Court File and Parties
COURT FILE NO.: 14-4348 DATE: 2016/04/18 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown A. Leitch and C. Fraser on behalf of the Crown
- and -
DELLEN MILLARD Accused R. Pillay and N. Sachak on behalf of D. Millard
- and –
MARK SMICH Accused T. Dungey and J. Trehearne on behalf of M. Smich
HEARD: April 12, 2016 A.J. Goodman J.:
MID TRIAL WRITTEN RULING # 6 – CHARACTER EVIDENCE
[1] As a consequence of the cross-examination of Brendan Daly (“Daly”), the applicant, Mark Smich (“Smich”) brings an application to introduce evidence of general propensity or bad character of his co-accused. The co-accused, Dellen Millard (“Millard”) and the Crown attorney oppose the relief being sought.
[2] After hearing the submissions of counsel in relation to the mistrial application and this companion motion, I ruled that Millard had not opened the door to his good character and denied the application. These are my reasons.
Background:
[3] Mr. Pillay, on behalf of Millard, in the course of a Pollock and Morrisson application, (R. v. Pollock, , [2004] O.J. No. 2652 (C.A.)), sought and was granted the right to cross-examine Daly on several fronts. The focus of the cross-examination was primarily to address issues of whether Smich had an ability or disposition to intimidate Daly and others, in order to rebut assertions about Millard’s character of the same nature, already introduced in evidence. The other theme was with respect to the relationship between Daly and Smich, which involved their participation with marihuana.
[4] Counsel for Millard elicited that Smich wrote a rap which included the stanza, “my 380’s no stranger; when I’m angered you’re in danger”. This evidence was not the subject of an application prior to its elicitation, although other violent rap videos had been excluded during the pre-trial motions.
[5] After completion of the cross-examination, I inquired of Mr. Pillay whether his cross-examination had not put Millard’s character “fully” and “squarely” in issue whereby he had perhaps raised “general issues of propensity for violence”. I invited further submissions on the issue prior to the applicant specifically raising this matter in the form of this application.
The positions of the parties:
[6] Smich submits Millard had placed his character at issue. Millard’s counsel went beyond the scope of the Pollock and Morrisson application and elicited responses from Daly that went directly to issues of general propensity and bad character, including questions related to violence universally.
[7] There was also a specific reference to rap lyrics found on Smich’s iPad, which were violent in nature. Ms. Trehearne submits that the evidence adduced from the witness had not been the subject of the prior application, and was not properly canvassed by the Court.
[8] Ms. Trehearne submits that Millard’s counsel elicited from Daly that he felt intimidated by Smich when he raised with Mr. Smich his potential involvement in the Bosma matter. Daly offered no resistance to this suggestion by counsel of intimidation. Although Daly again had not resisted the suggestion that Smich intimidated him, counsel for Millard elicited from Daly evidence ostensibly to prove that Daly felt intimidated by Smich. This included:
a. that Smich was “aggravated on a regular basis” and this was “part of his personality”; b. that Smich “had an anger issue”; c. that Smich had “difficulty controlling his anger”; d. that Smich had a “bad temper”; e. that Smich had a “short fuse”; and, f. that Daly did not like to be around Smich when Smich was angry.
[9] Counsel for Millard then went on to elicit from Daly that:
a. Smich consumed a lot of marihuana; b. Smich did not have a job; c. Smich did not treat Arthur as a friend, but rather as a “servant” or a “slave”; d. Smich not only “controlled” Arthur but “dominated” him; and, e. Smich referred to Arthur as his “bitch”.
[10] Ms. Trehearne submits that Millard has led evidence before the jury with the clear purpose of demonstrating Smich’s general propensity for violence. This evidence was advanced in pursuit of an antagonistic defence, as evidence upon which Millard may rely to say that Smich is the type of person to commit the offence in question. Millard even elicited a rap allegedly written by Smich which suggests the habitual use of a gun by Smich, past and future. The violent propensity evidence, in particular the second segment of the rap lyric is highly prejudicial and goes directly to the character of her client. It is submitted that by the introduction of such evidence within or without the Pollock and Morrisson application, by posing these questions, Millard has opened his good character to rebuttal. Smich cannot make full answer and defence in the context of this antagonistic defence without leading character evidence in relation to Millard.
