under oath, right?
A. Yes, I do.
Q. Do you know someone named Trooper?
A. As of right now?
Q. No, did you ever know someone named Trooper?
A. Did I know him or did I hear of him?
Q. Did you know him. Or know of him.
A. Yes, I did. There’s different Troopers. The name Trooper’s used, like, a lot of different people have the same nicknames.
Q. Who’s the Trooper you were aware of?
A. Um, Trooper, he passed away.
Q. He’s dead.
A. Yes.
Q. When did you last see him?
A. I don’t know. Like 2006 maybe?
Q. 2007?
A. Maybe 2007. Yes.
Q. How did Trooper die as far as you know?
A. He was shot, is what I heard. Yeah.
Q. And where were you when Trooper was shot?
A. I don’t know.
Q. You don’t remember?
A. That is – no. I don’t.
Q. You said you heard he got shot.
A. Yes.
Q. Where were you when you heard that? Or how did you hear about it?
A. I heard about it through the community. Through the Yelp Program. I came to work the next day and I heard a shooting had happened in the neighbourhood and he was shot.
Q. And you knew of Trooper?
A. Knew of him? Like, yeah. I used to see him around.
Q. Did you hang out with him?
A. No.
Q. Did you chill with him?
A. No.
Q. Did you see him at the Juice Bar ever?
A. No.
Q. But you’ve been to the Juice Bar many, many times.
A. Correct.
Q. Never saw Trooper there?
A. No.
[13] The Crown moved off to other topics, but then returned to Trooper:
Q. Do you remember when Trooper was shot? I’m just asking you if you remember when Trooper was shot.
A. No, not exactly. Exact date, no.
Q. How long did you know Trooper?
A. Not for long.
Q. Approximately.
[14] Defence counsel interceded to challenge the relevance of this line of questioning. The trial judge asked the jury to retire and she and both counsel discussed the issue:
THE COURT: [Crown], what relevance are these questions about Trooper being shot?
[CROWN]: I’m trying to assist him in recalling the time-frame of when he left the country, when he came back, what employment he was doing at the time.
THE COURT: What does the shooting of Trooper have to do with any of that?
[CROWN]: Well, it’s obviously an event that he remembers. He’s already told us that.
THE COURT: It appears to me to be coming dangerously close to insinuating that he was involved in the shooting of Trooper in light of the number of times you’ve gone back to it.
[CROWN]: He clearly has a recollection of that incident. I expect he is going to have a recollection of some other significant incidents in the community, and then I’m going to follow up with his recollection of this incident.
THE COURT: Why?
[CROWN]: Sorry? Why what?
THE COURT: Why? Why is this incident important? I don’t understand the relevance.
[CROWN]: I’m testing his recall of a particular time-frame and pivotal events that would assist him in recalling that particular time-frame, and then I’m going to move on to do the same with respect to our case.
[15] At this point, defence counsel joined the exchange:
[DEFENCE]: I always endeavour to give opposing counsel the benefit of the doubt if I hear a cross-examination in an area I’m assuming that there may be some means by which it could be tied together, made relevant to this case. I say with the greatest of respect to my friend, this cross-examination has nothing to do with anything in this case. It is character assassination. It is insinuation. That is all it is. It is very regrettable my friend is going down this road and I am respectfully asking Your Honour to put a stop to it. Let’s get on with the issues that are relevant to this case, not the shooting of someone he knows. The very fact that he knows people who get shot is arguably prejudicial. It’s got nothing to do with this case. It’s extremely unfair.
[16] At this juncture, the trial judge ruled that the Crown could not ask the appellant any more questions about Trooper:
THE COURT: All right. I see no reason that the shooting of someone named Trooper is relevant to any issue in this trial. There is clearly a danger that it will be used by the jury to draw some sort of adverse inference from Mr. Ahmed’s association with this person who was shot. If you wish to assist him in recalling a time-frame, I am confident that there are many other events that you can refer to other than the shooting of Trooper, so I am ruling that you cannot return to this area.
[17] Before the jury returned, counsel and the trial judge continued to discuss the parameters of the Crown’s cross-examination of the appellant. The Crown stated that areas he proposed to cover included the appellant’s employment history, his criminal record, and “his recollection of events in the community.” Defence counsel objected, saying “asking about other people and if he knows what other people are doing or other events that have occurred, it is completely irrelevant, completely inappropriate and I urge Your Honour to … stop it in its tracks before any harm is done.”
