Court of Appeal for Ontario

Date: 20220922 Docket: C66379

Judges: Gillese, Huscroft and Sossin JJ.A.

Between: His Majesty the King, Respondent and Benard Asante, Appellant

Counsel: Lance Beechener, for the appellant Craig Harper, for the respondent

Heard: September 15, 2022

On appeal from the convictions entered on June 30, 2017 by Justice Brian P. O’Marra of the Superior Court of Justice, sitting with a jury.

Gillese J.A.:

[1] Benard Asante was convicted of first degree murder of Olatoyebi Waheed and the attempted murder of Taiwo Agiri. He was sentenced to life imprisonment without parole eligibility for 25 years and 15 years’ imprisonment concurrent. He appeals the convictions.

Background

[2] At 6:44 p.m. on August 18, 2014, Waheed and Agiri were stopped at a red light at the intersection of Jane Street and Eglinton Avenue West in Toronto. A gunman, identified at trial as Franklin Afrifa, exited a vehicle driven by the appellant, fired several shots at Waheed and Agiri, and re-entered the vehicle as it was driving away from the scene. Waheed was killed and Agiri was rendered quadriplegic. The ammunition recovered from the scene was .40 calibre. Both the appellant and Afrifa were later charged with first degree murder and attempted murder.

[3] Shortly before the shooting, at 6:05 p.m., the victims had been pulled over on Jane Street (south of Falstaff Avenue) by a marked police cruiser after an officer noticed that Waheed was not wearing a seatbelt. While pulled over, the two men were asked to get out of the vehicle after the officers smelled cannabis. Both men, as well as the vehicle, were searched. Agiri had been driving with a suspended license so he was required to switch places with Waheed before they drove away at 6:24 p.m., continuing south on Jane Street.

[4] At 6:17 p.m., the appellant was seen on camera driving northbound on Jane Street past the location where the victims had been pulled over by the police. At 6:18 p.m., the appellant parked his vehicle at a community centre at 50 Falstaff Avenue. He entered the building for less than a minute and then drove away west on Falstaff Avenue. At 6:23 p.m., he stopped at a gas station at the corner of Jane Street and Falstaff Avenue. Afrifa was now a passenger. They continued south on Jane Street. Following the shooting, the appellant and Afrifa drove to a parking garage. The appellant fled the jurisdiction and was later arrested in Calgary.

[5] The Crown’s theory at trial was that the appellant set in motion a plan to murder Waheed and Agiri when he spotted the two victims pulled over on Jane Street. He raced to a nearby community centre, returned to Jane Street six minutes later with Afrifa, trailed the victims on Jane Street, and then watched as Afrifa got out of the vehicle at a red light and shot the victims. The Crown relied on security camera videos showing the appellant looking to his left in the direction of Waheed and Agiri when they were stopped roadside by police, what the Crown claimed was the appellant looking to get a better view of the victims at the gas station, and the appellant’s vehicle trailing the victims’ vehicle on Jane Street.

[6] At trial, the appellant did not dispute that: he was the driver of the vehicle; he drove past the victims on Jane Street while they were stopped by police; he drove with Afrifa behind the victims; and he saw Afrifa shoot the two men. He asserted, however, that he did not intend to assist Afrifa, nor did he know that Afrifa had a gun and was going to shoot the victims.

[7] The appellant and Afrifa pursued cutthroat defences, with the appellant calling evidence of Afrifa’s prior association with firearms and the deceased victim, and Afrifa leading evidence of the appellant’s propensity for violence and access to firearms. In the middle of the Crown’s case, the trial judge granted a mistrial for Afrifa on the basis of late disclosure. With the appellant’s consent, the trial judge ordered severance and the trial continued for the appellant alone.

[8] Two evidentiary rulings made in the course of the trial are relevant to this appeal. The first relates to the admission of a photograph of a handgun recovered from the appellant’s cell phone. The second relates to the ruling on the appellant’s Corbett application in respect of two weapons-related convictions.

(1) Photograph of a handgun ruled admissible

[9] The Crown brought a pre-trial application to admit, among other things, a photo of a handgun found on the appellant’s cell phone taken approximately four months before the shootings. The photo showed a handgun lying on the bedspread of a bed. The same style bedspread was later seized by police at the apartment of the mother of one of the appellant’s children.

[10] The Crown argued that the photo was relevant to the issue of the appellant’s intention to aid in the planned and deliberate shootings because it was evidence of access to the means to commit the murder. Crown counsel did not assert that the handgun in the photo was the murder weapon, though they argued that it was a possible inference.