[11] Mr. Pillay, on behalf of Millard, submits that the scope of the cross-examination related to the issues addressed by the Pollock and Morrisson application fell squarely within its ambit. The questioning was posed to advance a position that Smich had a disposition and ability to control or manipulate others. Evidence of violent temperament tends to support the foundation for this proposition and thereby suggest that Daly was intimidated by Smich. Mr. Pillay submits that this line of questioning was proper and the evidence is necessary to affect a balance between co-accused advancing antagonistic defences. His client’s character was not opened up for general rebuttal.
[12] Mr. Leitch, on behalf of the Crown, submits that there has not been an imbalance in the eliciting of evidence related to propensity or disposition of both accused during the cross-examination of Daly by counsel. The effect of the evidence of bad character introduced by Millard in cross-examination was effectively blunted in the cross-examination by Smich reducing any prejudice associated with the evidence. Millard’s general character was not introduced. There is no request by the Crown to rebut this evidence with the introduction of Millard‘s bad character or propensity evidence.
Legal Principles:
[13] In this trial, I already addressed some of the fundamental legal principles that are applicable for this type of application and need not repeat them again.
[14] In R. v. Earhart, 2010 ONCA 874, Simmons J.A., in concurring reasons, discussed the issue of bad character evidence being adduced by one accused against the other. At paras 148 and 150, she stated:
Assuming for the moment that the only route to a guilty verdict against Kirk was as a party, Kirk was entitled to rely on the bad character evidence to support his defence that Earhart was the killer and that he acted alone. The bad character evidence also remained relevant to raise a reasonable doubt concerning whether Kirk participated in the offence under duress and to support T.D.’s credibility. The bad character evidence had significant potential probative value for all of these purposes.
In the face of this evidence, the bad character evidence concerning Earhart’s disposition for violence was essential to Kirk’s ability to make full answer and defence because it supported the credibility of his assertions that Earhart acted alone in killing Sullivan and that, to the extent that Kirk participated in the events, he did so under duress.
[15] Where an accused seeks to introduce bad character evidence against a co-accused, the relaxed test for admissibility is whether the prejudicial effect of the evidence substantially outweighs its probative value: Pollock, at para. 110.
Discussion:
[16] General propensity evidence is generally not admissible at the instance of the Crown. Such is not the case here with counsel for both accused raising Pollock and Morrisson issues in order to attack the character of the co-accused in this joint trial. Although aspects of the bad character evidence had significant potential prejudicial effect, the bad character evidence retained high potential probative value for Millard’s defence. The balancing of the competing interests of both accused in an antagonistic defence situation is of paramount import.
[17] Ms. Trehearne referred to several cases, including R. v. Gager, 2012 ONSC 2697, [2012] O.J. No. 2085 (S.C.) wherein an accused argued that the co-accused had opened up his character to challenge by suggesting that the co-accused had opened up the issue of his character. I am satisfied that the case is distinguishable on several fronts, including the accused introducing his own good character in examination-in-chief. At para. 56 of the decision, the court referred to Watt’s Manual of Criminal Evidence 2010.
[18] I have reproduced the relevant principles found at the end of §32.02. [1]
Introduction of evidence of the bad character of a co-accused in support of a position that is more likely, on account of that character, that the co-accused committed the offence than the accused who elicits the evidence, poses substantial risks for the accused who introduces the evidence, and the integrity of the joint trial. By introducing the evidence, semble, a co-accused puts his/her character in issue, thereby permitting rebuttal by P, and the co-accused against whom the evidence has been tendered.
[19] This stand-alone statement suggests that the character of an accused is available for repudiation when an accused chooses to present this type of evidence against a co-accused. However, in my review of the section, the learned author does not point to a case which tends to support this proposition. It is important to note that the author specifically qualifies his assertion by including the word “semble” in this reference. “Semble” indicates that the point to which it refers is uncertain or represents only the judge's obiter opinion. [2]
[20] Indeed, there are cases that speak to circumstances when an accused raises an issue of a third party suspect or points to the deceased’s violent disposition that may open the proverbial door to good character, and permit refutation by the Crown. However, no authorities have been provided to me on whether the good character of an accused is put into play by the introduction of propensity evidence arising out of questioning subject to a Pollock and Morrisson application. In my review of the jurisprudence, there is no bright line statement of the law on this point.
[21] As Mr. Leitch points out, the real question is what, if any, effect does the introduction of this bad character evidence have on the ability of either the Crown or the co-accused to “balance the playing field” or “remove any distortion”?
