ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTIY THE QUEEN
v.
JAHMAL COPPIN AND DARUE RAMSAY
RULING ON VOIR DIRE
BEFORE THE HONOURABLE MR. JUSTICE I. LEACH
On December 11, 2014 at LONDON, Ontario
APPEARANCES:
L. Tuttle Counsel for the Crown
M. McKee Counsel for Jahmal Coppin
B. Basiga Counsel for the Darue Ramsay
R. v. Jahmal Coppin and Darue Ramsay 2016, ONSC 2763
THURSDAY DECEMBER 11, 2013:
RULING ON VOIR DIRE
Introduction
I am now going to proceed with my ruling on the character evidence issue. By way of context, an issue has risen in relation to the permissible scope of Crown re-examination of the complainant, M.O.. She is the principal complainant and Crown witness in this case involving two accused persons, with various allegations of extortion with and without use of an imitation firearm, death threats and robbery.
Background
In particular, as far as that issue is concerned, in the course of examination-in-chief, the Crown took the complainant, M.O., through what essentially were four separate instances, the order of which has become somewhat unclear in M.O.’s earlier testimony, during which this complainant alleged she was pressured or forced to part with money to pay a debt supposedly owed to one of the accused persons, Mr. Ramsay, by the complainant’s sister, stemming from the purchase of a car.
The first three alleged instances, the order of which may now be unclear, were said to have involved only the accused, Mr. Ramsay. What consistently has been described as the fourth and
last incident is said to involve both Mr. Ramsay and the co-accused Mr. Coppin.
The evidence to date indicates that the complainant, M.O., did not approach the authorities with her complaints until a short time after the fourth and last incident.
In the course of examination-in-chief, Crown counsel focused on the particular alleged incidents in question, said to give rise to the particular offence charged in the indictment, and did not attempt, I think, to lead any evidence that might be characterized as character evidence. By “character evidence”, I mean evidence that might be used to establish the guilt of an accused by either directly or indirectly revealing a discreditable or stigmatizing character of the accused. In other words, evidence which might suggest that the accused has a personality, aptitude or general capacity to engage in particular behaviour or misbehaviour.
The Law on Character Evidence
As emphasized by the Supreme Court of Canada in cases such as R. v. Handy, [2002] 2/SCR 908, and by our Court of Appeal in cases such as R. v. Earhart, [2010] ONCA 74, such evidence raises inherent concerns, not only in relation to relevance and true probative value, for example, because evidence that someone did discreditable things on an earlier occasion does not mean that they did such things on the alleged occasion said to give rise to charges before the courts, but also because it creates a serious risk of prejudice. That includes not only what has been described as “moral prejudice”, in that the trier of fact may draw what has been described as the “prohibited inference” that the accused is the kind of bad person likely to commit the offences charged, but also what has been described as “reasoning prejudice” in that the trier of fact may become distracted from deciding the case in a reasoned way because of inflammatory evidence, and/or confused as to what evidence pertains to the crimes currently before the court, as well as other dangers that the trial may become disproportionally focused on whether the other discreditable conduct in fact happened, and/or that an accused may not have any effective ability to respond to the allegation that such conduct happened.
Perhaps and probably because of such concerns, the Crown did not, as I say, attempt during examination-in-chief of the complainant to lead evidence of possible discreditable conduct of either accused, except in relation to the four incidents said to underlie the particular charges now before the court.
Cross-Examination of the Complainant
However, during the course of cross-examination of the complainant, counsel for the accused, Jahmal Coppin, that is Mr. McKee, asked several questions emphasizing that, despite in the harrowing nature of the first three alleged incidents, which were said to involve telephone calls, coupled or not coupled with attendance at the complainant’s home and a confrontation at a Walmart store, the complainant did not go to the police. In my view the questions were obviously designed to draw the complainant’s credibility into question, that is, by clearly suggesting an inference that the complainant did not go to the police after the first three alleged incidents because they simply did not happen. The suggestion that the incidents simply never happened was then put squarely to the complainant by Mr. McKee later in his cross-examination.
For his part, Mr. Basiga, during his cross-examination on behalf of Mr. Ramsay, once again expressly put it to the complainant that the alleged incidents simply never happened.
The complainant herself was adamant that the alleged incidents did happen, and during the course of cross-examination by Mr. McKee, responded to questioning about her not having gone to police, despite the troublesome nature of the alleged incidents, by answers emphasizing she did not go to the police earlier because she was frightened by the reputation of the accused, Darue Ramsay.
In particular, after being asked about the second of the two alleged telephone calls to the complainant by the accused Mr. Ramsay, during which Mr. Ramsay is alleged to have coupled demands for money with the statement that he knew where she lived and where the complainant’s children went to school, M.O. confirmed that she definitely took that as a threat directed towards her or anyone living in her house, including her children. Also in response to further questions by Mr. McKee, emphasizing that notwithstanding such alleged threats she still had not gone to the police at that point, M.O. stated that she did not do so “simply because of his”, that is Mr. Ramsay’s, “reputation”, which made her “too scared to go to the police at the time”.
In further cross-examination, not surprisingly, defence counsel steered away from asking the complainant further questions in that regard.
However, in the absence of the jury, during a break in the continued cross-examination of M.O., Crown counsel then gave advance notice of her intention to ask the complainant, during anticipated re-examination, for further details as to the complainant’s understanding of Mr. Ramsay’s reputation, so that the jury might have more balanced evidence to fairly assess the implicit, if not express credibility, based defence suggestions as to why M.O. did not make an earlier report to the police.
In other words, Crown counsel seeks an opportunity to have M.O. expand upon her early answer, so that the jury is in a position to fairly weigh evidence relevant to the basis and strength of M.O.’s stated fears about Mr. Ramsay’s reputation as a reason for her not going earlier to the police, against the implicit, if not express, credibility, based defence suggestion that M.O. did not make an earlier report to the police because the underlying events just never happened.
Mr. Basiga, on behalf of his client Mr. Ramsay, then objected to a proposed re-examination along those lines, and the answers that might then be given by M.O. in response, on the basis that it would be presumptively inadmissible character evidence, with little or no probative value, which in any case, he says, would be far outweighed by the prejudicial impact of such evidence.
Crown counsel has responded by emphasizing that the purpose of the proposed evidence is not to prove the truth of whatever M.O. believed Mr. Ramsay’s reputation to be, or for the acknowledged prohibited purpose of character evidence per se; that is, as an effort to help establish the guilt of the accused in relation to the offences currently before the court by leading evidence of other discreditable conduct that suggests the person is a bad person likely to have committed these alleged offences as well.
Rather, the limited but important purpose of the contemplated evidence, in Crown counsel’s submission, is to address the suggestion raised by the defence, during cross-examination, that M.O.’s testimony and allegations lack credibility because if the incidents had indeed happened as alleged, M.O. would have reported them to the police at the time.
... PROCEEDINGS CONCLUDED
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R. v. Jahmal Coppin and Darue Ramsay
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