[18] The trial judge reminded counsel of her ruling just minutes before:
THE COURT: All right. So that it’s clear, I’ve already ruled about the shooting of Trooper. Absent a ruling from me, I would expect that you would not be asking Mr. Ahmed about other people he knows who have been shot.
[19] The Crown’s immediate response was: “Well, then we might as well deal with that now.” He expanded on his reasons for wanting to ask the appellant questions about previous shootings in the community:
[CROWN]: And likewise, when other people are shot, everybody knows about it and it’s also a marker for someone’s memory in terms of comparing and contrasting what they were doing in terms of assisting them in recalling events from several years ago. So if I asked him specifically about certain individuals being shot, he’s going to remember it. Everybody would remember it who knew of the person, and that recollection, in my respectful submission, is something that can be compared and contrasted with certain components of his evidence here in which he claims to recall and not recall. And in my submission, that’s a fair comparison and an area that I must explore in terms of this set of facts.
[20] Defence counsel countered:
[DEFENCE]: Your Honour, if I may? Cross-examine him all – my friend can cross-examine the witness all he wants about his recollection of these events and how he came to become aware of people having been shot and what efforts he made to recollect what he may have been doing earlier on, but whatever probative value it may have asking him about other events in the past where other people have been shot, and I’m not sure it has much probative value at all on that issue, surely, Your Honour, the prejudicial effect of doing that far outweighs…. And to engage in that character assassination, asking about all the people he knows who have been shot is, in my submission, Your Honour, nothing other than a way to insinuate to the jury that Mr. Ahmed is involved in a violent subculture and criminal underworld. That is the only impression that could be left.
It is completely an improper thing to do, in my submission, when asked about the reality of how the jury is going to perceive this. In my submission, that’s exactly why it’s being done. Not to test his recollection at all.
[21] The trial judge then made her ruling:
THE COURT: [S]o I’ll deal with the issue that’s before me now which, as I understand it, is whether or not the Crown can ask Mr. Ahmed about his knowledge of other shootings in the community with a view to testing his recollection of how he heard about them and where he was when he heard about them in order to contrast that to his recollection of how he heard about this shooting, where he was when he heard about the shooting. Within that very limited area, I’m going to permit the question. However, if it is repetitive or goes into detail about his relationship with the person who was shot, I will not permit it and I will stop the questioning before the jury.
So the context, the relevance as I see it, is only to test his recollection of where he was and how he heard about other shootings within the community of people he knew of. In other words, people he was familiar with.
I want to be clear that the nature of his relationship and the familiarity with the people is not a relationship you are entitled to explore in any way. Just that he knew of the person that was shot and how and when he heard of the shooting so as to make the comparison with when and how he heard about this shooting. But the nature of the relationship is not permissible.
[22] Following this ruling, after testing the appellant on his recall of other events, the Crown briefly returned to Trooper.
[23] The Crown then cross-examined the appellant at length about how he had heard about the shooting of Brooks.
[24] The Crown turned to the appellant’s memory of other shootings in the neighbourhood. In quick succession, the Crown questioned the appellant about his knowledge of the shootings of three other people familiar to him.
[25] The first set of questions related to a young man named Raucous:
Q. Someone named Raucous. You know Raucous? Or know of Raucous?
A. Yeah, um, yes, I do. He was my next door neighbour. I lived in 82 Pengarth, he lived in I think next door, so it would be 78 or 80. Yeah.
Q. And did you know his name? His real name?
A. Dale.
Q. Last name?
A. No. I don’t know his last name. I know him, his first name, because I somewhat grew up with him. Like, my mother knows his mother, his mother lived right next door. There’s not even a fence separating us, right? I could hear when his parents are arguing, he could hear when mine are arguing. Yeah.
Q. And he got shot. I take it you remember when that happened.
A. I’m guessing 2010 if you’re bringing it up like that.
Q. Do you remember where you were when you heard that he got shot?
A. No. The reason I remember he got shot is because I know it was a little bit after I have returned back from Dubai in 2010, then a few weeks later, or a month later, somewhere around those lines, he got shot.
