CITATION: R. v. Millard and Smich, 2016 ONSC 1146
COURT FILE NO.: 14-4348
DATE: 2016/02/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Crown
– and –
DELLEN MILLARD Accused
– and –
MARK SMICH Accused
A. Leitch, on behalf of the Crown
R. Pillay and N. Sachak on behalf of D. Millard T. Dungey on behalf of M. Smich
HEARD: February 9, 2016
A. J. Goodman J.:
MID TRIAL WRITTEN RULING #1- CHARACTER EVIDENCE
THIS RULING IS SUBJECT TO A BAN ON PUBLICATION pursuant to s. 648(1) of the criminal code of canada AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL the jury is sequestered or a further order of this court allows.
[1] Mr. Leitch, Crown counsel, seeks an evidentiary ruling that the accused, Dellen Millard (Millard”) - through cross-examination of a Crown witness - had introduced evidence of his good character, thereby placing his character at issue.
[2] Mr. Dungey, counsel for Mark Smich (“Smich”) joins Mr. Leitch in this motion and submits that Millard has opened the door to his good character.
[3] Mr. Pillay, on behalf of his client, submits that the defence has not put Millard’s character at issue by virtue of co-counsel’s extensive cross-examination of Igor Tumanenko (“Tumanenko”).
[4] Upon hearing the submissions of counsel, and after due consideration, I ruled that Millard had not introduced evidence of his good character during the cross-examination of Tumanenko. I found that evidence related to this issue was adduced in order to repudiate the Crown’s case with respect to the witness’ testimony.
[5] I advised the parties that written reasons for my ruling would follow in due course. These are my reasons.
The impugned area of Tumanenko’s cross-examination:
[6] During the course of argument, Mr. Leitch referred to portions of the transcript of Tumanenko’s cross-examination arising from the proceedings held in the afternoon of February 4. Reference was also made to a similar line of questioning posed by Mr. Sachak in cross-examination of the witness on his return to court on February 8.[^1]
[7] The relevant portion of Tumanenko’s cross examination is as follows:
CROSS-EXAMINATION BY MR. SACHAK (Excerpts):
Q. Ultimately, at the end of this meeting and the test drive, the taller guy says to you they’re going to see two more trucks?
A. Yes.
Q. And that he will be in touch with you today, which would mean the day of the statement?
A. Yeah. This is a Tuesday.
Q. Yeah. Tuesday, May 7th. So, on Sunday the taller guy says, listen, I’m going to look at more trucks, two more trucks, and I will let you know my decision on Tuesday?
A. Yes, sir.
Q. Okay. And what you conclude is – and I’ll quote you precisely from your statement: “He was a nice fellow after all. You can never imagine whatever maybe they do.”
A. Maybe they do, yeah.
Q. Because you’ve found out the truck’s been missing, et cetera, and you are saying to yourself you know what, this was a nice fellow that I dealt with.
A. Definitely.
Q. I can’t imagine that they could have done or be involved in the disappearance of Mr. Bosma.
A. That’s exactly what I said.
Q. Okay..
Legal Principles:
[8] It is settled law that the Crown may not introduce evidence of bad character or the evidence of other discreditable conduct of an accused. This evidence is presumptively inadmissible.
[9] An accused may put his or her character in issue during examination-in-chief by answers which expressly or by implication indicate that he or she is not the sort of person who would have committed the offences alleged. An accused may introduce good character evidence at trial by calling witnesses to speak to this issue. Or that evidence may arise through cross-examination of Crown witnesses: R. v. Farrant (1983), 1983 CanLII 118 (SCC), 4 C.C.C. (3d) 354 at 368-69 (S.C.C.); R. v. Morris (1978), 1978 CanLII 168 (SCC), 43 C.C.C. (2d) 129 at 156-58 (S.C.C.); R. v. McNamara (No. 1) 1981 CanLII 3120 (ON CA), [1981] O.J. No. 3254, (1981), 56 C.C.C. (2d) 193, (C.A.), leave to appeal refused, (1981), 1981 CanLII 3394 (SCC), 56 C.C.C. (2d) 576.
[10] Such evidence, on the basis of a common law exception in favour of the accused to the general rule excluding evidence of propensity, is generally confined to evidence of general reputation within the community with respect to the relevant trait or traits: R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.), at para. 31; R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398 at pp. 412- 4.
[11] When an accused can be said to have put his or her character in issue albeit - through answers provided during examination-in-chief - was considered by the Court of Appeal in the oft-quoted case of McNamara (No. 1). At para. 317, the Court of Appeal stated:
…Manifestly, an accused does not put his character in issue by denying his guilt and repudiating the allegations made against him, nor by giving an explanation of matters which are essential to his defence. An accused is not entitled, however, under the guise of repudiating the allegations against him to assert expressly or impliedly that he would not have done the things alleged against him because he is a person of good character; if he does, he puts his character in issue.
[12] Nevertheless, the vexing question remains as to when good character is introduced and at what point the door is opened to character during the course of defence counsel’s cross-examination of Crown witnesses.
