COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Graham, 2020 ONCA 692

DATE: 20201030

DOCKET: C66731

Pepall, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jahmal Graham

Appellant

Jeffery Couse, for the appellant

Alexander Hrybinsky, for the respondent

Heard: October 23, 2020 by video conference

On appeal from the convictions entered on October 5, 2018 by Justice Michael Code of the Superior Court of Justice, sitting with a jury, and the sentence imposed on November 9, 2018, with reasons reported at 2018 ONSC 6817.

REASONS FOR DECISION

[1] The appellant appealed his convictions for various offences after trial by judge and jury. He also sought to appeal his sentence of ten years’ imprisonment (after one year of credit for pre-trial custody). After hearing oral argument, we dismissed the appeal with reasons to follow. These are our reasons.

(1) The Conviction Appeal

[2] At around 10:00 p.m. on January 23, 2016, patrol officers in Scarborough stopped a vehicle they observed driving aggressively. After observing open alcohol on the floor behind the driver’s seat and marijuana on the ground nearby, the officers arrested the occupants, including the appellant, and searched the vehicle. In the trunk they found a satchel containing nearly three oz. of cocaine, $14,880 in cash, a revolver, two digital scales, and around 40 bullets.

[3] The police seized surveillance video from the night in question from the Markham Bar and Grill that showed the appellant walking in with a satchel over his shoulder at 9:00 p.m., walking around and socializing while wearing the satchel on his shoulder, and then leaving the premises with the driver of the vehicle 21 minutes later, which was about 40 minutes before the traffic stop.

[4] The appellant was charged with possession of a prohibited firearm with readily accessible ammunition, possession of cocaine for the purpose of trafficking, possession of property obtained by crime over $5,000, two counts of breach of a weapons prohibition, and failure to comply with probation. (The latter three charges were tried by the trial judge alone after the jury trial.)

[5] Following the dismissal of a pre-trial Charter motion, the trial itself was brief and focused solely on whether the appellant knew what was in the satchel. The appellant testified that the satchel was not his and he denied knowing what was inside. He said his brother, Julian Graham, had given it to him to hold while Julian shot a rap music video scene at the Markham Bar and Grill. The appellant then put the satchel in the trunk of his friend’s car. Later, the friend agreed to drive the appellant to pick up the appellant’s girlfriend at her house. Shortly after leaving the bar, the police pulled over the vehicle.

[6] The appellant was cross-examined on his version of the events. The issues in the conviction appeal relate to the following question that Crown counsel put to the appellant near the end of his cross-examination:

And, you both understood that if [Julian] was to come and testify that, that gun, the ammo, the drugs, the money, were all his; you both understood that what he said in this courtroom cannot be used as a basis to charge him?

[7] The trial judge immediately interjected, and the appellant’s trial counsel objected. The trial judge instructed the appellant not to answer the question and sent the jury out of the courtroom. After submissions on the objection, Crown counsel withdrew the question. The trial judge indicated that the best course in terms of remedying the problem was to leave the subject, get the jury back in, and to not attach any further attention to the question, leaving the appellant’s counsel to make any further arguments about remedy later in the trial. The trial continued.

[8] Julian Graham testified next. His evidence was consistent with the appellant’s: he stated that the satchel and all of its contents belonged to him, and he confirmed the appellant’s account of how he came to possess the satchel.

[9] After the close of evidence, the appellant moved for a stay of proceedings. His trial counsel relied on the Supreme Court’s decision in R. v. Jabarianha, 2001 SCC 75, [2001] 3 S.C.R. 430, as authority that any probative value of a witness’s knowledge of s. 13 of the Charter[^1] will generally be overborne by its prejudicial effect and that Crown counsel should rarely be permitted to cross-examine on this issue: at para. 18. The appellant’s trial counsel asserted that the Crown had improperly embarked on a line of questioning that might be used by the jury to wrongly assess the credibility of the appellant and his brother. He argued that a mistrial was not appropriate and that a limiting instruction would only highlight the issue.

[10] The trial judge dismissed the stay motion. He concluded that “this very, very brief incident” caused little or no prejudice because of the immediate reaction of the court and counsel to the question so that the appellant could not answer the question, the unlikelihood that the jury would have understood the basis for the objection, the fact that the jury was removed from the courtroom only briefly, and the question having not been obviously improper (relying on Jabarianha, at para. 27, where the Supreme Court recognized that there is a narrow range of cases where such questioning might be permissible).