Q. You remember hearing about it?
A. Yeah. I remember being in the – it happened in Baget Court (ph) I think. I remember being in the court the next day and some mother telling me, Oh, somebody got shot here yesterday. I said, Okay.
Q. Do you remember clearly that day? How you found out? That person telling you?
A. The next day?
Q. Because that’s one that stood out because you knew who that person was, right? I mean, that’s not one of the –
A. It’s different. It’s not because – I don’t know him like that but he’s my neighbour, so even though we had age difference, I think he is at least four years older than me, right? So he’s still my neighbour. He’s my next door neighbour for ten years. I would remember if my next door neighbour for ten years something happened. Even if me and him weren’t that close. I’m actually more closer to his sister than I was to him because his sister’s around my age group.
Q. Was he killed or just shot?
A. From what I think he was just shot.
Q. Raucous wasn’t a close friend, correct?
A. Raucous was my next door neighbour. I used to see him frequently and maybe if I hadn’t been there the same location that his shooting happened, the next day, I may not have known the next day. I may –
Q. But whenever you found out you’re going to remember, man, I’m going to remember my neighbour got shot.
A. My ex-neighbour, yeah.
Q. But you’re going to remember?
A. I found out the next day because the lady was in the location it happened.
[26] The second set of questions related to a young man named Ibrahim James:
Q. Mr. James, Ibrahim James, you know him, right?
A. Yeah, I do.
Q. Friend of yours?
A. I’m a – his brother’s a close friend of mine. He has a big family.
Q. Cosmo James is his brother?
A. Yeah, Cosmo James. He has a couple of brothers. A bunch of brothers. I know the whole James -
Q. And –
A. Sorry. I know the whole James family.
Q. How long have you known Ibrahim?
A. Well, I knew him since Lawrence Heights. He’s two years younger than me but I started seeing him around more and more since our age group – our age difference came closer, so I’m 22, he’s 20 now, we’re both of the same mental state, so I start seeing him more around, say about 2009.
Q. Do you recall Ibrahim getting shot?
A. Ah, yeah.
Q. How did you hear that Ibrahim had been shot?
A. I was, um, in custody for an unrelated matter than this and I was – I heard through either phone call, I called somebody and they said that Ibrahim got shot. I seen it on the news. I seen him on the stretcher. And it looked just like him and I heard after I was talking on the phone, and said, Oh, Ibrahim got shot.
[27] The third set of questions related to a young man named Jessie Israzella:
Q. Jessie Israzella (ph)?
A. Yes. He I believe got shot the same day as Ibrahim. It was Jessie Israzella, Ibrahim and another fellow.
Q. How long have you known Jessie?
A. Same amount of time from school days. From middle school.
Q. And I take it you heard about his shooting at the same time?
A. The same exact time.
Q. And that’s something pretty memorable to you, isn’t it.
A. Yeah. Well, those guys are, me and him are cool, you know? We’re the same age group, we went to the same schools, we were in the same classes in high school, you know?
[28] Following these questions about how the appellant heard about four previous shootings in the neighbourhood, the Crown returned to how the appellant heard about the Brooks’ shooting:
Q. Where were you when you received the text message or BBM that you say you received advising you that Debo had been shot?
A. I honestly cannot remember exactly. Ah, I believe I was on the road somewhere. I know I was in a vehicle. I just can’t remember exactly, like, I can’t remember. No.
Q. The only thing you can tell us about that - receiving that information is that you were somewhere in a car?
A. Yes.
Q. Anybody in the car with you?
A. No.
Q. Where were you?
A. I can’t remember exactly. It was just a given day to me. Like, yeah. It was just a random, given day to me. That’s like me asking you where were you March 1, 2003 at 1:00 p.m.? Like, what do you want me to tell you?
[29] During a break with the jury out of the courtroom, defence counsel objected again to the line of questioning about how the appellant heard about other shootings in the neighbourhood:
Your Honour, most of us managed to go through our whole lives without getting shot. People that get shot are involved in criminal activity and illicit activities and if you keep allowing this to happen, it’s nothing other than a character assassination. My concern is that it’s already happened…. This is not right. This is trial by innuendo.
