COURT FILE NO.: CRIMJ (P)1604/11

DATE: 2013-12-11

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

P. Scrutton & R. Flumerfelt, for the Crown

• and -

WILL VANDER WIER

H. Black, for Will Vander Wier

HEARD: October 23, 2013

REASONS FOR RULING ON SCOPE OF CROSS-EXAMINATION

COATS J.:

[1] The Crown brings a motion to limit the scope of cross-examination of Mr. Tran. The Crown requests the court to vet any cross-examination of Mr. Tran relating to prior discreditable conduct or the history of the proceedings. In particular, the Crown requests the court to prohibit the defence from questioning Mr. Tran on the underlying facts of the home invasion (robbery) charges for which he was acquitted.

[2] In response, the defence submits that a non-accused witness may be cross-examined at large by the defence. Furthermore, the defence requests that I make an order prohibiting Mr. Tran from making any reference to his acquittal.

[3] I dismiss both the Crown’s motion to limit the cross-examination of Mr. Tran and the defence’s cross-motion to prohibit Mr. Tran from testifying about his acquittal on the home invasion charges for the following reasons.

The Scope of Cross-Examination of Mr. Tran

[4] It is well established that there is a broad right to cross-examine a non-accused witness, namely, on:

• Discreditable conduct and associations: see R. v. Miller (1998), 1998 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.), at para. 21; R. v. Cullen (1989), 1989 7241 (ON CA), 52 C.C.C. (3d) 459 (Ont. C.A.), at p. 463; R. v. Tessier, [1997] B.C.J. No. 2890 (B.C.S.C.), at para. 7; R. v. Burgar, 2010 ABCA 318, at para. 12; R. v. Davison, DeRosie & MacArthur (1974), 1974 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 441.

• Conditional discharges: see Cullen, at pp. 462-463.

• Criminal convictions: see Miller, at para. 23; Tessier, at para. 10; R. v. Morgan & Simms (1996), 29 W.C.B. (2d) 516 (Ont. C.A.), at para. 4; Burgar, at para. 12;

• Facts underlying charges pending: see Miller, at para. 22; R. v. Gonzague (1983), 1983 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.), at pp. 510-511.

• Collateral issues: see Tessier, at para. 10; Gonzague, at p. 510-511.

• Outstanding indictments: R v. Titus (1983), 1983 49 (SCC), 2 C.C.C. (3d) 321 (S.C.C.), at p. 324.

[5] The right of an accused to cross-examine an ordinary witnesses without significant and unwarranted constraint is an essential component of the right to make full answer and defence: see R. v. Lyttle (2004) 2004 SCC 5, 180 C.C.C. (3d) 476, at para. 41.

[6] In Miller, Charron J.A. found the trial judge erred in limiting the scope of the eyewitness cross-examination. The trial judge ruled that defence counsel could go into the fact of a conviction but not into the facts of all the convictions. Charron J.A. allowed the appeal, ordered a new trial and held that given the importance of the eyewitness testimony against the appellant and the nature of some of the prior convictions, the result may have been different had the cross-examination been permitted: see Miller at para. 25.

[7] The right to cross-examine an ordinary witness on the underlying facts of a conviction, however, is subject to the trial judge’s general discretion. It must be within the bounds of relevance and propriety: see Miller, at para. 24. The cross-examination is subject to the trial judge’s general discretion to limit needless, repetitive, prolix and abusive cross-examinations: see R. v. Mitchell, 2008 ONCA 757, at para. 19. In addition, the cross-examination may not be a fishing expedition: see R. v. Robertson, [1996] O.J. No. 924 (Ont. C.A), at para. 4.

[8] A judge has the power to exclude relevant evidence tendered by counsel on the basis that its prejudicial effects outweighs its probative value: see R. v. Clarke (1998), 1998 14604 (ON CA), 129 C.C.C. (3d) 1 (Ont. C.A.), at para. 33; R. v. Watson (1996), 1996 4008 (ON CA), 108 C.C.C. (3d) 310 (Ont. C.A.), at para. 47.

[9] The cases relied on by the Crown are distinguishable. In R. v. Verney (1993), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.), Finlayson J.A. held the trial was unfair where the central Crown witness testified that he and the accused committed three robberies including the one before the court. The accused denied the charges with respect to all three robberies. On one of the three robberies, the accused had been acquitted of all charges prior to the trial on the robbery before the court. On another of the three robberies he was acquitted at a retrial after the trial on the robbery before the court. The accused was forced to defend all three robbery allegations in the trial. The Court held in Verney that the verdict of not guilty restores to the accused the presumption of innocence: see Verney, at para. 14.

[10] The Crown relies on R. v. Akins (2002), 2002 44926 (ON CA), 59 O.R. (3d) 546 (C.A.) which deals with the right of a co-accused in a joint trial to cross-examine an accused on past criminal charges, which were withdrawn or resulted in verdicts of acquittal, for the purpose of demonstrating the bad character of the accused and his propensity for committing a particular criminal act. Cronk J.A. found that it was an error to permit cross-examination of the accused on the facts underlying past charges for which he was acquitted: see Akins, at para. 12. The Court held an acquittal is the equivalent of a finding of innocence and the accused’s right to a fair trial was compromised by the cross-examination: see Akins, at paras.16, 24.

[11] The concerns raised in the cases cited by the Crown, particularly Verney and Akins, are not present here. Mr. Tran is not the accused, he is an ordinary witness. The limitations imposed with respect to the cross-examination of an accused do not apply in the case of an ordinary witness: see Miller, at para. 21. Mr. Vander Wier’s right to make full answer and defence requires a cross-examination of Mr. Tran without significant and unwarranted constraint.