[11] Shortly after the jury began their deliberations, they asked the following question, among others:

The Crown stated that Julian could not be charged for admitting the drugs, gun, and money were his. Does Julian get immunity or could his testimony be used against him?

[12] The appellant’s trial counsel renewed the stay motion, on the basis that the jury’s question demonstrated that they had indeed heard and understood the impugned question, and that it had tainted their assessment of the appellant’s evidence and that of his brother.

[13] The trial judge again dismissed the motion and he provided the following response to the jury’s question, which took the form of a limiting instruction:

So again a couple of things in answer to that question. First of all, I disallowed that question and remember you were sent out. And I - I ruled in your absence that it was a - it was a question that should never have been asked. As - as a result of which when you came back into court the - the Crown just carried on, there was no further mention of it. So, that’s the first point, I disallowed that question. I said it was an improper question and it should never have been asked and it was never answered. You remember, I stopped Mr. Graham from answering it as soon as I saw where the Crown was going and as soon as Mr. Dimitrijevic objected. So, once again, this - this is an area that you should not be venturing into. I stopped the question for reasons of law and I am not about to instruct you on some of the very, very complex difficult law in this area. It is not an easy area, it’s a very, very complex area of law. So, once again, there is simply nothing before you because the question wasn’t answered, I disallowed it, I’m not going to try to teach you what the law is in this area now because in any event there is no evidence before you about it from the - and Julian was never questioned about it, as a result of my ruling. So once again, this is an area on which you have got no evidence and you mustn’t try to answer questions that aren’t before you and go down paths that are unnecessary to - to your verdict in - in this case. But what I can say to you, and again this is as a matter of law, I am instructing you that this whole issue has absolutely no probative value in relation to the credibility and reliability of anyone’s witnesses, on any witness in this trial. It simply has no probative value in relation to the credibility and reliability of any witness in the trial. And that’s why I disallowed it. And it would take me a long time to teach you the law in this area but I made a ruling that this is not an area that we should be venturing into so please, once again, do not concern yourself with matters that are not before you, that you don’t have a proper factual or a legal basis to consider. It simply has no probative value.

[14] The trial judge explained, in his brief oral reasons for dismissing the second stay motion, that although he erred in his initial ruling in assuming that the jury had not taken notice of the impugned question, the remedy of a forceful instruction to the jury to disregard the whole area, with reasons why they should disregard it, was sufficient to remove any resulting threat of prejudice.

[15] The appellant submits that the trial judge erred in dismissing his second motion for a stay of proceedings. He renews his argument that the Crown’s question irreparably tainted the jury’s assessment of his credibility and that of his brother. In particular, he asserts that there was a risk that the jury would have been left with the impression that they were not supposed to hear, based on the Crown’s question, that Julian Graham was immune and was free to claim ownership of the satchel without consequences. He asserts that the prejudice identified at paras. 18 and 22 of Jabarianha would have arisen: that the jury would have shifted their focus from the appellant’s innocence or guilt to the witness’s understanding of the consequences of testifying under the limited protection of the Charter and they might have given improper emphasis to the application of the limited protection of s. 13.

[16] The appellant also asserts that the trial judge’s limiting instruction was inadequate to overcome the alleged prejudice: instead of instructing the jury that the question was irrelevant, the trial judge should have given them the instruction that was considered appropriate in this court’s decision in R. v. Swick (1997), 1997 CanLII 1294 (ON CA), 150 D.L.R. (4th) 566 (Ont. C.A.), at para. 18.

[17] We disagree. We see no reversible error in the trial judge’s refusal of a stay of proceedings, in his conclusion that a strong instruction was sufficient to alleviate the alleged prejudice, and in the content of the instruction that was given.

[18] A trial judge’s refusal to grant a stay of proceedings is discretionary and entitled to deference unless the trial judge misdirects himself or herself or if the decision is so clearly wrong as to amount to an injustice: see R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, at para. 48. A stay of proceedings is reserved for the “clearest of cases” when other remedies are insufficient to address the prejudice to the accused’s right to a fair trial or the integrity of the justice system arising from the impugned state conduct: see R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-32. A trial judge is well-positioned to assess the impact of impugned conduct on a jury and the effectiveness of a remedial instruction: see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 36.