[30] The trial judge asked the Crown if he intended to ask more questions about other shootings. The Crown said: “There might be one or two more.” He then reduced it to one “because the one that remains is one that I think in terms of the recollection is probably the most distinct.”
[31] The trial judge ruled against the Crown and closed off this line of questioning:
I have permitted this line of cross-examination in order for you to be permitted to test the recollection of Mr. Ahmed as to where he was when he heard of shootings of people he knew or knew of to draw the comparison to where he was and his lack of recollection with respect to this shooting. That has been done at length now and I did permit you to do it. I am concerned that to go further would amount to trial by innuendo as a result of this knowledge of various people who were shot. In my view, there’s more than enough in terms of the testing of his recollection of knowledge of – recollection of shootings at this point without any further reference to shootings.
[32] In his closing address to the jury, defence counsel addressed the ‘other shootings’ issue twice:
I was a little bit concerned during the course of [Crown counsel’s] cross-examination that there was too much of an emphasis on unrelated incidents in Mr. Ahmed’s past, particularly his knowledge of individuals who may have been involved in shootings, whether he knew of them or knew them at all, and I was concerned that Your Honour – that you may get caught up in this whole notion that I was trying to urge you to avoid when I delivered my opening remarks. This is not trial by innuendo, insinuation or suspicion, and it’s certainly not trial on the basis of what kind of life-style Mr. Ahmed leads or who his friends may be. I’m sure a lot of people growing up in the Lawrence Heights area are exposed to people that people growing up in other neighbourhoods are not exposed to. It doesn’t mean anything in your deliberations here.
As I already mention I had don’t mean to be unduly critical of [Crown counsel]. There were areas of his cross-examination, perfectly legitimate areas to explore with Mr. Ahmed, but in my submission dealt too much with people he knows in the community and people who may have been shot and it was – came across as an effort to try and leave innuendo, suggestions, insinuation, that this is a bad guy and you shouldn’t believe anything he says. The evidence doesn’t bear that out.
[33] In his closing address, the Crown challenged the appellant’s testimony that he could not remember where he was the day Brooks was shot because it was just like any other day. However, the Crown did not refer to his cross-examination of the appellant about how he heard about the other four neighbourhood shootings. He did not use this line of questioning to challenge the appellant’s credibility about when he heard about the shooting of Brooks in his closing.
[34] The trial judge said nothing specific in her jury charge about the questions and answers relating to the other four neighbourhood shootings. She did provide the standard caution:
You should not speculate about whether Mr. Ahmed is or is not the sort of person who would commit this type of offence. You have no evidence on this point either way. There is good reason for this. This type of consideration should play no part in your decision-making process.
(3) The verdict
[35] The jury found the appellant guilty of attempted murder and possession of a loaded restricted firearm. The trial judge entered the convictions and imposed a global sentence of 13 years imprisonment.
[36] The appellant appeals his convictions.
C. Issues
[37] The appellant raises four issues on the appeal:
(1) Did the trial judge err by permitting the Crown to cross-examine the appellant about his recollections of four other shootings in the Lawrence Heights neighbourhood?
(2) Did the trial judge err in permitting Ryan Malcolm to testify about the threat he received not to testify?
(3) Did the trial judge err in her response to a jury question requesting Ryan Malcolm’s video statement to police?
(4) Did the trial judge err in her response to a jury question about the meaning of the phrase “lack of evidence”?
D. Analysis
(1) The cross-examination of the appellant
[38] Obviously, if the accused in a criminal trial takes the stand and testifies in his or her own defence, the cross-examination by the Crown can potentially be a pivotal moment.
[39] In approaching and conducting the cross-examination of an accused, the Crown must be particularly vigilant about balancing the dual roles of the Crown – strong advocate and quasi-judicial role as minister of justice. In a well-known and often quoted passage in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16 at 23-24, Rand J. described this dual role:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[40] Broadly speaking, there are two categories of potentially improper cross-examination of an accused.
[41] The first category involves the way the Crown treats the accused during a cross-examination. The Crown cannot harass the accused, engage in sarcasm, seek to demean the accused, or punish the accused for invoking his or her constitutional rights: see R. v. R. (A.J.) (1994), 1994 CanLII 3447 (ON CA), 20 O.R. (3d) 405 (C.A.), at 412-13. This category of prosecutorial misconduct is not in play in this appeal. The appellant does not, and could not, suggest that the Crown mistreated the appellant during the cross-examination.