[12] None of the cases cited by the Crown state that a non-accused witness cannot be cross-examined on the underlying facts of acquittals. In fact, the jurisprudence broadly construes the right to cross-examine an ordinary witness.

[13] The defence refers me to R. v. Martin (1980), 1980 2837 (ON CA), 53 C.C.C. (2d) 425 (Ont. C.A.), where Lacourciere J.A. held that an acquittal is not conclusive of innocence or guilt at para.15:

On the question of admissibility of this evidence it is clear and, indeed, fairly conceded by Mr. Watt, that the evidence of Comeau's acquittal was not conclusive or even probative of his innocence or guilt and, at the appellant's trial, was inadmissible to prove this issue, and irrelevant thereto because it merely represented the opinion of another criminal court. See Hollington v. F. Hewthorn and Company, Limited, and Another, [1943] 1 K.B. 587 at 594-5. That case has long stood for the proposition that evidence of a conviction in a criminal court is, on principle and authority, inadmissible in a subsequent civil action arising from the same facts as res inter alios acta and infringing "... the hearsay as well as the opinion rule because it would have been treated as the equivalent of an assertion of negligence by a non witness ..." See Cross on Evidence, 4th ed. (1974) at p. 394. See also the decision of the High Court of Australia in Helton v. Allen, [1940] 63 C.L.R. 691 dealing with evidence of a previous acquittal in a subsequent civil proceeding. There is no doubt that evidence of a previous acquittal is inadmissible as an evidentiary fact in a subsequent civil proceeding unless it is a fact in issue, as in an action for malicious prosecution, on the principle that the standard of proof is different and lesser in the latter proceeding. See generally Cross on Evidence, 4th ed. (1974) at p.398.

[14] In R. v. Mahalingan, 2008 SCC 63, [2008] S.C.J. No. 64, Charron J. discusses the admissibility of prior acquittal evidence at para. 145:

…the question of admissibility of prior acquittal evidence will depend, not on an absolute rule barring its admissibility in all cases, but on the careful weighing of the probative value of the evidence to an ultimate issue in the subsequent proceeding, as against the unfairness of requiring the accused to repeatedly defend himself against the same allegations on the issue in question.

[15] I have considered the probative value and prejudicial effect of allowing the defence to cross-examine Mr. Tran on the home invasion charges. In light of the probative value of the evidence, I am going to allow the cross-examination with respect to all the charges.

[16] The probative value of challenging Mr. Tran’s credibility and understanding his state of mind prior to coming into the custody of Mr. Vander Wier outweighs any possible prejudice. There is a concern that the jury may conclude either that Mr. Tran has a propensity to commit crimes or that he is unworthy of the protection of the law. However, this prejudice cannot be equated to the prejudice that an accused would face.

[17] Furthermore, it is artificial to separate Mr. Tran’s conspiracy conviction from the actual home invasion charges. The facts that gave rise to the robberies informed the conspiracy.

[18] I am satisfied that any concern with the cross-examination can be addressed through specific objections if it approaches needless, repetitive, prolix or abusive. I can also clarify outstanding concerns in my charge to the jury through limiting instructions.

Mr. Tran’s Acquittal

[19] I will not preclude Mr. Tran from testifying about his acquittal as this may naturally arise in the cross-examination.

[20] The defence relies on Martin and submits that Mr. Tran’s acquittal is irrelevant and highly prejudicial. However, in Martin the witness, who was the other accused of the same murder charge, was acquitted in a separate proceeding. During the examination-in-chief, the Crown questioned the witness about his acquittal. This was highly prejudicial as it implicated the accused. In the case at bar, we do not have the same danger as Martin. We are not faced with two accused charged with the same offence.

[21] It is also distorting to make a ruling prohibiting Mr. Tran from testifying about the fact that he was acquitted, especially where the defence is permitted to cross-examine him on the underlying details of the home invasion charges. Martin provides an exception to the admissibility of prior acquittals to avoid creating a distorted picture at para. 20:

Related, therefore, to the admissibility of the evidence of Comeau's prior acquittal in order to avoid a distorted picture, there is, in my opinion, an alternative basis on which the admission of this evidence could be supported. Although the evidence was not offered for this purpose, nor put to the jury on this basis, it is my view that the Crown may properly have tendered the impugned evidence for the purpose of negating an inference that Comeau had a personal interest in the outcome of Martin's trial. However, it is clear from the additional passage just quoted and discussed later, that the learned trial judge regarded Comeau as having such a personal interest in order to maintain his own testimonial consistency. [Emphasis added].

[22] Furthermore, it would be improper for the Crown to question Mr. Tran about his acquittal in examination-in-chief as it would be oath-helping. Lacourciere J.A. noted in Martin at para 17:

One could understand how Comeau, if he had been charged by defence counsel with the murder of Blais, could blurt out the fact of his acquittal by a jury. It is difficult, however, to justify the introduction of this evidence during examination-in-chief. It was wrong if it was an attempt to bolster and support the credibility of the prosecution's own witness which was not yet under attack notwithstanding the obvious direction of the defence theory. If so, the reception of this evidence violated a cardinal rule that the Crown may not support the credibility of its own witness in this way. Even if the Crown were permitted to do this, on the theory that Comeau's credibility was implicitly impeached by the general thrust of the defence, it would be ineffective: I know of no case, and none has been suggested to the Court, holding that a witness who has been charged with an offence and acquitted, is inherently more credible or trustworthy than one who has never been charged. [Emphasis added].

[23] Mr. Tran’s acquittal may come up in the cross-examination, and at which point I will have to determine whether the Crown may re-examine Mr. Tran on his acquittal.

[24] Based on the foregoing, I am not limiting the scope of defence counsel’s cross-examination of Mr. Tran, nor am I precluding Mr. Tran from testifying about his acquittal during cross-examination.

Coats J.

Released: December 11, 2013