[13] Some guidance is provided from the appellate jurisprudence that suggests an accused may place his character at issue should the evidence introduce a relevant character trait unconnected to the offence charged or if the purpose of the evidence is to support a general inference that the accused is unlikely to have engaged in the conduct alleged or their credibility ought to be enhanced. It is clear that each case must be considered in context.
Discussion:
[14] This is not a situation where Millard has placed his character in issue during examination-in-chief. However, it is trite law that an accused may introduce extrinsic evidence of his good character through cross-examination of witnesses.
[15] During the course of Tumanenko’s evidence it was established that, at one point, two of the three individuals in his Dodge pickup truck were identified; Tumanenko in the passenger seat, and Smich, who admits to have been situated in the rear seat of the truck. Tumanenko provided a very detailed description of the driver and only for the purposes of this ruling, a reasonable inference can be drawn that this driver was in fact, Millard.
[16] According to Tumanenko, for the most part the overall interaction and atmosphere between all of the parties did not give rise to any suggestions of suspicious behaviour. During the course of Tumanenko’s examination in-chief, the Crown elicited some evidence of a perceived change in the atmosphere within the truck at a mid-point during the one-hour or so test-drive. This element was canvassed in great detail by Crown counsel and was described by the witness as a noticeable change in the dynamic between the three individuals in the pickup truck.
[17] This so-called dynamic shift within the pickup truck occurred once Tumanenko revealed to Millard and Smich that he had been associated with the Israeli army. After having made this utterance, Tumamenko immediately responded to a question posed by Smich, to the effect that “you don’t want to know what I did”.
[18] If believed, one inference that could be drawn by the jury is that there was a plan in play to steal the Tumanenko pickup truck that was all but aborted by Millard and Smich due to their immediate and discernible reaction to this information. It may be suggested that by their apparent reactions, both occupants underwent an immediate re-assessment of the situation related to the potential victim’s abilities to ward off any plan to steal the truck.
[19] It is not lost on me that this evidence was adduced by the Crown to advance the inference that there was some degree of planning or design by one or both accused to steal this particular pickup, in support of the Crown’s case for first-degree murder related to Tim Bosma (“Bosma”).
[20] The difficult question before me is whether Millard’s counsel crossed over the line of permissible repudiation of the charge when Tumanenko was questioned about his assertion that he [Millard] was “a nice fellow” and someone the witness opined could not imagine being involved in the disappearance of Bosma.
[21] During the course of rigorous cross-examination, the witness resiled somewhat from his initial description and observations of the occupants’ reactions in his vehicle from his comments regarding the Israeli army. First, he admitted that he did not relate any details of “fidgeting” or strange looks being exchanged, neck twisting by the driver, or other descriptors when he provided his statement to the police. Tumanenko agreed that his testimony about these matters were only revealed for the first time in court.
[22] Second, other than reference to a “brief pause”, the witness conceded to Mr. Sachak that he may have been exaggerating some of what he said in court in explaining his observations about the driver and passenger’s reactions when he provided some commentary about his former participation with the Israeli army.
[23] Again, turning to the Supreme Court of Canada’s decision in Farrant, I am mindful that an accused puts his character in issue by introducing the evidence for which the sole purpose is to show that he or she is not the kind of person who would have committed the alleged offence.
[24] Mr. Sachak attempted to address the question of the alleged change of dynamic in the pickup truck after Tumanenko’s “Israeli army” utterance. I am satisfied that the line of questioning and responses which were derived directly from the witness’ own statement to the police was intended to explain and neutralize the impact of any suggestion about any change of dynamic in the pickup truck, and in particular, the description of the driver’s reaction. While the ancillary purpose for this evidence may be subject to debate, its primary purpose was not to adduce evidence of general reputation but to merely rebut the reliability of the conclusory comments offered by the witness related to the Crown’s theory of the case.
[25] Repudiation of the Crown’s case or an attack on the credibility of a Crown witness does not put character at issue. I find that such is the case here with the questions posed by counsel directly to the issue of the reliability of testimony and the inferences that could be drawn by the jury.
[26] Alternatively, Tumanenko’s evidence at its highest can only be considered as the personal and uninformed opinion of this witness. The personal opinion of a witness is not evidence of general reputation for a particular trait: R. v. Close (1983), 1982 CanLII 1914 (ON CA), 68 C.C.C. (2d) 105 (Ont. C.A.).
Conclusion:
[27] I am satisfied that Millard did not introduce evidence of his good character through the cross-examination of the witness. In my opinion, counsel’s cross-examination was directed to repudiating the Crown’s case and the reliability of this witness’s testimony.
A. J. GOODMAN, J.
Released: February 16, 2016
CITATION: R. v. Millard and Smich, 2016 ONSC 1146
COURT FILE NO.: 14-4348
DATE: 2016/02/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Applicant
- and -
DELLEN MILLARD Respondent
- and -
MARK SMICH
MID TRIAL WRITTEN RULING #1- CHARACTER EVIDENCE
A. J. GOODMAN, J.
Released: February 16, 2016
[^1]: The relevant portion of the February 4, transcript mirrors for the most part the February 8 cross-examination of Tumamenko and is not reproduced here.