[42] The second category of potentially improper cross-examination of an accused can be approached as an admissibility of evidence issue. It involves questions that have the potential to elicit answers that are improperly prejudicial to the accused. This is the category in play in this appeal. The Crown sought to introduce evidence of the appellant’s recollection of when he heard about previous shootings of people known to him.
[43] In this second category, there are important boundaries to the right to cross-examine. The most relevant boundaries were succinctly summarized by Cory J. in R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 at 665:
Despite its importance the right to cross-examine has never been unlimited. It must conform to the basic principle that all evidence must be relevant in order to be admissible. In addition the probative value of evidence must be weighed against its prejudicial effect.
See also R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 44.
[44] I turn to the relevance/probative value/prejudice analysis.
[45] The threshold for relevance is not a high one. For the evidence to be relevant, it must “increase or diminish the probability of the existence of a fact in issue… there is no minimum probative value for evidence to be relevant”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 38.
[46] When the Crown first started to cross-examine the appellant about his knowledge of other shootings (through Trooper), the trial judge’s immediate reaction was “what relevance are these questions about Trooper being shot?” After hearing brief submissions from counsel, she ruled against the Crown, saying “I see no reason that the shooting of someone named Trooper is relevant to any issue in this trial.”
[47] After hearing further submissions, the trial judge changed her mind and permitted this line of questions, albeit with constraints. On the issue of relevance, she said:
So the context, the relevance as I see it, is only to test his recollection of where he was and how he heard about other shootings within the community of people he knew of. In other words, people he was familiar with.
[48] Although I incline to the view that the trial judge’s initial instinct that the proposed line of questions was irrelevant was correct, in light of the low bar set in Arp I am not prepared to say that the trial judge erred in reaching a different conclusion in her second ruling. There was a remote (I put it no higher) potential connection between the appellant’s memory about how he heard about the shooting of Brooks (an acquaintance in the neighbourhood) and his memory about how he heard about the shooting of other people he knew in the neighbourhood.
[49] Turning to probative value, the Crown’s position was that it sought to elicit the evidence about the appellant’s memory of other neighbourhood shootings in order to impugn his credibility with respect to his recall of events relating to the Brooks shooting.
[50] It appears that the Crown’s argument on the probative value of the evidence was based on two assumptions: (1) events of similar significance will create memories of similar detail; and (2) if similarly significant events are not recalled with similar levels of detail, the witness’ testimony is not credible.
[51] I have difficulty with these assumptions. The process by which people remember events is largely unknown. It varies from person to person. Indeed, it probably varies within a single person’s experience. I do not think it can be said that, as a matter of course, just because an event is significant, a person will remember that significant event in the same way or detail as other similar significant events.
[52] In addition, it is also difficult to determine what makes an event significant in a person’s mind, thereby theoretically causing him to remember the event more clearly. Thus, although a person might remember different shootings, it is not necessarily true that each would hold equal significance in his mind.
[53] In the end, against the backdrop of evidence that Brooks was an acquaintance of the appellant and the appellant’s testimony about how and when he heard about the shooting of Brooks, there was potentially some probative value in comparison with the appellant’s memory of other shootings in the neighbourhood. However, in light of the factors discussed above, I would describe the potential probative value as very low.
[54] I turn to the question of prejudice. There are two types of potential prejudice, reasoning prejudice and moral prejudice: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.
[55] Prejudice can arise where evidence creates a distracting side issue. This can create a risk of reasoning prejudice. In R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111 at 128, Sopinka J. noted that where “[t]he jury members’ attention is deflected form the main purpose of their deliberations, which is the transaction charged”, there is a danger that they will render a verdict that is based on prejudice. In D. (L.E.), similar fact evidence was in issue; however, the concern applies in the context of bad character evidence as well. When a jury’s attention is on the bad character evidence, it is deflected away from its main purpose, “the transaction charged”.
[56] In the case of a cross-examination of an accused, as here, the risk of prejudice is heightened. It is for this reason that the Crown is not permitted to attack the character of the accused. There is a danger that if the jury hears about the bad character of the accused, they will not only use that evidence to assess the accused’s credibility, but will go further and find that the accused is a bad person who is more likely to have done the bad thing he is accused of doing. Allowing the jury to draw that impermissible inference would constitute moral prejudice.