[19] In our view, the trial judge was entitled to conclude that a strong limiting instruction would cure any potential prejudice to the appellant in this case. The trial judge ultimately agreed with the appellant’s submission that the Crown’s questioning of the appellant was improper and did not fit within the narrow exception for permissible questions about a witness’s knowledge of s. 13 of the Charter set out in Jabarianha. As the appellant was prevented from answering the question, there was no inadmissible evidence before the jury. What they required was what they received: an instruction in clear terms that the question ought not to have been asked, that the “whole issue” had no probative value in relation to the credibility and reliability of any witness in the trial, and that this was not an area to be ventured into.

[20] The appellant asserts that the trial judge’s limiting instruction was insufficient because it did not contain the three components referred to by this court in Swick. In that case Rosenberg J.A., after concluding that it was prejudicial for the Crown to have cross-examined a defence witness and the accused on their knowledge of s. 13 of the Charter, turned to consider an appropriate instruction on the use of the evidence, assuming it was admissible. He stated that the jury should have been directed that s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, and s. 13 of the Charter do not provide immunity from prosecution and if other evidence were available, the witness could indeed be prosecuted; that counsel’s suggestions to the witness and the accused concerning the Charter and their knowledge of its effect had been denied and there was no evidence that this motivated the witness’s testimony; and that even if there was some evidence that the witness was aware of the constitutional protection provided by s. 13 of the Charter, this on its own was not proof of a conspiracy between the accused and the witness to fabricate evidence.

[21] The instruction referred to by Rosenberg J.A. in Swick was tailored to address the particular circumstances of that case, where the trial judge had permitted and referred to the extensive cross-examination of a defence witness on his understanding of the protection provided by s. 13 of the Charter. Here, by contrast, there was no such evidence because the question was withdrawn and not answered. It would have been inappropriate for the trial judge to provide anything other than the strong instruction that he gave to the jury to ignore the issue because it was irrelevant. If, as the appellant argues, the jury could have been left with the impression that Julian Graham was immune and thus was free to claim ownership of the satchel without consequences, the trial judge’s strong instruction made it clear that anything the jury might have taken from the question having been asked was entirely irrelevant to their deliberations.

[22] In our view, the trial judge’s response to the jury’s question effectively addressed any prejudice that might have arisen when the impugned question was originally put to the appellant. The strong limiting instruction that was provided by the trial judge was informed by and consistent with the approach advocated by the appellant’s trial counsel, who urged the trial judge to emphasize to the jury that they must ignore the fact that the question had been asked and that the entire subject was irrelevant to the credibility of either the appellant or his brother.

[23] For these reasons the conviction appeal was dismissed.

(2) The Sentence Appeal

[24] On the appellant’s sentence appeal he contends that the trial judge erred in failing to find that he had proven a mitigating circumstance, namely that he had been the victim of historical sexual abuse, and in failing to take into account this mitigating factor.

[25] The appellant’s mother testified that the appellant had told her that he had been sexually assaulted as a child, and she provided details of what the appellant said had happened. The appellant did not testify at his sentencing hearing, notwithstanding that Crown counsel had objected to the hearsay nature of his mother’s testimony. He did however start to speak about the sexual assault, when he provided his statement pursuant to s. 726 of the Criminal Code, R.S.C., 1985, c. C-46, saying that he had told his mother about the assault in confidence, that he “would’ve brought it to [his] grave”, and that he had been affected emotionally and psychologically by the abuse. The trial judge interrupted and told the appellant that he was not permitted to use his right to make a statement prior to sentencing to start testifying about a potential mitigating circumstance.

[26] There is no error in principle here. The trial judge considered the evidence and found that the appellant had failed to prove the mitigating factor of historical sexual abuse on a balance of probabilities. Although the trial judge acknowledged that hearsay evidence is admissible in sentencing proceedings, he gave the appellant’s mother’s evidence little weight because it was based entirely on isolated reports from the appellant, who was an unreliable witness with a “substantial criminal record”. The trial judge noted that the appellant was clearly disbelieved by the jury and the trial judge would have disbelieved him too had he been the trier of fact. He also noted that the appellant was present in court and chose not to testify about these matters, even after the Crown disputed and objected to the hearsay versions of these events. Although the appellant referred to the abuse in his statement pursuant to s. 726 of the Criminal Code, the trial judge was entitled to give this statement, which was unsworn and not subject to cross-examination, little or no weight in determining whether the mitigating circumstance of historical sexual abuse had been made out.

[27] For these reasons, although we granted leave to appeal sentence, we dismissed the sentence appeal.

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”

“David Brown J.A.”

[^1]: Section 13 of the Charter provides: A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.