Court File and Parties
Court File No.: 11-2869
Date: 2012-06-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Matthew Pepping
Before: Mr Justice Ramsay
Counsel:
Mr B. Adsett for the Crown
Mr G. Leslie, Mr A. Dy for the accused
Heard: 2012-06-06
Endorsement
[ 1 ] This is a Corbett [i] application. The accused is on trial for second degree murder. One night in August 2009, he and the unindicted alleged co-perpetrator, Gary MacFarlane, came across the victim, who was walking, and a man on a bike. After a brief confrontation, the man on the bike drove away. A short time later, the victim lay on the street dying of a stab wound. Video surveillance suggests that the accused and MacFarlane were chasing the victim shortly before the stabbing. After the stabbing, the accused is seen on video with a knife in his hand.
[ 2 ] At this point, the close of the Crown’s case, I do not know exactly what position the defence will take to the jury. Intoxication, at least, will be put as a defence. I do not know whether the accused acknowledges that he is the person who did the stabbing, or whether someone else did. It was not suggested to any witness, including Gary MacFarlane, that someone else did the stabbing. [1]
[ 3 ] The incident took place shortly after a small house party. The Crown called as witnesses two women who had been at the party, Easton Jones, the man on the bike, and Gary MacFarlane. One of the women had no criminal record. The other did. Crown counsel mentioned her record in a general way in examination in chief. Defence counsel cross-examined her on it. She appears to have been a minor nuisance with a record of breaching court orders. The entire record of Easton Jones was put to him in examination in chief. He was cross-examined on it in some detail, in particular with his usual pattern of detention before trial, to which an exception was made on the day that he testified. Finally, Gary MacFarlane’s record was put to him in a general way in chief. He has several convictions for theft-type offences, as well as offences involving failure to comply with court orders. He was cross-examined on only one of these convictions, the one on which he finished the custodial part of the sentence on the day of the offence, and the fact that he was breaching at least two conditions of probation just by being at the party and consuming alcohol.
[ 4 ] The defence made a serious attack on the credibility of the three Crown witnesses just mentioned. Their criminal records were only part of it. Serious questions arise from their involvement with drugs, their consumption of intoxicants at the time of the offence, previous inconsistent statements and, in the case of MacFarlane and Jones, deals that they made or are said to have made with the Crown.
[ 5 ] The criminal record of the accused contains 27 entries in the five years preceding the offence. [ii] The defence submitted that I should not allow cross-examination on 12 of them, but conceded in oral argument that cross-examination on the conviction for breaking and entering dated 2007-11-29 would not be objectionable.
[ 6 ] The test is whether the prejudice occasioned by cross-examination would outweigh its probative value. The key prejudice is the risk that the jury will resort to propensity reasoning.
[ 7 ] The factors to which reference is generally made are the nature of the convictions, their recentness, the degree of similarity to the offence charged and whether the jury will be left with a distorted or misleading picture. This is not an exhaustive list, but I think that these are the factors that are in play in the present case.
[ 8 ] The convictions are all recent and there is an unbroken string of them.
[ 9 ] Most of the convictions involve dishonesty or a deliberate breach of a court order. That is not true of mischief or escaping lawful custody, but, especially in context, they indicate disrespect for the justice system or for others’ property, and they do not have much prejudicial effect.
[ 10 ] I have decided to prohibit cross-examination on two entries. In October 2004 the accused was convicted of assault. In February 2007 he was convicted of assault with a weapon. These are not offences of dishonesty or disrespect for the system. They have probative value, but not a great deal of it. To me, the similarity of these offences to the offence charged tips the balance in favour of exclusion. Assault is the underlying unlawful act upon which the jury will be asked to consider murder and manslaughter. Assault with a weapon is the very means of causing death in this case. Juries tend to follow instructions, but the risk that they might fall into propensity reasoning is sufficiently high, in my view, that reference to these convictions should be omitted, especially in view of the scant help that these convictions would give the jury on the question of the credibility of the accused person as a witness.
[ 11 ] The two convictions for robbery, which are the most recent on the record, do not present the same risk, and they have much more probative value. Robbery is a crime of dishonesty as much as it is a crime of violence. Moreover, to exclude these convictions would leave a misleading picture of the credibility of the accused. He would seem a person who had constant trouble with the youth courts, but not on anything too serious, and who settled down upon reaching the age of majority. In fact, just before and after becoming an adult he graduated to this serious, dishonest felony. Finally and importantly, the current case bears no resemblance to robbery in any of its many forms. Whatever this case is, it is not a robbery or anything like it.
[ 12 ] I was asked in the alternative to “edit” the robbery entries and order that they be referred to as thefts. I decline to do so, because I do not think that cross-examination on them as they are would be prejudicial in the sense of Corbett .
[ 13 ] I wish to add that if I thought otherwise, I would have prohibited any reference to them. With deference to those of my colleagues who do not agree, I do not think that it is open to me to change these convictions into something that I would find easier to balance. It is one thing to suppress relevant evidence because its probative value is outweighed by its prejudicial effect, or for other valid policy reasons, such as vindicating civil rights and controlling the conduct of the state. I find it quite another to admit evidence, but require the lawyers and the witness to tell the jury something about it that is not the whole truth. I do not take the Court of Appeal to have dealt with this particular question in Talbot, 2007 ONCA 81 .
J.A. Ramsay J.
Date: 2012-06-11
[1] As it turned out, the accused did not testify. His position before the jury was that it had not been proven that he, as opposed to MacFarlane, stabbed the deceased. In the alternative, his level of intoxication must leave a doubt as to the required intent for murder.
[i] R. v. Corbett, 1988 80 (SCC) , [1988] 1 SCR 670.
[ii]
2004-10-26
- Occupy motor vehicle taken without consent* 2. Assault* P 3. Escape custody* 4. Mischief* 5. Occupy motor vehicle taken without consent* 6. Fail to comply undertaking
(1-6) 35 days psc + probation 18 months
2005-11-03
- Mischief x 2* 2. Fail to comply disposition x 2
(1-2) Probation 1 year
2006-08-18
- Fail to comply disposition x 2 2. Possession under $5000 3. Mischief* 4. Fail to comply recognizance
(1) 26 days psc + 40 days custody, 20 days supervision, probation 18 months (2) 40 + 20 concurrent, probation conc.
2007-02-21
- Fail to comply with disposition x 2 2. Fail to attend court 3. Mischief* 4. Assault with a weapon* P 5. Attempt obstruct justice
(1-5) 4 mo. custody + 2 mo. supervision
2007-11-29
- Break, enter and commit 2. Fail to comply disposition
(1) 71 days psc + 12 days custody + 6 days supervision + probation 1 year (2) Probation 1 year
2008-06-05
- Robbery* 2. Fail to comply disposition
(1) 169 days psc + probation 18 months (2) 169 days psc + probation 18 months
2008-08-22
- Robbery* 2. Fail to comply disposition
(1) 1 year (52 days psc), probation 2 years (2) 60 days conc.
*exclusion sought
P excluded