[57] Both types of prejudice are potentially engaged here.
[58] In R. v. Ejiofor (2002), 2002 CanLII 19541 (ON CA), 5 C.R. (6th) 197 (Ont. C.A.), this court considered a situation similar to the one in this appeal. The accused was convicted of importing cocaine and possession for the purpose of trafficking. During the trial, the Crown cross-examined the accused about two of his friends who were drug importers and dealers. The appeal was allowed. Doherty J.A. said, at para. 11:
There was a real risk of significant prejudice to the appellant flowing from the improper questions put by Crown counsel. A firm instruction from the trial judge was required. He should have told the jury that it should never have heard the evidence concerning the convictions of Mr. Okeke and Mr. Azukakwu, and he should have specifically told them that they must guard against drawing any adverse inference against the appellant because of his association with these two persons.
[59] The evidence in this appeal may not be as directly prejudicial as in Ejiofor where the accused’s associates were criminals. Here, the appellant’s friends and acquaintances were shooting victims in the appellant’s neighbourhood. However, in my view there is a common sense reality here, a reality well-stated in defence counsel’s argument against permitting the impugned line of cross-examination:
And to engage in that character assassination, asking about the people he knows who have been shot is… nothing other than a way to insinuate to the jury that Mr. Ahmed is involved in a violent subculture and criminal underworld. That is the only impression that could be left.
[60] In my view, the prejudice caused to the appellant by the cross-examination related to his familiarity with neighbourhood shootings was very high. I say this for four reasons.
[61] First, I agree with defence counsel, with the trial judge’s initial ruling, and with her final ruling. There was a real risk that the Crown’s proposed line of questioning would cause the trial to unravel into one of innuendo and insinuation.
[62] Second, Crown counsel overcooked his cross-examination in this domain. The appellant testified. His examination-in-chief lasted 24 minutes (17 pages of transcript). It was very simple. He denied being at the Juice Bar the evening Brooks was shot.
[63] The cross-examination of the appellant was conducted over two days and lasted more than two and a half hours (103 pages of transcript). A substantial amount of this cross-examination dealt with the four neighbourhood shootings and the appellant’s knowledge of them. These four shootings were a pervasive black cloud that stalled over the trial for a long period of time.
[64] Third, compliance with the trial judge’s admonition in her second ruling that Crown counsel could not explore the appellant’s relationship with the shooting victims proved impossible. In order for the appellant to answer questions about his knowledge of the shootings, it was only natural that he would explain, sometimes in detail, his relationship to the four shooting victims. Indeed, Crown counsel asked about the appellant’s relationship to the shooting victims more than once. It was not long into the cross-examination before the jury learned that the appellant was, in order, an acquaintance, a next door neighbour, a long-time friend, and another long-time friend of the four victims.
[65] Fourth, the prejudicial effect of the Crown’s questions increased with each additional neighbourhood shooting raised. The appellant was asked about where he was and how he learned about the shootings of four different people with whom he was acquainted. The subject matter and duration of these questions increased the risk that the jury’s attention would be deflected from the principal issue at hand – whether the accused’s testimony was credible in the face of the Brooks/Malcolm/Lindsay testimony. The appellant’s close (three people) or occasional (one person) association with people who had been shot in his neighbourhood invited the impermissible inference that the appellant was associated with people engaged in crime. And that had the potential to lead to the impermissible inference that the appellant was also engaged in crime and was, therefore, more likely to commit the crime with which he had been charged.
[66] I make a final point. The cross-examination of the appellant about his knowledge of four previous neighbourhood shootings was unnecessary, in three respects.
[67] First, as the trial judge stated in her initial ruling prohibiting this line of questioning:
If you wish to assist him in recalling a time-frame, I am confident that there are many other events that you can refer to other than the shooting of Trooper.
[68] In fact, Crown counsel cross-examined the appellant, albeit briefly, about his recollection of his first job after finishing high school. He even asked the appellant, “is that a distinct event in your memory? You recall it clearly?” Crown counsel also asked the appellant questions about his memory of events at a bar the night before the shooting when a police raid shut the place down. In short, there were many other significant events, besides four neighbourhood shootings, available to test the appellant’s memory.
