ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR093822
DATE: 20120109

B E T W E E N:

Her Majesty the Queen

S. Ferrone, for the Crown

• and -

Asizkpor Dessouza

E. Ghebrai

Defendants

HEARD: January 4 and 6, 2012

RULING ON POST OFFENCE CONDUCT

Ricchetti, J.

The Application

[ 1 ] The Defence brings this application for an order that certain post offence conduct of Mr. Dessouza be ruled inadmissible.

The Charges

[ 2 ] Mr. Dessouza has been charged with:

a.Sexual assault on M,G, with a weapon on April 27, 1996; and

b.Uttering a death threat to M,G, on April 27, 1996.

[ 3 ] The jury trial of this matter was scheduled to commence this week. This was a pre-trial application by the Defence.

The Evidence

[ 4 ] The evidence is not at issue in this application.

[ 5 ] Mr. Dessouza was arrested on April 27, 1996.

[ 6 ] A preliminary hearing was scheduled for September 8, 1997.

[ 7 ] Mr. Dessouza failed to appear in court on September 8, 1997.

[ 8 ] Mr. Dessouza was re-arrested returning to Canada on December 18, 2001.

[ 9 ] The Crown seeks to introduce, as post offence conduct, the evidence of Mr. Dessouza’s failure to attend the preliminary hearing and his re-arrest while entering Canada.

[ 10 ] The Crown does not seek to introduce evidence regarding Mr. Dessouza’s failure to attend the second scheduled preliminary hearing.

The Law

[ 11 ] The law has recently been canvassed in R. v. White, 2011 SCC 13 , [2011] 1 S.C.R. 433. At paras. 22, 23, 31, 50 and 51the Court stated:

The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance ( White (1998) , at para. 23). As Major J. noted in White (1998) , “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role” (para. 21). As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis (para. 26). Consequently, the formulation of limiting instructions with respect to the broad category of post-offence conduct is governed by the same principles as for all other circumstantial evidence. Thus, while the term “consciousness of guilt” may have fallen out of use, it is still permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who is guilty of the offence alleged — provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated.

That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long been recognized that the introduction of post-offence conduct for the purpose of establishing the accused’s “consciousness of guilt” carries with it a substantial risk of jury error ( Gudmondson v. The King (1933) , 60 C.C.C. 332 (S.C.C.) ). Jurors may be tempted to “jump too quickly from evidence of post-offence conduct to an inference of guilt” ( White (1998) , at para. 57) without giving proper consideration to alternate explanations for the conduct in question.

Given that “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence”, the admissibility of evidence of post-offence conduct and the formulation of limiting instructions should be governed by the same principles of evidence that govern other circumstantial evidence. In particular, to be admissible, such evidence must be relevant to a live issue and it must not be subject to a specific exclusionary rule (e.g. the hearsay rule); it may also be excluded pursuant to the exercise of a recognized judicial discretion (D. M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 26), such as the discretion to exclude evidence whose prejudicial effect outweighs its probative value. These same principles also determine the need for and scope of a limiting instruction.

Otherwise admissible evidence may still be removed from consideration by the jury on the basis that it is more prejudicial than probative. This may be achieved by refusing to admit the evidence at trial. It can also happen that the disproportionately prejudicial nature of a certain item of evidence only becomes apparent in light of the evidence as a whole. The trial judge may then instruct the jury in his charge that they may not consider a certain item of evidence in their deliberations.

Exclusion on th e basis that evidence is more prejudicial than probative does not ground a “no probative value”instruction: the evidence is by hypothesis at least minimally probative of a live issue.

Analysis

[ 12 ] The issue is whether this post offence evidence is admissible.

[ 13 ] The Defence contends that the failure of Mr. Dessouza to attend his preliminary hearing in 1997 and his re-arrest when returning to Canada is not relevant to the issue of guilt to the alleged offences on April 27, 1996.

[ 14 ] In any event, the Defence contends that this evidence is highly prejudicial because a jury would likely conclude Mr. Dessouza fled the country to avoid these charges because he was guilty. Given that there is no evidence when and why Mr. Dessouza failed to attend the preliminary hearing and left this country, its probative value is minimal at best. On a balancing of prejudice and probative value, the Defence submits that the evidence should be excluded.

[ 15 ] The Crown submits that the evidence would be admissible to explain the delay in these charges coming before for trial. In other words, for narrative. I am not persuaded that this evidence as part of the narrative is probative of any issue the jury needs to decide in this case. The Crown conceded the issue of delay of trial could equally be accomplished through instructions to the jury to disregard the time period between the charges and the trial. In my view, this is a more proper way to deal with the issue of the lengthy delay of the trial on these charges. Both counsel agree that an instruction should be given to the jury to disregard the delay between 1996 and the date of this trial.

[ 16 ] The Crown further submits that the flight from Canada is circumstantial evidence which should be left to the jury. However, the Crown fairly conceded that some limiting instruction would have to be given to the jury in any event to ensure the jury understood there might be other reasons why Mr. Dessouza left the country. One of the difficulties I have with this submission is that it would compel Mr. Dessouza to have to proffer an explanation or other reason for his failure to attend and leaving Canada, potentially depriving him of his right to silence and reversing the onus.

[ 17 ] I am satisfied the proposed evidence is not relevant to the issues in this case.

[ 18 ] It is not know why Mr. Dessouza did not attend the preliminary hearing. There is no evidence as to whether Mr. Dessouza left Canada prior to or after the preliminary hearing. There is no evidence why Mr. Dessouza left Canada. There is no evidence why he would have returned if he had decided to flee to avoid these charges. This would result is a great deal of speculation on the part of the jury, none of which has to do with the essential elements of the two offences there are to decide. As a result, there is no connection between the failure to appear at the preliminary hearing and leaving Canada with this offence, unlike many cases where the post offence conduct occurs shortly after the alleged offence (such as fleeing from the scene or prior to arrest) or can specifically be related back to the offence (giving a false alibi).

[ 19 ] I am satisfied that, if this evidence went to the jury, it would be highly prejudicial to Mr. Dessouza. Despite the fact there is no evidence as to when or why Mr. Dessouza left Canada, the jury would likely speculate that Mr. Dessouza must have left to avoid these charges and therefore, conclude he must be guilty of the offences. A limiting instruction telling the jury there may be other reasons which they should consider, as suggested by the Crown, would not alleviate this impermissible reasoning.

Conclusion

[ 20 ] As a result I am satisfied that the failure of Mr. Dessouza to attend at the preliminary hearing in 1997 and his re-arrest when returning to Canada in 2001 is not relevant and therefore, not admissible.

[ 21 ] In any event, even if there was some very minor relevance to this evidence, it is far outweighed by its potential prejudicial effect. As a result I would exercise my discretion to exclude this evidence.

Ricchetti, J.

Released: January 9, 2012.

COURT FILE NO.: CR093822

DATE: 20120109

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – Asizkpor DESSOUZA Defendant RULING ON POST OFFENCE CONDUCT Ricchetti, J.

Released: January 9, 2012