[11] Firearms expert Bruce Finn testified that the handgun in the photo resembled one of two potential models – a Smith & Wesson Sigma series handgun that fires .40 calibre ammunition and one that fires 9mm ammunition. He said he could not determine from the photo whether the gun was real.

[12] The defence opposed admission of the photo, arguing that its probative value was outweighed by its prejudicial effect.

[13] The trial judge ruled that the photo was admissible. After reviewing the expert opinion evidence and the parties’ positions, he stated that the photo was “circumstantial evidence that connects [the appellant] to the type of handgun used in these shootings. It is circumstantial evidence that he had access to and possession of such a handgun sometime before the shootings”. The trial judge said he would instruct the jury that it could not use the photo as evidence of bad character or propensity.

[14] Because the appellant and Afrifa were still being tried together at that stage of the trial, the trial judge considered the potential impact of the cutthroat defences they were pursuing. This consideration reinforced his view that the photo was admissible, since Afrifa’s counsel would have been entitled to elicit the evidence as an aspect of Afrifa’s defence.

(2) The Corbett ruling

[15] Before testifying, the appellant brought a Corbett application to exclude certain convictions in his youth criminal record. The contentious entries on the application were two weapons-related entries dated March 19, 2008: one count of possession of a firearm, knowing its possession was unauthorized, and one count of possession of a firearm or ammunition, contrary to a prohibition order. The remainder of the weapons-related convictions and a sexual assault conviction were excluded.

[16] The appellant argued there should be no reference to the contested convictions because they occurred when he was a youth, had little or no bearing on credibility, and would be highly prejudicial. In his view, excluding these convictions would not result in a misleading portrayal of his criminal record.

[17] The trial judge ruled that the appellant could be referred to the two convictions, with their dates and dispositions, but the Crown was not entitled to explore the facts relating to those findings of guilt unless the defence chose to do so first. He gave a mid-trial instruction to the jury as to the limited use of the appellant’s criminal record and again in his final jury instructions.

[18] The appellant was referred to the contested entries during his trial testimony.

Issues on Appeal

[19] The appellant contends that the trial judge erred in:

1. refusing, on the Corbett application, to excise the appellant’s two contested firearms convictions;
2. admitting the photograph of a handgun; and
3. his instructions on party liability.

Analysis

Issue #1: No error in the Corbett ruling

[20] The appellant submits that the trial judge erred in refusing to excise his two firearms convictions from March 19, 2008, because he failed to consider the prejudicial effect of permitting the Crown to refer to those convictions and there was a high risk of jury misuse of that evidence. I do not accept this submission.

[21] Trial judges are owed deference on their determinations of Corbett applications: R. v. R.D., 2019 ONCA 951. Appellate intervention is only warranted when the trial judge’s Corbett decision demonstrates an error in principle, misapprehension of the material facts, or was an unreasonable exercise of discretion: R.D., at para. 13. The Corbett ruling in this matter suffers from none of those flaws.

[22] In his ruling on the Corbett application, the trial judge set out the governing legal principles. No objection is taken to his enunciation of those principles which include the risks associated with admission of such evidence. While the appellant says that the trial judge erred in principle by failing to consider the prejudicial effect of admission of the contested convictions, I do not agree.

[23] The trial judge was clearly alive to the defence position that admitting the contested convictions was of little value, because of their nature and the fact they dated back to when the appellant was a young offender and therefore had little probative value related to his credibility years later, and posed a serious risk of prejudice (para. 6 of the ruling). The trial judge also expressly identified the relatively higher prejudice that results from admitting convictions similar to the offence charged. He observed that, while trial judges have the discretion to exclude prejudicial evidence of prior convictions, in exercising their discretion, judges should err on the side of inclusion because concealing a witness’ prior criminal record deprives the jury of information relevant to credibility: R. v. Corbett, [1988] 1 S.C.R. 670, at p. 697.

[24] The trial judge gave a proper limiting instruction, which the appellant acknowledges. However, the appellant submits that the limiting instruction was overwhelmed by the trial judge’s review of the admitted portions of his criminal record. In my view, this submission must fail. The trial judge explained to counsel that he would orally go through the dates, the convictions, and their dispositions, rather than provide the jury with a hard copy of that portion of the jury charge. Neither counsel for the defence nor the Crown raised an objection when the trial judge asked for comments about that approach. Moreover, juries are trusted to follow instructions about the permissible use of relevant evidence: Corbett, at p. 694.

[25] The appellant’s credibility was a central issue at trial: did he intend to aid Afrifa in his shooting of the victims? Both contested convictions show the appellant’s disregard for the law; contempt for the law impacts the assessment of credibility: Corbett, at pp. 686-87. As the trial judge noted, the appellant having possessed a firearm contrary to a prohibition order is a particularly serious contravention. Excision of the two convictions in this credibility-centered case would have deprived the jury of relevant information.