[69] Second, in his closing address the Crown did not refer to his cross-examination of the appellant about how he heard about the other four neighbourhood shootings.
[70] Third, and more broadly, the Crown case against the appellant was very strong. The shooting victim survived and identified the appellant as the shooter. The victim’s brother, an eyewitness, identified the appellant as the shooter. The victim’s girlfriend testified that the appellant apologized to her for shooting the victim. In short, the Crown had put in a good, and fair, case. Against this backdrop, a lengthy and unfair cross-examination of the appellant was not only wrong; it was unnecessary.
[71] For these reasons, I conclude that the prejudice occasioned by the fact and manner of the Crown’s cross-examination of the appellant outweighed its probative value. I would allow the appeal on this ground.
(2) The other grounds of appeal
[72] In light of the result reached on the first ground of appeal, it is not, strictly speaking, necessary to address the other three grounds of appeal and I do not propose to do so in any detail. However, for the sake of completeness, I record that I do not agree with the appellant’s submissions on those three grounds of appeal.
[73] On the issue of Ryan Malcolm’s testimony about receiving a threat about being a witness at the trial, the trial charge instructed the jury:
I am now going to move to another area. There was some evidence that you heard that can only be used for a limited purpose. The evidence that Ryan Malcolm received a message from his friend and that the friend said came from Bubbs, and that he perceived as a threat, can only be used to assess the state of mind of Mr. Malcolm and to test the credibility of Mr. Malcolm’s testimony. This evidence cannot be used in any way against Mr. Ahmed.
I agree with this instruction.
[74] I make one observation on the jury question issue. The jury asked this question: “Please provide the Ryan Malcolm police statement video which we watched in court.” The trial judge declined: “I cannot provide to you the video of the police statement because it is not an exhibit in the trial.” She did offer to provide the jury a readback of Malcolm’s evidence. The jury did not take up this offer. In light of this scenario, if at the re-trial Malcolm is again a witness and is cross-examined about his police video statement, counsel should consider whether to request that it be entered into evidence and marked as an exhibit.
(3) Proviso
[75] The Crown contends in its factum that the proviso in s. 686(1)(b)(iii) of the Criminal Code should apply: “There is no reasonable possibility that the verdict would have been different if the alleged errors, or any combination of them, have been made out. There has been no substantial wrong or miscarriage of justice.”
[76] I disagree. In R. (A.J.), Doherty J.A. said, at 417:
The improper and prejudicial cross-examination by Crown counsel, however, overtakes the effect of the non-direction. The cross-examination destroyed the necessary appearance of fairness in the trial and resulted in a miscarriage of justice. The strength of the Crown’s case becomes irrelevant in determining the appropriate disposition and s. 686(1)(b)(iii) has no application. The miscarriage of justice lies in the conduct of the proceedings and not in the verdict arrived at by the jury. [Citations omitted.]
[77] Similar reasoning and a similar result are required in this appeal. An accused has the right to a fair trial. The appellant testified. He denied the offence and that he was at the Juice Bar that evening. When a cross-examination of an accused creates unfair prejudice, as in this case, the accused is deprived of that right. An error that deprives the accused of the right to a fair trial constitutes a miscarriage of justice. Having found that the cross-examination created unfair prejudice, it would be inconsistent to find that there was no miscarriage of justice: Fanjoy v. The Queen, 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233 at 240; R. v. C.(W.) (1990), 1990 CanLII 11032 (ON CA), 54 C.C.C. (3d) 37 at 39 (Ont. C.A.).
[78] Applying the proviso in this case would undermine the administration of justice by suggesting that a conviction should be upheld notwithstanding an error that significantly impacted the fairness of the trial. The Crown’s submission that the verdict would have been the same because of the strength of the case against the appellant ignores the possibility that the accused’s evidence, without the unfair cross-examination, could have raised a reasonable doubt. It therefore misses the point. The strength of the Crown’s case is irrelevant when a prejudicial cross-examination of the accused undermines the fairness of the trial.
E. Disposition
[79] I would allow the appeal and order a new trial.
Released: November 6, 2015 (“K.F.”)
“J.C. MacPherson J.A.”
“I agree K. Feldman J.A.”
“I agree B.W. Miller J.A.”