[22] In my opinion, Millard’s general character has not been opened up by the questions posed by Mr. Pillay. Firstly, as stated in my mistrial ruling [2016 ONSC 2548 –unreported], Mr. Pillay’s line of questioning did not run afoul of my ruling. Counsel is entitled to delve into areas related to the exercise upon which they seek to cross-examine on the character of the co-accused, subject to the trial judge’s directions arising out of the Pollock and Morrisson application. I do not agree that any discreditable or violent propensity evidence against Smich was improperly adduced.
[23] It is clear that from my ruling on this issue, counsel was free to advance questions related to Smich’s behaviour or ability to intimidate others. It may be supportable by Daly’s fear or perception that Smich may be violent at times, and thus is a person who can be intimidating. As a result, Daly and perhaps others, (Arthur), did what they were told. The foundation for such a proposition is relevant and probative.
[24] That being said, the rap lyrics (to which I have now been provided with a copy) contain numerous other dire references to gratuitous violence and disreputable conduct. Mr. Pillay’s question to Daly was limited to the one stanza. In my view, the limited line of questioning is probative to another issue that arose during the course of this witness’ testimony, namely ownership, possession, or control of the alleged murder weapon, a .380 calibre firearm.
[25] As mentioned in my companion ruling, the one-line reference in the rap lyric to a .380 tends to corroborate Daly’s understanding or explanations and affords some evidence about the witness’ assertion that it was Smich’s gun in the tool box. It may also place into perspective Daly’s equivocal testimony about the discussion he had with Smich regarding bullets at the time they were viewing a YouTube video. I am satisfied that the reference to a .380 in the rap lyric deals with a live issue at trial beyond the notion of any propensity for violence that may be inferred by the second part of the one sentence. Recall that the witness did not unequivocally recall the lyric. It is, therefore, not evidence in this trial.
[26] Ultimately had it been raised in a timely fashion, I would have opined that the evidence was probative to a specific act of extrinsic misconduct. The questioning posed by Mr. Pillay was not of sufficient character leading to Smich’s general propensity for violence and I would have granted permission to introduce the evidence, including the limited reference to the one-line rap lyric.
[27] Secondly, under the Pollock and Morrisson and Earhart authorities, and subject to the limitations expressed in those cases, an accused is able to introduce this evidence to show that it is unlikely that he perpetrated the crime and more likely that the co-accused with greater propensity for violence committed the crime in order to make full answer and defence. The relaxed test for introduction of defence evidence must be used in this circumstance.
[28] Thus, bad character evidence or propensity evidence inadmissible in the hands of the Crown may be admissible to advance a defence on a substantially lower measurement of probative value. The cases where the Crown is permitted to “balance the picture” or “repair the distortion” are analogous to the “balancing of accused’s interests” mandated by Pollock & Morrisson and its progeny: R. v. Parsons, [1993] O.J. No. 1937 (C.A.), R. v. Pan, 2014 ONSC 6053.
[29] I agree with the Crown that at this juncture, there is no distortion because there has been an adequate balancing of the propensity and bad character evidence advanced by both accused against the other, to demonstrate that the co-accused’s propensity makes it more likely that he perpetrated the crime. Instructions to the jury had been provided to the effect that any bad character or propensity evidence can only be used to raise a reasonable doubt about the culpability of the party introducing the evidence.
[30] Thirdly, based on my review of the jurisprudence, I am not convinced that, in law, evidence of good character is automatically or presumptively introduced by the posing of questions to a witness related to bad character or disposition of a co-accused in a joint trial arising through a proper and pure application of the Pollock and Morrisson principles per se.
[31] As trial judge, it is fundamental that a proper balance be struck between co-accused in order to permit full answer and defence, while respecting the rights of all parties to a fair trial.
Conclusion:
[32] While there may have been some specific reference to Smich’s penchant for anger, violent tendencies arising from Daly’s testimony, its probity to a live issue at trial was established. In my opinion, it was not general propensity evidence and I am not persuaded that Millard’s good character had been introduced through his counsel’s cross-examination of the witness.
[33] The application is dismissed.
A.J. GOODMAN, J. Released: April 18, 2016
COURT FILE NO.: 14-4348 DATE: 2016/04/18 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown - and - DELLEN MILLARD Accused - and – MARK SMICH Accused
MID TRIAL WRITTEN RULING # 6- character evidence A. J. GOODMAN, J. Released: April 18, 2016
[1] Watt, D., Watt’s Manual of Criminal Evidence 2015, (2015: Toronto, Carswell).
[2] See Black’s Law Dictionary, 9th ed. at p. 1483, (2009: Thomson Reuters, St. Paul).