Issue #2: No error in admitting the photograph of a handgun

[26] The appellant makes two primary submissions on this issue. First, he says the photo had little probative value and that the trial judge failed to properly balance its probative value against its prejudicial effect. Second, he contends that, at para. 8 of the ruling, the trial judge demonstrates a clear misapprehension of the expert opinion evidence of the Crown’s expert, Bruce Finn.

[27] I accept neither submission.

[28] The photo had significant probative value. As the trial judge made clear, the photo was not admitted on the basis that it was the murder weapon. At para. 13 of the ruling, he states, “The Crown does not allege and need not prove that the handgun shown in the photo was the murder weapon”. Rather, the trial judge admitted the photo because it was circumstantial evidence that the appellant had access to, and possession of, a handgun similar to the type of gun used in the shootings (at paras. 13 and 19).

[29] Nor did the trial judge fail to consider the prejudicial impact of the photo. At para. 10 of the ruling, the trial judge acknowledges the defence position that the limited probative value of the photo was exceeded by its prejudicial impact, showing that he was alive to that matter. However, the trial judge viewed the photo as probative of a material issue: whether the appellant had access to the means to commit the murder. He properly addressed the prejudicial impact with a limiting instruction.

[30] I do not find persuasive the appellant’s arguments relating to Finn’s evidence. The appellant urged the court to conclude that the trial judge misapprehended Finn’s evidence at para. 8 of the ruling. In para. 8, the trial judge says that Finn indicated a firearm such as that depicted in the photo was capable of firing the same type of spent shell casings found at the scene of the shootings. On a full and fair reading of the ruling, that sentence is simply an oversimplification of Finn’s evidence. Finn testified that the gun in the photo resembled one of two potential models – a Smith & Wesson Sigma series handgun that fires .40 calibre ammunition and one that fires 9mm ammunition. One model was capable of firing the same type of ammunition as was found at the scene of the shootings. It is clear from the exchanges between the trial judge and counsel that he was fully aware of Finn’s testimony on this matter.

[31] Finally, I see nothing in the appellant’s contention that the trial judge erred in admitting the photo on the basis of the cutthroat defence anticipated by the joint trial of the appellant and Afrifa. The trial judge did not rule the photo admissible based on the cutthroat defence. He admitted the photo on the premise that the gun in the photo was similar in type to the murder weapon and, thus, was probative of the appellant’s access to or possession of the type of handgun used in the shootings. The trial judge added his comments about the cutthroat defence because, at that stage of the proceeding, it appeared that the appellant and Afrifa were going to conduct cutthroat defences. There is no error in the judge having considered the admissibility of the photo in that context.

Issue #3: No error in the jury instructions on party liability

[32] The appellant did not address this issue at the oral hearing of the appeal, instead relying on his factum. The Crown followed suit. The bench had no questions of either party on this issue. In the circumstances, the issue can be dealt with briefly.

[33] The appellant’s submission on this issue begins by pointing out that his liability rested on whether the Crown had proven he was an “aider”. He concedes that, in the jury charge, the trial judge correctly stated the law on planning and deliberation as well as on aiding. He argues, however, that the trial judge did not relate the relevant evidence to those issues. He contends that, to the extent the trial judge did review the evidence on aiding, he focussed on the Crown’s theory that the appellant was following the victims and the Crown’s proposed inferences to be drawn from the photo of the firearm. He argues that the trial judge did not adequately address the evidence that tended to raise doubt about whether the appellant intended to aid a planned murder. For example, he says that the trial judge did not tell the jury there was no evidence that the appellant knew the victims, let alone harboured animus toward them.

[34] This submission is undercut by the fact that defence counsel requested and received five changes to the instructions on party liability during pre-charge conference discussions and that counsel raised no objections to the party liability instructions after the charge.

[35] Moreover, the defence closing emphasized the points which the appellant contends were not sufficiently reviewed by the trial judge. In any event, the trial judge did alert the jury to the relevant evidence relating to aiding, including that the appellant did not know the victims.

[36] In my view, contrary to the appellant’s assertion, the trial judge reviewed the evidence on the issue of aiding in a balanced and thorough manner and the jury was properly prepared legally and factually to determine if the appellant was guilty of first degree murder as an aider.

Disposition

[37] For these reasons, I would dismiss the appeal.

Released: September 22, 2022 “E.E.G.” “E.E. Gillese J.A.” “I agree. Grant Huscroft J.A.” “I agree. Sossin J.A.”